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EPA backs off border ruling for time being, acknowledges likely 'court proceedings'

Feb 14, 2014 - By Katie Roenigk, Staff Writer

The Environmental Protection Agency has decided to stay part of a recent ruling granting treatment as a state (TAS) to the Northern Arapaho and Eastern Shoshone tribes through the federal Clean Air Act.

As part of the TAS designation, which was granted Dec. 6, the EPA was required to define the boundaries of the Wind River Indian Reservation so that the exact area to be treated as a state could be determined. The agency concluded that the reservation was not "diminished" by a 1905 Congressional Act that opened certain lands, including the land occupied by the City of Riverton, to homesteading.

Last month the state submitted a petition for reconsideration and stay of the decision, citing concerns over jurisdictional implications of the ruling. The Northern Arapaho Tribe also requested an administrative stay of the decision Feb. 6 in order to give local governments time to discuss the ruling, and on Wednesday the Eastern Shoshone Tribe also asked for a partial stay.

"Since the EPA decision there has been a deluge of misinformation from multiple sources, which has resulted in unfortunate and extreme animus toward tribal members in the local community," Eastern Shoshone Business Council Chairman Darwin St. Clair Jr. wrote in his letter to the EPA this week. "(We believe) issuing a partial stay of your decision in the area that is 'under dispute' will help ease the tension in the local community until such time that the appeal process is complete."

He said the partial stay may help bring tribal and state representatives together to discuss the implementation of the TAS decision and confirmation of the tribes' position regarding the reservation boundary.

"(We are) confident in the legal analysis associated with the EPA's decision," St. Clair added.

An open letter to the community issued this week by the Eastern Shoshone Tribe included the following statement: "What does being on a Reservation mean? The biggest change for many is only realizing that you've been living in Indian Country the whole time."

Later, the note states: "EPA's approval confirmed only what has existed all along."

That opinion differs sharply from the position held by the City of Riverton and the State of Wyoming, and leaders from both those entities say only a federal court ruling could redefine the long-established borders of the reservation as established by the 1905 congressional action.

A Wyoming Supreme Court ruling already has determined Riverton not to be part of "Indian Country," which is legal term. State Supreme Court actions can be appealed only to the U.S. Supreme Court.

The EPA's statement granting a stay of the order acknowledges that "court proceedings" are a likely course of action for a final determination.

Partial stay

The partial stay applies only to lands under dispute, according to a letter filed Thursday by the EPA. The TAS ruling will remain in effect for all undisputed reservation lands.

"With regard to (undisputed) areas, the tribes may perform all of the non-regulatory functions covered by the EPA's TAS decision, including, for example, applying for grants under CAA (and) participating in air quality planning and management," EPA regional administrator Shaun McGrath wrote in the Thursday letter.

He said the partial stay should allow for "orderly implementation" of the TAS decision pending resolution of the reservation boundary issue through agency reconsideration, or through court proceedings -- whichever happens last.

"The EPA (is) hopeful that granting this stay ... will be conducive to further intergovernmental discussions regarding any jurisdictional concerns," McGrath wrote.

He noted that the move does not indicate that the EPA agrees with or adopts the state's arguments about the 1905 Act or the potential effects of the TAS approval.

Northern Arapaho councilman Al Addison said the tribes and EPA are "basically ... bending over backwards to give Wyoming the opportunity to do the right thing."

"This stay gives Wyoming the chance to get up to speed and get organized so that a meaningful government-to-government dialogue can begin," he said.

Pavillion, Kinnear

According to McGrath, tribal representatives requested that the EPA at this time avoid addressing the status of lands subject to a 1953 Congressional Act, including the towns of Pavillion and Kinnear. For now, the EPA's TAS decision does not impact those lands.

TAS approval enhances the tribes' CAA grant funding capabilities. Under the TAS designation, the tribes can receive notifications of certain air permits that may affect the local "air shed," and tribal representatives can participate in air quality commissions and in the development of risk management plans.

Concerns off the reservation are related to the possibility of the City of Riverton being declared part of the reservation for broader purposes related to taxation, law enforcement, municipal government and state jurisdiction.

Gov. Matt Mead has stated that Wyoming will fight to ensure that EPA ruling does not stand, and the Wyoming Legislature has begun proceedings to allocate money to pay for a court challenge of the ruling.

-- The Associated Press contributed to this story