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County will join state petition to overturn EPA boundary ruling

Mar 6, 2014 - By Eric Blom, Staff Writer

Fremont County plans to intervene in support of the State of Wyoming in the Environmental Protection Agency's recent action redefining the boundaries of the Wind River Indian Reservation.

Fremont County Commissioners were split 3-2 on the move. Some opposed it strongly. They voted on the issue March 4.

"What that means is we'll have a seat at the table so we will be able to take care of the best interests of Fremont County," Commissioner Travis Becker said in an interview.

Becker voted to intervene, but commission vice chairwoman Keja Whiteman voted against joining the case.

"I think when you immediately jump to litigation, the only people who benefit are the attorneys," she said in an interview. "I think sitting down and talking with people is a good way to resolve issues rather than what I anticipate are years of litigation."

The EPA in December approved an application from the Eastern Shoshone and Northern Arapahoe tribes for treatment as a state under the Clean Air Act. The designation allows the tribes to monitor air quality and comment on development projects that could cause pollution.

As part of the decision, the agency determined that a 1905 act of Congress, which opened up lands including the city of Riverton to homesteading, did not "diminish" the boundary of the WRIR.

That opinion runs counter to several previous legal determinations, including a Wyoming Supreme Court opinion that Riverton is not part of the reservation.

The state field a petition for a review of the decision in the U.S. 10th Circuit Court of Appeals in February.

Other parties

If a judge grants the county's request to intervene, it would join Wyoming, the Devon Energy Production Co., and the Wyoming Farm Bureau Federation as petitioners in the case against the EPA, deputy Fremont County attorney Jodi Darrough said. Fremont County would have the same standing as the other petitioning parties.

The county could file briefs, make motions and give oral arguments in the case as necessary, Darrough said. The Fremont County Attorney's Office is to

represent the county in the matter.

Commissioner Stephanie Kessler voted against the move along with Whiteman. But Commissioners Larry Allen and Doug Thompson joined Becker in voting to join the case. Thompson made his vote by phone.

"(We could) do nothing, and then the state would still be the petitioner," Thompson said. "We could write an amicus brief and submit that, but that's just providing information and kind of sitting on the sidelines. (By) intervening we get a seat at the table."

He said the Fremont County Attorney's Office told commissioners that they would preserve the county's legal rights by requesting to intervene.

In an interview, Kessler said EPA's decision raised uncertainty in jurisdictional issues, and those need to be resolved. With state already litigation, she was not convinced the county's action was necessary, and joining the legal battle could have a negative consequence.

"I do not feel that efforts have been made for resolution of this outside the court, and in fact by joining this Fremont County would lose our opportunity to have those conversations," Kessler said.

As an intervenor, the county would not have to necessarily take part in the legal case, Thompson said, but the county must request intervenor status now if it wants the option to weigh in later.

Whiteman thought staying out of the legal battle would be preferable and did not think intervening legally was necessary to preserve the county's position in the conversation.

"I think we have a seat at the table regardless," she said. "We may not have a seat at the legal table, but frankly, I don't want one."

Both Kessler and Whiteman said they were concerned about the cost of litigation.

"Other litigation has been quite costly to the county, and it's very uncertain if financial liabilities would be a possibility in the future (for the county in this case," Kessler said.

Thompson thought the county could still meet outside of the legal case to talk with the tribes.

"I think by intervening we haven't failed to keep the hand of discussion out there," he said.

Thompson questioned the sincerity of the tribes' stated interest in dialogue. He said the tribes have publicly called for meetings with local representatives, but the county has never received a formal invitation to discuss a solution to the boundary issue.

"I have never been opposed to sitting down and discussing anything with anybody, but they're the ones that started this action, so I think it's incumbent on them to say 'we realize this is controversial, but would you come in on such and such a day (and talk about it),'" Thompson said. "They've had five, six years to do that."

The Northern Arapahoe and Eastern Shoshone tribes filed their petition for treatment as a state in 2008.

Whiteman pointed out that the county and state haven't started a dialogue, either.

"At no point between now and then have the state or county made any effort to sit down with the tribes and discuss these issues," she said.

Thompson said the case could allow the parties involved to settle the disputed boundaries of the reservation. He said it was improper for an administrative agency to define the reservation boundary, which should be a question for Congress.

Choosing to intervene in the case was more about "political posturing" than doing what is right for Fremont County, Whiteman said.

"I think this is an effort to be anti-federal government and to be anti-Indian people, because really what we're talking about is air quality, and I don't know anybody who doesn't want to have clean air," she said.

Joining the litigation would allow the county to work with the other parties to resolve the reservation boundary dispute in a way that benefits all residents of Fremont County, Thompson said. In that way, he does not believe the county is pitting itself against the Indian community.

"It's not anti-tribe, it's pro-all-the-citizens," he said. "We come out the other end with something all the governments can work on together ... something that serves all the citizens.