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Petitions on EPA action still accepted; past mayor's letter

Feb 12, 2014 - By Katie Roenigk Staff Writer

The Environmental Protection Agency will accept petitions through Tuesday, Feb. 18, for judicial review of its recent ruling redefining the boundaries of the Wind River Indian Reservation.

The EPA in December approved a request from the Northern Arapaho and Eastern Shoshone tribes for Treatment as a State through the federal Clean Air Act.

As part of the decision, the EPA determined that a 1905 Congressional Act opening tribal land -- including the city of Riverton -- to homesteading did not diminish the reservation boundary, meaning the land on which Riverton sits legally remains part of the reservation.

Wyoming in January filed a petition requesting the EPA reconsider its ruling and delay any implementation of the decision until judicial review takes place.

And last week, the Northern Arapaho Tribe also requested a stay of the decision -- not because it disagreed with the ruling but so that local governments have a chance to discuss the impacts of the new boundary definition, which the tribe favors.

Vincent's previous post

The tribal request came at the urging of former Riverton Mayor John Vincent, who worked with reservation leaders on several issues of mutual concern during his time at City Hall.

The letter urges that the while the state's challenge "be rejected on its merits," a "cooling off" period could be beneficial as the affected parties consider the effects of implementation of the EPA determination.

Vincent's administration op-posed the tribes' initial Treatment As State (TAS) application when he was mayor, however, citing several reasons the EPA should not have granted the request that are similar to those being raised by the State of Wyoming now.

Riverton sent a letter to the agency in June 2009, when the EPA still was accepting public comment on the tribal application. The letter, which Vincent signed, took issue with the reservation boundary as defined by the tribes in their TAS application.

"The tribes assert that 'the reservation includes ... the city of Riverton,'" the letter states. "Riverton vigorously disagrees. ... The lands within the municipal boundary of Riverton are no longer part of the reservation and are not Indian country."

According to the letter, the city was founded in 1906 on 160 acres of landed ceded by the tribes in a 1904 treaty that was ratified, as amended by the Surplus Land Act of 1905.

The city in its 2009 letter said the intent of the 1905 act was to diminish the reservation and remove from it the lands that had been "ceded, granted and relinquished" to the United States.

That position has long been considered the law of the land until new tribal challenges began in the past decade.

Regardless, the letter continued, treaty interpretation is a question of law to be made by the courts, not the EPA.

"Courts are the right place to resolve controversies involving disputes over reservation boundaries," the city wrote. "The EPA has not been delegated any authority to interpret treaties between the U.S. and Indian tribes and lacks any particular expertise in interpreting such treaties."

The letter references several Wyoming Supreme Court cases in which the reservation boundary was a point of discussion. Most recently, in 2008 justices hearing Yellowbear v. State concluded that Congress intended to diminish the reservation by passing the 1905 act.

"While the city of Riverton may be located on lands that at one time were within the external boundaries of the reservation, those lands are no longer part of the reservation, and are not 'Indian country,'" the city wrote in the letter signed by Vincent.

Eligibility

Vincent's administration also went beyond the boundary dispute to question whether the tribes are eligible for TAS.

In order for a tribe to be granted TAS through the CAA, it must already manage and protect air resources within its reservation boundaries, according to the city. The 2009 letter from Riverton City Hall points out that the tribes had not, at that time, adopted or enacted air quality standards, nor ha they submitted a tribal implementation plan to the EPA.

"The tribes do not seek to protect, regulate and manage air quality within the reservation," the letter states. "Rather, they merely desire qualification for federal funding to collect air quality data and begin development of an air quality program."

To be granted TAS, the tribe also must be "reasonably expected" to be capable, in the EPA's judgment, of implementing the CAA in the areas included in TAS application. The city asserted that the tribes would not be able to manage or regulate air resources on all of the lands described in the TAS application, since the document included Riverton as part of the reservation.

Because the Wyoming Supreme Court has ruled that Riverton is not in Indian country and thus is not under tribal jurisdiction, the city wrote that the tribes lack the "adequate authority" to regulate emission sources within Riverton.

The city recommended the EPA instead determine that the tribes are eligible for grant program authority under Section 105 of the CAA. That portion of the act offers grants for support of air pollution planning and control programs.

Petitions regarding the EPA decision can be sent to Shawn McGrath, regional administrator, U.S. EPA-VIII, 1595 Wynkoop Street, Denver, Colo., 80202, or Gina McCarthy, administrator, U.s. EPA, 1200 Pennsylvania Ave. NW, Washington, D.C., 20460.