Memorandum of Agreement Between the Southern Ute Indian Tribe 

and the U.S. Environmental Protection Agency Region 8 Regarding 

Criminal Enforcement of the Clean Air Act within the Exterior 

Boundaries of the Southern Ute Indian Reservation 

This Memorandum ofAgreement is executed by the SOUTHERN UTE INDIAN 

TRIBE and the U.S. ENVIRONMENTAL PROTECTION AGENCY-REGION 8. 

RECITALS 

WHEREAS, the Southem Ute Indian Tribe is a fcdt:rally recognized Indian tribe 

governed by the Southern Ute Indian Tribal Council; and 

WHEREAS, the Tribe entered into an agreement with Colorado entitled 

lnferxovernmental Agreement Between the Southern Ute Indian Trihe and the State or 

Colorado Concerning Air Quality Control on the Southern Ute Indian Reservation 

("IGA") on December 13, 1999, to cstablish a single air quality program applicable to all 

lands within the exterior boundaries ofthe Southern Ute Indian Reservation 

("Reservation"); and 

WHEREAS, Con!:.7fess adopt<.xi the Act ofOctober 18, 2004, Pub. 1.. No. 108-336. 118 

Stat. 1354 (,'Public Law 108-336") to provide ll)r the implementation of air quality 

prognuns developed. in accordance with the IGA and for other purposes; and 

WHEREAS, Public Law 108-336 authorizes the Administrator ofthe U.S. 

Environmental Protection Agency ("EPA") to treat the Tribe as a State for the purpose of 

any air program applications submitted to the Administrator by the Trihe undcr section 

301(d) (42 U.S.c. § 7601(d» ofthe Clean Air Act to carry out, in a manner consistent 

. with the Clean Air Act, the lGA: and 

WHEREAS, the EPA, pursuant to Section 301(d) ofthe Clean Air Act, 42 U.S.c. § 

7601 (d). and 40 C.F.R. Part 49 is authoriztxi to treat Indian tribes in a similar manner as 

states for the purpose of administering certain provisions ofthe Clean Air Act; and 

WHEREAS, the Tribe intends to apply to EPA fl)r treatment in a similar manner as a 

state ("TAS") for the purpose of administering a tribal Clean Air Act Title V operating 

penuit program within the exterior boundaries o1'thc Reservation; and 

WHEREAS, the Supreme Court has held that an Indian tribc may not exercise criminal 

jurisdiction over non-Indians unless Congress has conferred that power on the tribe. and 

criminal sanctions that may be imposed by Indian tribes on Indians arc limited by the 

Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(7); and 

WHEREAS, in the IGA, the Tribe and State ofC'oJorado agreed that "EPA will exercise 

criminal enforcement jurisdiction OWl" any persons on all lands within [the Southem Ute 
Indian] Reservation boundaries for violations ofthe Reservation Air Program." IGA, 

Article X.8.2; § 24-62-101, C.R.S.; and 

WHEREAS, EPA regulations at 40 C.F.R. §§ 49.7(a)(6) and 49.8 allow approval of 

tribal TAS applications fiJr Clean Air Act programs including criminal enforcement 

components where the eligible Indian tribe seeking TAS enters into a Memorandum of 

Agreement ("MOA") with the appropriate EPA region, sctting fi.)rth a procedure by 

which the tribe will provide potential investigative leads to the federal government in an 

appropriate and timely manner under circumstances in which the tribe is precluded from 

asserting criminal enforcement authority; and 

WHEREAS, the Tribe and EPA-Region 8 desire to enter into this MOA in accordance 

with 40 C.F.R. § 49.8 and as cOlltemplated in the lGA. 

AGREEMENT 

NOW THEREFORE the parties agree as follows: 

ARTICLE J. Liaisons and Communications 

A.	 The f(lllowing individuals will be designatcd by the respective parties as 

being primarily responsible for fulfilling the duties ofthe respective 

parties pursuant to this MOA: 

I.	 For the Tribe: the Division Head ofthe Southern Ute 

Environmental Programs Division and the Chiefof Police ofthe 

Southern Ute Tribal Police Department. 

2.	 For EPA Region YJII: the em Denver Area Office Spccial Agent 

in Charge. 

B.	 The parties will treat all communications made pursuant to this MOA as 

confidential and sensitive enforcement int<.>nl1ation (hereinafter. Covered 

Information) and will not disclose any such communication except to the 

extent required by law or in the context of an inspection. investigation, or 

law enfi)rcement or judicial proceeding. The parties will take steps to 

ensure the confidentiality ofCovered Infbrmation and, to the extent 

permitted by law, shall not disclose Covered Infomlation to anyone 

()Utside ofthe Federal or Tribal governments without the consent ofboth 

parties except as part ofan enforcement proceeding. Ifthe Tribe is unahle 

to protcct Covered lnfimnation from disclosure (except in the context of 

an inspection, investigation, or law cnf()rcemcnt or judicial proceeding), 

the Tribe will notify EPA before EPA shares any Covered 111f()mlution 

with the Tribe. To the extent pennitted by Tribal law. the Tribe will, in 

consultation with EPA. retum or dcstroy any Covered Infc.l1mation that it 

is unable to protect from disclosure. Similarly, if EPA is unable to protect 

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Covered lnfonnation from disclosure (except in the context of a judicial 

proceeding), EPA will notifY the Tribe before the Tribe shares any 

Covered Information with EPA. To the extent pt.'l1TIitted hy tooerallaw, 

EPA will, in consultation with the Tribe, return or destroy any Covered 

Infi)rmation that it is unable to protect from disclosure. 

ARTICI.JE II.	 Notice of Suspected Criminal Violations 

A.	 The Trihe will provide investigative leads in accordance with Article HI 

when the Tribe has reason to suspect that an Indian or non-Indian (i.e.. a 

person who is not an enrolled member of an American Indian tribe or 

Alaska Native village recognized by the U.S. Department ofInterior 

Bureau ofIndian Affairs as a Federally Recognized Indian tribe) has 

committed an act or omission on the Reservation that is potentially 

punishable by a criminal penalty. as provided by Section 113(c) ofthe 

Clean Air Act, 42 U.S.C. § 7413(c). 

B.	 This MOA will not be construed to limit the enhHcement jurisdiction of 

EPA. 

ARTICLE HI.	 Procedure By Which the Tribe Will NotifY the Federal 

Government and Submit Investigative Leads 

A.	 Whenevcr thc Tribe has reason to suspect the circumstances described in 

Article II, the Tribe will promptly (ideally. within 24 hours) notify the 

EPA Criminal Investigation Division (erD) Denver Area Office by 

tc!ephone (303-312-6134) or telefax (303-312-6517) to provide initial 

investigative leads. 

B.	 After providing the initial invc.<;tigative lead. the Tribe will, when 

requested, continue to assist Cl D in collecting additional evidence to 

support the invcstigation, and will make available inspectors or other 

employees ofthe Tribe who witnessed the suspected violations or who are 

otherwise in the chain ofcustody for evidence ofthe vio lation. The Tribe 

will continue to assist in the investigation a') resources allow. 

ARTICLE IV. Procedure By \Vhich the EPA Will Follow Up on Invcsti~ativc

Leads 

A.	 EPA will carefully review every investigative lead provided hy the Tribe 

and will promptly (ideally within 30 days) notify the Tnhe of EPA's 

intentiun to either (I) pursue the lead and conduct additional criminal 

investigation necessary to support initiation ora prosecution or (2) decline 

to pursue the lead or discontinue investigation ofthe lead. EPA shall 

endeavor to complete any additional investigation that is undertaken in a 

timely manner (i.e., within the time necessary for an effective prosecution 

3 
to occur). Whenever EPA decides to dedine or discontinue investigation 

of a lead, it will promptly communicate its reasons for doing so in writing 

to the Tribe. While nothing in this agreement may in any respect or under 

any circumstances be interpreted to limit EPA's cnfim.;ement discretion or 

otherwise create any right or expectation, factors that may contribute to a 

decision to decline or discontinue investigation include but are not limited 

to: (1) staleness ofthe evidence, (2) inability to identify and/or prosecute 

the true authors ofthe crime, (3) dift'iculty in demonstrating that the 

target(s) ofthe investigation had the legally required mental state, (4) the 

absence o1'a clear violation oflaw, (5) lack ofproseeutorial interest or 

availability, and (6) the need to prioritize given limIted investigative 

resources. In the event that the Tribe disagrees with EPA's decision, it 

will notify the EPA-ClO SAC in writing ofthe areas of disagreement and 

EPA-ClO shall work in good faith with the Tribe to discuss and. if 

possible resolve, the arcas of disagreemenlo 

B.	 EPA shall notify the Tribc in writing of its request for prosecutorial 

assistance from the United States Attorney for criminal prosecution under 

the Clean Air Act with respect to alleged offenses occurring on the 

Reservation. EPA shall, at the request ofthe United States Attorney, 

make its personnel available to serve a..<; witnesses bcfclre grand or petit 

jury in support ofthe development and prosecution orany Clean Air Act 

offenses occurring on the Reservation. 

C.	 Upon receipt from the United States Attorney, U.S. EPA CID Denver 

Area Office will, as authorized by the United States attorney, provide a 

copy to the Tribe of any letter declining to prosecute any allegc-d Clean 

Air Act otlcnse on the Reservation that was referred to the Unitt..xl. States 

Attorney by EPA. In the absence ofauthorization from the U.S. Attorney 

to share any sueh letter, EPA shall provide written notice ofdeclination, 

including such explanation ofthe basis for declination as it is able and 

permitted to provide. 

ARTICLE V. Training and Education 

The Tribe and EPA agree that well trained ano knowledgeable air quality program 

stafTofthe Tribe is important in recognizing potential criminal violations ofthe 

Clean Air Act. In that regard, EPA's Oftice ofCriminal Entbrcemcnt, Forensics, 

and Training will atlord the Tribe priority in regional and national offerings of the 

tuition-free Tribal Environmental Crime Investigation Training Program. 

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ARTICLE VI. Miscellaneous Provisions 

A.	 This MOA defines in general tenns the basis on which the parties intend 

to cooperate. Any provision in it is void to the extent that it conflicts with 

or is inconsistent with applicable law, federal regulations, and federal 

policy. This MOA is neither a tiscal nor a funds obligation document. 

Nothing in this MOA obligates EPA or the Tribe to expend appropriations 

or to enter into any contract, a'isistancc agreement or interagl.'11cy 

agreement, or to incur other financial obligations. The MOA does not 

exempt transactions between EPA and the Tribe from EPA policies 

governing competition tor assistance agreements and contracts. Any 

obligation or expenditure offunds by EPA in furtherance ofthe goals of 

this MOA must be consistent with existing legal authorities. All 

obligations and expenditures of funds by EPA will he subject to the 

availability of appropriations and EPA's discretion in making budgetary 

detenninations. All obligations and expenditures of funds by the Tribe 

will be subject to the availability of appropriations and the Tribe's 

discretion in making budgetary determinations. Nothing in this MOA may 

be construed to give rise to a claim for compensation f(H services 

pcrl<mned to further the goals ofthis agreement. 

B.	 This MOA does not create any right or benefit, substantive or procedural, 

enf()rceable by law or (,,'quity by a third party against the Tribe or EP1\, 

their ollicers or employees, or any other person. This MOA does not 

direct or apply to any person other than the Tribe and EPA. 

C.	 If any provision ofthis MOA is detcnnined to be invalid or prohibited by 

law, that provision shall be inetlective only to the extent ofsuch invalidity 

or prohibition, without atlecting the validity of the remaining provisions 

ofthe MOA. The Tribe and EPA Region Ragree to meet and negotiate in 

good faith to mnend this MOA in order to cure any sueh lcgal defect. 

D.	 This MOA will become effective on the date of EPA's approval of the 

Tribe's treatment in a similar manner as a statc application. It may be 

modified or amended only through the written agreement of both parties. 

This MOA will continue in encct until terminated by the partil.'S. Either 

party may tenninate the MOA by providing 90 days advance written 

notice to thc other party. Tt--nnination of this MOA could lead to 

withdrawal of EPA's approval ofthe 'rribe's Clean Air Act program. 

E.	 This MOA may be executed in one or more counterparts, each of which 

shall be deemed an original, but all ofwhieh together shall constitute one 

and the same instrument. 

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ARTICLE V1I. Signatures 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY - RE(;ION 8 

\...tt' .•.4.--...... 1 ~.~.... .k ...•_.._...._....._.. 

Carol1Rushin, Acting Regional Administrator Date 

Giement J. f1*6g! 

""'"N~W , 

._------_ 

~~(tnl Ute Indian Tribal Council 

:;:? •/1> CJI7 ____._v".···w . 

Date 

EPA CRIMINAL INVESTIGATION DIVISION, DENVER AREA OFF'ICE 

'" " ,,-, i J 

" ~" I" ',/\' / I t.}'1- ft ....::.:..., . '.,......,'_.•_,_ ......... ,_ ...__ .." 

Lori A.. Hanson. Special Agent in Charge, CID Denver Area omce Date 

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