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 through 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.Chris@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 

Oklahoma 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 

assert 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 purpose." 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. 

Rollie
On 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>; Mckelvey, 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 & 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 

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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 response to your email below asking about why we are 

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

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

We have proposed 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. 2014). 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, dependent 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 nonreservation areas of Indian country 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 Minor 

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

Indian country include all Indian reservation lands where no EPAapproved 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.

 

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

clarify anything further.

Thanks.

Chris Stoneman

USEPA

919/541-0823

Stoneman.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 last week we had a brief conversation about 

EPA’s proposed FIP for oil and gas minor sources in Indian 
Country - 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 job 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 jurisdiction 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 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 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 intended 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.