L 

INTERGOVERJ~MENTAL AGREEMENT BETWEEN 

THE SOUTHER.i~ UTE INDIAN TRIBE 

AND THE STATE OF COLORADO CONCERJ'i'lNG AIR QUALITY CONTROL 

ON THE SOuTHER.~ UTE INDIAN RESERVAnON 

THIS INTERGOVER.J'.TMENTAL AGREE?viENT is made and entered into by and between 

the SOUTHEIL~ UTE INDIAN TRIBE ("Tribe") and the STATE OF COLORADO ("State"). 

PURPOSE AND SUMMARY OF THE AGREEMENT. 

" The purpose of this Agreement is to establish a single air quality program applicable to all 

iands within the exterior boundaries afthe SOl!therr. Ute Indifu'1 Reser,1ation.("the Reser;ation Air 

Pragranl"). The Southern Ute Indian Tribe/State of Colorado Environmental Commission 

("Commission") established under Ll-Jis Agreement shall promulgate rules and regulations for the 

Reservation Air Program and shall conduct review of appealable administrative actions, pursuant 

to laws enacted by bot..1 pa:'ties, Any United States Environmental Protection Agency ("EPA") 

delegation to the Tribe as contemplated in this Agreement shall be cor:.tingent upon and shall last 

only so long as this Agreement is in effect and shall be exercised pursuant to tl-DS Agreement. The 

Cornmission shall be the air quality policy making and l'1e admipjstrative review entity for the 

Reservation Air Program. 'When all conditions and terms Oft..1is Agreement are fully in effect, the 

Tribe and the State intend that the Reservation Air Program shall be :m~lemented a..'1d administered 

by the Tribe, pursuant to a delegation from the EPA, through the use of the s:aff of the Tribe's 

Environmental Programs Division ("EPD"), 'Nith the participation of the State's A.ir Poll ution 

Control Division as outlined in tItis Agreement. 

II. BACKGROlJND. 

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The Southern Ute Indian Reservation ("Reservationlf) is located in southwest Colorado in the 

southern portions of La Plata and Archuleta Counties. Congress confinnea the boundaries of the 

Reservation in the Act of May 21,1984, Pub. L. No. 98-290, 98 Stat. 201, 202 (found at "Other 

Provisions" note to 25 U,S.C.S. § 668) ("P.L 98-290"). The Reservation encompasses 

approximately 681,000 acres, ofwhich approximately 308,000 surface acres are held in trust by tj,e 

United States for the benefit ofLl:J.e Tribe. Additionally, L'l-Je Tribe OV,'11S the minerai estate underlying 

a majority of Reservation lands. As L1e result of the historical allctment, homesteading, and 

restoration of undisposed of lands to tribal o'NTIersh.ip, the Reservatior is a checkerboard of land 

oVvTIerships, ijncluding: lands held in trust by the United States for the T:-ibe's benefit; lands held in 

tnlst by the United States for the benefit of individual tribal members; lands ovroed in fee by 

members of the Tribe; lands owned in fee by non-Indians; fu'1d National Forest lands. 

The Clean Air Act directs EPA to promulgate regulations specifying those Clea'1 Air Act 

provisions for which Indian tribes may be treated in the saIne manner as states for the purposes of 

primacy in the development and implementation ofair quality programs. 42 U.S.c. § 7601 (d). EPA 

promulgated such regulations on Februarj12, 1998. 63 Fed. Reg, 7253. Pursuant to the Clean Air 

Act and EPA regulations, tribes have the flexibility to assume responsibiliry for administering some, 
out not necessarily al;. Clean Air Act prograiTIS a.'1G preserving that flexibility is important to the 

Tribe. 

In July, 1998. the Tribe subr.1ined an application fortreo.tment as a state CT..\$ application"). 

In its application. the T:ibe requested it be treated as a stale \.vith respect to the admiillstration of 

Clean Air Act programs over an land located within the exterior bOlli,daries of:""e Reser-tation. The 

specific purposes of lle TAS application were to receive grant nmding under section 105 of the 

Clea.rl Air Act al1a reognition as an "affected Stale" to comment on d;-aft operating permits. The 

Tribe asserted in its TAS application thaI it has jurisdiction to regulate all sources of air pollution 

located within the Reservation's exterior boundaries under the Clea.! Air Act. L"1clu.ding non-Indian 

owned sources iocatec cn fee la.t1ds. 

In its comments ;)0 the Tribe's TAS application, the State has objected insofar as the 

application requests tnbal Clean Air Act authority over non-IMi2.i: o\:vned sources located on fee 

la.'1d \vithin L'1e exterior boundaries ofthe Reser,'ation. The State asserts that P.L. 98-290 establishes 

its jurisdiction to regulate non-India.'i c\vned sources located on fee la.;:loS within the Reservation 

boundaries. There: is no dispute as to the Tribe's jurisdictional authority to regulate sources of air 

poUution located on trust lands vvithin tne Reser..ation and L::dian-o'..'vned sources located on fee land 

within the Reservatior:.. 

The purpose of? .::... 98-290 was to avoid long 3Jid costly litigation over issues dependent on 

reservation or L-:ldian country status by confirming the bounda.-ies of the Southern Ute Indian 

Reservation and defmi:1gjurisdic1:ion within such reservation. Despite the enacHnent ofP.L 98-290, 

the Tribe and the State do not agree as to territorial and regulatory jW:1sdiction concerning the 

adm.inistration of Clean Air Act progra..-ns relative 10 Don-Indian air pollution sources on fee-land 

within the boundaries of L1e Reservation. Not\Viti1standing the Tr:be' s and the State' 5 conflicting 

iurisoictional assertions regarding the regulation of non-Indian sources of air pollution located on 

-fee la.'1ds v,rithin the boundaries of the Reservation, the Tribe 'L.-:d the State wish to work 

cooperatively to develop a comprehensive air quality prograITl applicable to all lands within the 

boundaries ofthe Reservation to improve and protect "the air quality on the Reservation. Jt is agreed 

that the air quality program to be developed pursuant to this Agreement should reflect the pa..'"1icular 

interests of the Tribe, yet remain compatible \vith State air quality goals. Tne State and the Tribe, 

as governments that stare conti'guous physical boundaries, recognize that it is in the interest of the 

environment and ail residents of the Reservation and the State of Colorado to work together to 

ensure consistent and comprehensive air quality regulation on the Reseryation W'ithout threat of 

expensive and lengthy jurisdictional litigation. 

The Tribe and State agree tbat the establishment of a single collaborative authority for all 

lands ·",..ithin the exterior bounda.ries of the Reserv'ation best advances rational, 50liJ,id, air quality

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rrJanagement and will minimize duplicative efforts and expendirures of monetaij' and prograHl 

resources by the Tribe and the State. The State a..'1d the Tribe alsc agree that the establishment of 

s,lch an ai:- progra..'TI \VC uld create th~ most readily detined regulatory envliOTh.'11ent for sources on the 

Reserv·c.tion. Therefore. this Agreement encompasses the regUlation of all air pollution sources on 

the Reser-ration. 

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III. AUTHORITIES. 

The Tribe is a federally recognized Indian tribe that is organized under a cor:srirJtion, 

approved by the Secretary ofthe Interior, pursuant to the Indiun Reorganization Act of 1934, ch. 576, 

48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461, et seq.). The Tr:bal Council of the Southern 

Ute Indian Tribe is authorized to act for the Tribe by the Constitution adopted by the Southern Ute 

Indian Tribe and approved by the Secretary of the Interior on November 4, 1936, and approved as 

all1ended on October 1, 1975. 

Colorado is a state admitted to the United States of Arnerica on an equaffooting, pursuant 

to Art. IV, § 3 of the Constitution of the United States of A..rr,erica. The State cfColorado was duly 

fonned in 1876 under its Constirution and Enabling Act. The Governor of the State of Colorado is 

empowered to 'act on-behalf of the State pursuall! to Art. IV of the Colorado Constitution and other 

authorities, 

In the Clean l·jr Act, Congress encourages cooperative activities a.'1d agreements betvJeen 

adjoining governments ror the prevention and control ofairpoilution. 42 U.S.c. § 7402. Moreover, 

EPA strongly encourages tribal a.rld State cooperation in the development of air programs. 64 Fed. 

Reg. 8253. 

IV. PRESERVATION OF JURlSDICTION A..ND SOVEREIGN IM.1\11JNITY. 

Nothing in thjs Intergoverr....rnental Agreement shaIl affect the respective jurisdictions oft.~e

Tribe and the State as set forth in P.L. 98-290, until and UI'Jess changed by federal legislation. By 

emering into this Agreement, neither the State nor the Tribe concedes or waives any legal argwnents 

concelT'..ing the authority to regulate non-Indian air pollution sources located on fee lands within 6e 

boundaries of the Reservation. Upon ter:nination of this Agreement, the parties acknowledge, 

understand and agree that tl'Js Agreement shall not operate as a bar, waiv~r of any rights of the 

parties, or in any respect affect the ability of an.y party to this Agreement to assert its arguments in 

~upport of its authority to regulate non-India.'1 air pollution sources located on fee lands v,;thin the 

boundaries of l~e Reservation. 

Nothing in tbs Agreement shall be construed as constituting a 'Naiver of any immunity by 

ei:her the Tribe or State for any pu.-pose whatsoever. 

v . PROCESS FOR ESTABLISHI~GTHE RESERVATION AIR PROGRAM. 

The Tribe and the State agree that estabEsh£ngthe Reservation Pir Program will take many 

steps an.d occur in phases. The panies set forth the phases here to serve as a context for the remainder 

of the terms of this Agreement. A description of the phases also clarifies the particular aspects of 

this Agreement that are operative at any given time..., 
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A. Formation Pb::lse. The Formation Phase is the time betv,:een execution of this 

A£reement and the e',2.crment of Tribal and SlJ.re legis:ation that approves of this Agreement and 

cr~ates the ComInission as provided in Sections VII a.::.d VITI. In the Fomation Phase. the Tribe and 

the State \vill seek the enabling legislation. If E? A grarltS theporricn oftne Tr:be' s TAS application 

seekinu urant authority only for the timited purpose of dete!'iT'.ining that the Tribe is eli~ible to 

recei\'; g~aj1t fund ing under section 105 oLhe Clean Air Act the State \vill not contest this-limited 

EPA finding. To imt:lement the tenns and conditions of this Agreement, tbe EPA wi]] also have to 

find l~"'J.at the Tribe has authority 1Q and is eligible to implement a regulatory program underthe Clean 

Air Act. The Tribe will incorporate t.his Agreement and the Cormnission's role under this 

A~reement in any amended TAS application or request for EPA delegation to the Tribe of Cleal! 

Air ,6..ct procrai11S. The Tribe and the State agree that they will cooperate to obtain this fw"'1her 

finding ~d ~?proval from EPA as ;s necessary for and subject to the performance afthis Agreement. 

The paIties win also seek federal legislation as set forth in this Agreement. During the Forrr:ation 

?hase:-the T-ribe-a..id·the State -"":111 work cooperatively to adrniniste~ .:::d e;:L.=:.rce an air quality 

prograt'11 f~:Jr the Reserv'atlon. as provided in Section IX. 

B. Development Phase. The Development Phase is the time period after enactment of 

the tribal and .StaTe-legislation creating..the ComInission and its authority and before adoption of 

federal legislation and delegation by the EPA of any Clean I\i:- Act programs. In t....~e Development 

Phase, ,-,"e Commissicn will determine which parts of the Clea..'1 Air Act or other air prograIDs to 

incorporate into the Resef'l.:ation Air Program, based on State or other regUlations as modifJed by the 

Corr:.;::-jssion to address :he part;c:.J.lar iocal circumstances of the Resen'aticn. The Tribe will then 

apply for delegation of those progralTlS from fP.:'.. such deJegatior: jeing conditioned upon 

compliance \~lith this Agreement, including the COITunission's authority to j)CLrticipate ur:.der this 

Agr~ement in the admi:1istration of the Reservation Air Program. The COITlIrussion -will also adopt 

or;cedural rules and regulations for the Reservation .Air Program. Tne Comnlission \Vill work 

--~.o0perativelywith	 the Tribe's-EPD staff.i.p..the.a(b'Djnis!ratia..."LIDd.impJg:;n~m.ationofth~_Reserxation

Air Program, as set forth in Sections VII and VIII. The pa.."1ies shall also diligently seek federal 

legislation dUl-lng the c.evelopment phase. • 

C. Program Phase. The program phase is that time period after enactment of federal 

legislation tlJ.,C after acrual delegation of Clean Air Act PrograITlS by' the EPA. At that poi:!! ajl 

components of this Agree:nent will be in effect. 

\>1. CONDITIONS. 

A. Legislative Ratifica riOD. As a condition to implementation of this Agreement, the 

parties agree that this Agreement must be approved by the Colorado General Assembly. 

B. State Statutory Enactment. As fu"1 additional condition, the pfu"ties agree that the 

state legislation needed to implement the terms of this Agreement, includ~ng autJ1Orizatior: fo:­

creaTion ofajoint Southern Gte Indial1 Tribe/State ofColorado EnviroD..mental Contwl Corn.rr.ission, 

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shall be enacted by the Colorado General Assembly during the Second Regular Session ofthe Sixty·­

Second General Assembly. ­

C. Trjb~d Enactment. A.s all additional condition, the parties agree that the Tribe, 

through irs Tribal Council, shall enact such resolutions or ordina.T1ces 3?proving and pennit1ing the 

implementation of this Agreemem. including authorization for creation of a joint Southern Ute 

India.'1 Tribe/State ofColorado Environmental Control Comrnission, no later thaIl Ja!lUary 26,2000. 

D. Agreement for Federal Enactment. The parties agree to support a.:ld to seek the 

passage of federal legislation, as provided in Section XI. The parties agree to seek and suppon 

passage of such federal legislation during the Congressional session held during the year 2000. As 

an additional condition, if such federal legislation is not enacted withi:1 two years of the effective 

date of this A.greement, this Agreement shall become null and void. 

VII. THE STATEfTR1BE ENv1RO~MENTALCOMM:ISSION. 

The Tribe and the State shall establish a joint Southern Ute India."1 Tribe/State of Colorado 

Environmental Control Commission ("Commission"), by the enactment oflegislation by each pa.n)'. 

The Commission is not an agency of the State of Colorado nor L~e Southern Ute Indian Tribe, but 

is a sepa.""8.te entity. 

The Commission shall consist of six members, three of whom shall be appointed by the 

T:ibal Cou..."lcil of the Tribe and three of whom shall be appointed by the Governor. COITlInission 

members shall serve forule terms and under the conditions specified in the enabling legislation. The 

Commission shall a.TL'1uaIly elect a person to preside as chair. The chair shall alternate allDually 

between a tribal arlO State member. During their term of service, a member may be removed \/viti: 

--6fwitl'iTjtlt-Caus·e-onITb;tth-e-atn:hority-tJl:at-aflpointed.!,hat member. 

The Commission shall only act by a majoriry vote of all of its members. 

The purpose of the Commission is to establish the mles and regulations applicable to L>:Je 

Reservation Air Prograrn and conduct review of appealable administrative actions. Both the Trioe 

and the State may advocate any pa..'"1icular interest or vievvpoint to the Cornmission, but 6e 

Commission is empowered to make rules and regulations for the Reservation Air Progra..To and to 

review aDpe'alabJe administrative actions ta..<en by the Tribe. \Vhile this Asrreemenl is in effect. C'1e <0 " -

Tribe and the State shall recogpjze and abide by the Commission's decisions, a.."1d its rules and 

regulations. 

To carry out its functions, the Com..rnission may call upon the employees of the Tribe T s 

Environmental Programs Division and the State's Air Pollution Comro: Division, as more fully set 

forth in Section VIII of this Agreement. 

The duties of the Commission shall include the responsibility to: 

<: 

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(a)	 determine the specific piOgrams under the Ciean Air Act. or other air programs. that 

should apply to the Reservation. by taking into account the specific envi:onme!~taL

economic, geographic and cultural needs oftne Reservation; 

(b)	 promulgate relies and regulations that are necessary for the proper implementation 

and adminisLT:J.tion of those programs, including determining which administrative 

actions are appealable to the Corr:.:.-nission; 

(c)	 establish procedures the Commission will follow in proillulgating rules and 

regulations, allG for review of appealable administrative actions t~en by the Tribe; I 

(d)	 review and approve of a long-term plan, initially prepared by the Tribe, fOj 

improving and maintaining air quality within the Reser/ation, which also takes into 

.__ account regional pla:::ung in the La Plata a:1d Archuleta Coumy :-egion: 

(e)	 monitor the relationships alTlOng the State and tribal environmental protection 

agencies to facilitate infonnation sharing, techn.ical assistance aIle training; 

(f)	 review acL.-ninistrative actions ace ()roing to the Cor.:u:liss ion's adopted admL'listrative 

procedu.res; 

/u)	 approve ar:d adopt fees for permits and other regulatory services conducted by the \: 

Tribe 0: the State, 3.J.J1er considering a proposed fee schedule prepared by the Tribe, 

and direct payment of fees by air pollution sources to the Tribe; 

(h) ens~e consistency and adherence to applicable standards and resolve disputes 

0_.__0_ =.involving.thirdparties; :-:--=-;.,..,,~::,...._---.. . 

0)	 review emission inventories as c.eveloned by the Tribe and State: . . . 

conduct public hearings pertaiTi::g to the adoption of rules and regulatlOns, or 

relating to review of appealable adIIlinistrative actions, and issue orders resulting 

from those proceedings; 

(k)	 , request tribal staff to perform any administrative or clerical functions necessary to 

issue orders and conduct Corr....-nission business, or the Commission at its option may 

appoint a technical secretary to perfonn such duties, except that no authority shall be 

deiegated to adopt, promulgate, amend or repeal standards or regulations, or to make 

determir.ations, or to issue or cOll.'1termai1d orders of the COITll:1ission; 

( oj 1\	 any other duties necessa...ry to accor::piish the j)UljJoses of this Agreement, and as

2utho:1zed by the State 3.J.~d tribal enabiing legislation. 

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VIII. ADl\,UNISTRATION OF THE RESERVATION AIR PROGRAM. 

The Commission is the policy making and administrative review authority for the 

ResentatlOn Air Program. The ComInission may call upon either tribal or State staff for assistance 

in ca.rrying out its responsibilities pursuant to this Agreement. The Tribe and the State agree that 

during the DeveJopment and Progra'11 Phases, tribal employees shall assume the primary role for 

day-to-day administration and enforcement. 

A. Duties of Tribe. The State and Tribe agree iliat the day-to-day adrr.inistration and 

enforcementofthe Reservation Air Program shall be the responsibility ofthe Tribe. The Tri be agrees 

tha! it shall administer and enforce the standards, rules and regulations adopted bythe Corrunission 

for the Reser-tatlon Air Program. The Tribe may also promulgate rules and regulations that are 

consistent vlith th.e rules and regulations adopted by the COli'..Inissior: and necessary for the Tribe to 

maintain its delegat:ons from EPA obtained to perform this Agreement. 

In addition to OL'1er responsibilities that :},e pa.l1ies may agree are necessary for L1e effective 

implementation df this Agreement, It is agreed that the acL."T.linistrative and enforcer:1e::t 

responsibilities of the ~ribe shall include the responsibility to: 

(a) prepare initial drafts of rules al1d regulations for the Reservation Air Program for 

review by the State and, ultimately, for consideration by the Commission; 

(b) administer all activities related to permits including, for exa.Tllple, pecmit application 

review, permit issuance, pennit modification procedures, and conduct all permit processing; 

(c) colleCT data., by means offield smdies aIld air monitoring conducted by the Tribe ;)r 

by individual stationar:" sources-and-mobite-air pollution sources, and determine the nature and 

quality of existi.ng ambiem air throughout the Reservation; 

(d) conduct inspections of aT1Y property, premises, or place within the Reservation with 

respect to any actual, suspected, or potential source of air pollution or for ascertaining compliance 

or noncompliance with any applicable requirements; 

(e) furnish technical advice and services relating to air pollution problems and control 

tech.niques; r 

(f) initiate enforcement actions when t~e results of atmospheric tests conducted establish 

that the ambient air or source of emission of smoke or air pollution fails to meet the applicable 

standards; 

(g) develop a long-term plan, for approval by the Commission, for improving and 

maintaining air quality within the Reservation, \vhich also takes into account regional planning in 

the La Plata and Archuleta County region; 

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(h) prep8Je a fee schedule fer approval by the Com,,'TIission. a..'1d to colle::t said fees as are 

necessary for the adminis[;oation of the Reservaticr. Air Progra..J1 and the COfTiInission expenses. 

consister:.t with sub-section B belo'.\'; 

(i) expend and account for funds. either collected from air pollution sources or granted 

to the Tribe by the EPA to administer the Reservation Air Program, for reasonable and necessary 

expenses to administer the Reservation Air Program; 

(' J) establish emission inventories; 

(k) issue permits and enforce the :er:ns and conditions o[pecri:s; 

(I) gather ir.formation from sources of air pollution; 

(rr.) \ issue cease 2;.lid desist orders, and take other emen;:encv actions as rna\-' be necessarY ..... .. , -I. 

to prote~t the public jealtb., welfare and the enviror.Jnent; 

(n) issue notices of violation as may be required; 

(0) requir~ any air poJution source :0 furnish iriormation related to source emissions or 

:0 3.J1)1 investigation authorized by Ja'.v or regulation, and to obtain from a court of appropriate 

jurisdiction a subpoena to compel the production ofnecessary doc:..:.:nents to obtain such information; 

(P) prepare applications for delegation of programs from EPA, in furtherance of this 

Agreement. 

The Ttibe-slfa:U-afford the State, trJJough its Air Quality Control Division and Air Quality 

Control Commission, L1e opportunity to participate in the carrying out ofsuch responsibilities by t...l:le 

Tribe, ttJough appropriate notice, COtrl.O'11ent a..'1d consultation. • 

B. Funding for Commission and Program Costs. Once the Comrnission is established 

and during t.1C Program Phase of this Agreement, it is L'le intent of the Tribe and the State that 

funding for administration of the Reservation Air Program and the CO!1lt"TIission's expenses shall 

come from fees and gTat"'1ts. Pursuant to Section VII, the Comm:ssion shall establish fees for air 

pollution S01:lTces and direct payment of those fees to L'1e Tribe. The Tribe shall apply for a.."'1d may 

receive grfu"its from EPA for administration of the Reservation Air Program. From these revenues 

(i.e., fees and grants), the Tribe shall fund the staff and program costs necessary to perfonn the 

Tribe's duties under this Agreement. The Tribe shail pay the State for the personal services costs, 

at a rate of compensation determined by contract, of any State employee who participates in the 

administration of the ReseiVation Air Program pursuant to this Section VIII. It is the intent of the 

Tribe and the State that fees shall also be suff1cient to cover the Commission's necessary' expenses. 

The par1ies agree that they may also jointly seek funding from EPA for the necessary expenses of 

the Commission to perform its duties. To the extent such EPA funding is not obtained Or iffunding 

from fees is not allowed by the Clean Air Act. the State 8..11d the Tribe each wiil be responsible for . .. 

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funding associated with the participation of their representatives on the CO!TIrnission. However, 

State funding for its expenses is conditioned upon appropriation or the aV2.ilabiJity ofother state-only 

funds that the State could use for this purpose. 

IX. TRIBAL AND STATE COOPER~TION DURING THE FOR\IATIO;"; .A.-ND 

DEVELOPMENT PHASES OF THE RESERVAT10N AIR PROGR~M.

The panies recognize that L~e fulfillment of the pu.rposes of this Agreement will require 

communication, collaboration a.'1d cooperation among the State, Tribe, and federal governments, 

State agencies such as the Department of Public Health and Environment and the Air Pollution 

Control Division, the Tribe's Environrnental ProgTaffis Division, EPA, and the Commission. Such 

cooperation is especially needed during the formation and development phases of this Agreement. 

A. Air-Prog'ram During tb'eFormation and Development Phases. 

During the Formation and Development Phases, the Tribe ""'ill wcrk cooperatively v,'ith EPA 

to allow direct EP A. implementation ofClea11,AJr Act requirements for sources located on trust lands 

afJd Indian sources located on fee laT"lds within the Reservation. With regard to Fee Lands, the Tribe 

will not j urisdictiona1!y challenge the State's administration of such programs with respect to nonIndian owned air pollution sources located on fee lands withjn the Reservation. During: the 

formation and development phases, for regulation of non-Indian air pollution sources on fee lands, 

the State and the Tribe shall participate together in regulatory activities. L'1 its administration of 

permits for non-Lrldian air pollution sources on fee lands, the State shaL 

(a)	 notify t.'1e Tribe upon receipt of permit applications and afford the Tribe 3.J~

opporrunlty to participate in the review of permit applications; 

(b)	 afford the Tribe the oppornmity to review and comment, within thirty (30) days, on 

draft notices of violation, draft consent orders, draft complian~e orders, and draft air 

pollution source permits prepared by the APCD; 

(c)	 afford the Tribe the opportunity to panicipate m source inspections and :n 

surveillance activities; 

Cd)	 notify the T:ioe and provide for tribal participation in decisions cor:cc:-::iDg potential 

enforcement actions, incl:.:ding penalties to be assessed, a.'1d partici pation in aE notice 

of violation conferences. 

1. Funding during the Formation and Deyelopment Phases. Du.:.-ing the 

Formation Phase, the State \Vi]] continue to assess and collect fees as pDvided by Colorado statute 

and will expend such p.mds to administer the State program for non-lndiaT'J sources Of. fee lands. The 

Tribe will use its o\Vn funds or may apply for EPA grants to fund i':5 activities. During the 

Development Phase, permitting fees and any other fees for non-Indian owned sources located on fee 

lands will be divided bet\veen the Tribe and State in a manner that is commensurate with the 

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responsibiJitles, costS .n::urrd, aId time' spent by each parry 'With respect to SL:cn pe:rnits and su6 

di\,:ision of fees shall be aut.honzed pursuant to the Slate and tribal iegislation conter:1piatec hereiD. 

The oanies shan ende::lvor to reach agreement on:he appropriate division offees prior to L1e conduct 

of l1~Y ,vork related to such permits. 

B. Other Cooperation during the Formation and Development Phases. 

During the time period that the COffiInission is being created by State and tnballegislation, 

ar,d Drior to tne time th3.1 -:'PA delegates specific progrm,s to the TriDe, (be Tribe and the State acree , ­ to cooperate as follows: 

1. Technical Assistnnce. The State, by and through the APeD, wiD advise L1e 

T;ibe about the kinds cfteclmical assistance that it can provide, The Tribe, ",;th the assistance ofthe 

APeD, 'Will develop tecl-.u"1icar -assi5tance-p-rit>nties~-Th.e·-A.PCD ",'"ill make available tecrs:ical 

expertise from all APCD progralTI areas to assist the Tribe in the development and management of 

the Reservation Air Program aIld to assist the Tribe in developing its Owl) teciulical expertise in air 

resource management, The Tribe alld the APCD agree to exchange technical expertise regarding: 

maners of mutual interest. Unless otheJ"\';ise required by state 'or fede:al law, the APeD sh.all not 

share or :-ele2se to any other governmc:1tal or private agency or person, without the 'mitten consent 

of the Tribe, any information obtained ~y the APeD from the Tribe or i::1Tormation generated by L'1e 

APCD u-.:roug.h technical assista11ce to the Tribe; provided, hcwcve:, this confidentiality requiremer.t 

shall :1.01 apply :0 information which has alreacy been disciosed TO the public "::>y the T:ibaJ Council 

or its ....epresentatiyes a.'1d information that L1.e Tribe specl!ically appToves for distribution to the 

public. If the APeD :-eceives a request under the state Open Records Act to disclose coniidential 

information, the APeD shall notify the Tribe of the request 'Wit1in a time sufficient to enable the 

Tribe to assert its claim to confidentiality prior to the APCD producing any requested documents. 

2. Training. Upon request, the Tribe will help APCD employees improve their 

und;;rstancir:g of Southern Ute traditional values a.'1C practices, natural reso~ce vaiues, treaty a.."1d 

othe: federally reserved rights, and relevant law eLforce:ne;1t pOIJcy issues, The .AJ'CD -wiI: provide 

the Tribe with access to APeD training programs. To facilitate the anenda."1ce oftribal personnel at 

.AJ'CD training progra..us, the APCD shall notify te'1e T:i.be in advance of such programs. 

3. :Fund ing. During the Frogr2Ji1 Phase, the Reservation Air Program shall be 

funded as set forth in Section VIII above. 

X. ENFORCEMENT AND JUDICIAL REv1EW. 

A. During Formation and Development Phase. 

Pr:or to L'1e formation of L'-Le ComJnission and the adoption of the federal legislation and 

actual EPA deiegation of Clean Air Act programs. the pa."1ies agree that the State Ii:1ay exercise civii 

and criminal enforcementjunsdiction over non~Indians on fee lan.ds within Reservation boundaries 

fer violations of apPlicable air quality regulations. Appeals of State air enforcement action and 

10
 
other air quality related decisions may be brought in Slate coun consistent with State law and 

regulation. Pursuant to P.L. 98-290, the Tnbe may exercise jurisdiction over Indians on ali lands 

\vithin the boundaries of the Reservation, and over non-Indians on trust land. for violations of 

applicable tribal air quality regulations. Nothing herein is intended as restricting, diminishing or 

defining the jurisdiction of EPA. 

B. During tbe Program Phase. 

1. Civil Enforcement Action. Fallowing the adoption ofthe federal legislation 

and EPA delegation of Clean Air Act programs contemplated by this agreement. the Tribe .."rill 

exercise civil enforcement jurisdiction over any persons on all lands wi thin Reserv'ation boundaries 

for violations of the Reservation air quality progr-alTI, subject to administrative review by the 

Commission. Consistent with the federal legislation contemplated by this Agreement.. final decisions 

of L1e Commission "Will be subj ect··wreview--m-federal·distr-ict-court in accord with the provisions 

of the federal Administrative Procedure Act. 

2.' Criminal Enforcement Action. Follovvi:1g L.'"1e formation ofthe CorrunissioD 

and the adoption of ~he federal legislation contemplated by this agreement,- it is L,1e intent of the 

parties that EP A. vtill exercise criminal enforcement ju..-isdiction over ar:y persons on allla.11ds v..i:h 

Reservation boundc.ries for violations of the Reservation Air Program. 

Xl. FEDERAL LEGISLATION. 

The State and Tribe agree to seek cooperatively federal legislation to confmn the eligibility 

oft...1e Tribe ro receive a delegation of authority to admirjster programs under t.he Clean Air Act for 

all larlds v,ithin the bounda."ies ofthe Reservation, contingent upon the continued existence oftrus 

Agreement. The purpose of the federal legislation will be 1:0 facilitate the delegation of authority 

to the Tribe pursUlh'"Jt to tIle tems and conditions of this Agreement and t9 provide an effective 

mechanism for L,1e enforcement ofprogram requirements and for administrative and jUdicial review. 

It is agreed that the panies will seek legislation whereby, not:\Vithstan.ding any limitation contained 

in PL. 98-290 cir any other limitation contained in federal law, u.1e Tribe Will be authorized to be 

Treated as a State for Clean Air A.ct purposes for all lands within the Reservation and recognized as 

eligible to receive a delegation ofauthority from EPA to administer programs pursuant to the Clean 

Air Act, provided that Lhis Agreement and the join! Southern Ute Indian Tribe/State of Colorado 

Enviror.u"'!1enjai Control Cornm:sslOn, established pursuant to State and tribal law as provided herein, , . '~+.

remams m e!~ect.

XlI. TRlBAL TREATMENT AS A STATE APPLICATIONS AND REQUESTS FOR 

PROGRA..lY1 APPROVAL 

During the Development Phase, l1)e Tribe shall apply to EPA for approval of Clean Air Act 

programs and delegation to the Tribe of the authority to administer such programs with respe::t to 

all lands "."ithin the Reservation, as determined by the Commission a.l1d subject to the terms of this 

Agreemenr. The State agrees that it will not ju.risdictionally challenge ~he Tribe's requests to EPA 

11 

# .. 
fei appro""al ofthese programs or delegation to the Tribe ofthe authority to administer Clean Air Act 

progr3.rns vvith respect to the Reservation. including non-Indian fucilities located or non-Indian 

actiYities conducted en fee lands within the boulldaries of the ReserJation, provided such requests 

are pursuant ro the deteI7f11nation of the Commission and subject to the terms of this Agree~ent.

For Indian tribes establishing eligibility pursuaZlt to 40 C.F.R. § 35.220 (a), EPA may provide 

fir:ancial assista.'1ce in an 2...'110unt up to 95 percent (95%) of the approved costs of planning, 

developing, establishing, or approving an airpoilution control prograrn, and up to 95 percent (95%) 

cfthe approved costs of maintaining that program. 40 C.F.R. § 35.205. 

The Tribe and tl'1e State agree to cooperate in see.King from EPA a.ny recognition of or 

dele!Zation to L'1e Tribe necessary to ca."TY out the terms and conditions of tllis Agreement. The State 

a2re~s that it will support a."l amended or additional TAS application or request for prOl!rai"!1 

d~le£ation by the Tribe which incorporates the terms ofthis Agieement. The Tribe agrees that it..."ill 

not s~bmi t a request for approval of a Clean Air Act prograrn or for approval of partial elements of 

a Clean Air Act program urJess asked to do so by the Commission and in accordance 'wiili ti.e 

requireme:1ts cond.:.::ed in t...l.J.is Agreement. 

XlII. MIS CELLk"'<EOl.)S. 

A. Effective Date. Ti'Js Agreement shall begin ac"ld become effective when executed 

by both parties. 

B. Amendment. The parties may amend this Agreement fTom tL.'TIe to time in \N1'iting, 

provided that such amendment must bear the signature ofan authorized representative ofeach party. 

This provision for amendment is not intended to grant to any pany individually or to the parties 

coilectively any legislative authority to cha.'1ge State OJ Tribal law ·wit.~out the concurrence of the 

appropriate legislatlve.body. 

C. Termination. This Agreement shall continue in effect until terminated bv• Jioint 

aQTeement ofthe parries, provided, however, that either pfu"'ty may tenninate L.~.e agreement contained 

herein by giving advance written notice of one year to the other parry. Any termination of this 

Agreement shall serve to end the delegation from EPA to the Tribe to administer any Clean Air Act 

progr2.1'TIS delegaH~d pursuant to this Agreement. The termination of this Agreement shall also 

operate as a:rautomatic repeal of :he State and tribal legislation enacted pursuant to Section Vi of 

tris Agreeme:1t. 

D. Notices. Notices hereunder shall be in \vTiting and shail be given by personal 

delivery or by deposit in the United States mail by certified mail, re.turn receipt requested, postage 

prepaid 3..l.'1d addressed to the Tribe and the State at the addresses set forth below, Or such other place 

as is provided (0 the other parties by 'NT:inen notice: 

12 
Southern Ute Indian Tribe Southern Ute India.'1 Tribe 

.A.ttention: Tribal Chairman with a CORY to: Environmental PrograrTlS Division 

P.O. Box 737 ----. _ Auention: Director 

Ignacio, CO 81137 P.O. Box 737 

Ignacio, CO 81137 

State of Colorado Execu:ive Director 

Office of the Governor with a CODY to: Colorado Department of Public 

136 State Capitol Health and Envirorlmenr 

Denver, CO 80203- I 792 4300 Che:ry Creek LDrive South, 

Buildinll A, First Floor 

Denver, CO 80246-1530 

... :.-::-·-.-Attorney-General 

1525 Sherman Street, Tn Floor 

Denver, CO 80203 

Notice shall be effective as of the date of receipt. 

E. No Third Party Beneficiaries. This Agreement is made and entered into for the 

sole protec!ion a.'1d benefit of the Tribe and the State, a.'1d is not intended to create any benefit, 

obligation, or cause of action, whe6er direct or indirect, for any party not a s:gnatorj to t:1is 

Agreement. 

F. Severa hility. If any provisions of Lrus Agreement are determined to be prohibited 

by or invalid under applicable laws, th.ose provisions shall be ineffective only to the extent of st::ch 

prohibition or iny alidiry; Vvi'th0ut-affecti:Eg-the-v-al..iclity..or-enforceability.0 f the remaining provisions 

~fthis Agreement. The Tribe and the State agree to ~eet and negotiate in good faith to a.'1lend 6is 

Agreement in the event any provisions are deteffilined to be prohibited by or invalid under applicable 

laws. 

G. Complete Understanding. This Agreement is LT1tendec as the complete integration 

of all understandings between the parties concerr.Jng the Reservation ..6Jr Program. No prior or 

contemporaneous addition, deletion, or other amenciment to tbs AgTeement shall have any force or 

effect whatsoever, ll11less embodied in tills As:eement. r -

H. Periodic Review. On the an11iversa.r y date of this Agreement Or on some ot.her 

mutually agreed upon date, but in no event less than every tr.J"ee years, the parties to this Agreement 

agree to meet and confer to discuss compliance, progress in implementation, whether a..'11endments 

are necessary, and other issues related to this Agreement. 

13
 
rr..; WITNESS WIIEREOF, the par:ies have ca.l.;sed this ,iI.greement 10 be executed, 

SOUTHERJ'J UTE [\JD;AN TRIBE STATE OF COLOR;\DO 

------ .. / ....', J "l' ( \

, ICc~,---{ Cb \ ~U) ~)W{;L,. ',<­ .. Bv.'- II v~:::::±::-~-<.l,( /. \, ~0""" By:::-:- -:- _ 

. Howard D Ri' . S V' eh 'Y' .. cnaras, L, lee· ,amnan Bill Owens, Governor Date 

ScuLhem Ute Indian Tribal COili'1cil 

D~~;ZC-'(/~E~'( I~. \/ \:' /999 f~ \(/1 I (/' ,~

\ \J..j..'""'-. Jc...x~ 'l", \ 2 ! l :) } Q C. __....:.---=----O:.....:::~----.:.-.!...\..:.. ! L I

Ken Salazar, Attorney General Date 

I' 

14
 
AMENDMENT TO INTERGOVERNMENTAL AGREEMENT BETVt'EEN THE
 

SOUTHERN liTE INDIAN TRIBE AND THE STATE OF COLORADO CONCER.~ING
 

AiR QUALITY CONTROL ON THE SOUTHERN lJTE INDIAN RESERVATION
 

The Southern Ute Indian Tribe and the State of Colorado agree to amend the 

Intergovemmental Agreement between the Southern Ute Indian Tribe and the State ofColorado 

Concerning Air Quality Control on tbe Southern Ute Indian Reservation, dated December 13, 

1999, in accordance mth section XITI (B) ofthe Agreement, as follows: 

Section VI (D) shall be deleted in its entirety and replaced with the following: 

Do	 Agreement for Federal Enactment. The parties agree to support and to
 

seek the passage offederal legislation, as provided in Section XI. The
 

parties agree to seek and support passage of such federal legislation during
 

the Congressional session held during the year 2000,2001, and 2002. As
 

an additional condition, ifsuch federal legislation is not enacted within
 

three years oftbe effective date oftrus Agreement, this Agreement shall
 

become null and void.
 

All other provisions in the Agreement shall remain the same. 

SOUTHERN UTE INDIAN TRIBE	 STATE OF COLORADO 

---.." <;1;' (\ BY:\~(V:~)

Bill Owens, Governor-- Date. _, ( f 

t e:-.- t'-l(), 

BY:\~ Ken Salazar, Attorney )~Genefal 

Date \. '" { :L"t I LD, I 

C:\TEMPIJGA Amendm<:ot wpd 11127/01 

Date 

L 
-------

SECOND AMENDMENT TO INTERGOVER'i'MENTAL AGREEMENT BETWEEN
 

THE SOUTiIERN UTE INDIAN TRiBE AND THE STATE OF COlLORAdJ10
 

CONCERL"ING AIR QUALiTY CONTROl, ON THE SOUTHERN UTE liNDllAN
 

RESERVATION
 

The Southern Ute Indian Tnbe and the State of Colorado agree to amend the 

Intergovernmental Agreement between the Southern Ute Indian Tribe and the State of Colorado 

Concerning Air Quality Control on the Southern Ute Indian Reservation, dated December 13, 

1999, in accordance \'/itb section XIII (B) of the Agreement, as follows: 

Section VI (D) shall be deleted in its entirety and replaced with the following: 

D.	 Agrennent for Federal Enactment. The parties agree to support and to 

seek the passage of federal legislation, as provided in Section XI. The 

parties agree to seek and support passage of such federal legislation during 

the Congressional session held during 2003. As an additional condition, if 

such federal legislation is not enacted by December 13,2003, this 

Agreement shall become null and void. 

This amendment may be signed by the parties in one or more counterparts, each of which shall 

be deemed an original, but aU of which together shalJ constitute one and the same instrument. 

AJ] other provisions in the Agreement shall remain the same. 

SOuTHERN UTE INDIAN TRIBE	 STATE OF COLOR./\.DO 

I ( 

\'2..\ t)\O'L 

\ ' 

By: _ 

Pearl E. Casias, Acting Tribal Chainnan Date 

\ / r-.........
 

i'--- \ ~'i \'\ r. \ /', "l:JiC;i By: \ '~',/h -.J (, 'J:.J\CC-" I ( ( I ~0 <~

Date Ken Salazar, Attorney Ge~ral Date 
SECOND AMENDMENT TO iNTERGOVERNMENTAL AGREEMENT BETWEEN
 

THE SOUTHERN UTE INDIAN TRlBE A.ND THE STATE OF COLORADO
 

CONCER..T\l'ING AIR QUALITY CONTROL ON THE SOUTHER~UTE INDIAN
 

RESERVAnON
 

The Southern Ute Indian Tribe and the State of Colorado agree to amend the 

Intergovernmental Agreement between the Southern Ute Indian Tribe a:1d the State of Colorado 

Concerning Air Quality Contra] on the Southern Ute Indian Reserva(ion, dated December 13, 

1999, in accordance with section xm (B) of the Agreement, as follows: 

Section VI (D) shall be deleted in its entirety and replaced v...·ith the following: 

D.	 Agreement for Federal Enactment. The parties agree to support and to 

seek the passage of federa1legislation, as provided in Section XI. The 

parties agree to seek and support passage of such federal legislation during 

the Congressional session held during 2003. As an additional condition, if 

such federal legislation is not enacted by December 13,2003, thlS 

Agreement shall become null and void. 

This amendment may be sigrled by the parties in one or more counterparts, each of which shall be 

deemed an original, but all of which together shall constitute one and tr.e same instrument. All 

other provislOns in the Agreement shall remain the same. 

SOUTHERt1\J UTE Ii'H)LA.N TRffiE	 STATE OF COLORADO 

./)
 

\~ . . ;J .
 By: i. J!e~__ By:	 _

jearl E, Casias, A{ting Tribal Chainnan Bill Owens, Governor Date 

/	 . 

By:	 _ .A:~. {

/ 

(. 

I 

Date ) 

Ken Salazar, Attorney Genera] Date 
THIRD Al\IE:"JDMENT TO mTERGOVERNMENTAL AGREEMENT BET\VEEN
 

THE SOUTHERJ""l UTE INDIAN TRIBE AND THE STATE OF COLORADO
 

CONCERNTNG AIR QUALITY CONTROL ON THE SOUTHERN UTE INDIAN
 

RESERVATION
 

The Southern Ute Indian Tribe and the State ofColorado agree to amend the 

Intergovernmental Agreement between the Southern Ute Indian Tribe and the State of 

Colorado Conceming Air Quality Control on the Southern Ute Indian Reservation, dated 

December 13, J999, in accordance with section XIIJ (B) of the Agreement, as follows: 

Section VI CD) shal1 he dekted in its entirety and replaced with the following: 

D,	 Agreement for Federal Ena.ctment The parties agree to support and to 

seek the passage of federal legislation, as provided in Section XI. The 

parties agree to seek and support passage of such federal legislation during 

the Congressional session held during 2004. As an additional condition, if 

such federal legislation is not enacted by December 13,2004, this 

Agreement shall become null and void. 

This amendment may be signed by the parties in one or more counterparts, each of which 

shall be deemed an original, but all ofwhich together shall constitute one and the same ( instrument. All other provisions in the Agreement shall remain the same. 

SOUTHER1"J UTE INDIAN TRlBE STATE OF COLORADO 

;' 

By:J),.~~{~ j~~ Bv: "' _ .._. ------ Howard D. Richards, Sr., Bill Owens, Governor Date 

Tribal Chainnan 

By: _ 

Ken Salazar, Attorney General Date 
fROf.tol)EPT. or LAW	 3038565571 

mIRD AMFNDMEN'f TO lNfERGOVERNME:.~ AL AGREEMENTBBTWEEN 

THE SOunmRN UTE 'D\1J!AN TRIBE Al-ID THE STATE OF COLORADO 

CONCFJtNINO AIR QUAlJTY CONTROL ON THE SOU"I'HF-RN lrr:E INDIAN 

RESERVATION 

The Southern Ute Indian Tribe and \JI.e State of Colorado agree to amend the 

Intergovernmental Agreement between the Southern Ute Indian Tribe and the State of 

Colorado Concerning Air QualiTy Control on the Southtm Ute Indian Res~ation, dated 

December 13. 1999. in accordance with section xm (B) of the Agreement. as follows: 

Section VI (D) shaH be deleted in irs entirety and replaced with IDe following: 

D.	 Agreement for Federal Enactment. The parties Bgree 'to suppon and to 

seek the passage of federal legislation. as provided in Section XI. The 

panic!> ;agree to seek and support passage of such fedeIal legislation outing 

the Congressional session held during 2004. As an eUditional condition, if 

such federal Iegjslation is not enacted by December 13. 2004. this 

Agreement shall become null and void. 

This amendment may be signed by the parties in one or more counterpans, each of which 

shall be deemed an original, but all of which together shall constitute one and the same 

instrument. All other provisions in the Agreement shall remain the same. 

SOUTI-!ERN UTE INDIAN TRIBE STATE OF COLORADO 

By: _ By: ~OuJfp. !~~~ Howard D. Richards. Sr., Bill Owens. Governor Date 

Tribal Chainnan 

Date	 

By: 

Ken 

~S-~ Salazar, Anomey General