211 F3d 1280.txt

 United States Court of Appeals

 FOR THE DISTRICT OF COLUMBIA CIRCUIT

 Argued January 27, 2000 Decided May 5, 2000 

 No. 98-1196

 Arizona Public Service Company, 

 Petitioner

 v.

 Environmental Protection Agency, 

 Respondent

 State of Michigan, et al., 

 Intervenors

 Consolidated with 

 98-1203, 98-1206, 98-1207, 98-1208

 On Petitions for Review of an Order of the 

 Environmental Protection Agency

 Thomas Sayre Llewellyn argued the cause for petitioner 

Arizona Public Service Company. With him on the briefs 

were Michael B. Wood and George Y. Sugiyama.

 Henry V. Nickel argued the cause for petitioners National 

Association of Manufacturers, et al. and Intervenors State of 

Michigan and Central and South West Services, Inc. With 

him on the briefs were David S. Harlow, John B. Weldon, 

Jr., Brian J. Renaud, Jennifer M. Granholm, Attorney General for the State of Michigan, and John Fordell Leone, 

Assistant Attorney General for the State of Michigan. Norman W. Fichthorn, Cynthia H. Evans, Roy S. Belden, Janice 

S. Amundson, Donald D. Skypeck, Harold P. Quinn, Jr., and 

Thomas L. Casey, Solicitor General for the State of Michigan, 

entered appearances.

 Thomas A. Lorenzen and Cynthia A. Drew, Attorneys, 

United States Department of Justice, argued the cause for 

respondent. With them on the briefs were Lois Schiffer, 

Assistant Attorney General, Anthony F. Guadagno and Michael W. Thrift, Attorneys, United States Environmental 

Protection Agency.

 Jill E. Grant argued the cause for intervenors Gila River 

Indian Community, et al. With her on the brief were William W. Quinn and Jeanette Wolfley. Reid P. Chambers 

entered appearances.

 Before: Edwards, Chief Judge, Ginsburg and Rogers, 

Circuit Judges.

 Opinion for the Court filed by Chief Judge Edwards.

 Opinion concurring in part and dissenting from Part II.A. 

filed by Circuit Judge Ginsburg.

 Edwards, Chief Judge: In 1990, Congress passed a compendium of amendments to the Clean Air Act ("CAA" or "the 

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Act"). This case concerns those amendments that specifically 

address the power of Native American nations (or "tribes") to 

implement air quality regulations under the Act. Petitioners 

challenge the Environmental Protection Agency's ("EPA" or 

"the Agency") regulations, promulgated in 1998, implement-

ing the 1990 Amendments. See Indian Tribes: Air Quality 

Planning and Management, 63 Fed. Reg. 7254 (1998) (to be 

codified at 40 C.F.R. pts. 9, 35, 49, 50, and 81) ("Tribal 

Authority Rule"). Petitioners' principal contention is that 

EPA has granted too much authority to tribes.

 Petitioners' primary challenges focus on two issues. The 

first is whether Congress expressly delegated to Native 

American nations authority to regulate air quality on all land 

within reservations, including fee land held by private landowners who are not tribe members. The second is whether 

EPA has properly construed "reservation" to include trust 

lands and Pueblos.

 Petitioners also raise several other challenges to the Tribal 

Authority Rule. They argue: (1) that EPA violated the Act 

in authorizing tribes to administer programs affecting nonreservation "allotted lands" and "dependent Indian communities"; (2) that EPA unlawfully declined to accept public 

comments on applications to regulate by Native American 

nations; (3) that EPA improperly held that the 1990 Amendments abrogated preexisting contracts under which tribes 

agreed not to regulate certain privately-held land; and (4) 

that EPA improperly interpreted the 1990 Amendments to 

exempt Native American nations from certain of the Act's 

judicial review requirements.

 We find petitioners' challenges to be mostly meritless. We 

hold that the Agency did not err in finding delegated authority to Native American nations to regulate all land within 

reservations, including fee land owned by nonmembers. We 

also uphold EPA's construction of "reservation" to include 

trust lands and Pueblos. Likewise, we reject the challenge to 

the Agency's decision to exempt Native American nations 

from some of the Act's judicial review requirements. Petitioners' complaint regarding the adequacy of public comment 

on tribal applications is moot. And petitioners' claim that 

EPA has abrogated preexisting agreements not to regulate is 

unripe for review, as is one of petitioners' arguments challenging the Agency's decision on the Act's judicial review 

requirements.

 I. BACKGROUND

A. Statutory Background

 The Act establishes a framework for a federal-state partnership to regulate air quality. The provisions of the 1990 

Amendments under review, fairly read, constitute an attempt 

by Congress to increase the role of Native American nations 

in this partnership. There are three areas of regulation 

under the Act particularly relevant to this case.

 First, the Act grants states primary responsibility for 

assuring that air quality meets national standards. See 42 

U.S.C. s 7407(a) (1994). States meet this burden by submitting state implementation plans ("SIPs") that "provide[ ] for 

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implementation, maintenance, and enforcement" of these 

standards. Id. s 7410(a)(1) (1994). SIPs must be approved 

by the Agency before they may be federally enforced. In 

1990, s 7410 was amended to authorize Native American 

nations to submit tribal implementation plans ("TIPs") "applicable to all areas ... located within the exterior boundaries 

of the reservation." Id. s 7410(o).

 Second, the Act permits states and Native American nations to "redesignate" lands pursuant to the Act's Prevention 

of Significant Deterioration ("PSD") program. See id. 

s 7474(a), (c) (1994). Under the PSD program, land is classified as Class I, II, or III. The land's classification determines the maximum allowable increase over the baseline by 

which concentrations of sulfur dioxide and other particulate 

matter shall not be exceeded. See id. s 7473 (1994). Land 

may, under certain circumstances, be redesignated as Class I, 

II, or III. See id. s 7474(a). Since 1977, Native American 

nations have had authority to redesignate land "within the 

exterior boundaries of reservations." Id. s 7474(c).

 Finally, under Title V of the Act, states must develop a 

comprehensive permitting program applicable to major air 

pollution sources. See id. s 7661a (1994). The Agency must 

approve the permitting program; if none is approved, EPA 

must promulgate a permitting program that will be federally 

enforceable. See id. s 7661a(d)(3). One of the requirements 

for approval is that the program provide for judicial review of 

permitting actions. See id. s 7661a(b)(6), (7). Petitioners 

claim that the Agency has improperly interpreted the 1990 

Amendments to give Native American nations the possibility 

of exemption from some portions of the judicial review requirements.

 Importantly, the 1990 Amendments added language to the 

Act granting EPA the "author[ity] to treat Indian tribes as 

States under this chapter," id. s 7601(d)(1)(A) (1994), provided tribes meet the following requirements:

 (A) the Indian tribe has a governing body carrying out 

 substantial governmental duties and powers;

 

 (B) the functions to be exercised by the Indian tribe 

 pertain to the management and protection of air re-

 sources within the exterior boundaries of the reservation 

 or other areas within the tribe's jurisdiction; and

 

 (C) the Indian tribe is reasonably expected to be capa-

 ble, in the judgment of the Administrator, of carrying out 

 the functions to be exercised in a manner consistent with 

 the terms and purposes of this chapter and all applicable 

 regulations.

 

Id. s 7601(d)(2).

 The 1990 Amendments also directed EPA to promulgate 

regulations "specifying those provisions of this chapter for 

which it is appropriate to treat Indian tribes as States." Id. 

If the Agency "determines that the treatment of Indian tribes 

as identical to States is inappropriate or administratively 

infeasible," EPA may announce other ways for the Agency to 

administer the program "so as to achieve the appropriate 

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purpose." Id. s 7601(d)(4).

B. The Challenged Rule

 On August 25, 1994, EPA proposed rules to implement the 

1990 Amendments. See Proposed Tribal Authority Rule, 59 

Fed. Reg. 43,956 (1994) (proposed Aug. 25, 1994). On February 12, 1998, after receiving and responding to public comments, EPA issued the final Tribal Authority Rule. See 

Tribal Authority Rule, 63 Fed. Reg. at 7254. The Agency 

first found that the 1990 Amendments constitute a delegation 

of federal authority to regulate air quality to Native American 

nations within the boundaries of reservations, regardless of 

whether the land is owned by the tribes. See id. The 

Agency read the statute to support this "territorial view of 

tribal jurisdiction," authorizing a "tribal role for all air resources within the exterior boundaries of Indian reservations 

without distinguishing among various categories of onreservation land." Id. EPA believed that this "territorial 

approach ... best advances rational, sound, air quality management." Id. at 7255. Thus, the Agency determined that 

Congress delegated to tribes the authority to regulate air 

quality in areas within the exterior boundaries of a reservation.

 The Act does not define "reservation" for the purposes of 

tribal regulation. EPA interpreted "reservation" to include 

"trust lands that have been validly set apart for the use of a 

tribe even though the land has not been formally designated 

as a reservation." Id. at 7258. The Agency explained that 

this interpretation was consistent with the Supreme Court's 

definition of "reservation" in Oklahoma Tax Commission v. 

Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 

U.S. 505 (1991). EPA held that it would decide on a case-bycase basis whether other types of land may be considered 

"reservations" under the Act. See Tribal Authority Rule, 63 

Fed. Reg. at 7258.

 For areas not within a "reservation," the Agency determined that a tribe would be allowed to regulate such areas if 

the tribe could demonstrate inherent jurisdiction over the 

particular non-reservation area under general principles of 

federal Indian law. See id. at 7259. This means that tribes 

may propose air quality regulations in "allotted land" and 

"dependent Indian communities" provided they can otherwise 

demonstrate inherent jurisdiction over these areas. Allotted 

land is land "owned by individual Indians and either held in 

trust by the United States or subject to a statutory restriction on alienation." Felix S. Cohen, Handbook of Federal 

Indian Law 40 (1982). Dependent Indian communities in-

clude "those tribal Indian communities under federal protection that did not originate in either a federal or tribal act of 

'reserving,' or were not specifically designated a reservation." 

Id. at 38.

 Some commenters claimed that the Act precludes tribal 

regulation in the form of TIPs in non-reservation areas. 

These parties argued that the section of the Act authorizing 

TIPs includes a specific provision limiting such regulation 

within reservations lands. See 42 U.S.C. s 7410(o) (providing 

that TIPs "shall become applicable to all areas ... located 

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within the exterior boundaries of the reservation"). EPA, 

however, interpreted "reservation" in s 7410(o) to be "simply 

a description of the type of area over which a TIP may 

apply," and ruled that "the provision was [not] intended to 

limit the scope of TIPs to reservations." Tribal Authority 

Rule, 63 Fed. Reg. at 7259. EPA's ruling was informed by 

s 7601(d)(1) under which the Agency "decided to include 

most of the provisions of [s 7410] in the group of provisions 

for which treatment of tribes in the same manner as a state is 

appropriate." Id.

 The final aspect of the Tribal Authority Rule under review 

relates to the provisions covering judicial review of permitting 

programs. Title V of the Act authorizes regulating authorities to establish permitting programs for pollution sources. 

Section 7661a(b)(6) requires the authority to afford "an opportunity for judicial review in State court of the final permit 

action." 42 U.S.C. s 7661a(b)(6). In its proposed rule, EPA 

indicated an intention to treat tribes like states with respect 

to judicial review. See Proposed Tribal Authority Rule, 59 

Fed. Reg. at 43,972. In its final rule, EPA withdrew this 

proposal, requiring instead that, for Title V programs, tribes 

must meet all of the requirements of s 7661a(b)(6) and (7) 

"except those provisions that specify that review of final 

action under the Title V permitting program be 'judicial' and 

'in State court.' " Tribal Authority Rule, 63 Fed. Reg. at 

7261. EPA adopted this provision in response to concerns 

over tribal sovereign immunity. See id. Thus, EPA indicated its willingness "to consider alternative options, developed 

and proposed by a tribe in the context of a tribal CAA Title V 

program submittal, that would not require tribes to waive 

their sovereign immunity to judicial review but, at the same 

time, would provide for an avenue for appeal of tribal government action or inaction to an independent review body and 

for injunctive-type relief to which the Tribe would agree to be 

bound." Id. at 7262.

 Petitioner Arizona Public Service Company ("APS") filed a 

petition for review on April 10, 1998. The remaining petitions 

for review were filed shortly thereafter; the petitions were 

subsequently consolidated for consideration by this court.

 II. ANALYSIS

 Petitioners raise several challenges to EPA's final rule. 

First, petitioners claim that the 1990 Amendments cannot be 

interpreted to constitute an express delegation of authority to 

Native American nations to regulate privately owned fee land 

located within a reservation. Second, petitioners argue that 

EPA impermissibly interpreted the word "reservation" to 

include lands held in trust and Pueblos. Third, petitioners 

contend that EPA impermissibly interpreted the Act to permit Native American nations to issue TIPs and redesignations 

for land outside the boundaries of a reservation. Fourth, 

petitioners assert that EPA has failed to allow public comment on tribal applications to issue regulations under the Act. 

Fifth, petitioners argue that EPA's interpretation of the 1990 

Amendments effectively abrogates preexisting agreements 

between tribes and regulated industry. Finally, petitioners 

contend that EPA's final rule covering judicial review procedures for Title V programs was promulgated with insufficient 

notice to affected parties and that it rests on an impermissible 

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interpretation of the Act.

 We analyze EPA's interpretation of the Act under familiar 

principles. "Where congressional intent is ambiguous, ... an 

agency's interpretation of a statute entrusted to its administration is entitled to deference, so long as it is reasonable." 

Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1992) (per 

curiam) (citing Chevron U.S.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). Our 

primary concern under Chevron is to ensure that an agency 

acts within the bounds of congressional delegation. "[A]s 

long as the agency stays within [Congress'] delegation, it is 

free to make policy choices in interpreting the statute, and 

such interpretations are entitled to deference." Arent v. 

Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995).

 In evaluating the extent of congressional delegation, a 

reviewing court first exhausts the traditional tools of statutory construction to determine whether a congressional act 

admits of plain meaning. See Bell Atlantic Tel. Cos. v. FCC, 

131 F.3d 1044, 1047 (D.C. Cir. 1997). If, in light of its text, 

legislative history, structure, and purpose, a statute is found 

to be plain in its meaning, "then Congress has expressed its 

intention as to the question, and deference is not appropriate." Id. If congressional intent is ambiguous, then we move 

to the second step of the Chevron analysis, and uphold an 

agency's interpretation if it is reasonable. The reasonableness prong includes an inquiry into whether the agency 

reasonably filled a gap in the statute left by Congress. See 

United Techs. Corp. v. EPA, 821 F.2d 714, 723 (D.C. Cir. 

1987) (upholding filling of gap that is rational and "not 

inconsistent" with amendments to the Resource Conservation 

and Recovery Act of 1976).

A. Express Delegation of Authority to Native American 

 Nations

 It is undisputed that Native American nations retain significant sovereign power. Native American nations have inherent power to determine forms of tribal government, to determine tribal membership, to make substantive criminal and 

civil laws governing internal matters, to administer tribal 

judicial systems, to exclude others from tribal lands, and, to 

some extent, to exercise civil jurisdiction over nonmembers, 

including non-Indians. See Cohen, Handbook of Federal 

Indian Law, at 247-53; Montana v. United States, 450 U.S. 

544, 564 (1981). It is this last category of power that is at 

issue in the instant case, because petitioners claim that the 

1990 Amendments to the Act do not authorize tribes to 

administer the Act over fee land within a reservation that is 

owned by nonmembers. As the Supreme Court has held,

 exercise of tribal power beyond what is necessary to 

 protect tribal self-government or to control internal rela-

 tions is inconsistent with the dependent status of the 

 tribes, and so cannot survive without express congres-

 sional delegation.

 

Montana, 450 U.S. at 564.

 There is no doubt that tribes hold "inherent sovereign 

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power to exercise some forms of civil jurisdiction over nonIndians on their reservations, even on non-Indian fee lands." 

Id. at 565. For instance, if the behavior of non-Indians on fee 

lands within the reservation "threatens or has some direct 

effect on the political integrity, the economic security, or the 

health or welfare of the tribe," the tribe may regulate that 

activity. Id. at 566. To satisfy this standard, however, a 

tribe must show, on a case-by-case basis, that the disputed 

activity constitutes a "demonstrably serious" impact that "imperil[s] the political integrity, the economic security, or the 

health and welfare of the tribe." Brendale v. Confederated 

Tribes and Bands of the Yakima Indian Nation, 492 U.S. 

408, 431 (1989) (plurality opinion). EPA suggests, not implausibly, that "inherent sovereign power" may apply to tribal 

regulation under the Act of fee lands within a reservation, see 

Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,598 n.5, 

but the Agency does not press this argument on appeal. 

Rather, EPA contends that the 1990 Amendments constitute 

an express congressional delegation to the tribes of the 

authority to regulate air quality on fee lands located within 

the exterior boundaries of a reservation.

 "There are few examples of congressional delegation of 

authority to tribes." Cohen, Handbook of Federal Indian 

Law, at 253. However, as is the case in any situation in 

which we are called upon to find congressional intent in 

construing a contested statute, we start with traditional 

sources of statutory interpretation, including the statute's 

text, structure, purpose, and legislative history. See, e.g., 

Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984) 

("Whether and to what extent a particular statute precludes 

judicial review is determined not only from its express language, but also from the structure of the statutory scheme, 

its objectives, its legislative history, and the nature of the 

administrative action involved."). Our review of the CAA 

indicates that EPA's interpretation comports with congressional intent.

 Section 7601(d), in pertinent part, authorizes EPA to treat 

otherwise eligible tribes as states if "the functions to be 

exercised by the Indian tribe pertain to the management and 

protection of air resources within the exterior boundaries of 

the reservation or other areas within the tribe's jurisdiction." 

42 U.S.C. s 7601(d)(2)(B). The statute's clear distinction 

between areas "within the exterior boundaries of the reservation" and "other areas within the tribe's jurisdiction" carries 

with it the implication that Congress considered the areas 

within the exterior boundaries of a tribe's reservation to be 

per se within the tribe's jurisdiction. Thus, EPA correctly 

interpreted s 7601(d) to express congressional intent to grant 

tribal jurisdiction over nonmember owned fee land within a 

reservation without the need to determine, on a case-specific 

basis, whether a tribe possesses "inherent sovereign power" 

under Montana.

 Petitioners do not dispute that an important purpose of the 

Act is to ensure effective enforcement of clean air standards. 

Obviously, this is best done by allowing states and tribes to 

establish uniform standards within their boundaries. As 

EPA explained in its proposed rule,

 [a]ir pollutants disperse over areas several and somePage 7
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 times even hundreds of miles from their source of origin, 

 as dictated by the physical and chemical properties of the 

 pollutants at issue and the prevailing winds and other 

 meteorological conditions. The high mobility of air pollu-

 tants, resulting areawide effects and the seriousness of 

 such impacts, underscores the undesirability of fragment-

 ed air quality management within reservations.

 

Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,959.

 Accepting petitioners' interpretation of the 1990 Amendments would result in a "checkerboard" pattern of regulation 

within a reservation's boundaries that would be inconsistent 

with the purpose and provisions of the Act. Indeed, the 

Supreme Court has condemned such an approach. See Moe 

v. Confederated Salish and Kootenai Tribes of Flathead 

Reservation, 425 U.S. 463, 479 (1976) (rejecting checkerboard 

approach in interpreting s 6 of the General Allotment Act, 25 

U.S.C. s 349); Seymour v. Superintendent of Washington 

State Penitentiary, 368 U.S. 351, 358 (1962) (terming "impractical" a pattern of checkerboard jurisdiction under 18 

U.S.C. s 1151).

 Finally, we note that the legislative history of the 1990 

Amendments supports EPA's interpretation. As originally 

introduced, 42 U.S.C. s 7601(d) differed in significant respect 

from the final adopted version. The original s 7601(d)(2)(B) 

provided that treatment of tribes as states was authorized if 

"the functions to be exercised by the Indian tribe are within 

the area of the tribal government's jurisdiction." S. 1630, 

101st Cong. s 113(a) (1990), reprinted in Senate Comm. on 

Env't and Pub. Works, 103d Cong., Legislative History of the 

Clean Air Act Amendments of 1990, at 4283 (1993) (emphasis 

added); see also H.R. 2323, 101st Cong. s 604 (1989), reprinted in Legislative History of the Clean Air Act Amendments 

of 1990, at 4101. The statute as finally enacted, however, 

treats tribes and states as equivalent if the tribe is to exercise 

functions "within the exterior boundaries of the reservation or 

other areas within the tribe's jurisdiction." 42 U.S.C. 

s 7601(d)(2)(B).

 Thus, Congress moved from authorizing tribal regulation 

over the areas "within the tribal government's jurisdiction" 

(an admittedly general category) to a bifurcated classification 

of all areas within "the exterior boundaries of the reservation" and "other areas within the tribe's jurisdiction." This 

change strongly suggests that Congress viewed all areas 

within "the exterior boundaries of the reservation" to be 

"within the area of the tribal government's jurisdiction." The 

change also indicates that Congress knew how to draft the 

1990 Amendments to support petitioners' interpretation. The 

fact that Congress specifically rejected language favorable to 

petitioners' position and enacted instead language that is 

consistent with EPA's interpretation only strengthens our 

conclusion that the Agency has correctly ascertained Congress' intent in passing the 1990 Amendments.

 The dissent's contrary contentions regarding the meaning 

of the 1990 Amendments do not cause us to question this 

conclusion. The dissent's argument that Congress would not 

use a "never-before-attempted" formulation to accomplish an 

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express delegation when it could use the "formulaic 'notwithstanding' proviso [used in s 7410(o)]--the gold standard for 

such delegations," cannot carry much weight. Dissent Op. at 

5-6. That a provision uses a new formulation is not dispositive of the question as to whether it constitutes an express 

delegation. Indeed, it is noteworthy that, in construing 33 

U.S.C. s 1337(h)(1), which uses the dissent's so-called "gold 

standard," EPA has declined to find an express delegation in 

such language. We can assume that Congress was aware of 

EPA's contemporaneous interpretation of the Clean Water 

Act, first proposed in 1989 (while Congress contemplated the 

1990 Amendments). See Amendments to the Water Quality 

Standards Regulations That Pertain to Standards on Indian 

Reservations, 54 Fed. Reg. 39,098, 39,101 (1989) (proposed 

Sept. 22, 1989) (to be codified at 40 C.F.R. pt. 131) ("EPA 

may treat an Indian Tribe as a State ... only where the 

Tribe already possesses and can adequately demonstrate 

authority to manage and protect water resources within the 

borders of the reservation. The Clean Water Act ... does 

not grant additional authority to Tribes."). Thus, Congress' 

failure to use the same language in s 7601(d) does not at all 

imply that it meant to avoid delegation to the tribes; rather, 

it may suggest just the opposite.

 The dissent's argument resting on Congress' omission of a 

"literal delegation" to tribes is seductive, but, ultimately, also 

unconvincing. It is true that, as originally introduced, the 

bills in the Senate and the House contained language providing that "the Administrator ... may delegate to [ ] tribes 

[that the Administrator is authorized to treat as States] 

primary responsibility for assuring air quality and enforcement of air pollution control." H.R. 2323, 101st Cong. s 604 

(1989), reprinted in Legislative History of the Clean Air Act 

Amendments of 1990, at 4101. The absence of this language 

from the final bill, however, does not compel the dissent's 

conclusion that Congress "specifically rejected" language favorable to EPA's position. Neither the majority nor the 

dissent can call upon determinative legislative history to 

illuminate the motivations behind this unexplained change to 

the provisions at issue. We suggest, however, that there are 

at least two other explanations that account for the absence of 

the cited language from the final bill. First, Congress simply 

may have deemed the language to be redundant and confusing in light of s 7601(d)(2)(B). It would have been redundant 

because s 7601(d)(2)(B) already accomplishes an express delegation. It would have been confusing because the omitted 

language can be read to apply to areas both outside and 

inside the boundaries of the reservation, and, as we hold, 

Congress intended to expressly delegate only with respect to 

areas within the boundaries of a reservation.

 Second, the language contained in the original bills hardly 

represents, as the dissent declares ipse dixit, a "literal delegation." Providing that the "Administrator ... may delegate" authority to tribes reads less like an express delegation 

from Congress to the tribes than a permissive instruction to 

the Administrator. Moreover, the omitted language did not 

expressly expand tribal jurisdiction to include those areas 

within the boundaries of a reservation owned by nonmembers--which is what is necessary for express delegation--as does the language in the adopted s 7601(d)(2)(B). 

In other words, the language used in the progenitors to 

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s 7601(d) that the dissent claims is a "literal delegation" is 

not easily manipulated to fit the contours of the traditional 

express delegation inquiry. We also note, as an aside, that by 

treating the original bills' language as an express delegation, 

our colleague seemingly abandons the "gold standard" that he 

claims Congress consistently has utilized expressly to delegate authority to Indian tribes. In short, we take more from 

the language used in the adopted s 7601(d)(2)(B) than from 

the language omitted.

 What little precedent there is addressing express delegations of authority to Native American nations in other con-

texts supports our interpretation of s 7601(d). In United 

States v. Mazurie, the Supreme Court reviewed 18 U.S.C. 

s 1161 and concluded that the statute was an express delegation to tribes of the authority to regulate alcohol transactions. 

419 U.S. 544, 556-57 (1975). The Court reaffirmed this 

holding almost a decade later. See Rice v. Rehner, 463 U.S. 

713, 728-29 (1983). Section 1161 provides in pertinent part 

that various federal liquor laws applicable to transactions 

within Indian country shall not apply

 within any area of Indian country provided such act or 

 transaction is in conformity both with the laws of the 

 State in which such act or transaction occurs and with an 

 ordinance duly adopted by the tribe having jurisdiction 

 over such area of Indian country, certified by the Secre-

 tary of the Interior, and published in the Federal Regis-

 ter.

 

18 U.S.C. s 1161 (1994). The Court read this language to 

make

 clear that Congress contemplated that its absolute but 

 not exclusive power to regulate Indian liquor transac-

 tions would be delegated to the tribes themselves, and to 

 the States, which historically shared concurrent jurisdic-

 tion with the Federal Government in this area.

 

Rehner, 463 U.S. at 728-29.

 The decisions in Mazurie and Rehner are significant because the Court found an express delegation despite the 

absence of any "we hereby delegate" language in the statute. 

The Court did not find any precise language of delegation in 

the disputed statute, but, rather, rested on the implication 

inherent in recognizing the power of tribes to adopt an 

ordinance pertinent to liquor transactions on Indian country. 

See Rehner, 463 U.S. at 730-31. Similarly, in this case, we 

find an express congressional delegation from the implication 

inherent in the distinction between areas "within the exterior 

boundaries of the reservation" and "other areas within the 

tribe's jurisdiction."

 Petitioners claim that the 1990 Amendments delegate authority to EPA to approve state or tribal air quality programs 

for federal enforcement, not authority to tribes to "adopt 

regulatory programs that the tribes could not adopt under 

tribal and federal Indian law prior to the 1990 Amendments." 

Br. for Petitioners National Ass'n of Mfrs. ("NAM") at 23. 

Petitioners' claim misses a crucial point, however, that there 

are two different powers at issue here: (1) the authority to 

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regulate and (2) the derivative authority to enforce specific 

provisions of the Act. Petitioners focus on the derivative 

authority. Of course the 1990 Amendments do not constitute 

an express delegation to the tribes to enact regulatory provisions absent any federal oversight or approval. Rather, the 

1990 Amendments simply establish the palette with which 

tribes are permitted to paint their regulatory picture.

 Petitioners additionally argue that although states are authorized under 42 U.S.C. s 7407(a) to enact programs "within 

the entire geographic area comprising such State," EPA has 

never interpreted this provision as allowing states to promulgate air quality regulations applicable to Native American 

reservations located within a state's geographic area. In 

other words, petitioners claim that because states may not 

promulgate regulations affecting Native American reservations, tribes may not promulgate regulations covering lands 

held in fee by persons other than tribal members. This 

argument is obviously flawed, because it fails to recognize 

that the relationship between fee holders and tribes is quite 

different from the relationship between tribes and states. As 

the Supreme Court noted in Mazurie,

 Indian tribes are unique aggregations possessing attrib-

 utes of sovereignty over both their members and their 

 territory; they are "a separate people" possessing "the 

 power of regulating their internal and social rela-

 tions...."

 

419 U.S. at 557 (citations omitted). And there is no doubt 

that Congress may delegate authority to tribes "even though 

the lands [are] held in fee by non-Indians, and even though 

the persons regulated [are] non-Indians." Id. at 554.

 Finally, petitioners note that the Agency declined to find an 

express delegation of power to regulate fee lands under 

ss 518(e) and (h) of the Clean Water Act; this is noteworthy 

to petitioners, because they can glean no difference between 

the cited provisions under the Clean Water Act and the 

disputed provisions in this case under the Clean Air Act. We 

find no merit in this argument. The Clean Water Act states 

that "[t]he Administrator is authorized to treat an Indian 

tribe as a State ... if ... the functions to be exercised by the 

Indian tribe pertain to the management and protection of 

water resources which are held by an Indian tribe ... within 

the borders of an Indian reservation." 33 U.S.C. s 1377(e)(2) 

(1994). "Reservation" is defined as "all land within the limits 

of any Indian reservation under the jurisdiction of the United 

States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation." Id. s 1377(h)(1). In construing these provisions, EPA 

concluded that because the legislative history was "ambiguous 

and inconclusive," it would not find that the Clean Water Act 

expanded or limited the scope of tribal authority beyond that 

inherent in the tribe. Amendments to the Water Quality 

Standards Regulation That Pertain to Standards on Indian 

Reservations, 56 Fed. Reg. 64,876, 64,880 (1991) (codified at 

40 C.F.R. pt. 131).

 The situation here is quite different from what EPA found 

with respect to the Clean Water Act. Although the disputed 

language in the Clean Air Act and the Clean Water Act is 

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somewhat similar, it is far from identical. As noted above, 

EPA correctly relied on the CAA's clear distinction between 

areas "within the exterior boundaries of the reservation" and 

"other areas within the tribe's jurisdiction" to find a congressional intention to define the areas within the exterior boundaries of a tribe's reservation to be per se within the tribe's 

jurisdiction. Furthermore, as we have already indicated, the 

legislative history of the 1990 Amendments plainly supports 

EPA's interpretation. Thus, the legislative history underly-

ing the Clean Air Act is not "ambiguous and inconclusive," as 

was found to be the case with respect to the Clean Water Act.

 It is also of some significance that EPA's interpretation of 

the Clean Water Act never has been subject to judicial review 

on the question of the presence or absence of an express 

delegation to tribes to regulate fee lands within the bounds of 

reservations. One federal court has observed, in dicta, that 

"the statutory language [in the Clean Water Act] seems to 

indicate plainly that Congress did intend to delegate ... 

authority to tribes." State of Montana v. EPA, 941 F. Supp. 

945, 951 (D. Mont. 1996). The court noted, however, that in 

construing the provisions of the Clean Water Act, "EPA 

determined that it would take the more cautious view, that 

Congress did not expressly delegate jurisdiction to tribes 

over non-Indians and that tribes would have to prove on a 

case-by-case basis that they possess such jurisdiction." Id. at 

952. There was no reason for EPA to take a similarly 

"cautious view" with respect to the Clean Air Act, because the 

language and legislative history of the 1990 Amendments 

differ from that of the Clean Water Act.

B. EPA's Interpretation of "Reservation"

 Given that EPA correctly interpreted s 7601(d) to expressly delegate jurisdiction to otherwise eligible tribes over all 

land within the exterior boundaries of reservations, including 

fee land, the next question is what areas are covered by a 

"reservation." EPA interprets "reservation" as used in three 

different statutory provisions (42 U.S.C. ss 7410(o), 7474(c), 

7601(d)(2)(B)) to mean formally designated reservations as 

well as "trust lands that have been validly set apart for the 

use of a tribe even though the land has not been formally 

designated as a reservation." Tribal Authority Rule, 63 Fed. 

Reg. at 7258. This includes what EPA terms "Pueblos" and 

tribal trust land. Pueblos are villages, primarily located in 

New Mexico, held by tribes in communal fee-simple ownership, originally acquired under grants from Spain and Mexico, 

and confirmed by Congress in the late 1800s. See United 

States v. Sandoval, 231 U.S. 28, 38-39 (1913). Petitioners 

ignore the status of Pueblos and concentrate their attack on 

EPA's interpretation of "reservation" to include tribal trust 

land.

 The Secretary of the Interior is authorized to acquire land 

in trust for a tribe under 25 U.S.C. s 465 (1994), and such 

land can only formally be designated a reservation via the 

process provided by 25 U.S.C. s 467 (1994). Petitioners 

claim that EPA's interpretation contravenes the Act's plain 

language and renders 25 U.S.C. s 467 superfluous by ignoring the distinction between "trust lands" and "reservations." 

EPA counters that the statute is ambiguous, and that its 

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reasonable interpretation is entitled to Chevron deference.

 We start with Chevron step one and rely on traditional 

principles of statutory construction to determine whether 

EPA's interpretation contravenes congressional intent as 

manifested by the 1990 Amendments. Significantly, the Act 

nowhere defines "reservation." Therefore, we look to the 

term's ordinary and natural meaning, and the context in 

which the term is used. See Smith v. United States, 508 U.S. 

223, 228-30 (1993). And we must remain cognizant of the 

rule that courts construe federal statutes liberally to benefit 

Native American nations. See Montana v. Blackfeet Tribe of 

Indians, 471 U.S. 759, 766 (1985).

 The dictionary defines "reservation" to be a "tract of public 

land set aside for a particular purpose (as schools, forest, or 

the use of Indians)." Webster's Third New Int'l Dictionary 

1930 (1993). This definition surely encompasses both trust 

lands and formally designated reservations. Nothing in the 

United States Code is clearly to the contrary, for the term 

"reservation" has no rigid meaning as suggested by petitioners. See 7 U.S.C. s 1985(e)(1)(A)(ii) (Supp. IV 1998) (defining 

"reservation" to include land "within the limits of any Indian 

reservation under the jurisdiction of the United States, ... 

trust or restricted land located within the boundaries of a 

former reservation of a federally recognized Indian tribe in 

the State of Oklahoma[,] ... [and] all Indian allotments the 

Indian titles to which have not been extinguished if such 

allotments are subject to the jurisdiction of a federally recognized Indian tribe"); id. s 2012(j) (1994) (defining "reserva-

tion" as "the geographically defined area or areas over which 

a tribal organization ... exercises governmental jurisdiction"); 25 U.S.C. s 1452(d) (1994) (defining "reservation" to 

include Indian reservations, public domain Indian allotments, 

former Indian reservations in Oklahoma, and land held by 

incorporated Native groups, regional corporations, and village 

corporations under the provisions of the Alaska Native 

Claims Settlement Act); id. s 1903(10) (1994) (defining "reservation" to be "Indian country as defined in section 1151 of 

Title 18" and any trust land not encompassed by s 1151); id. 

s 3103(12) (1994) (" '[R]eservation' includes Indian reservations established pursuant to treaties, Acts of Congress or 

Executive orders, public domain Indian allotments, and former Indian reservations in Oklahoma"); 33 U.S.C. 

s 1377(h)(1) (defining "Federal Indian reservation" to mean 

"all land within the limits of any Indian reservation under the 

jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way 

running through the reservation").

 These varying definitions of "reservation" lay to waste 

petitioners' argument. Petitioners appear to assert that, in 

the absence of any specific definition, "reservation" as used in 

the 1990 Amendments to the Act can only mean the formal 

reservation contemplated by 25 U.S.C. s 467. This is a 

specious contention. First, s 467 does not purport to offer an 

exclusive definition of "reservation"; it simply defines the 

terms under which federal land is formally designated a 

reservation. Second, if Congress had wanted to limit the 

term "reservation" as petitioners suggest, Congress could 

have done so. Indeed, Congress on many occasions has 

defined "reservation" in terms of other statutes. See 12 

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U.S.C. s 4702(11) (1994) (defining "reservation" according to 

25 U.S.C. s 1903(10)); 22 U.S.C. s 2124c(m)(1) (1994) (defining "Indian reservation" with reference to 25 U.S.C. 

s 1452(d)); 25 U.S.C. s 1903(10) (defining "reservation" with 

reference to 18 U.S.C. s 1151, as well as trust land); 26 

U.S.C. s 168(j)(6) (1994 & Supp. III 1997) (defining "Indian 

reservation" with reference to 25 U.S.C. s 1452(d) and 25 

U.S.C. s 1903(10)); 42 U.S.C. s 10101(19) (1994) (defining 

"reservation" to include communities referred to in 18 U.S.C. 

s 1151(a), (b)); id. s 11332(a) (1994) (defining "reservation" 

according to 25 U.S.C. s 1452(d)). Moreover, given the varying definitions of the term used throughout the Code, it would 

be a curious result indeed for this court to insist that the 

absence of a definition requires EPA to advance the most 

restrictive definition as put forth by petitioners.

 Aside from the statute's plain meaning and its context, 

other sources of statutory interpretation offer no insight into 

congressional intent with respect to the meaning of "reservation." The Report of the Senate Committee on Environment 

and Public Works refers to the authority of Indian tribes to 

"administer and enforce the Clean Air Act in Indian lands," 

as well as enforcement of the Act in "Indian country." 

S. Rep. No. 101-228, at 79, 80 (1989), reprinted in Legislative 

History of the Clean Air Act Amendments of 1990, at 8419-

20. These terms are arguably broader than the definition of 

"reservation" urged by petitioners, and simply confirm the 

term's ambiguity as used by Congress.

 Accordingly, we turn to step two of the Chevron inquiry. 

That is, did the Agency reasonably interpret the term "reservation" to include formal reservations, Pueblos, and trust 

lands? EPA supported its interpretation of "reservation" by 

looking to relevant case law, in particular Supreme Court 

precedent holding that there is no relevant distinction between tribal trust land and reservations for the purpose of 

tribal sovereign immunity. See Oklahoma Tax Comm'n, 498 

U.S. at 511. This view is consonant with other federal court 

holdings that an Indian reservation includes trust lands. See 

United States v. John, 437 U.S. 634, 649 (1978) (finding "no 

apparent reason" why lands held in trust should not be 

considered a "reservation" under s 1151(a)); HRI, Inc. v. 

EPA, 198 F.3d 1224, 1249-54 (10th Cir. 2000) (same); United 

States v. Azure, 801 F.2d 336, 339 (8th Cir. 1986) (considering 

tribal trust land to be Indian country under either s 1151(a) 

as a "de facto" reservation or s 1151(b) as a dependent Indian 

community); United States v. Sohappy, 770 F.2d 816, 822-23 

(9th Cir. 1985) (holding that trust land is a "reservation" 

under s 1151(a)).

 Petitioners note that, for several years, EPA has defined 

reservation, for the purposes of the PSD program, to be "any 

federally recognized reservation established by Treaty, 

Agreement, executive order, or act of Congress." 40 C.F.R. 

52.21(b)(27) (1999). Given the Agency's reasoned justification 

for a broader definition of "reservation" in the Tribal Authority Rule, and its proposal to amend the PSD definition to 

ensure consistency with the Tribal Authority Rule, EPA's 

departure from the PSD definition does not preclude this 

court from upholding EPA's new definition. In light of the 

ample precedent treating trust land as reservation land in 

other contexts, and the canon of statutory interpretation 

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calling for statutes to be interpreted favorably towards Native American nations, we cannot condemn as unreasonable 

EPA's interpretation of "reservations" to include Pueblos and 

tribal trust land.

C. Areas over which Tribes May Exercise Jurisdiction to 

 Propose TIPs and Redesignations

 The next issue that arises in this case is whether EPA 

defensibly interprets the extent of Native American authority 

to redesignate geographic areas and propose TIPs under the 

Act. Native American nations are authorized to redesignate 

"[l]ands within the exterior boundaries of reservations of 

federally recognized Indian tribes." 42 U.S.C. s 7474(c). 

Similarly, Indian tribes may submit TIPs "applicable to all 

areas ... located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation." 42 

U.S.C. s 7410(o).

 EPA interpreted both of these provisions to authorize 

tribal redesignation and implementation of TIPs not just 

within the limits of reservations (including trust lands and 

Pueblos), but also within allotted lands and dependent Indian 

communities. No one argues that allotted lands and dependent Indian communities are within the compass of a "reservation." Instead, EPA contends that so long as a tribe 

demonstrates inherent jurisdiction over non-reservation areas, it may issue redesignations and TIPs for those lands. In 

other words, although tribes do not have express delegated 

authority to issue redesignations and TIPs for nonreservation areas, neither does the Act bar tribes from acting 

on a case-by-case basis pursuant to demonstrated inherent 

sovereign power.

 Petitioners contend that both s 7474(c) and 7410(o) operate 

as geographical limitations on the power of tribes to redesignate areas and issue TIPs. Petitioners' argument with 

respect to s 7474(c) falls flat. This provision says that 

"[l]ands within the exterior boundaries of reservations of 

federally recognized Indian tribes may be redesignated only 

by the appropriate Indian governing body." 42 U.S.C. 

s 7474(c). Petitioners seek to twist this language into the 

following: "Indian tribes may only redesignate lands within 

the exterior boundaries of reservations." All s 7474(c) establishes, however, is the exclusive power of Indian tribes to 

redesignate land within a reservation; it does not address the 

inherent power of tribes to redesignate land in nonreservation areas.

 Nor do petitioners fare better with respect to s 7410(o), 

which states that EPA-approved TIPs "shall become applicable to all areas (except as expressly provided otherwise in the 

plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including 

rights-of-way running through the reservation." 42 U.S.C. 

s 7410(o). Petitioners read this to mean that EPA may only 

approve a TIP if it applies within reservation areas. As EPA 

points out, petitioners' interpretation cannot stand for several 

reasons. First, s 7410(o) cross-references s 7601(d), which 

allows for tribes to exercise jurisdiction over reservation 

areas or "other areas within the tribe's jurisdiction." 42 

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U.S.C. s 7601(d)(2)(B). Most importantly, s 7410(o) provides 

that TIPs apply to all areas within the borders of a reservation once the plan "becomes effective in accordance with the 

regulations promulgated under section 7601(d) of this title." 

42 U.S.C. s 7410(o). Therefore, it is permissible for EPA to 

give s 7410(o) the reading it proffers: a reinforcement of 

tribes' jurisdiction to implement TIPs in reservation land. 

Petitioners would instead read the statute as an express 

limitation of tribal jurisdiction. Under step one of Chevron, 

we cannot say that congressional intent is free of ambiguity 

on this question.

 Accordingly, we turn to whether EPA's interpretation is 

reasonable. We believe that it is undoubtedly so. To read 

the statute otherwise would result in several anomalies. 

First, EPA notes without dispute that petitioners' interpretation would allow a state's implementation plan to apply to 

non-reservation areas, even where a tribe has demonstrated 

inherent jurisdiction over those areas. Second, petitioners' 

reading would disable a tribe from comprehensively administering the Act. A tribe could implement, in non-reservation 

areas, new source performance standards under the Act, but 

not administer a TIP, even though the regulated activity 

"threatens or has some direct effect on the ... health or 

welfare of the tribe." Montana, 450 U.S. at 566. EPA's 

reading of the statute to allow such regulation is a reasonable 

interpretation of ss 7410(o) and 7601(d).

D. The Right of The Public To Comment on Tribal Applica-

 tions to Regulate

 EPA's final rule limited the opportunity of the public to 

comment directly to the Agency on "competing claims over 

tribes' reservation boundary assertions and assertions of jurisdiction over non-reservation areas," allowing only "appropriate governmental entities" to submit comments. Tribal Authority Rule, 63 Fed. Reg. at 7267. Petitioners challenge this 

limitation of the public's opportunity to comment directly to 

EPA. Before this court, however, EPA indicated its intent to 

clarify that the Agency will accept comments directly from all 

commenters on the determination of a tribe's eligibility to be 

treated as a state. See Br. for Respondent at 43. Subsequently, EPA issued a clarification to this effect. See Indian 

Tribes: Air Quality Planning and Management, 65 Fed. Reg. 

1322, 1323 (2000).

 Therefore, this issue is moot. See Motor & Equip. Mfrs. 

Ass'n v. Nichols, 142 F.3d 449, 458 (D.C. Cir. 1998) (finding 

challenge to EPA's waiver for state's program was moot 

where actions complained of were revised after lawsuit was 

filed). A dispute may be rendered moot where the complained of conduct has been voluntarily discontinued if "(1) 

there is no reasonable expectation that the conduct will recur 

and (2) 'interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.' " Id. at 

459 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 

631 (1979)). In this case, there is no indication that EPA will 

revert to its past proposal only to receive direct comments 

from "appropriate governmental units," and all of the adverse 

effects of the Agency's alleged illegal action have been remedied by EPA's clarification.

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E. Abrogation of Existing Agreements By Tribes Not to 

 Regulate Certain Land

 Petitioners argue that EPA's final rule abrogates preexisting agreements by Native American nations not to regulate 

certain individual parties. Specifically, petitioner APS points 

to its 1960 lease with the Navajo Nation that APS claims 

prohibits the Nation from regulating the operation of the 

Four Corners Power Plant. See Br. of Petitioner APS at 2. 

APS further claims that the Secretary of the Interior covenanted to protect APS from tribal regulation. See id. at 3.

 Petitioners point to footnote 5 in the final rule which states, 

in response to industry comments that preexisting agreements may limit the extent of a tribe's regulatory jurisdiction, 

that "EPA believes that the CAA generally would supersede 

pre-existing treaties or binding agreements that may limit the 

scope of tribal authority over reservations." Tribal Authority 

Rule, 63 Fed. Reg. at 7256 n.5. Petitioners ignore the 

sentence following footnote 5, however, in which EPA states 

that it "will consider on a case-by-case basis whether special 

circumstances exist that would prevent a tribe from implementing a CAA program over its reservation." Id. at 7256 

(emphasis added). EPA maintains in its brief that it has 

made no judgment on the scope and effect of the specific 

agreements to which petitioners refer, and that it will consider such questions as they arise. As counsel for APS acknowledged at oral argument, it is quite possible that the abrogation issue never will arise. For instance, if the Navajo Nation 

agrees that it will not regulate the Four Corners Plant, there 

will be no controversy in need of resolution.

 There is still a concern, however. In EPA's preamble to a 

proposed federal implementation plan, promulgated after the 

Tribal Authority Rule, the Agency stated that,

 [u]pon review of the circumstances surrounding the loca-

 tion and operation of [the Four Corners Power Plant] on 

 the Navajo Indian Reservation, EPA concluded that jur-

 isdiction under the Act over this facility lies with EPA 

 and the Navajo Nation.

 

64 Fed. Reg. 48,731, 48,732 (1999); see also 64 Fed. Reg. 

48,725, 48,726 (1999) (taking same position with respect to the 

Navajo Generating Station). EPA now acknowledges that, to 

the extent these preambles imply that the Agency has determined that the indicated plants are subject to regulation by 

the Navajo Nation, these statements were incorrect. See 

Supp. Br. of Respondent at 4. In fact, EPA has confirmed 

this position by publishing an official notice in the Federal 

Register clearly indicating that it has not yet determined 

whether the Navajo Nation may regulate the indicated power 

plants under the Act. See id. at 4-5.

 This issue, therefore, is not ripe for review before this 

court. The ripeness doctrine seeks to balance institutional 

interests in delaying review against litigants' interests in 

promptly reviewing allegedly unlawful government actions. 

See Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1420-

21 (D.C. Cir. 1998). First a court must ask if the disputed 

issues are fit for judicial review. See Abbot Labs. v. Gardner, 

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387 U.S. 136, 149 (1967). If the institutional interests of the 

agency or reviewing court favor postponing review, then a 

party must demonstrate "hardship" in order to show that the 

issue should nonetheless be made subject to judicial review. 

See City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C. Cir. 

1994).

 The fitness inquiry asks if a case " 'presents a concrete 

legal dispute [and] no further factual development is essential 

to clarify the issues ... [and] there is no doubt whatever that 

the challenged [agency] practice has "crystallized" sufficiently 

for purposes of judicial review.' " Rio Grande Pipeline Co. v. 

FERC, 178 F.3d 533, 540 (D.C. Cir. 1999) (quoting Payne 

Enters., Inc. v. United States, 837 F.2d 486, 492-93 (D.C. Cir. 

1988)) (alterations in original). Here, petitioners cannot satisfy this prong because EPA has not issued any order relating to the preexisting covenants prohibiting regulation by 

Native American nations. See Florida Power & Light, 145 

F.3d at 1421 (finding lack of fitness for review where it was 

unclear "whether, or on what grounds, EPA would even 

apply" the challenged rule to petitioners).

 Additionally, petitioners cannot point to any hardship they 

would suffer from deferred judicial review. It is axiomatic 

that mere delay, absent other extenuating circumstances, in 

adjudication of a dispute cannot satisfy the hardship prong. 

See Clean Air Implementation Project v. EPA, 150 F.3d 

1200, 1205-06 (D.C. Cir. 1998); Florida Power & Light, 145 

F.3d at 1421 (burden of participating in further proceedings 

does not constitute a hardship).

 Contrary to petitioners' argument, this case is not on all 

fours with Better Government Association v. Department of 

State, 780 F.2d 86 (D.C. Cir. 1986). In Better Government, 

petitioners challenged Department of Justice regulations applied by the Department of State and the Department of the 

Interior to evaluate fee waiver applications for Freedom of 

Information Act requests. The court found that the claim 

was ripe for review because the departments relied on the 

Department of Justice guidelines, and the government agreed 

that the regulations "govern[ ] and will continue to govern 

its decisions." Id. at 93. Here, EPA has made no decision 

that will govern its analysis of whether the preexisting agreements are abrogated by its interpretation of the Act. Until 

the Agency takes a position on the enforceability of the 

covenants not to regulate, there is no concrete issue for this 

court to consider.

F. Judicial Review of Tribal Permitting Programs

 Under Title V of the Act, states must develop a comprehensive permitting program applicable to major air pollution 

sources. See 42 U.S.C. s 7661a. Section 7661a enunciates 

the requirements for administering permitting programs, including elements of judicial review. Pursuant to s 7661a,

 [t]hese elements shall include ...

 

 (6) Adequate, streamlined, and reasonable procedures 

 for ... expeditious review of permit actions, ... includ-

 ing an opportunity for judicial review in State court of 

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 the final permit action....

 

 (7) To ensure against unreasonable delay by the permit-

 ting authority, adequate authority and procedures to 

 provide that a failure of such permitting authority to act 

 on a permit application or permit renewal application ... 

 shall be treated as a final permit action solely for pur-

 poses of obtaining judicial review in State court of an 

 action brought by any person referred to in paragraph 

 (6) to require that action be taken by the permitting 

 authority on such application without additional delay.

 

Id. s 7661a(b)(6), (7).

 EPA initially proposed that tribes "will have to meet the 

same requirements" as states in providing an opportunity for 

judicial review of a final permit action. Proposed Tribal 

Authority Rule, 59 Fed. Reg. at 43,972. EPA withdrew this 

proposal in its final rule. Instead, EPA required tribes to 

meet all the requirements of s 7661a(b)(6) and (7) except that 

review of a tribe's Title V permitting program need not be 

"judicial" or "in State court." See Tribal Authority Rule, 63 

Fed. Reg. at 7261. Petitioners present two challenges to the 

final rule on judicial review: (1) that EPA had no authority to 

exempt tribes from the Act's judicial review requirements; 

and (2) that interested parties received insufficient notice of 

the final rule's content.

 EPA promulgated its final rule in response to comments 

that expressed concern over "waivers of tribal sovereign 

immunity to judicial review." Id. Some Native American 

representatives observed that requiring a waiver of sovereign 

immunity for a tribe to administer a Title V permit program 

would operate as a disincentive to a tribe's establishing such 

programs. Industry commenters also sought assurances that 

nonmembers of tribes would have access to tribal courts for 

judicial review.

 EPA identified two alternatives for ensuring that "some 

form of citizen recourse be available for applicants and other 

persons affected by permits issued under tribal Title V programs." Id. One option was for tribes to voluntarily waive 

their sovereign immunity in tribal courts. A second possibility was for the Agency to consider "alternative options ... 

that would not require tribes to waive their sovereign immunity to judicial review but, at the same time, would provide 

for an avenue for appeal of tribal government action or 

inaction to an independent review body and for injunctivetype relief to which the Tribe would agree to be bound." Id. 

at 7262. EPA interpreted 42 U.S.C. s 7601(d) to "provide[ ] 

EPA with the discretion to balance the goals of ensuring 

meaningful opportunities for public participation under the 

CAA and avoiding undue interference with tribal sovereignty 

when determining those provisions for which it is appropriate 

to treat tribes in the same manner as states." Id.

 Section 7601(d) authorizes EPA to treat Native American 

nations as states for the purposes of the Act. However, if 

EPA determines "that the treatment of Indian tribes as 

identical to states is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other 

means by which the Administrator will directly administer 

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211 F3d 1280.txt

such provisions so as to achieve the appropriate purpose." 42 

U.S.C. s 7601(d)(4). EPA relies on this statutory provision 

to justify the approach taken on judicial review.

 Petitioners argue that EPA lacks authority to exempt 

tribes from the judicial review requirements, because 

s 7601(d) does not affect the operation of CAA provisions 

"that define rights that must be afforded to those affected by 

a program in order [for either a tribe or a state] to receive 

EPA approval to administer a federally enforceable program." Br. for Petitioners NAM at 42. We see no merit in 

this claim. EPA's interpretation is not clearly contradicted 

by the statute. In fact, s 7601(d)(4) allows the Agency the 

discretion to determine whether it is "inappropriate or administratively infeasible" to treat Indian tribes exactly the same 

as states in administering the Act. Petitioners offer no 

support for their assertions that the judicial review requirements do not come within the EPA's discretion under this 

section. It is obvious, then, that the Agency had a choice as 

to whether to treat Indian tribes identical to states with 

regard to the judicial review elements of s 7661a(b). The 

clear meaning of the statute does not foreclose the Agency's 

interpretation.

 Nor is the Agency's interpretation unreasonable. EPA 

understandably was concerned that the effect of requiring 

tribes to submit their permitting disputes to state courts 

would conflict with policies supporting tribal sovereignty and 

also discourage the institution of tribal permitting programs. 

The Agency's decision to allow tribes to submit alternatives to 

waiving sovereign immunity accomplishes a reasonable balancing of these interests. This is bolstered by EPA's expressed intention to ensure that any alternative to a waiver of 

sovereign immunity nonetheless provides an impartial forum 

allowing for "injunctive-type relief." Tribal Authority Rule, 

63 Fed. Reg. at 7262.

 Petitioners also argue that, assuming that EPA could exempt tribes from judicial review requirements, s 7601(d)(4) 

requires that EPA provide an alternative means of ensuring 

effective judicial review. Petitioners suggest that EPA must 

at least "provide for review by the Regional Administrator of 

all tribal permit decisions, and resolve all federal or tribal 

challenges to the tribe's actions." Br. for Petitioners NAM at 

44. To the extent that this argument merely reiterates the 

contention that EPA has no authority to alter tribes' judicial 

review responsibilities, nothing more need be said. To the 

extent that this argument challenges the alternative tribal 

review procedures to be approved by EPA in lieu of judicial 

review in state court, this issue is not ripe for review. EPA 

has not yet approved any alternative tribal judicial review 

procedures. See Tribal Authority Rule, 63 Fed. Reg. at 7262 

("EPA will develop guidance in the future on acceptable 

alternatives to judicial review."). As such, there is no deci-

sion "fit" for judicial review, nor have petitioners demonstrated any hardship from deferred review.

 Petitioners advance a separate contention in support of 

vacating the rule: that interested parties did not receive 

sufficient notice of the substance of the final rule. The 

Administrative Procedure Act requires that an agency publish 

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notice of its proposed rulemaking that includes "either the 

terms or substance of the proposed rule or a description of 

the subjects and issues involved." 5 U.S.C. s 553(b)(3) 

(1994). An agency satisfies this notice requirement if the 

final rule is a "logical outgrowth" of the proposed rule. See 

Aeronautical Radio, Inc. v. FCC, 928 F.2d 428, 445-46 (D.C. 

Cir. 1991). In other words, we consider " 'whether ... [the 

party], ex ante, should have anticipated that such a requirement might be imposed' " in determining whether adequate 

notice was given in a notice of proposed rulemaking. Id. at 

446 (quoting Small Refiner Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 549 (D.C. Cir. 1983)) (alterations in 

original).

 "In most cases, if the agency ... alters its course in 

response to the comments it receives, little purpose would be 

served by a second round of comment." American Water 

Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994). 

Thus, the "logical outgrowth" test normally is applied to 

consider "whether a new round of notice and comment would 

provide the first opportunity for interested parties to offer 

comments that could persuade the agency to modify its rule." 

Id. (emphasis added). In this case, there was more than 

enough notice for interested parties to offer comments on 

EPA's treatment of the judicial review provisions of the Act 

vis a vis Indian tribes. The parties were not asked to "divine 

the EPA's unspoken thoughts." Shell Oil Co., 950 F.2d at 

751. And the final rule was not wholly unrelated or surprisingly distant from what EPA initially suggested. In first 

proposing that tribes would have to meet the "same requirements" as states, EPA effectively raised the question as to 

whether this made sense. EPA's proposal was not a "bureaucratic game of hide and seek," MCI Telecomm. Corp. v. FCC, 

57 F.3d 1136, 1142 (D.C. Cir. 1995); the proposal raised a 

highly visible and controversial issue and elicited responses 

from both tribal and industry commenters. Furthermore, 

any reasonable party should have understood that EPA might 

reach the opposite conclusion after considering public comments. In short, it is fair to say that the purpose of notice 

and comment rulemaking has been served, and that the 

Agency's change of heart on this issue only demonstrates the 

value of the comments it received.

 III. CONCLUSION

 Consistent with the foregoing opinion, we deny the petitions for review in part, and dismiss in part for want of 

jurisdiction and for lack of ripeness. Petitioners' motions for 

vacatur and remand are dismissed as moot.

 Ginsburg, Circuit Judge, dissenting in part: With certain 

exceptions, of which more later, an Indian tribe lacks inherent 

authority to regulate the conduct of a nonmember on land he 

owns within the boundaries of the tribe's reservation. Lacking inherent authority, a tribe may exercise regulatory authority over such non-Indian lands only by express congressional delegation. The court today determines that 

s 301(d)(2)(B) of the Clean Air Act, 42 U.S.C. s 7601(d)(2)(B), 

expressly delegates to tribes--contingent upon approval by 

the EPA Administrator--authority to enforce the Clean Air 

Act on nonmembers' lands within a reservation. Finding no 

such express delegation in s 301(d)(2)(B), I dissent from Part 

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II.A of the opinion for the court.

 I. Background

 In State of Montana v. United States, 450 U.S. 544 (1981), 

the Crow tribe had sought to regulate nonmembers' hunting 

and fishing upon lands owned in fee by the State of Montana 

but lying within the boundaries of the Crow reservation. The 

Supreme Court, unanimous upon this point, held that a tribe 

generally lacks authority to regulate the conduct of nonmembers upon lands owned in fee by nonmembers ("fee lands"); 

of the two exceptions the Court noted, the only one arguably 

relevant here is that "[a] tribe may ... retain inherent power 

to exercise civil authority over the conduct of non-Indians on 

fee lands within its reservation when that conduct threatens 

or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 

566. Absent such a threat or effect, tribal regulation of fee 

lands within a reservation requires an "express congressional 

delegation." Id. at 564.

 The two provisions of the Clean Air Act relevant to the 

question of tribal authority to enforce the Act on fee lands 

were added by s 107 of the 1990 Amendments, Pub. L. No. 

101-549, 104 Stat. 2399, 2464. Section 301(d) of the Act, 42 

U.S.C. s 7601(d), provides in relevant part:

 (1) Subject to the provisions of paragraph (2), the Ad-

 ministrator ... is authorized to treat Indian tribes as 

 States under this chapter ...

 

 (2) The Administrator shall promulgate regulations ... 

 specifying those provisions of this chapter for which it is 

 appropriate to treat Indian tribes as States. Such treat-

 ment shall be authorized only if--

 

 (A) the Indian tribe has a governing body carrying out 

 substantial governmental duties and powers;

 

 (B) the functions to be exercised by the Indian tribe 

 pertain to the management and protection of air re-

 sources within the exterior boundaries of the reserva-

 tion or other areas within the tribe's jurisdiction; and

 

 (C) the Indian tribe is reasonably expected to be 

 capable, in the judgment of the Administrator, of 

 carrying out the functions to be exercised in a manner 

 consistent with the terms and purposes of this chapter 

 and all applicable regulations.

 ...

 

Section 110(o) of the Act, 42 U.S.C. s 7410(o), provides in its 

entirety:

 If an Indian tribe submits an implementation plan to the 

 Administrator pursuant to section [301(d), above], the 

 plan shall be reviewed in accordance with the provisions 

 for review set forth in this section for State plans, except 

 as otherwise provided by regulation promulgated pursu-

 ant to section [301(d)(2)]. When such plan becomes 

 effective in accordance with the regulations promulgated 

 under section [301(d)], the plan shall become applicable 

 to all areas (except as expressly provided otherwise in 

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 the plan) located within the exterior boundaries of the 

 reservation, notwithstanding the issuance of any patent 

 and including rights-of-way running through the reserva-

 tion.

 

 The EPA's Tribal Authority Rule (TAR) allows a tribe 

(subject to approval by the Administrator of the EPA) to 

enforce the Clean Air Act on all land within the boundaries of 

a reservation without having to demonstrate its inherent 

authority over all such land. Under the clear rule of Montana, however, a tribe lacks inherent sovereign authority to 

regulate fee lands (and rights of way, see Strate v. A-1 

Contractors, 520 U.S. 438, 456 (1997)) within a reservation 

except under the aforementioned exception announced in that 

case. Therefore, the TAR must be set aside as contrary to 

law unless the 1990 Amendments expressly delegate to tribes 

authority over fee lands and rights of way within a reservation. Upon that starting point for analysis the parties, the 

court, and I agree.

 The EPA claims to find a delegation of authority in 

s 301(d)(2)(B) of the Clean Air Act. In evaluating this claim, 

the court is to accord no deference to the EPA's interpretation of that section because Montana requires an "express 

congressional delegation" in order to expand tribal authority. 

In other words, the EPA cannot prevail merely by demonstrating that its interpretation of s 301(d)(2)(B) is reasonable; 

the agency's interpretation must be correct if the TAR is to 

stand. Therefore, although we are reviewing an EPA rulemaking, on this issue the focal point for our inquiry is not the 

EPA's interpretation but the statute itself. Upon this methodological point, too, all agree.

 II. Analysis

 With these agreed upon principles in mind, it seems to me 

clear that the 1990 Amendments do contain an express delegation of authority over fee lands and rights of way--but not 

in s 301(d), which governs tribal enforcement of all Clean Air 

Act programs specified by the Administrator. Rather, the 

delegation is in s 110(o), which governs only tribal implementation plans (TIPs). Because the specific delegatory text in 

s 110(o) is significant to my conclusion that s 301(d) is not a 

delegation, I consider s 110(o) first.

 A. Section 110(o) and the "Notwithstanding" Proviso

 

 The petitioners' convoluted argument to the contrary notwithstanding, s 110(o) is self-evidently an express congressional delegation of authority to enforce TIPs on fee lands 

and rights of way within a reservation: "the [TIP] shall 

become applicable to all areas ... located within the exterior 

boundaries of the reservation, notwithstanding the issuance of 

any patent and including rights-of-way running through the 

reservation." The same "notwithstanding" proviso has been a 

feature in the only two cases in which the Supreme Court has 

found an express delegation of authority to tribes. In United 

States v. Mazurie, 419 U.S. 544 (1975), and in Rice v. Rehner, 

463 U.S. 713 (1983), the Court found an express delegation of 

authority over fee lands within a reservation based upon two 

statutory provisions: 18 U.S.C. s 1161, which authorizes the 

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tribes to enact ordinances regulating liquor in "Indian country"; and 18 U.S.C. s 1151, which defines "Indian country" to 

include "all land within the limits of any Indian reservation 

under the jurisdiction of the United States Government, 

notwithstanding the issuance of any patent, and, including 

rights-of-way running through the reservation." See Rice, 

463 U.S. at 715 & n.1 ("Congress has delegated authority ... 

in Indian country [as defined in] 18 U.S.C. s 1151"); see also 

Brendale v. Confederated Tribes & Bands of the Yakima 

Indian Nation, 492 U.S. 408, 428 (1989) (citing 18 U.S.C. 

ss 1151 and 1161 together as an express congressional delegation of authority over fee lands).*

 B. Section 301(d)

 

 The express congressional delegation just identified in 

s 110(o) cannot by itself support the TAR, however: Because 

the TAR allows a tribe to enforce all applicable Clean Air Act 

programs--rather than just the TIP--on nonmember lands 

within its reservation, the EPA must demonstrate that 

__________

 * In a dictum, the Brendale Court noted as a second example of 

an express congressional delegation of authority ss 518(e), (h)(1) of 

the Clean Water Act, 33 U.S.C. ss 1377(e), (h)(1), the latter of 

which, significantly, contains the notwithstanding clause so glaringly 

absent from s 301(d). 492 U.S. at 428. In terms that otherwise 

track s 301(d) of the Clean Air Act, s 518(e) provides for conditionally treating a tribe as a state with regard to water resources 

"within the borders of an Indian reservation," defined in s 518(h)(1) 

as "all land within the limits of any Indian reservation under the 

jurisdiction of the United States Government, notwithstanding the 

issuance of any patent, and including rights-of-way running through 

the reservation." In spite of the Brendale dictum, the EPA has 

concluded s 518 is not an express congressional delegation of 

authority, see 56 Fed. Reg. 64,876, 64,880 (1991), but no court has 

yet resolved the issue.

s 301(d) likewise contains an express congressional delegation of authority.

 The EPA argues the following text distilled from s 301(d) 

contains an express delegation to tribes of authority to regulate fee lands within a reservation:

 [T]he Administrator ... is authorized to treat Indian 

 tribes as States.... Such treatment shall be authorized 

 only if ... the functions to be exercised by the Indian 

 tribe pertain to the management and protection of air 

 resources within the exterior boundaries of the reserva-

 tion or other areas within the tribe's jurisdiction.

 

42 U.S.C. s 7601(d)(1)-(d)(2)(B) (emphasis added). The gist 

of the agency's argument, which the court accepts, is that the 

Congress expressly delegated authority over all lands within 

a reservation by linking "within the exterior boundaries of the 

reservation" disjunctively to "other areas within the tribe's 

jurisdiction." For the following reasons, I do not agree.

 As the petitioners emphasize, when one reads the relevant 

sentence as a whole--rather than focusing solely upon the 

last phrase--one sees that, rather than expressing a delegation of authority over fee lands and rights-of-way within a 

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reservation, the sentence by its terms merely lays down a 

precondition to the Administrator's treating a tribe as a state. 

Even more certainly, there is no way to read the phrase 

deemed crucial by the court ("within the exterior boundaries 

of the reservation or other areas within the tribe's jurisdiction") as an express delegation of authority.

 One important indication that the Congress did not intend 

this phrase as an express delegation is that it used the Courttested "notwithstanding" proviso in s 110(o) but not in 

s 301(d)(2)(B). Sections 110(o) and 301(d)(2)(B) were enacted 

at the same time, in the same section of the same bill, so the 

different phrasing should not be thought just an artifact of 

legislative haphazardry. I do not believe that the Congress, 

obviously aware that it could enlarge tribal authority over 

nonmember lands only through an express delegation, would 

include the formulaic "notwithstanding" proviso--the gold 

standard for such delegations--in the narrower of the two 

sections, and then use an obscure and never-before-attempted 

formulation to accomplish the same result in the broader of 

the two sections. Further, the court's interpretation of 

s 301(d)(2)(B) renders the "notwithstanding" proviso in 

s 110(o) surplusage--a point the court euphemistically acknowledges, Slip Op. at 23 ("a reinforcement of tribes' ... 

[s 301(d)(2)(B) authority] to implement TIPs in reservation 

land"). If s 301(d)(2)(B) is so clear as to constitute an 

express congressional delegation, it is difficult to believe that 

the Congress would "reinforce" this point in a narrower 

provision enacted at the same time as and expressly crossreferencing s 301(d).*

 Finding an express congressional delegation in s 301(d) is 

made even more difficult, as the petitioners contend, by the 

Congress's having deleted a literal delegation to tribes that 

was included in the corresponding section of the bills by 

which the 1990 Amendments were first introduced in the 

House and the Senate: "the Administrator ... may delegate 

to [ ] tribes primary responsibility for assuring air quality and 

enforcement of air pollution control." H.R. 2323, 101st Cong. 

__________

 * The court suggests the Congress may well have intentionally 

avoided using the "notwithstanding" proviso in s 301(d) in response 

to the EPA's having interpreted s 518 of the Clean Water Act as 

not being a delegation. Slip Op. at 13. The EPA's interpretation 

of the CWA was not adopted, however, until December 1991, more 

than a year after enactment of the 1990 Amendments. See 56 Fed. 

Reg. 64,876, 64,880. I am not willing blithely to "assume that 

Congress was aware of," much less responded to, the EPA's mere 

proposal to adopt that interpretation. When the 1990 Amendments 

were enacted, the EPA's unexplained proposal was still subject to 

change in the light of public comments, and even if finally adopted 

would not receive deference from a reviewing court charged with 

determining whether the Congress had made an express delegation 

to tribes. In contrast, we know for a certainty that the Congress 

was aware of Brendale, in which the Supreme Court instanced 

CWA s 518(h)(1) as an express congressional delegation: That case 

had been decided in June 1989, and is cited in the Senate Report on 

an earlier version of the 1990 Amendments, see S. Rep. No. 

101-228, at 79.

s 604, reprinted in 2 Legislative History of the Clean Air Act 

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Amendments of 1990, at 4053, 4101 (1993) [hereinafter 1990 

Leg. Hist.]; S. 1630, 101st Cong. s 111, reprinted in 5 1990 

Leg. Hist. 9050, 9145. The Senate passed S. 1630 with this 

express delegation intact; the House, however, did not act 

upon H.R. 2323 but instead passed H.R. 3030, in which the 

delegation provision did not appear. See 2 1990 Leg. Hist. 

1809, 1972-73 (House passage of S. 1630, amended in the 

nature of a substitution of H.R. 3030). The House version 

prevailed in conference, see id. at 478-79, so the 1990 Amendments as finally enacted into law do not contain this literal 

delegation provision. The court is of course correct that the 

Congress need not use the word "delegate" in order to effect 

an express delegation, Slip Op. at 15; s 110(o) illustrates the 

point. That the Congress "specifically rejected language 

favorable to [EPA's] position," Slip Op. at 12, however, is 

further evidence that the legislature did not mean to enact a 

delegation of authority. Indeed, to believe that the Congress 

meant s 301(d)(2)(B) to serve as a delegation, after it had 

included the "notwithstanding" proviso in the narrower 

s 110(o) and removed from s 301(d) a provision that expressly provided a delegation to tribes, would require one to 

believe the Congress was more interested in testing our 

interpretive acumen than in clearly expressing its will upon 

the important issue of tribal authority over nonmembers.

 The court claims support for its contrary conclusion in the 

Congress having "moved from authorizing tribal regulation 

over the areas 'within the tribal government's jurisdiction' ... 

to a bifurcated classification of all areas within 'the exterior 

boundaries of the reservation' and 'other areas within the 

tribe's jurisdiction.' " Slip Op. at 12. Putting aside the 

question-begging interpolation of "all" into the quoted passage, I think the court misapprehends the significance of the 

phrase "within the exterior boundaries of the reservation or 

other areas within the tribe's jurisdiction." As originally 

introduced, H.R. 3030 referred only to air resources "within 

the exterior boundaries of the reservation." 2 1990 Leg. 

Hist. 3737, 3853. The House Committee on Energy and 

Commerce without comment added the phrase "or other 

areas within the tribe's jurisdiction," id. at 3021, 3069, and as 

mentioned, the House version later prevailed in conference. 

The legislative record is silent about why the Committee 

added that phrase. The most straightforward interpretation 

of the addition is that the Committee wanted to ensure that 

the treatment of tribes as states extended beyond the reservation to non-contiguous areas of tribal authority, such as 

dependent Indian communities. This seems far more likely 

than that a House committee, with no discussion, inserted the 

phrase "or other areas within the tribe's jurisdiction" in order 

to turn a simple reference to reservations into a delegation of 

authority over non-Indian lands within reservations.

 Finally, I cannot agree with the court that we should find 

an express congressional delegation of authority in 

s 301(d)(2)(B) in any part because the contrary reading 

"would result in a 'checkerboard' pattern of regulation within 

a reservation's boundaries that would be inconsistent with the 

purpose and provisions of the [Clean Air] Act." Slip Op. at 

11-12. First, it is not at all clear that a "checkerboard" 

pattern--really a matter of certain fee lands remaining subject to State (or federal) rather than tribal authority, while 

surrounding areas go tribal--would result: a tribe remains 

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free to demonstrate its inherent authority over any activity on 

fee lands that "threatens or has some direct effect on ... the 

health or welfare of the tribe," Montana, 450 U.S. at 566. 

Therefore, if a tribe does find itself without authority over 

certain fee lands for want of an express delegation, that is 

only because no activities on those fee lands threaten or 

directly affect the health or welfare of the tribe.

 Second, tribal authority over less than all lands within the 

boundaries of a reservation is the logical result of the tribes' 

"diminished status as sovereigns," Montana, 450 U.S. at 565. 

The Montana rule on its face contemplates less than uniform 

authority within a reservation; unless an exception applies, 

the tribe cannot regulate a parcel owned by a nonmember 

even though it retains authority over the surrounding lands 

owned by the tribe. See, e.g., Brendale, 492 U.S. at 428 

(White, J., for the Court in part and dissenting in part), 443, 

445 (Stevens, J., for the Court in part and concurring in the 

judgment in part) (each affirming non-uniform zoning authority). While the Congress could have chosen to sweep away 

such non-uniformity in s 301(d), as it did in s 110(o), the 

court's evident sense that the Congress should have done so 

is no basis for reading an express delegation into the statute 

where the Congress has not written one.*

 III. Conclusion

 In my view, s 301(d)(2)(B) is not an express delegation of 

authority for Indian tribes to regulate the conduct of nonmembers on fee lands within the boundaries of a reservation. 

A tribe may be able, of course, to demonstrate its authority 

over such fee lands under the exception recognized in Montana. Without making such a showing, however, I do not 

believe the tribe may regulate the conduct of nonmembers on 

fee lands and rights-of-way except as provided by s 110(o). I 

__________

 * Seymour v. Superintendent of Washington State Penitentiary, 

368 U.S. 351 (1962) and Moe v. Confederated Salish and Kootenai 

Tribes of Flathead Reservation, 425 U.S. 463 (1976), cited by the 

court today, certainly do not counsel reading an express delegation 

into a statute in order to avoid non-uniform tribal authority within a 

reservation. In Seymour, the Court held that "an impractical 

pattern of checkerboard jurisdiction was avoided by the plain 

language of [18 U.S.C.] s 1151," namely, the "notwithstanding" 

proviso. 368 U.S. at 358. And in Moe, the Court determined that 

because the Congress had "repudiated" but never formally repealed 

s 6 of the General Allotment Act, 25 U.S. s 349, the court would 

read s 6 narrowly in order to avoid creating an inconsistency with 

later-enacted statutes. 425 U.S. at 477-79. Thus, the Court was 

merely "follow[ing] Congress' lead in this area." Id. at 479. So, 

too, where the Congress has expressly delegated authority, as in 

s 110(o), we should certainly give its command full rein; but where 

it has not, we should not undertake to do so for it.

therefore respectfully dissent from Part II.A. of the opinion 

for the court.

 

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