User Name: Ann Lyons

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1. Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280

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Ann Lyons
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As of: June 6, 2014 1:43 PM EDT

Arizona Pub. Serv. Co. v. EPA

United States Court of Appeals for the District of Columbia Circuit

January 27, 2000, Argued ; May 5, 2000, Decided

No. 98-1196, Consolidated with 98-1203, 98-1206, 98-1207, 98-1208

Reporter: 211 F.3d 1280; 2000 U.S. App. LEXIS 8917; 341 U.S. App. D.C. 222; 50 ERC (BNA)

1490; 30 ELR 20565

ARIZONA PUBLIC SERVICE COMPANY,

PETITIONER v. ENVIRONMENTAL

PROTECTION AGENCY, RESPONDENT;

STATE OF MICHIGAN, ET AL.,

INTERVENORS

Subsequent History: [**1] Certiorari Denied

April 16, 2001, Reported at: 2001 U.S. LEXIS

2911.

Prior History: On Petitions for Review of an

Order of the Environmental Protection Agency.

Disposition: Denied the petitions for review in

part, and dismissed in part for want of

jurisdiction and for lack of ripeness. Petitioners’

motions for vacatur and remand are dismissed as

moot.

Core Terms

tribe, delegate, tribal, judicial review, exterior

boundary, tip, clean air, delegation of authority,

trust land, nonmember, air quality, sovereign,

notice, legislative history, redesignate, final rule,

promulgate, non-indians, air, intent of congress,

indian, deference, rights-of-way, allotment,

ambiguous, pueblo, pollutant, preexisting,

abrogate, issuance

Case Summary

Procedural Posture

Petitioner sought review of an order of

respondent, the Environmental Protection

Agency, which promulgated regulations to

address the power of Native American nations to

implement air quality regulations, 63 Fed. Reg.

7254 (1998), under the Clean Air Act.

Overview

Petitioner, ArizonaPublicService, challenged

respondent U.S. Environmental Protection

Agency’s regulations which were promulgated

to address the power of Native American nations

(Tribes) to implement air quality regulations

(Tribal Authority Rule), 63 Fed. Reg. 7254

(1998), under the Clean Air Act (Act).

Petitioners’ principal contention was that EPA

granted too much authority to Tribes and

specifically that Congress had not expressly

delegated to Tribes the authority to regulate air

quality on all land within reservations, including

fee land held by private landowners who are not

tribe members. The court of appeals denied

petitioner’s request for review. The court held

that the EPA did not err in finding delegated

authority to Tribes to regulate all land within

reservations, including fee land owned by

nonmembers. Likewise, the court upheld the

EPA’s construction of ′′reservation′′ to include

trust lands and Pueblos on finding the EPA’s

interpretation of ′′reservations′′ to include

Pueblos and tribal trust land was not

unreasonable.

Outcome

Petitioner’s request for review was denied in

part, and dismissed in part for want of

jurisdiction and for lack of ripeness; petitioners’

motions for vacatur and remand were dismissed

as moot on finding the adverse effects of

respondent agency’s alleged illegal action were

Ann Lyons
remedied by the agency’s clarification

concerning the proposed rule.

LexisNexis® Headnotes

Environmental Law > Air Quality > General Overview

Governments > Native Americans > Authority &

Jurisdiction

HN1 See 42 U.S.C.S. § 7601(d)(1)(A).

Environmental Law > Air Quality > General Overview

HN2 See 42 U.S.C.S. § 7601(d)(2).

Administrative Law > Judicial Review > Standards of

Review > General Overview

Administrative Law > Judicial Review > Standards of

Review > Deference to Agency Statutory Interpretation

Administrative Law > Separation of Powers >

Legislative Controls > General Overview

Governments > Legislation > Interpretation

HN3 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. A reviewing court’s

concern under Chevron is to ensure that an

agency acts within the bounds of congressional

delegation. As 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.

Administrative Law > Separation of Powers >

Legislative Controls > General Overview

Governments > Legislation > General Overview

Governments > Legislation > Interpretation

HN4 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. 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. 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.

Governments > Native Americans > General Overview

Governments > Native Americans > Authority &

Jurisdiction

HN5 Exercise of tribal power beyond what is

necessary to protect tribal self-government or to

control internal relations is inconsistent with the

dependent status of the tribes, and so cannot

survive without express congressional

delegation.

Environmental Law > Air Quality > General Overview

Environmental Law > Water Quality > Clean Water

Act > Water Quality Standards

Governments > Native Americans > Authority &

Jurisdiction

Governments > Native Americans > Water Rights

HN6 The Environmental Protection Agency 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.

Governments > Native Americans > Authority &

Jurisdiction

Governments > Native Americans > Property Rights

Real Property Law > Estates > Present Estates > Fee

Simple Estates

HN7 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.

Governments > Legislation > Interpretation

HN8 Courts construe federal statutes liberally to

benefit Native American nations.

Civil Procedure > ... > Justiciability > Mootness >

General Overview

HN9 A dispute may be rendered moot where the

complained of conduct has been voluntarily

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211 F.3d 1280, *1280; 2000 U.S. App. LEXIS 8917, **1

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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.

Administrative Law > Judicial Review > General

Overview

Administrative Law > Judicial Review >

Reviewability > Ripeness

Civil Procedure > ... > Justiciability > Ripeness >

General Overview

HN10 The ripeness doctrine seeks to balance

institutional interests in delaying review against

litigants’ interests in promptly reviewing

allegedly unlawful government actions. First a

court must ask if the disputed issues are fit for

judicial review. 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.

Civil Procedure > ... > Justiciability > Ripeness >

General Overview

Energy & Utilities Law > Administrative Proceedings >

General Overview

HN11 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.

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Operating Permits

HN12 See 42 U.S.C.S. § 7661a.

Administrative Law > Judicial Review > General

Overview

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > Operating Permits

HN13 See 42 U.S.C.S. § 7661a(b)(6), (7).

Administrative Law > Agency Rulemaking > General

Overview

Administrative Law > Agency Rulemaking > Informal

Rulemaking

Administrative Law > Agency Rulemaking > Notice &

Comment Requirements

HN14 The Administrative Procedure Act

requires that an agency publish 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). An agency satisfies this

notice requirement if the final rule is a logical

outgrowth of the proposed rule. In other words,

reviewing courts 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.

Administrative Law > Agency Rulemaking > Informal

Rulemaking

HN15 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.

Counsel: Thomas Sayre Llewellyn argued the

cause for petitioner ArizonaPublicService

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

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211 F.3d 1280, *1280; 2000 U.S. App. LEXIS 8917, **1

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the briefs were Lois Schiffer, Assistant [**2]

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.

Judges: 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.

Opinion by: EDWARDS

Opinion

[*1283] EDWARDS, Chief Judge: In 1990,

Congress passed a compendium of amendments

to the Clean Air Act (′′CAA′′ or ′′the 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, implementing the 1990

Amendments. SeeIndian 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 [**3] 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 [*1284] 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 [**4] 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. See42 U.S.C. § 7407 [**5] (a) (1994).

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211 F.3d 1280, *1280; 2000 U.S. App. LEXIS 8917, **1

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States meet this burden by submitting state

implementation plans (′′SIPs′′) that ′′provide[]

for implementation, maintenance, and

enforcement′′ of these standards. Id. §

7410(a)(1) (1994). SIPs must be approved by the

Agency before they may be federally enforced.

In 1990, § 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. § 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. §

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.

§ 7473 (1994). Land may, under certain

circumstances, be redesignated as Class I, II, or

III. See id. § 7474(a). Since 1977, Native

American nations have had authority to

redesignate land ′′within the exterior boundaries

of reservations. [**6] ′′ Id. § 7474(c).

Finally, under Title V of the Act, states must

develop a comprehensive permitting program

applicable to major air pollution sources. See id.

§ 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. § 7661a(d)(3).

One of the requirements for approval is that the

program provide for judicial review of

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

Petitioners claim that the Agency has improperly

interpreted the 1990 Amendments to give

[*1285] Native American nations the

possibility of exemption from some portions of

the judicial review requirements.

HN1 Importantly, the 1990 Amendments added

language to the Act granting EPA the ′′authority

to treat Indian tribes as States under this

chapter,′′ id. § 7601(d)(1)(A) (1994), HN2

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

resources within the exterior

boundaries of the reservation or other

[**7] 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.

Id. § 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 purpose.′′ Id. § 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 [**8] 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.

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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, 112 L. Ed. 2d 1112, 111

S. Ct. 905 (1991). [**9] 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.′′ [*1286] FELIX S. COHEN,

HANDBOOK OF FEDERAL INDIAN LAW 40

(1982). Dependent Indian communities include

′′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 [**10] 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. See42

U.S.C. § 7410(o) (providing that TIPs ′′shall

become applicable to all areas ... located within

the exterior boundaries of the reservation′′).

EPA, however, interpreted ′′reservation′′ in §

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 § 7601(d)(1) under which the

Agency ′′decided to include most of the

provisions of [§ 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 [**11] for

judicial review in State court of the final permit

action.′′ 42 U.S.C. § 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 § 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

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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

[**12] bound.′′ Id. at 7262.

Petitioner ArizonaPublicService 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 [**13] that

EPA’s final rule covering judicial review

procedures for Title V programs was

promulgated with insufficient [*1287] notice to

affected parties and that it rests on an

impermissible interpretation of the Act.

We analyze EPA’s interpretation of the Act

under familiar principles. ′′HN3 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,

292 U.S. App. D.C. 332, 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, 81 L. Ed. 2d 694, 104 S.

Ct. 2778 (1984)). Our primary concern under

Chevron is to ensure that an agency acts within

the bounds of congressional delegation. ′′As 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, 315

U.S. App. D.C. 49, 70 F.3d 610, 615 (D.C. Cir.

1995).

HN4 In evaluating the extent of congressional

delegation, a reviewing court first exhausts the

traditional [**14] tools of statutory construction

to determine whether a congressional act admits

of plain meaning. See Bell Atlantic Tel. Cos. v.

FCC, 327 U.S. App. D.C. 390, 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, 261 U.S. App. D.C.

226, 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, [**15] to

determine tribal membership, to make

substantive criminal and civil laws governing

internal matters, to administer tribal judicial

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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, 67 L. Ed. 2d 493, 101

S. Ct. 1245 (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,

HN5 exercise of tribal power beyond

what is necessary to protect tribal

self-government or to control internal

relations is inconsistent with the

dependent status of the tribes, and so

cannot survive without express

congressional delegation.

Montana, 450 U.S. at 564.

There is no doubt that tribes hold ′′inherent

sovereign power to exercise some forms of civil

jurisdiction over non-Indians on their

reservations, even on non-Indian fee lands.′′ Id.

at 565. [**16] 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

′′imperils the political integrity, the economic

security, or the health and welfare of the tribe.′′

Brendale v. Confederated Tribes and Bands of

the [*1288] Yakima Indian Nation, 492 U.S.

408, 431, 106 L. Ed. 2d 343, 109 S. Ct. 2994

(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 [**17] 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, 81 L. Ed. 2d 270, 104 S. Ct.

2450 (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. § 7601 [**18] (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 § 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.

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Ann Lyons
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,

air pollutants disperse over areas

several and sometimes 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 pollutants, resulting

[**19] areawide effects and the

seriousness of such impacts,

underscores the undesirability of

fragmented 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, 48 L. Ed. 2d 96, 96 S. Ct. 1634

(1976) (rejecting checkerboard approach in

interpreting § 6 of the General Allotment Act, 25

U.S.C. § 349); Seymour v. Superintendent of

Washington State Penitentiary, 368 U.S. 351,

358, 7 L. Ed. 2d 346, 82 S. Ct. 424 (1962)

(terming ′′impractical′′ a pattern of checkerboard

jurisdiction under 18 U.S.C. § 1151).

[*1289] Finally, we note that the legislative

history of the 1990 Amendments supports EPA’s

interpretation. As originally introduced, 42

U.S.C. § 7601(d) differed [**20] in significant

respect from the final adopted version. The

original § 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. § 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. § 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. §

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

[**21] 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 express delegation when it could

use the ′′formulaic ’notwithstanding’ proviso

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Ann Lyons
[used in § 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. § 1337(h)(1), which uses [**22] 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) (′′HN6 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 §

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

[**23] 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. § 604 (1989), reprinted in

LEGISLATIVE HISTORY OF THE CLEAN

AIR ACT AMENDMENTS OF 1990, at 4101.

The absence [*1290] 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 § 7601(d)(2)(B). It would

have been redundant because § 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 [**24] 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 § 7601(d)(2)(B). In other words, the

language used in the progenitors to § 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 [**25] used in the adopted §

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 contexts supports our

interpretation of § 7601(d). In United States v.

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

§ 1161 and concluded that the statute was an

Page 10 of 25

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Ann Lyons
express delegation to tribes of the authority to

regulate alcohol transactions. 419 U.S. 544,

556-57, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975).

The Court reaffirmed this holding almost a

decade later. See Rice v. Rehner, 463 U.S. 713,

728-29, 77 L. Ed. 2d 961, 103 S. Ct. 3291

(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 Secretary of

the Interior, and published in the

Federal Register.

18 U.S.C. § 1161 (1994). The [**26] Court

read this language to make

clear that Congress contemplated that

its absolute but not exclusive power to

regulate Indian liquor transactions

would be delegated to the tribes

themselves, and to the States, which

historically shared concurrent

jurisdiction 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. [*1291] 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 [**27]

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 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. § 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

[**28] 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 attributes of sovereignty

over both their members and their

Page 11 of 25

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Ann Lyons
territory; they are ′′a separate people′′

possessing ′′the power of regulating

their internal and social relations....′′

419 U.S. at 557 (citations omitted). And

there is no doubt that HN7 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 §§ 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 [**29] disputed provisions in

this case under the Clean Air Act. We find no

merit in this argument. The Clean Water Act

states that ′′the 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. § 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. § 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 [**30] found with respect to the Clean

Water Act. Although the disputed language in the

Clean Air Act and the [*1292] Clean Water Act

is 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

underlying 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 [**31] 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 § 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

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Ann Lyons
U.S.C. §§ 7410(o), 7474(c), 7601(d)(2)(B)) to

mean formally designated reservations as well as

[**32] ′′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, 58 L. Ed. 107, 34 S. Ct. 1 (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.

§ 465 (1994), and such land can only formally be

designated a reservation via the process provided

by 25 U.S.C. § 467 (1994). Petitioners claim that

EPA’s interpretation contravenes the Act’s plain

language and renders 25 U.S.C. § 467

superfluous by ignoring the distinction between

′′trust lands′′ and ′′reservations.′′ EPA counters

[**33] that the statute is ambiguous, and that its

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,

124 L. Ed. 2d 138, 113 S. Ct. 2050 (1993). And

we must remain cognizant of the rule that HN8

courts construe federal statutes liberally to

benefit Native [*1293] American nations. See

Montana v. Blackfeet Tribe of Indians, 471 U.S.

759, 766, 85 L. Ed. 2d 753, 105 S. Ct. 2399

(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′′ [**34] has no rigid

meaning as suggested by petitioners. See7

U.S.C. § 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. § 2012(j) (1994)

(defining ′′reservation′′ as ′′the geographically

defined area or areas over which a tribal

organization ... exercises governmental

jurisdiction′′); 25 U.S.C. § 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. § 1903(10) (1994) (defining

′′reservation′′ to be ′′Indian country as defined in

section 1151 of [**35] Title 18′′ and any trust

land not encompassed by § 1151); id. § 3103(12)

(1994) (′′ ’Reservation’ 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. §

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′′).

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Ann Lyons
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. §

467. This is a specious contention. First, § 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 [**36] could have done so.

Indeed, Congress on many occasions has defined

′′reservation′′ in terms of other statutes. See12

U.S.C. § 4702(11) (1994) (defining ′′reservation′′

according to 25 U.S.C. § 1903(10)); 22 U.S.C. §

2124c(m)(1) (1994) (defining ′′Indian

reservation′′ with reference to 25 U.S.C. §

1452(d)); 25 U.S.C. § 1903(10) (defining

′′reservation′′ with reference to 18 U.S.C. § 1151,

as well as trust land); 26 U.S.C. § 168(j)(6)

(1994 & Supp. III 1997) (defining ′′Indian

reservation′′ with reference to 25 U.S.C. §

1452(d) and 25 U.S.C. § 1903(10)); 42 U.S.C. §

10101(19) (1994) (defining ′′reservation′′ to

include communities referred to in 18 U.S.C. §

1151(a), (b)); id. § 11332(a) (1994) (defining

′′reservation′′ according to 25 U.S.C. § 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 [**37] 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

[*1294] 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 [**38] 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, 57 L.

Ed. 2d 489, 98 S. Ct. 2541 (1978) (finding ′′no

apparent reason′′ why lands held in trust should

not be considered a ′′reservation′′ under §

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 § 1151(a) as a ′′de facto′′ reservation

or § 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 § 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

[**39] 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 calling for statutes to be

Page 14 of 25

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Ann Lyons
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

′′lands within the exterior boundaries of

reservations of federally recognized Indian

tribes.′′ 42 U.S.C. § 7474(c). Similarly, Indian

tribes may submit TIPs ′′applicable to all areas

... located within the exterior boundaries of the

reservation, notwithstanding [**40] the

issuance of any patent and including

rights-of-way running through the reservation.′′

42 U.S.C. § 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 [*1295]

case-by-case basis pursuant to demonstrated

inherent sovereign power.

Petitioners contend that both § 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 §

7474(c) falls flat. This provision says that ′′lands

within the exterior boundaries of reservations

[**41] of federally recognized Indian tribes

may be redesignated only by the appropriate

Indian governing body.′′ 42 U.S.C. § 7474(c).

Petitioners seek to twist this language into the

following: ′′Indian tribes may only redesignate

lands within the exterior boundaries of

reservations.′′ All § 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 §

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. § 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, § 7410(o)

cross-references § 7601(d), which allows for

tribes to exercise jurisdiction [**42] over

reservation areas or ′′other areas within the

tribe’s jurisdiction.′′ 42 U.S.C. § 7601(d)(2)(B).

Most importantly, § 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. §

7410(o). Therefore, it is permissible for EPA to

give § 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

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areas, even where a tribe has demonstrated

inherent jurisdiction over those areas. Second,

petitioners’ reading would disable a [**43] 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 §§ 7410(o) and 7601(d).

D. The Right of The Public To Comment on

Tribal Applications 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 [**44] at 43. Subsequently, EPA

issued a clarification to this effect. See Indian

Tribes: Air Quality Planning and Management,

65 Fed. Reg. 1322, 1323 (2000).

[*1296] Therefore, this issue is moot. See

Motor & Equip. Mfrs. Ass’n v. Nichols, 330 U.S.

App. D.C. 1, 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). HN9 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.’ ′′ 142 F.3d at 459 (quoting County of

Los Angeles v. Davis, 440 U.S. 625, 631, 59 L.

Ed. 2d 642, 99 S. Ct. 1379 (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.

E. Abrogation of Existing Agreements By Tribes

Not to Regulate [**45] 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 [**46]

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.

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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,

upon review of the circumstances

surrounding the location and operation

of [the Four Corners Power Plant] on

the Navajo Indian Reservation, EPA

concluded that jurisdiction under the

Act over this facility lies with EPA

and the Navajo Nation.

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

also64 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 [**47] 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. HN10 The ripeness doctrine

seeks to balance institutional interests in

delaying review against litigants’ interests in

promptly reviewing allegedly unlawful

government actions. See Florida [*1297] Power

& Light Co. v. EPA, 330 U.S. App. D.C. 344, 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 Abbott Labs. v. Gardner, 387

U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507

(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, 306 U.S. App. D.C. 313, 24 F.3d 1421,

1431 (D.C. Cir. 1994). [**48]

HN11 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, 336 U.S. App. D.C. 229, 178 F.3d 533,

540 (D.C. Cir. 1999) (quoting Payne Enters.,

Inc. v. United States, 267 U.S. App. D.C. 63, 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); [**49] 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, 250 U.S.

App. D.C. 424, 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.′′ 780 F.2d at 93. Here,

EPA has made no decision that will govern its

analysis of whether the preexisting agreements

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Ann Lyons
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

HN12 Under Title V of the Act, states must

[**50] develop a comprehensive permitting

program applicable to major air pollution

sources. See42 U.S.C. § 7661a. HN13 Section

7661a enunciates the requirements for

administering permitting programs, including

elements of judicial review. Pursuant to § 7661a,

these elements shall include ...

(6) Adequate, streamlined, and

reasonable procedures for ...

expeditious review of permit actions,

... including an opportunity for

judicial review in State court of the

final permit action....

(7) To ensure against unreasonable

delay by the permitting 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 purposes

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

[*1298] permitting authority on such

application without additional delay.

Id. § 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

[**51] 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 § 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 [**52] 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. §

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

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Ann Lyons
the Act. However, if EPA determines ′′that the

treatment of Indian tribes as identical to states is

inappropriate or [**53] administratively

infeasible, the Administrator may provide, by

regulation, other means by which the

Administrator will directly administer such

provisions so as to achieve the appropriate

purpose.′′ 42 U.S.C. § 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 § 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, § 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 [**54] Agency had a

choice as to whether to treat Indian tribes

identical to states with regard to the judicial

review elements of § 7661a(b). The clear

meaning of the statute [*1299] 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, § 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 [**55] 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

decision ′′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. HN14 The

Administrative Procedure Act requires that an

agency publish notice of its proposed

rulemaking that includes ′′either the terms or

substance of the proposed rule or a description of

[**56] the subjects and issues involved.′′ 5

U.S.C. § 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, 289 U.S. App.

D.C. 16, 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

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Ann Lyons
in a notice of proposed rulemaking. 928 F.2d at

446 (quoting Small Refiner Lead Phase-Down

Task Force v. EPA, 227 U.S. App. D.C. 201, 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,

309 U.S. App. D.C. 235, 40 F.3d 1266, 1274

(D.C. Cir. 1994). HN15 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 [**57] 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, 313 U.S. App. D.C. 51,

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

proposal raised a highly [*1300] 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

[**58] 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.

Concur by: GINSBURG (In Part)

Dissent by: GINSBURG (In Part)

Dissent

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 § 301(d)(2)(B) of the

Clean Air Act, 42 U.S.C. § 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 § 301(d)(2)(B), I dissent from Part

II.A of the opinion for the court.

I. Background

In State of Montana v. United States, 450 U.S.

544, 67 L. Ed. 2d 493, 101 S. Ct. 1245 (1981),

[**59] 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.

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Ann Lyons
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 § 107 of the

1990 Amendments, Pub. L. No. 101-549, 104

Stat. 2399, 2464. Section 301(d) of the Act, 42

U.S.C. § 7601(d), provides [**60] in relevant

part:

(1) Subject to the provisions of

paragraph (2), the Administrator ... 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 treatment 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

resources 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 capable, in the

judgment of the Administrator, of

carrying out the functions to be

exercised in a manner consistent with

the terms and purposes [*1301] of

this chapter and all applicable

regulations.

...

Section 110(o) of the Act, 42 U.S.C. §

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 [**61]

be reviewed in accordance with the

provisions for review set forth in this

section for State plans, except as

otherwise provided by regulation

promulgated pursuant 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 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.

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 [**62] 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 § 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 § 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

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Ann Lyons
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 § 301(d),

which governs tribal enforcement of all Clean

Air Act programs specified by the Administrator.

Rather, the delegation is in § 110( [**63] o),

which governs only tribal implementation plans

(TIPs). Because the specific delegatory text in §

110(o) is significant to my conclusion that §

301(d) is not a delegation, I consider § 110(o)

first.

A. Section 110(o) and the ′′Notwithstanding′′

Proviso

The petitioners’ convoluted argument to the

contrary notwithstanding, § 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,

42 L. Ed. 2d 706, 95 S. Ct. 710 (1975), and in

Rice v. Rehner, 463 U.S. 713, 77 L. Ed. 2d 961,

103 S. Ct. 3291 (1983), the Court found an

express delegation of authority over fee lands

within a reservation based upon two statutory

provisions: 18 U.S.C. § 1161, [**64] which

authorizes [*1302] the tribes to enact

ordinances regulating liquor in ′′Indian country′′;

and 18 U.S.C. § 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. § 1151′′); see also

Brendale v. Confederated Tribes & Bands of the

Yakima Indian Nation, 492 U.S. 408, 428, 106 L.

Ed. 2d 343, 109 S. Ct. 2994 (1989) (citing 18

U.S.C. §§ 1151 and 1161 together as an express

congressional delegation of authority over fee

lands). *

[**65] B. Section 301(d)

The express congressional delegation just

identified in § 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 § 301(d) likewise contains

an express congressional delegation of authority.

The EPA argues the following text distilled from

§ 301(d) contains an express delegation to tribes

of authority to regulate fee lands within a

reservation:

The 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

*

In a dictum, the Brendale Court noted as a second example of an express congressional delegation of authority §§ 518(e),

(h)(1) of the Clean Water Act, 33 U.S.C. §§ 1377(e), (h)(1), the latter of which, significantly, contains the notwithstanding clause

so glaringly absent from § 301(d). 492 U.S. at 428. In terms that otherwise track § 301(d) of the Clean Air Act, § 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 § 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 § 518 is not an express congressional delegation of authority, see56 Fed. Reg. 64,876, 64,880

(1991), but no court has yet resolved the issue.

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reservation or other areas within the

tribe’s jurisdiction.

42 U.S.C. § 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 [**66] 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 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 § 110(o) but not in § 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

[**67] express delegation, would include the

formulaic [*1303] ′′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 § 301(d)(2)(B) renders the ′′notwithstanding′′

proviso in § 110(o) surplusage--a point the court

euphemistically acknowledges, Slip Op. at 23

(′′a reinforcement of tribes’ ... [§ 301(d)(2)(B)

authority] to implement TIPs in reservation

land′′). If § 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 § 301(d). **

[**68] Finding an express congressional

delegation in § 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. §

604, reprinted in 2 Legislative History of the

Clean Air Act Amendments of 1990, at 4053,

4101 (1993) [hereinafter 1990 Leg. Hist.]; S.

1630, 101st Cong. § 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

** The court suggests the Congress may well have intentionally avoided using the ′′notwithstanding′′ proviso in § 301(d) in

response to the EPA’s having interpreted § 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. See56 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 § 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.

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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 [**69] of course correct that the

Congress need not use the word ′′delegate′′ in

order to effect an express delegation, Slip Op. at

15; § 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 §

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

included the ′′notwithstanding′′ proviso in the

narrower § 110(o) and removed from § 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 [**70] of ′′all′′ into the quoted

passage, I [*1304] 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 [**71]

we should find an express congressional

delegation of authority in § 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 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

[**72] 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

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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 §

301(d), as it did in § 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. ***

[**73] [*1305] III. Conclusion

In my view, § 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 §

110(o). I therefore respectfully dissent from Part

II.A. of the opinion for the court.

*** Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 7 L. Ed. 2d 346, 82 S. Ct. 424 (1962) and Moe

v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (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.] § 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 § 6 of the General Allotment Act, 25 U.S.

§ 349, the court would read § 6 narrowly in order to avoid creating an inconsistency with later-enacted statutes. 425 U.S. at 477-79.

Thus, the Court was merely ′′following Congress’ lead in this area.′′ Id. at 479. So, too, where the Congress has expressly

delegated authority, as in § 110(o), we should certainly give its command full rein; but where it has not, we should not undertake

to do so for it.

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