Wyoming v. U.S. Envtl. Prot. Agency

• Decision Date: 22 February 2017
• Docket Number: Nos. 14-9512,14-9514,s. 14-9512
• Citation: 875 F.3d 505
• Parties: State of WYOMING, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency; Doug Benevento, in his official capacity as Region 8 Administrator of the United States Environmental Protection Agency, Respondents. The Northern Arapaho Tribe; Eastern Shoshone Tribe; City of Riverton, Wyoming; Fremont County, Wyoming, Intervenors. State of Idaho; State of Alabama; State of Colorado; State of Kansas; State of Montana; State of Nebraska; State of North Dakota; State of Oklahoma; State of South Dakota; State of Utah; Indian Law Professors; Riverton Memorial Hospital, LLC; National Congress of American Indians, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 505

State of WYOMING, Petitioner,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency; Doug Benevento,^* in his official capacity as Region 8 Administrator of the United States Environmental Protection Agency, Respondents.The Northern Arapaho Tribe; Eastern Shoshone Tribe; City of Riverton, Wyoming; Fremont County, Wyoming, Intervenors.State of Idaho; State of Alabama; State of Colorado; State of Kansas; State of Montana; State of Nebraska; State of North Dakota; State of Oklahoma; State of South Dakota; State of Utah; Indian Law Professors; Riverton Memorial Hospital, LLC; National Congress of American Indians, Amici Curiae.

Nos. 14-9512

14-9514

United States Court of Appeals, Tenth Circuit.

February 22, 2017

As Revised November 7, 2017 Nunc Pro Tunc February 22, 2017

Michael McGrady (Peter K. Michael, Wyoming Attorney General, Jay Jerde and James Kaste with him on the briefs), Office of the Attorney General for the State of Wyoming, Cheyenne, Wyoming, for Petitioner State of Wyoming.

Gina Cannan (Steven J. Lechner with her on the briefs), Mountain States Legal Foundation, Lakewood, Colorado, for Petitioner Wyoming Farm Bureau Federation.

Samuel C. Alexander, Chief, Indian Resources Section (John C. Cruden, Assistant Attorney General, Washington, D.C., and David A. Carson, Environmental Defense Section, Denver, Colorado, with him on the briefs) Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Respondents.

Kelly A. Rudd (Andrew W. Baldwin, Berthenia S. Crocker, and Janet E. Millard with him on the briefs) Baldwin, Crocker & Rudd, Lander, Wyoming, for Intervenor Northern Arapaho Tribe.

Donald R. Wharton (Robert Hitchcock, Eastern Shoshone Tribe, Office of the Attorney General, Fort Washakie, Wyoming, with him on the briefs), Native American Rights Fund, Boulder, Colorado, for Intervenor Eastern Shoshone Tribe.

Jodi A. Darrough, Deputy Fremont County Attorney, and Rick L. Sollars, City Attorney, City of Riverton, Wyoming, on the briefs for Intervenors Fremont County and City of Riverton, Wyoming.

Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief of Civil Litigation, and Clay R. Smith, Deputy Attorney General, Boise, Idaho, Luther Strange, Attorney General, Montgomery, Alabama, John Suthers, Attorney General, Denver, Colorado, Derek Schmidt, Attorney General, Topeka Kansas; Tim Fox, Attorney General, Helena, Montana, Jon Bruning, Attorney General, Lincoln, Nebraska; Wayne Stenehjem, Attorney General, Bismark, North Dakota, E. Scott Pruitt, Attorney General, Oklahoma City, Oklahoma, Marty Jackley, Attorney General, Pierre, South Dakota, and Sean D. Reyes, Attorney General, Salt Lake City, Utah, on the brief for Amici Curiae States of Idaho, Alabama, Colorado, Kansas, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and Utah.

Colette Routel, William Mitchell College of Law, Saint Paul, Minnesota, Bethany Berger, University of Connecticut School of Law, Hartford, Connecticut, and Sarah Wheelock, Tilden McCoy + Dilweg LLP, Sioux City, Iowa, on the brief for Amici Curiae Indian Law Professors.

Kevin J. Kuhn, Lamar F. Jost, and H. Camille Papini-Chapla, Wheeler Trigg O'Donnell LLP, Denver, Colorado, and Patrick J. Murphy, Williams, porter, Day & Neville, P.C., Casper, Wyoming, on the brief for Amicus Curiae Riverton Memorial Hospital, LLC.

John H. Dossett, General Counsel, National Congress of American Indians, Washington, D.C., Stephen P. Ward, Daniel E. Gomez, R. Daniel Carter, and Austin Birnie, Conner & Winters, LLP, Tulsa, Oklahoma, on the brief for Amicus Curiae National Cogress of American Indians.

Before TYMKOVICH, Chief Judge, KELLY, and LUCERO, Circuit Judges.

ORDER

These matters are before the court on the separate Petitions for Rehearing En Banc filed by Intervenors Northern Arapaho Tribe and Eastern Shoshone Tribe. We also have responses to the petitions from the State of Wyoming and the Wyoming Farm Bureau Federation.

Upon consideration, the petitions were circulated to all the judges of the court who are in regular active service and who are not recused. See Fed. R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a poll be called, the requests for en banc review are denied.

The judges in the majority of the panel decision have, however, determined amendment of the original opinion is warranted. The panel therefore grants sua sponte panel rehearing in part and to the extent of the changes made to the attached revision decision. See Fed. R. App. P. 40. A revised dissent will also be filed. The clerk is directed to file the revised opinion and dissent nunc pro tunc to the original filing date of February 22, 2017.

Finally, we grant the motions filed by the Federal Indian Law Professors and the National Congress of American Indians to file amici curiae briefs on rehearing.

TYMKOVICH, Chief Judge.

This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in 1905. We find that it did.

The Eastern Shoshone and Northern Arapaho Tribes jointly inhabit the Wind River Reservation. The State of Wyoming and the Wyoming Farm Bureau Federation challenge a decision by the Environmental Protection Agency granting the Tribes' application for joint authority to administer certain non-regulatory programs under the Clean Air Act on the Reservation. As part of their application for administrative authority, the Tribes were required to show they possess jurisdiction over the relevant land. In their application, the Tribes described the boundaries of the Wind River Reservation and asserted that most of the land within the original 1868 boundaries fell within their jurisdiction.

Wyoming and others submitted comments to the EPA arguing the Reservation had been diminished in 1905 by act of Congress, and that some land described in the application was no longer within tribal jurisdiction. After review, the EPA determined the Reservation had not been diminished in 1905 and the Tribes retained jurisdiction over the land at issue. Because the EPA decided the Tribes otherwise satisfied Clean Air Act program requirements, it granted their application.

Wyoming and the Farm Bureau appealed the EPA's Reservation boundary determination. Regionally applicable final actions of the EPA are directly appealable to this court. Exercising jurisdiction under 42 U.S.C. § 7607(b)(1), we grant the petition for review, vacate the EPA's boundary determination, and remand for further proceedings consistent with this opinion. We find by its 1905 legislation, Congress evinced a clear intent to diminish the Reservation.

I. Background

The history of federal Indian policy in the United States is marked by a series of eras, each characterized by a different approach to the inevitable conflict between the Native Americans who inhabited western America and homesteaders flooding west in search of a better life. Cohen's Handbook of Federal Indian Law 7–8 (Nell Jessup Newton et al. eds., 2012). The story of the Wind River Reservation begins in the second half of the nineteenth century, when a new federal policy of allotment and assimilation began to take shape, which followed a period when Indian reservations were created throughout the western United States. Unsurprisingly, westward expansion placed pressures on the traditional lifestyles of the Native American tribes. Recognizing the potential for conflicts, particularly over land, the United States negotiated a series of treaties and agreements with dozens of tribes, including the Eastern Shoshone.

The Eastern Shoshone are part of the larger Shoshone Tribe, who in the mid-nineteenth century inhabited what would become the states of Colorado, Idaho, Nevada, Utah, and Wyoming. Henry Stamm, People of the Wind River 9 (1999). In 1863, the United States and the Eastern Shoshone entered into the First Treaty of Fort Bridger, 18 Stat. 685 (1863), which established "Shoshonee County," an area encompassing more than forty-four million acres. See United States v. Shoshone Tribe of Indians of Wind River Reservation of Wyo. , 304 U.S. 111, 113, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). But the treaty proved to be short lived. With the end of the Civil War, a new wave of settlers forged westward. Fearing the Eastern Shoshone's homeland would be settled and thus lost forever, the tribal leader, Chief Washakie, urged the United States to reserve the Wind River Valley—the Tribe's historic buffalo hunting grounds—as the Eastern Shoshone's permanent homeland.

Chief Washakie's efforts were successful: in 1868, the United States and the Eastern Shoshone Tribe signed the Second Treaty of Fort Bridger, 15 Stat. 673 (1868). This treaty set aside roughly three million acres for exclusive tribal use. In exchange, the Tribe relinquished its claim to the land held under the 1863 treaty. Shoshone , 304 U.S. at 113, 58 S.Ct. 794. As it had promised, the United States developed the Reservation's infrastructure and began to establish and expand agricultural lands in an effort to aid the Eastern Shoshone's transition away from hunting wild game, which was rapidly disappearing. For their part, the Eastern Shoshone resolved to settle permanently on the Reservation, pursue an agrarian lifestyle, and send their children to school. But land issues persisted: settlers vied for agricultural lands south of the Big Wind River, and the Reservation's superintendent feared it would be impossible to observe the boundaries created by the 1868 treaty.

Meanwhile, Congress had departed from its previous policy of segregating tribes from homesteaders in favor of a new policy of educating Native American children in residential boarding schools and splitting up communal, tribally owned reservations into individual, privately owned parcels of land. Judith V. Royster, The Legacy of Allotment , 27 Ariz. St....