From: Mckelvey, Laura

Sent: Tuesday, November 24, 2015 8:56 AM

To: Rollie Wilson

Cc: Stoneman, Chris; Childers, Pat; Green, Gregory

Subject: RE: Revised Definition of Indian Country

Thanks Rollie,

We too are trying to make sure we are working thr ough the issue very

carefully so your insight would be

appreciated.

Laura

From: Rollie Wilson [mailto:RWilson@ndnlaw.com]

Sent: Tuesday, November 24, 2015 8:46 AM

To: Mckelvey, Laura <Mckelvey.Laura@epa.gov>

Cc: Stoneman, Chris <Stoneman.Chr is@epa.gov>; Childers, Pat

<Childers.Pat@epa.gov>; Green, Gregory

<Green.Gregory@epa.gov>

Subject: Re: Revised Definition of Indian Country

Hi Laura,

I can understand that. I have not fully thought it through yet, but I am

concerned that the

Ok lahoma decision adopts a "use it or lose it" approach to Indian

country.

Some tribes are dealing with that in the criminal jurisdiction context,

i.e., if the state or a county

does not see tribal or BIA police patrolling a neighborhood, then they

as sert jurisdiction. We'd

like to make sure that that legal theory does not advance under the air

rule.

At the moment my thinking is that we need to be very careful how your

rule interacts with the

definition of Indian country and perhaps extracting Indian country

somewhat from the rule. For

example, rather than rephrasing the definition just cite to it. And in

your new language that you

all added to deal with the OK case, I read the last word "jurisdiction"

to mean "jurisdiction for

any purpo se." In other words, could be regulatory or criminal or

whatever jurisdiction. Tribal

jurisdiction just exists. You don't have to prove it exists or

demonstrate it exists. We need to

make sure the rule does not suggest that the jurisdiction does not

already exist.

Thanks for your consideration.

RollieOn Nov 24, 2015, at 8:26 AM, Mckelvey, Laura <Mckelvey.Laura@epa.gov>

wrote:

Hi Rollie

The window to appeal the decision passed quite some time ago. The Agency

was

concerned that we might have a more detrimental outcome.

Laura McKelvey

From: Rollie Wilson [mailto:RWilson@ndnlaw.com]

Sent: Monday, November 23, 2015 6:41 PM

To: Stoneman, Chris <Stoneman.Chris@epa.gov>

Cc: Childers, Pat <Childers.Pat@epa.gov>; Mckel vey, Laura

<Mckelvey.Laura@epa.gov>;

Green, Gregory <Green.Gregory@epa.gov>

Subject: Re: Revised Definition of Indian Country

Hi Chris,

Is EPA not appealing this decision to the Supreme Ct?

Thanks,

Rollie Wilson

Fredericks Peebles & M organ LLP

401 9th Street NW, Suite 700

Washington, DC 20004

Telephone: (202) 450

- 4887

Cell: (202) 340

- 8232

Fax: (202) 450

- 5106

www.ndnlaw.com

This message, along with any attachments, is covered by federal and state

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On Nov 12, 2015, at 10:29 AM, Stoneman, Chris

<Stoneman.Chris@epa.gov> wrote:

Hi Rollie

--

I am writing in resp onse to your email below asking about why we are

proposing to change the definition of Indian country in the same actionin which we are proposing a FIP for oil and natural gas sources in Indian

country (80 FR 6554, September 18, 2015).

We have p roposed to revise the definition of Indian country to comport

with the court decision that addressed EPA’s jurisdiction to implement

the Federal Indian Country Minor NSR rule: Oklahoma Dept. of

Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 20 14). The court

decision also affects the definition of Indian country under the Federal

Major New Source Review Program in Indian Country so we are

proposing to change the definition of Indian country under the Federal

Indian Country Major NSR rule as well.

Specifically, the Federal Indian Country Minor NSR rule and Federal

Indian Country Major NSR rule currently define "Indian country" to

include three categories of lands consistent with 18 U.S.C. 1151, i.e.,

Indian reservations, depende nt Indian communities, and Indian

allotments. The U.S. Court of Appeals for the District of Columbia

Circuit

vacated the rule with respect to non

- reservation areas of Indian country

(i.e., dependent Indian communities and Indian allotments) (Oklahoma

Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014)).

The court held that the states, not tribes or the EPA, have initial

primary

responsibility for implementation plans under CAA section 110 in non

reservation areas of Indian cou ntry in the absence of a demonstration

of tribal jurisdiction by the EPA or a tribe. We are proposing to revise

the definition of Indian country in §§49.152(d) and 49.167 to add a

clause indicating that, for purposes of the Federal Indian Country Min or

NSR rule and the Federal Indian Country Major NSR rule, references to

Indian country include all Indian reservation lands where no EPA

approved program is in place and all other areas of Indian country

where no EPA

- approved program is in place a nd over which an Indian

tribe, or the EPA, has demonstrated that a tribe has jurisdiction.

I hope that this answers your questions. Please let me know if we can

clarify anything further.

Thanks.

Chris Stoneman

USEPA

919/541

- 0823

S toneman.chris@epa.gov

From: Rollie Wilson [mailto:RWilson@ndnlaw.com]

Sent: Monday, November 09, 2015 6:41 PM

To: Childers, Pat <Childers.Pat@epa.gov>

Subject: Revised Definition of Indian Country

Hi Pat,

During our meeting la st week we had a brief conversation about

EPA’s proposed FIP for oil and gas minor sources in IndianCountry

- I hope I said all that right. The Tribe is concerned about

a change in the definition to Indian Country, although I did not do

a good jo b recalling the issue for the meeting participants. It

appeared at the meeting that the EPA folks present said that there

would be no change to the definition and/or they supported the

Tribe’s view. But, when I’ve pulled up the language again, it

seems to me that there is a potential change. I have not figured out

yet whether the Tribe thinks it is good or bad. But, with a better

recollection of the information below, can EPA tell us a little more

about what’s going on here and why this is being proposed to be

added to the definition. Thanks, Rollie

+++++++++++++++++++++++++++++++++++++++++++++++

+++++++++++++++++++++

The revised definition of Indian Country adds a new subpart 4 to

its recitation of the Indian criminal juri sdiction definition of Indian

country. New subpart 4 in 40 CFR Sections 49.152; 49.167 provides

that:

Indian country, as defined in 18 U.S.C. 1151, means

the following as applied to this program:

(4) For purposes of this rule, references to In dian

country include all Indian reservation lands where no

EPA

- approved program is in place and all other areas

of Indian country where no EPA

- approved program is

in place and over which an Indian tribe, or the EPA,

has demonstrated that a tribe has jurisdiction.

80 Fed. Reg. 56575.

++++++++++++++++++++++++++++++++++++++++++++

Rollie Wilson

Fredericks Peebles & Morgan LLP

401 9th Street NW, Suite 700

Washington, DC 20004

Telephone: (202) 450

- 4887

Cell: (202) 340

- 8232

Fax: (202) 450

- 5106

www.ndnlaw.com

This message, along with any attachments, is covered by federal and state

law governing electronic

communications and may contain confidential and legally privileged

information. If the reader of this

message is not the intend ed recipient, you are hereby notified that any

dissemination, distribution, use or

copying of this message is strictly prohibited. If you have received this

message in error, please reply

immediately to the sender and delete this message. Thank you.