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State of Wyoming v. United States Environmental Protection Agency

United States Court of Appeals, Tenth Circuit

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.

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

          TYMKOVICH, Chief Judge.

         This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in l905. 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 (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. 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. L.J. 1, 7-9 (1995). At the time, Congress, and indeed most of America, assumed the reservation system would eventually cease to exist and members of Native American tribes would become fully assimilated into American society. See Solem v. Bartlett, 465 U.S. 463, 468 (1984); Marta Adams et al., American Indian Law Deskbook 93 (2015). Thus, reservations began to shrink in size. In 1874, the Eastern Shoshone Tribe sold all of its land south of the forty-third parallel in the so-called Lander Purchase in exchange for a payment of $25, 000. 18 Stat. 291, 292 (1874). According to the ratifying act, this transaction "change[d] the southern limit of said reservation." 18 Stat. at 292. Around this time, the Northern Arapaho-traditionally, an enemy of the Eastern Shoshone-joined the Eastern Shoshone on the Wind River Reservation, where they remain today. 1877 Comm'r Indian Aff. Ann. Rep. 19.

         The Wind River Reservation boundaries changed again in 1897, when Congress passed legislation purchasing additional land. That act, known as the Thermopolis Purchase, provided that, in exchange for $60, 000, the Tribes agreed to "cede, convey, transfer, relinquish, and surrender forever and absolutely all their right, title, and interest of every kind and character" in a tract around the Big Horn Hot Springs, located on the northern boundary of the Reservation. 30 Stat. 93, 94 (1897). Following up on failed efforts to acquire additional land from the Tribes in 1891 and 1893, in 1904 Representative Frank Mondell of Wyoming introduced a bill initiating the cession of the land north of the Big Wind River flowing through the north-central portion of the Reservation. The 1904 legislation was the framework for negotiations with the Tribes, which the Tribes ultimately agreed to as amended. Congress passed the 1904 agreement in 1905. 33 Stat. 1016 (1905). It is the 1905 Act that is at issue in this case.

         But the 1905 Act was not the last piece of legislation affecting the Reservation. In 1934, Congress enacted the Indian Reorganization Act, the first step in its new national policy of tribal self-determination. See 48 Stat. 984 (1934). Since the Tribes voted to exclude themselves from this Act, however, Congress had to pass specific legislation to carry out its new policies on the Wind River Reservation. Thus, in 1939, Congress directed the Secretary of the Interior to restore to tribal ownership any unsold lands in the area that had been ceded in 1905. 53 Stat. 1128, 1129 (1939).

         That brings us to the present day. Currently, approximately seventy-five percent of the land affected by the 1905 Act is held in trust by the United States for the Tribes and their members. In 2008, the Tribes applied to the EPA for authority to manage certain non-regulatory programs for air quality in areas under tribal jurisdiction. They were able to do so because in 1990, Congress amended the Clean Air Act, 42 U.S.C. §§ 7401-671 (CAA), to authorize the EPA to treat Native American tribes as states for the purposes of the CAA. § 7601(d). Pursuant to this grant of authority, the EPA promulgated the Tribal Authority Rule, 40 C.F.R. 49, under which qualified tribes may apply for authority to implement and manage programs for air quality in areas under tribal jurisdiction. 42 U.S.C. § 7601(d)(2)(B).

         A successful application must describe the area over which a tribe seeks to assert its regulatory authority. Thus, in their application, the Tribes had to specify the proposed scope of their regulatory jurisdiction, which required them to clearly delineate the boundaries of the Reservation. The Tribes claimed the boundaries of the Wind River Reservation were those set forth in the 1868 treaty, reduced only by the Lander and Thermopolis transactions. As required by the CAA, the EPA notified all governmental entities located contiguous to the Reservation and provided local government and the general public notice and an opportunity to comment on the proposed boundary description. When a treatment-as-a-state application is subject to an objection, EPA may also request additional information or consult with the Department of the Interior. 40 C.F.R. § 49.9(d).

         In their comments, Wyoming and the Farm Bureau argued the Reservation was diminished by the 1905 Act, which, they contended, established the current boundaries of the Reservation. Based on these objections, the EPA asked the Department of the Interior for an analysis of the competing claims. In 2011, the solicitor issued a legal opinion concluding the 1905 Act had not changed the boundaries established by the 1868 treaty. Relying on this analysis, the EPA issued its final decision granting the Tribes' application. The decision agreed with the Tribes' interpretation that the 1905 Act did not diminish the boundaries of the Reservation.

         II. Analysis

         Our task here is limited: we must determine whether Congress diminished the Wind River Reservation in 1905 by legislative act.[1] As we have previously explained, only Congress has the power to diminish reservation boundaries, and its intent "must be clearly expressed." Osage Nation v. Irby, 597 F.3d 1117, 1121-22 (10th Cir. 2010). Even further, diminishment "will not be lightly inferred." Solem v. Bartlett, 465 U.S. 463, 470 (1984). Nevertheless, we may not "'ignore plain language that, viewed in historical context and given a fair appraisal clearly runs counter to a tribe's later claims.'" Osage Nation, 597 F.3d at 1122 (quoting Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1393 (10th Cir. 1990)).

         The Supreme Court has declined to infer a congressional purpose of diminishment from the passage of every surplus land act during the allotment and assimilation period. "Rather, it is settled law that some surplus land acts diminished reservations, and other surplus land acts did not." Solem, 465 U.S. at 469 (citations omitted). "The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage." Id. To determine whether the 1905 Act had the effect of diminishing the Reservation, we look to the well-settled approach described in Solem, where the Court outlined a hierarchical, three-step framework to ascertain congressional intent.

         First, we look to the text of the statute, because it is "[t]he most probative evidence of congressional intent." Id. at 470; see also Nebraska v. Parker, 136 S.Ct. 1072, 1079 (2016) ("[W]e start with the statutory text, for '[t]he most probative evidence of diminishment is, of course, the statutory language used to open Indian lands.'" (citation omitted) (second alteration in original)).

         Second, we examine the circumstances surrounding the passage of the act, "particularly the manner in which the transaction was negotiated with the tribes involved and the tenor of legislative reports presented to Congress." Solem, 465 U.S. at 471; see also Parker, 136 S.Ct. at 1079; South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351-52 (1998).

         Third and finally, "to a lesser extent, " we look to "the subsequent treatment of the area in question and the pattern of settlement there." Id. at 344; Solem, 465 U.S. at 471-72.

         In doing so, we afford no deference to the EPA's boundary determination. As our precedents tell us, "'the Supreme Court has applied, without comment, a de novo standard of review in determining congressional intent [regarding reservation boundary diminishment].'" Osage Nation, 597 F.3d at 1122 (alteration in original) (quoting Yazzie, 909 F.2d at 1393). Although examination of the historical record "involves a mixed question of law and fact, " de novo review is appropriate "[w]here a mixed question 'primarily involves the consideration of legal principles.'" Id. at 1393-94 (quoting Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986)). The EPA does not dispute this standard of review, because it concedes a de novo standard is "consistent with the [Administrative Procedure Act's] 'otherwise not in accordance with the law' standard, " Aple. EPA Br. 23, which we apply to the agency action here.

         A. The Text of the 1905 Act

         We begin our analysis with the 1905 Act's operative language, for "[s]tatutory language is the most probative evidence of congressional intent to disestablish or diminish a reservation." Osage Nation, 597 F.3d at 1122-23. "'Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands.'" Id. at 1123 (quoting Solem, 465 U.S. at 470). There are no magic words of cession required to find diminishment. Rather, the statutory language, whatever it may be, must "establis[h] an express congressional purpose to diminish." Hagen v. Utah, 510 U.S. 399, 411 (1994).

         Here, Article I of the 1905 Act reads,

The said Indians belonging on the Shoshone or Wind River Reservation, Wyoming, for the consideration hereinafter named, do hereby cede, grant, and relinquish to the United States, all right, title, and interest which they may have to all the lands embraced within said reservation, except the lands within and bounded by the following lines . . . .

33 Stat. at 1016 (emphasis added). This language of cession aligns with the type of language the Supreme Court has called "precisely suited" to diminishment. Yankton Sioux, 522 U.S. at 344. Indeed, it is nearly identical to the statutory language in cases where the Supreme Court has found a congressional purpose to diminish a reservation in the statute's text.

         For example, in DeCoteau v. District County Court for the Tenth Judicial District, the Court considered an act providing that the Sisseton-Wahpeton Tribe agreed to "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation." 420 U.S. 425, 445 (1975). The Court found this language was precisely suited to a congressional purpose of terminating the Lake Traverse Indian Reservation. Id. Similarly, in Rosebud Sioux Tribe v. Kneip, the Court held Congress clearly evinced an intent to diminish the boundaries of the Rosebud Sioux Reservation when it passed a series of acts affecting unallotted lands on that reservation. 430 U.S. 584, 615 (1977). The first act, passed in 1904, provided that the Rosebud Sioux Tribe agreed to "cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to" the unallotted portion of its reservation. Id. at 597. This too, the Court held, was language precisely suited to diminishment. Id.[2]

         Two decades later, in Hagen, the Court found Congress evinced a clear intent to diminish a reservation even when it employed less express language of cession. The operative language of the statute at issue provided that "all the unallotted lands within said reservation shall be restored to the public domain." 510 U.S. at 412. The Court held this language evidenced a congressional intent "inconsistent with the continuation of reservation status." Id. at 414.[3] And in Yankton Sioux, the Court unanimously held Congress spoke with a clear purpose of diminishment when it passed an act providing that the Yankton Sioux Tribe would "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation." 522 U.S. at 344, 351.

          In contrast, in cases where the Court has found a lack of clear congressional intent to diminish, the operative language of the statutes merely opened a reservation to settlement by non-Indians or authorized the Secretary of the Interior to act as a "sales agent" for the Native American tribes. For example, in Seymour v. Superintendent of Wash. State Penitentiary, the Court concluded that an act providing "for the sale of mineral lands and for the settlement and entry under the homestead laws of surplus lands remaining on the diminished Colville Reservation after allotments were first made . . . did no more than open the way for non-Indian settlers to own land on the reservation."[4] 368 U.S. 351, 354-56 (1962). Similarly, in Mattz v. Arnett, the Court held an act providing that lands within a reservation were "subject to settlement, entry, and purchase" did not, on its own, "recite or even suggest that Congress intended thereby to terminate the Klamath River Reservation." 412 U.S. 481, 495-97 (1973).

         The operative language in Solem itself was similar: the act merely "authorized and directed" the Secretary of the Interior "to sell and dispose of all that portion of the Cheyenne River and Standing Rock Indian reservations" within the described boundaries. 465 U.S. at 472-73. The Court compared the language to the acts in Rosebud and DeCoteau and concluded that unlike in those cases, "the Secretary of the Interior was simply being authorized to act as the Tribe's sales agent." Id. at 473. The Court added, "Nowhere else in the Act is there specific reference to the cession of Indian interests in the opened lands or any change in existing reservation boundaries." Id. at 474.[5] Likewise, just last year in Parker, the Court held that an act stating the disputed lands would be "'open for settlement under such rules and regulations as [the Secretary of the Interior] may prescribe, '" 136 S.Ct. at 1079 (alteration in original) (quoting 22 Stat. 341 (1882)), fell into the category of acts that "'merely opened reservation land to settlement, '" id. (quoting DeCoteau, 420 U.S. at 448).[6]

         Plainly, the 1905 Act falls into the first line of cases: those with express language of cession. Nevertheless, the EPA and the Tribes argue that Congress's intent remains unclear, because of the absence of words such as "sell" or "convey" that were present in other statutes during the period. But our task is not to divine why Congress may have chosen certain synonyms over others in this particular Act. We believe Congress's use of the word "cede" can only mean one thing-a diminished reservation. A review of several dictionaries from the turn of the twentieth century confirms that adding the words "sell" or "convey" would not materially change the intent Congress evinced in the 1905 Act.[7] And in any event, Article II of the 1905 Act includes the word "conveyed":

In consideration of the lands ceded, granted, relinquished, and conveyed by Article I of this agreement, the United States stipulates and agrees to dispose of ...

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