Denver-based federal appeals court to reject efforts to overturn a 2-1 ruling by a three-judge panel that earlier struck down an edict from the Environmental Protection Agency (EPA).It ruled that the Northern Arapahoe Tribe and the Eastern Shoshone Tribe—of the Wind River Indian Reservation in Hot Springs and Fremont Counties in west central Wyoming—have jurisdiction over 1.48 million acres of Wyoming, including the town of Riverton. In early 2014, the group petitioned the U.S. Court of Appeals for the Tenth Circuit contesting the EPA’s December of 2013 decision to grant “Tribe-as-State” status under the federal Clean Air Act. The Farm Bureau, some of whose members live, work, and own property in and near Riverton, argues that the EPA’s decision ignores more than one hundred years of actions by Congress, Wyoming, the Tribes, and various rulings by a host of federal and state courts. After the panel ruled in favor of the Farm Bureau in February of 2017, the tribes urged the full court to rehear the case.
“En banc review is an extraordinary procedure reserved for issues of exceptional public importance or rulings that conflict with a decision of the Supreme Court of the United States,” said William Perry Pendley of Mountain States Legal Foundation, which represents the Farm Bureau. “This case presents no such extraordinary circumstance but instead mischaracterizes the panel opinion, rehashes the legal arguments that the panel rejected, and attempts to manufacture non-existent conflicts with the Supreme Court or other appellate courts.”
In December 2008, both Tribes sought Tribe-as-State status under §301(d)(2) of the Clean Air Act, which provides an “express congressional delegation” to tribes of the EPA’s authority to regulate air quality on fee lands located within the exterior boundaries of a reservation. The tribes expended 82 of their 87-page application arguing that they possessed jurisdiction over Riverton. Because their application ignored a federal statute and federal and state court rulings, in 2009, the State of Wyoming, the Wyoming Farm Bureau, and other entities filed comments opposing the application.
The Reservation, which is shared by the Tribes, was established in 1868. In 1904, the Tribes signed an agreement with the federal government ceding 1,480,000 acres of land, which were to be opened for sale under the homestead, townsite, coal, and mineral land laws. The agreement was entered into with the United States Indian Inspector in exchange for per capita payments to tribal members and capital improvement projects inside “the diminished reserve” or Reservation. In 1905, Congress ratified the 1904 agreement.
In 1906, the ceded lands were opened for settlement by a Presidential Proclamation and allotments were sold to non-Indians in an area that today makes up Riverton. In 1939, some unsold ceded lands were restored to the Reservation, but a significant portion was not. Riverton is located wholly on lands ceded in the 1904 agreement and never restored to the Tribes.
Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
For more information: Wyoming Farm Bureau Federation v. Environmental Protection Agency