United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 27, 2000 Decided May 5, 2000
No. 98-1196
Arizona Public Service Company,
Petitioner
v.
Environmental Protection Agency,
Respondent
State of Michigan, et al.,
Intervenors
Consolidated with
98-1203, 98-1206, 98-1207, 98-1208
On Petitions for Review of an Order of the
Environmental Protection Agency
Thomas Sayre Llewellyn argued the cause for petitioner
Arizona Public Service Company. With him on the briefs
were Michael B. Wood and George Y. Sugiyama.
Henry V. Nickel argued the cause for petitioners National
Association of Manufacturers, et al. and Intervenors State of
Michigan and Central and South West Services, Inc. With
him on the briefs were David S. Harlow, John B. Weldon,
Jr., Brian J. Renaud, Jennifer M. Granholm, Attorney Gen-
eral for the State of Michigan, and John Fordell Leone,
Assistant Attorney General for the State of Michigan. Nor-
man W. Fichthorn, Cynthia H. Evans, Roy S. Belden, Janice
S. Amundson, Donald D. Skypeck, Harold P. Quinn, Jr., and
Thomas L. Casey, Solicitor General for the State of Michigan,
entered appearances.
Thomas A. Lorenzen and Cynthia A. Drew, Attorneys,
United States Department of Justice, argued the cause for
respondent. With them on the briefs were Lois Schiffer,
Assistant Attorney General, Anthony F. Guadagno and Mi-
chael W. Thrift, Attorneys, United States Environmental
Protection Agency.
Jill E. Grant argued the cause for intervenors Gila River
Indian Community, et al. With her on the brief were Wil-
liam W. Quinn and Jeanette Wolfley. Reid P. Chambers
entered appearances.
Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Opinion concurring in part and dissenting from Part II.A.
filed by Circuit Judge Ginsburg.
Edwards, Chief Judge: In 1990, Congress passed a com-
pendium of amendments to the Clean Air Act ("CAA" or "the
Act"). This case concerns those amendments that specifically
address the power of Native American nations (or "tribes") to
implement air quality regulations under the Act. Petitioners
challenge the Environmental Protection Agency's ("EPA" or
"the Agency") regulations, promulgated in 1998, implement-
ing the 1990 Amendments. See Indian Tribes: Air Quality
Planning and Management, 63 Fed. Reg. 7254 (1998) (to be
codified at 40 C.F.R. pts. 9, 35, 49, 50, and 81) ("Tribal
Authority Rule"). Petitioners' principal contention is that
EPA has granted too much authority to tribes.
Petitioners' primary challenges focus on two issues. The
first is whether Congress expressly delegated to Native
American nations authority to regulate air quality on all land
within reservations, including fee land held by private land-
owners who are not tribe members. The second is whether
EPA has properly construed "reservation" to include trust
lands and Pueblos.
Petitioners also raise several other challenges to the Tribal
Authority Rule. They argue: (1) that EPA violated the Act
in authorizing tribes to administer programs affecting non-
reservation "allotted lands" and "dependent Indian communi-
ties"; (2) that EPA unlawfully declined to accept public
comments on applications to regulate by Native American
nations; (3) that EPA improperly held that the 1990 Amend-
ments abrogated preexisting contracts under which tribes
agreed not to regulate certain privately-held land; and (4)
that EPA improperly interpreted the 1990 Amendments to
exempt Native American nations from certain of the Act's
judicial review requirements.
We find petitioners' challenges to be mostly meritless. We
hold that the Agency did not err in finding delegated authori-
ty to Native American nations to regulate all land within
reservations, including fee land owned by nonmembers. We
also uphold EPA's construction of "reservation" to include
trust lands and Pueblos. Likewise, we reject the challenge to
the Agency's decision to exempt Native American nations
from some of the Act's judicial review requirements. Peti-
tioners' complaint regarding the adequacy of public comment
on tribal applications is moot. And petitioners' claim that
EPA has abrogated preexisting agreements not to regulate is
unripe for review, as is one of petitioners' arguments chal-
lenging the Agency's decision on the Act's judicial review
requirements.
I. BACKGROUND
A. Statutory Background
The Act establishes a framework for a federal-state part-
nership to regulate air quality. The provisions of the 1990
Amendments under review, fairly read, constitute an attempt
by Congress to increase the role of Native American nations
in this partnership. There are three areas of regulation
under the Act particularly relevant to this case.
First, the Act grants states primary responsibility for
assuring that air quality meets national standards. See 42
U.S.C. s 7407(a) (1994). States meet this burden by submit-
ting state implementation plans ("SIPs") that "provide[ ] for
implementation, maintenance, and enforcement" of these
standards. Id. s 7410(a)(1) (1994). SIPs must be approved
by the Agency before they may be federally enforced. In
1990, s 7410 was amended to authorize Native American
nations to submit tribal implementation plans ("TIPs") "appli-
cable to all areas ... located within the exterior boundaries
of the reservation." Id. s 7410(o).
Second, the Act permits states and Native American na-
tions to "redesignate" lands pursuant to the Act's Prevention
of Significant Deterioration ("PSD") program. See id.
s 7474(a), (c) (1994). Under the PSD program, land is classi-
fied as Class I, II, or III. The land's classification deter-
mines the maximum allowable increase over the baseline by
which concentrations of sulfur dioxide and other particulate
matter shall not be exceeded. See id. s 7473 (1994). Land
may, under certain circumstances, be redesignated as Class I,
II, or III. See id. s 7474(a). Since 1977, Native American
nations have had authority to redesignate land "within the
exterior boundaries of reservations." Id. s 7474(c).
Finally, under Title V of the Act, states must develop a
comprehensive permitting program applicable to major air
pollution sources. See id. s 7661a (1994). The Agency must
approve the permitting program; if none is approved, EPA
must promulgate a permitting program that will be federally
enforceable. See id. s 7661a(d)(3). One of the requirements
for approval is that the program provide for judicial review of
permitting actions. See id. s 7661a(b)(6), (7). Petitioners
claim that the Agency has improperly interpreted the 1990
Amendments to give Native American nations the possibility
of exemption from some portions of the judicial review re-
quirements.
Importantly, the 1990 Amendments added language to the
Act granting EPA the "author[ity] to treat Indian tribes as
States under this chapter," id. s 7601(d)(1)(A) (1994), provid-
ed tribes meet the following requirements:
(A) the Indian tribe has a governing body carrying out
substantial governmental duties and powers;
(B) the functions to be exercised by the Indian tribe
pertain to the management and protection of air re-
sources within the exterior boundaries of the reservation
or other areas within the tribe's jurisdiction; and
(C) the Indian tribe is reasonably expected to be capa-
ble, in the judgment of the Administrator, of carrying out
the functions to be exercised in a manner consistent with
the terms and purposes of this chapter and all applicable
regulations.
Id. s 7601(d)(2).
The 1990 Amendments also directed EPA to promulgate
regulations "specifying those provisions of this chapter for
which it is appropriate to treat Indian tribes as States." Id.
If the Agency "determines that the treatment of Indian tribes
as identical to States is inappropriate or administratively
infeasible," EPA may announce other ways for the Agency to
administer the program "so as to achieve the appropriate
purpose." Id. s 7601(d)(4).
B. The Challenged Rule
On August 25, 1994, EPA proposed rules to implement the
1990 Amendments. See Proposed Tribal Authority Rule, 59
Fed. Reg. 43,956 (1994) (proposed Aug. 25, 1994). On Febru-
ary 12, 1998, after receiving and responding to public com-
ments, EPA issued the final Tribal Authority Rule. See
Tribal Authority Rule, 63 Fed. Reg. at 7254. The Agency
first found that the 1990 Amendments constitute a delegation
of federal authority to regulate air quality to Native American
nations within the boundaries of reservations, regardless of
whether the land is owned by the tribes. See id. The
Agency read the statute to support this "territorial view of
tribal jurisdiction," authorizing a "tribal role for all air re-
sources within the exterior boundaries of Indian reservations
without distinguishing among various categories of on-
reservation land." Id. EPA believed that this "territorial
approach ... best advances rational, sound, air quality man-
agement." Id. at 7255. Thus, the Agency determined that
Congress delegated to tribes the authority to regulate air
quality in areas within the exterior boundaries of a reserva-
tion.
The Act does not define "reservation" for the purposes of
tribal regulation. EPA interpreted "reservation" to include
"trust lands that have been validly set apart for the use of a
tribe even though the land has not been formally designated
as a reservation." Id. at 7258. The Agency explained that
this interpretation was consistent with the Supreme Court's
definition of "reservation" in Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 498
U.S. 505 (1991). EPA held that it would decide on a case-by-
case basis whether other types of land may be considered
"reservations" under the Act. See Tribal Authority Rule, 63
Fed. Reg. at 7258.
For areas not within a "reservation," the Agency deter-
mined that a tribe would be allowed to regulate such areas if
the tribe could demonstrate inherent jurisdiction over the
particular non-reservation area under general principles of
federal Indian law. See id. at 7259. This means that tribes
may propose air quality regulations in "allotted land" and
"dependent Indian communities" provided they can otherwise
demonstrate inherent jurisdiction over these areas. Allotted
land is land "owned by individual Indians and either held in
trust by the United States or subject to a statutory restric-
tion on alienation." Felix S. Cohen, Handbook of Federal
Indian Law 40 (1982). Dependent Indian communities in-
clude "those tribal Indian communities under federal protec-
tion that did not originate in either a federal or tribal act of
'reserving,' or were not specifically designated a reservation."
Id. at 38.
Some commenters claimed that the Act precludes tribal
regulation in the form of TIPs in non-reservation areas.
These parties argued that the section of the Act authorizing
TIPs includes a specific provision limiting such regulation
within reservations lands. See 42 U.S.C. s 7410(o) (providing
that TIPs "shall become applicable to all areas ... located
within the exterior boundaries of the reservation"). EPA,
however, interpreted "reservation" in s 7410(o) to be "simply
a description of the type of area over which a TIP may
apply," and ruled that "the provision was [not] intended to
limit the scope of TIPs to reservations." Tribal Authority
Rule, 63 Fed. Reg. at 7259. EPA's ruling was informed by
s 7601(d)(1) under which the Agency "decided to include
most of the provisions of [s 7410] in the group of provisions
for which treatment of tribes in the same manner as a state is
appropriate." Id.
The final aspect of the Tribal Authority Rule under review
relates to the provisions covering judicial review of permitting
programs. Title V of the Act authorizes regulating authori-
ties to establish permitting programs for pollution sources.
Section 7661a(b)(6) requires the authority to afford "an op-
portunity for judicial review in State court of the final permit
action." 42 U.S.C. s 7661a(b)(6). In its proposed rule, EPA
indicated an intention to treat tribes like states with respect
to judicial review. See Proposed Tribal Authority Rule, 59
Fed. Reg. at 43,972. In its final rule, EPA withdrew this
proposal, requiring instead that, for Title V programs, tribes
must meet all of the requirements of s 7661a(b)(6) and (7)
"except those provisions that specify that review of final
action under the Title V permitting program be 'judicial' and
'in State court.' " Tribal Authority Rule, 63 Fed. Reg. at
7261. EPA adopted this provision in response to concerns
over tribal sovereign immunity. See id. Thus, EPA indicat-
ed its willingness "to consider alternative options, developed
and proposed by a tribe in the context of a tribal CAA Title V
program submittal, that would not require tribes to waive
their sovereign immunity to judicial review but, at the same
time, would provide for an avenue for appeal of tribal govern-
ment action or inaction to an independent review body and
for injunctive-type relief to which the Tribe would agree to be
bound." Id. at 7262.
Petitioner Arizona Public Service Company ("APS") filed a
petition for review on April 10, 1998. The remaining petitions
for review were filed shortly thereafter; the petitions were
subsequently consolidated for consideration by this court.
II. ANALYSIS
Petitioners raise several challenges to EPA's final rule.
First, petitioners claim that the 1990 Amendments cannot be
interpreted to constitute an express delegation of authority to
Native American nations to regulate privately owned fee land
located within a reservation. Second, petitioners argue that
EPA impermissibly interpreted the word "reservation" to
include lands held in trust and Pueblos. Third, petitioners
contend that EPA impermissibly interpreted the Act to per-
mit Native American nations to issue TIPs and redesignations
for land outside the boundaries of a reservation. Fourth,
petitioners assert that EPA has failed to allow public com-
ment on tribal applications to issue regulations under the Act.
Fifth, petitioners argue that EPA's interpretation of the 1990
Amendments effectively abrogates preexisting agreements
between tribes and regulated industry. Finally, petitioners
contend that EPA's final rule covering judicial review proce-
dures for Title V programs was promulgated with insufficient
notice to affected parties and that it rests on an impermissible
interpretation of the Act.
We analyze EPA's interpretation of the Act under familiar
principles. "Where congressional intent is ambiguous, ... an
agency's interpretation of a statute entrusted to its adminis-
tration is entitled to deference, so long as it is reasonable."
Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1992) (per
curiam) (citing Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). Our
primary concern under Chevron is to ensure that an agency
acts within the bounds of congressional delegation. "[A]s
long as the agency stays within [Congress'] delegation, it is
free to make policy choices in interpreting the statute, and
such interpretations are entitled to deference." Arent v.
Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995).
In evaluating the extent of congressional delegation, a
reviewing court first exhausts the traditional tools of statuto-
ry construction to determine whether a congressional act
admits of plain meaning. See Bell Atlantic Tel. Cos. v. FCC,
131 F.3d 1044, 1047 (D.C. Cir. 1997). If, in light of its text,
legislative history, structure, and purpose, a statute is found
to be plain in its meaning, "then Congress has expressed its
intention as to the question, and deference is not appropri-
ate." Id. If congressional intent is ambiguous, then we move
to the second step of the Chevron analysis, and uphold an
agency's interpretation if it is reasonable. The reasonable-
ness prong includes an inquiry into whether the agency
reasonably filled a gap in the statute left by Congress. See
United Techs. Corp. v. EPA, 821 F.2d 714, 723 (D.C. Cir.
1987) (upholding filling of gap that is rational and "not
inconsistent" with amendments to the Resource Conservation
and Recovery Act of 1976).
A. Express Delegation of Authority to Native American
Nations
It is undisputed that Native American nations retain signif-
icant sovereign power. Native American nations have inher-
ent power to determine forms of tribal government, to deter-
mine tribal membership, to make substantive criminal and
civil laws governing internal matters, to administer tribal
judicial systems, to exclude others from tribal lands, and, to
some extent, to exercise civil jurisdiction over nonmembers,
including non-Indians. See Cohen, Handbook of Federal
Indian Law, at 247-53; Montana v. United States, 450 U.S.
544, 564 (1981). It is this last category of power that is at
issue in the instant case, because petitioners claim that the
1990 Amendments to the Act do not authorize tribes to
administer the Act over fee land within a reservation that is
owned by nonmembers. As the Supreme Court has held,
exercise of tribal power beyond what is necessary to
protect tribal self-government or to control internal rela-
tions is inconsistent with the dependent status of the
tribes, and so cannot survive without express congres-
sional delegation.
Montana, 450 U.S. at 564.
There is no doubt that tribes hold "inherent sovereign
power to exercise some forms of civil jurisdiction over non-
Indians on their reservations, even on non-Indian fee lands."
Id. at 565. For instance, if the behavior of non-Indians on fee
lands within the reservation "threatens or has some direct
effect on the political integrity, the economic security, or the
health or welfare of the tribe," the tribe may regulate that
activity. Id. at 566. To satisfy this standard, however, a
tribe must show, on a case-by-case basis, that the disputed
activity constitutes a "demonstrably serious" impact that "im-
peril[s] the political integrity, the economic security, or the
health and welfare of the tribe." Brendale v. Confederated
Tribes and Bands of the Yakima Indian Nation, 492 U.S.
408, 431 (1989) (plurality opinion). EPA suggests, not im-
plausibly, that "inherent sovereign power" may apply to tribal
regulation under the Act of fee lands within a reservation, see
Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,598 n.5,
but the Agency does not press this argument on appeal.
Rather, EPA contends that the 1990 Amendments constitute
an express congressional delegation to the tribes of the
authority to regulate air quality on fee lands located within
the exterior boundaries of a reservation.
"There are few examples of congressional delegation of
authority to tribes." Cohen, Handbook of Federal Indian
Law, at 253. However, as is the case in any situation in
which we are called upon to find congressional intent in
construing a contested statute, we start with traditional
sources of statutory interpretation, including the statute's
text, structure, purpose, and legislative history. See, e.g.,
Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984)
("Whether and to what extent a particular statute precludes
judicial review is determined not only from its express lan-
guage, but also from the structure of the statutory scheme,
its objectives, its legislative history, and the nature of the
administrative action involved."). Our review of the CAA
indicates that EPA's interpretation comports with congres-
sional intent.
Section 7601(d), in pertinent part, authorizes EPA to treat
otherwise eligible tribes as states if "the functions to be
exercised by the Indian tribe pertain to the management and
protection of air resources within the exterior boundaries of
the reservation or other areas within the tribe's jurisdiction."
42 U.S.C. s 7601(d)(2)(B). The statute's clear distinction
between areas "within the exterior boundaries of the reserva-
tion" and "other areas within the tribe's jurisdiction" carries
with it the implication that Congress considered the areas
within the exterior boundaries of a tribe's reservation to be
per se within the tribe's jurisdiction. Thus, EPA correctly
interpreted s 7601(d) to express congressional intent to grant
tribal jurisdiction over nonmember owned fee land within a
reservation without the need to determine, on a case-specific
basis, whether a tribe possesses "inherent sovereign power"
under Montana.
Petitioners do not dispute that an important purpose of the
Act is to ensure effective enforcement of clean air standards.
Obviously, this is best done by allowing states and tribes to
establish uniform standards within their boundaries. As
EPA explained in its proposed rule,
[a]ir pollutants disperse over areas several and some-
times even hundreds of miles from their source of origin,
as dictated by the physical and chemical properties of the
pollutants at issue and the prevailing winds and other
meteorological conditions. The high mobility of air pollu-
tants, resulting areawide effects and the seriousness of
such impacts, underscores the undesirability of fragment-
ed air quality management within reservations.
Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,959.
Accepting petitioners' interpretation of the 1990 Amend-
ments would result in a "checkerboard" pattern of regulation
within a reservation's boundaries that would be inconsistent
with the purpose and provisions of the Act. Indeed, the
Supreme Court has condemned such an approach. See Moe
v. Confederated Salish and Kootenai Tribes of Flathead
Reservation, 425 U.S. 463, 479 (1976) (rejecting checkerboard
approach in interpreting s 6 of the General Allotment Act, 25
U.S.C. s 349); Seymour v. Superintendent of Washington
State Penitentiary, 368 U.S. 351, 358 (1962) (terming "im-
practical" a pattern of checkerboard jurisdiction under 18
U.S.C. s 1151).
Finally, we note that the legislative history of the 1990
Amendments supports EPA's interpretation. As originally
introduced, 42 U.S.C. s 7601(d) differed in significant respect
from the final adopted version. The original s 7601(d)(2)(B)
provided that treatment of tribes as states was authorized if
"the functions to be exercised by the Indian tribe are within
the area of the tribal government's jurisdiction." S. 1630,
101st Cong. s 113(a) (1990), reprinted in Senate Comm. on
Env't and Pub. Works, 103d Cong., Legislative History of the
Clean Air Act Amendments of 1990, at 4283 (1993) (emphasis
added); see also H.R. 2323, 101st Cong. s 604 (1989), reprint-
ed in Legislative History of the Clean Air Act Amendments
of 1990, at 4101. The statute as finally enacted, however,
treats tribes and states as equivalent if the tribe is to exercise
functions "within the exterior boundaries of the reservation or
other areas within the tribe's jurisdiction." 42 U.S.C.
s 7601(d)(2)(B).
Thus, Congress moved from authorizing tribal regulation
over the areas "within the tribal government's jurisdiction"
(an admittedly general category) to a bifurcated classification
of all areas within "the exterior boundaries of the reserva-
tion" and "other areas within the tribe's jurisdiction." This
change strongly suggests that Congress viewed all areas
within "the exterior boundaries of the reservation" to be
"within the area of the tribal government's jurisdiction." The
change also indicates that Congress knew how to draft the
1990 Amendments to support petitioners' interpretation. The
fact that Congress specifically rejected language favorable to
petitioners' position and enacted instead language that is
consistent with EPA's interpretation only strengthens our
conclusion that the Agency has correctly ascertained Con-
gress' intent in passing the 1990 Amendments.
The dissent's contrary contentions regarding the meaning
of the 1990 Amendments do not cause us to question this
conclusion. The dissent's argument that Congress would not
use a "never-before-attempted" formulation to accomplish an
express delegation when it could use the "formulaic 'notwith-
standing' proviso [used in s 7410(o)]--the gold standard for
such delegations," cannot carry much weight. Dissent Op. at
5-6. That a provision uses a new formulation is not disposi-
tive of the question as to whether it constitutes an express
delegation. Indeed, it is noteworthy that, in construing 33
U.S.C. s 1337(h)(1), which uses the dissent's so-called "gold
standard," EPA has declined to find an express delegation in
such language. We can assume that Congress was aware of
EPA's contemporaneous interpretation of the Clean Water
Act, first proposed in 1989 (while Congress contemplated the
1990 Amendments). See Amendments to the Water Quality
Standards Regulations That Pertain to Standards on Indian
Reservations, 54 Fed. Reg. 39,098, 39,101 (1989) (proposed
Sept. 22, 1989) (to be codified at 40 C.F.R. pt. 131) ("EPA
may treat an Indian Tribe as a State ... only where the
Tribe already possesses and can adequately demonstrate
authority to manage and protect water resources within the
borders of the reservation. The Clean Water Act ... does
not grant additional authority to Tribes."). Thus, Congress'
failure to use the same language in s 7601(d) does not at all
imply that it meant to avoid delegation to the tribes; rather,
it may suggest just the opposite.
The dissent's argument resting on Congress' omission of a
"literal delegation" to tribes is seductive, but, ultimately, also
unconvincing. It is true that, as originally introduced, the
bills in the Senate and the House contained language provid-
ing that "the Administrator ... may delegate to [ ] tribes
[that the Administrator is authorized to treat as States]
primary responsibility for assuring air quality and enforce-
ment of air pollution control." H.R. 2323, 101st Cong. s 604
(1989), reprinted in Legislative History of the Clean Air Act
Amendments of 1990, at 4101. The absence of this language
from the final bill, however, does not compel the dissent's
conclusion that Congress "specifically rejected" language fa-
vorable to EPA's position. Neither the majority nor the
dissent can call upon determinative legislative history to
illuminate the motivations behind this unexplained change to
the provisions at issue. We suggest, however, that there are
at least two other explanations that account for the absence of
the cited language from the final bill. First, Congress simply
may have deemed the language to be redundant and confus-
ing in light of s 7601(d)(2)(B). It would have been redundant
because s 7601(d)(2)(B) already accomplishes an express del-
egation. It would have been confusing because the omitted
language can be read to apply to areas both outside and
inside the boundaries of the reservation, and, as we hold,
Congress intended to expressly delegate only with respect to
areas within the boundaries of a reservation.
Second, the language contained in the original bills hardly
represents, as the dissent declares ipse dixit, a "literal dele-
gation." Providing that the "Administrator ... may dele-
gate" authority to tribes reads less like an express delegation
from Congress to the tribes than a permissive instruction to
the Administrator. Moreover, the omitted language did not
expressly expand tribal jurisdiction to include those areas
within the boundaries of a reservation owned by non-
members--which is what is necessary for express delega-
tion--as does the language in the adopted s 7601(d)(2)(B).
In other words, the language used in the progenitors to
s 7601(d) that the dissent claims is a "literal delegation" is
not easily manipulated to fit the contours of the traditional
express delegation inquiry. We also note, as an aside, that by
treating the original bills' language as an express delegation,
our colleague seemingly abandons the "gold standard" that he
claims Congress consistently has utilized expressly to dele-
gate authority to Indian tribes. In short, we take more from
the language used in the adopted s 7601(d)(2)(B) than from
the language omitted.
What little precedent there is addressing express delega-
tions of authority to Native American nations in other con-
texts supports our interpretation of s 7601(d). In United
States v. Mazurie, the Supreme Court reviewed 18 U.S.C.
s 1161 and concluded that the statute was an express delega-
tion to tribes of the authority to regulate alcohol transactions.
419 U.S. 544, 556-57 (1975). The Court reaffirmed this
holding almost a decade later. See Rice v. Rehner, 463 U.S.
713, 728-29 (1983). Section 1161 provides in pertinent part
that various federal liquor laws applicable to transactions
within Indian country shall not apply
within any area of Indian country provided such act or
transaction is in conformity both with the laws of the
State in which such act or transaction occurs and with an
ordinance duly adopted by the tribe having jurisdiction
over such area of Indian country, certified by the Secre-
tary of the Interior, and published in the Federal Regis-
ter.
18 U.S.C. s 1161 (1994). The Court read this language to
make
clear that Congress contemplated that its absolute but
not exclusive power to regulate Indian liquor transac-
tions would be delegated to the tribes themselves, and to
the States, which historically shared concurrent jurisdic-
tion with the Federal Government in this area.
Rehner, 463 U.S. at 728-29.
The decisions in Mazurie and Rehner are significant be-
cause the Court found an express delegation despite the
absence of any "we hereby delegate" language in the statute.
The Court did not find any precise language of delegation in
the disputed statute, but, rather, rested on the implication
inherent in recognizing the power of tribes to adopt an
ordinance pertinent to liquor transactions on Indian country.
See Rehner, 463 U.S. at 730-31. Similarly, in this case, we
find an express congressional delegation from the implication
inherent in the distinction between areas "within the exterior
boundaries of the reservation" and "other areas within the
tribe's jurisdiction."
Petitioners claim that the 1990 Amendments delegate au-
thority to EPA to approve state or tribal air quality programs
for federal enforcement, not authority to tribes to "adopt
regulatory programs that the tribes could not adopt under
tribal and federal Indian law prior to the 1990 Amendments."
Br. for Petitioners National Ass'n of Mfrs. ("NAM") at 23.
Petitioners' claim misses a crucial point, however, that there
are two different powers at issue here: (1) the authority to
regulate and (2) the derivative authority to enforce specific
provisions of the Act. Petitioners focus on the derivative
authority. Of course the 1990 Amendments do not constitute
an express delegation to the tribes to enact regulatory provi-
sions absent any federal oversight or approval. Rather, the
1990 Amendments simply establish the palette with which
tribes are permitted to paint their regulatory picture.
Petitioners additionally argue that although states are au-
thorized under 42 U.S.C. s 7407(a) to enact programs "within
the entire geographic area comprising such State," EPA has
never interpreted this provision as allowing states to promul-
gate air quality regulations applicable to Native American
reservations located within a state's geographic area. In
other words, petitioners claim that because states may not
promulgate regulations affecting Native American reserva-
tions, tribes may not promulgate regulations covering lands
held in fee by persons other than tribal members. This
argument is obviously flawed, because it fails to recognize
that the relationship between fee holders and tribes is quite
different from the relationship between tribes and states. As
the Supreme Court noted in Mazurie,
Indian tribes are unique aggregations possessing attrib-
utes of sovereignty over both their members and their
territory; they are "a separate people" possessing "the
power of regulating their internal and social rela-
tions...."
419 U.S. at 557 (citations omitted). And there is no doubt
that Congress may delegate authority to tribes "even though
the lands [are] held in fee by non-Indians, and even though
the persons regulated [are] non-Indians." Id. at 554.
Finally, petitioners note that the Agency declined to find an
express delegation of power to regulate fee lands under
ss 518(e) and (h) of the Clean Water Act; this is noteworthy
to petitioners, because they can glean no difference between
the cited provisions under the Clean Water Act and the
disputed provisions in this case under the Clean Air Act. We
find no merit in this argument. The Clean Water Act states
that "[t]he Administrator is authorized to treat an Indian
tribe as a State ... if ... the functions to be exercised by the
Indian tribe pertain to the management and protection of
water resources which are held by an Indian tribe ... within
the borders of an Indian reservation." 33 U.S.C. s 1377(e)(2)
(1994). "Reservation" is defined as "all land within the limits
of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any pat-
ent, and including rights-of-way running through the reserva-
tion." Id. s 1377(h)(1). In construing these provisions, EPA
concluded that because the legislative history was "ambiguous
and inconclusive," it would not find that the Clean Water Act
expanded or limited the scope of tribal authority beyond that
inherent in the tribe. Amendments to the Water Quality
Standards Regulation That Pertain to Standards on Indian
Reservations, 56 Fed. Reg. 64,876, 64,880 (1991) (codified at
40 C.F.R. pt. 131).
The situation here is quite different from what EPA found
with respect to the Clean Water Act. Although the disputed
language in the Clean Air Act and the Clean Water Act is
somewhat similar, it is far from identical. As noted above,
EPA correctly relied on the CAA's clear distinction between
areas "within the exterior boundaries of the reservation" and
"other areas within the tribe's jurisdiction" to find a congres-
sional intention to define the areas within the exterior bound-
aries of a tribe's reservation to be per se within the tribe's
jurisdiction. Furthermore, as we have already indicated, the
legislative history of the 1990 Amendments plainly supports
EPA's interpretation. Thus, the legislative history underly-
ing the Clean Air Act is not "ambiguous and inconclusive," as
was found to be the case with respect to the Clean Water Act.
It is also of some significance that EPA's interpretation of
the Clean Water Act never has been subject to judicial review
on the question of the presence or absence of an express
delegation to tribes to regulate fee lands within the bounds of
reservations. One federal court has observed, in dicta, that
"the statutory language [in the Clean Water Act] seems to
indicate plainly that Congress did intend to delegate ...
authority to tribes." State of Montana v. EPA, 941 F. Supp.
945, 951 (D. Mont. 1996). The court noted, however, that in
construing the provisions of the Clean Water Act, "EPA
determined that it would take the more cautious view, that
Congress did not expressly delegate jurisdiction to tribes
over non-Indians and that tribes would have to prove on a
case-by-case basis that they possess such jurisdiction." Id. at
952. There was no reason for EPA to take a similarly
"cautious view" with respect to the Clean Air Act, because the
language and legislative history of the 1990 Amendments
differ from that of the Clean Water Act.
B. EPA's Interpretation of "Reservation"
Given that EPA correctly interpreted s 7601(d) to express-
ly delegate jurisdiction to otherwise eligible tribes over all
land within the exterior boundaries of reservations, including
fee land, the next question is what areas are covered by a
"reservation." EPA interprets "reservation" as used in three
different statutory provisions (42 U.S.C. ss 7410(o), 7474(c),
7601(d)(2)(B)) to mean formally designated reservations as
well as "trust lands that have been validly set apart for the
use of a tribe even though the land has not been formally
designated as a reservation." Tribal Authority Rule, 63 Fed.
Reg. at 7258. This includes what EPA terms "Pueblos" and
tribal trust land. Pueblos are villages, primarily located in
New Mexico, held by tribes in communal fee-simple owner-
ship, originally acquired under grants from Spain and Mexico,
and confirmed by Congress in the late 1800s. See United
States v. Sandoval, 231 U.S. 28, 38-39 (1913). Petitioners
ignore the status of Pueblos and concentrate their attack on
EPA's interpretation of "reservation" to include tribal trust
land.
The Secretary of the Interior is authorized to acquire land
in trust for a tribe under 25 U.S.C. s 465 (1994), and such
land can only formally be designated a reservation via the
process provided by 25 U.S.C. s 467 (1994). Petitioners
claim that EPA's interpretation contravenes the Act's plain
language and renders 25 U.S.C. s 467 superfluous by ignor-
ing the distinction between "trust lands" and "reservations."
EPA counters that the statute is ambiguous, and that its
reasonable interpretation is entitled to Chevron deference.
We start with Chevron step one and rely on traditional
principles of statutory construction to determine whether
EPA's interpretation contravenes congressional intent as
manifested by the 1990 Amendments. Significantly, the Act
nowhere defines "reservation." Therefore, we look to the
term's ordinary and natural meaning, and the context in
which the term is used. See Smith v. United States, 508 U.S.
223, 228-30 (1993). And we must remain cognizant of the
rule that courts construe federal statutes liberally to benefit
Native American nations. See Montana v. Blackfeet Tribe of
Indians, 471 U.S. 759, 766 (1985).
The dictionary defines "reservation" to be a "tract of public
land set aside for a particular purpose (as schools, forest, or
the use of Indians)." Webster's Third New Int'l Dictionary
1930 (1993). This definition surely encompasses both trust
lands and formally designated reservations. Nothing in the
United States Code is clearly to the contrary, for the term
"reservation" has no rigid meaning as suggested by petition-
ers. See 7 U.S.C. s 1985(e)(1)(A)(ii) (Supp. IV 1998) (defining
"reservation" to include land "within the limits of any Indian
reservation under the jurisdiction of the United States, ...
trust or restricted land located within the boundaries of a
former reservation of a federally recognized Indian tribe in
the State of Oklahoma[,] ... [and] all Indian allotments the
Indian titles to which have not been extinguished if such
allotments are subject to the jurisdiction of a federally recog-
nized Indian tribe"); id. s 2012(j) (1994) (defining "reserva-
tion" as "the geographically defined area or areas over which
a tribal organization ... exercises governmental jurisdic-
tion"); 25 U.S.C. s 1452(d) (1994) (defining "reservation" to
include Indian reservations, public domain Indian allotments,
former Indian reservations in Oklahoma, and land held by
incorporated Native groups, regional corporations, and village
corporations under the provisions of the Alaska Native
Claims Settlement Act); id. s 1903(10) (1994) (defining "res-
ervation" to be "Indian country as defined in section 1151 of
Title 18" and any trust land not encompassed by s 1151); id.
s 3103(12) (1994) (" '[R]eservation' includes Indian reserva-
tions established pursuant to treaties, Acts of Congress or
Executive orders, public domain Indian allotments, and for-
mer Indian reservations in Oklahoma"); 33 U.S.C.
s 1377(h)(1) (defining "Federal Indian reservation" to mean
"all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstand-
ing the issuance of any patent, and including rights-of-way
running through the reservation").
These varying definitions of "reservation" lay to waste
petitioners' argument. Petitioners appear to assert that, in
the absence of any specific definition, "reservation" as used in
the 1990 Amendments to the Act can only mean the formal
reservation contemplated by 25 U.S.C. s 467. This is a
specious contention. First, s 467 does not purport to offer an
exclusive definition of "reservation"; it simply defines the
terms under which federal land is formally designated a
reservation. Second, if Congress had wanted to limit the
term "reservation" as petitioners suggest, Congress could
have done so. Indeed, Congress on many occasions has
defined "reservation" in terms of other statutes. See 12
U.S.C. s 4702(11) (1994) (defining "reservation" according to
25 U.S.C. s 1903(10)); 22 U.S.C. s 2124c(m)(1) (1994) (defin-
ing "Indian reservation" with reference to 25 U.S.C.
s 1452(d)); 25 U.S.C. s 1903(10) (defining "reservation" with
reference to 18 U.S.C. s 1151, as well as trust land); 26
U.S.C. s 168(j)(6) (1994 & Supp. III 1997) (defining "Indian
reservation" with reference to 25 U.S.C. s 1452(d) and 25
U.S.C. s 1903(10)); 42 U.S.C. s 10101(19) (1994) (defining
"reservation" to include communities referred to in 18 U.S.C.
s 1151(a), (b)); id. s 11332(a) (1994) (defining "reservation"
according to 25 U.S.C. s 1452(d)). Moreover, given the vary-
ing definitions of the term used throughout the Code, it would
be a curious result indeed for this court to insist that the
absence of a definition requires EPA to advance the most
restrictive definition as put forth by petitioners.
Aside from the statute's plain meaning and its context,
other sources of statutory interpretation offer no insight into
congressional intent with respect to the meaning of "reserva-
tion." The Report of the Senate Committee on Environment
and Public Works refers to the authority of Indian tribes to
"administer and enforce the Clean Air Act in Indian lands,"
as well as enforcement of the Act in "Indian country."
S. Rep. No. 101-228, at 79, 80 (1989), reprinted in Legislative
History of the Clean Air Act Amendments of 1990, at 8419-
20. These terms are arguably broader than the definition of
"reservation" urged by petitioners, and simply confirm the
term's ambiguity as used by Congress.
Accordingly, we turn to step two of the Chevron inquiry.
That is, did the Agency reasonably interpret the term "reser-
vation" to include formal reservations, Pueblos, and trust
lands? EPA supported its interpretation of "reservation" by
looking to relevant case law, in particular Supreme Court
precedent holding that there is no relevant distinction be-
tween tribal trust land and reservations for the purpose of
tribal sovereign immunity. See Oklahoma Tax Comm'n, 498
U.S. at 511. This view is consonant with other federal court
holdings that an Indian reservation includes trust lands. See
United States v. John, 437 U.S. 634, 649 (1978) (finding "no
apparent reason" why lands held in trust should not be
considered a "reservation" under s 1151(a)); HRI, Inc. v.
EPA, 198 F.3d 1224, 1249-54 (10th Cir. 2000) (same); United
States v. Azure, 801 F.2d 336, 339 (8th Cir. 1986) (considering
tribal trust land to be Indian country under either s 1151(a)
as a "de facto" reservation or s 1151(b) as a dependent Indian
community); United States v. Sohappy, 770 F.2d 816, 822-23
(9th Cir. 1985) (holding that trust land is a "reservation"
under s 1151(a)).
Petitioners note that, for several years, EPA has defined
reservation, for the purposes of the PSD program, to be "any
federally recognized reservation established by Treaty,
Agreement, executive order, or act of Congress." 40 C.F.R.
52.21(b)(27) (1999). Given the Agency's reasoned justification
for a broader definition of "reservation" in the Tribal Authori-
ty Rule, and its proposal to amend the PSD definition to
ensure consistency with the Tribal Authority Rule, EPA's
departure from the PSD definition does not preclude this
court from upholding EPA's new definition. In light of the
ample precedent treating trust land as reservation land in
other contexts, and the canon of statutory interpretation
calling for statutes to be interpreted favorably towards Na-
tive American nations, we cannot condemn as unreasonable
EPA's interpretation of "reservations" to include Pueblos and
tribal trust land.
C. Areas over which Tribes May Exercise Jurisdiction to
Propose TIPs and Redesignations
The next issue that arises in this case is whether EPA
defensibly interprets the extent of Native American authority
to redesignate geographic areas and propose TIPs under the
Act. Native American nations are authorized to redesignate
"[l]ands within the exterior boundaries of reservations of
federally recognized Indian tribes." 42 U.S.C. s 7474(c).
Similarly, Indian tribes may submit TIPs "applicable to all
areas ... located within the exterior boundaries of the reser-
vation, notwithstanding the issuance of any patent and includ-
ing rights-of-way running through the reservation." 42
U.S.C. s 7410(o).
EPA interpreted both of these provisions to authorize
tribal redesignation and implementation of TIPs not just
within the limits of reservations (including trust lands and
Pueblos), but also within allotted lands and dependent Indian
communities. No one argues that allotted lands and depen-
dent Indian communities are within the compass of a "reser-
vation." Instead, EPA contends that so long as a tribe
demonstrates inherent jurisdiction over non-reservation ar-
eas, it may issue redesignations and TIPs for those lands. In
other words, although tribes do not have express delegated
authority to issue redesignations and TIPs for non-
reservation areas, neither does the Act bar tribes from acting
on a case-by-case basis pursuant to demonstrated inherent
sovereign power.
Petitioners contend that both s 7474(c) and 7410(o) operate
as geographical limitations on the power of tribes to redes-
ignate areas and issue TIPs. Petitioners' argument with
respect to s 7474(c) falls flat. This provision says that
"[l]ands within the exterior boundaries of reservations of
federally recognized Indian tribes may be redesignated only
by the appropriate Indian governing body." 42 U.S.C.
s 7474(c). Petitioners seek to twist this language into the
following: "Indian tribes may only redesignate lands within
the exterior boundaries of reservations." All s 7474(c) estab-
lishes, however, is the exclusive power of Indian tribes to
redesignate land within a reservation; it does not address the
inherent power of tribes to redesignate land in non-
reservation areas.
Nor do petitioners fare better with respect to s 7410(o),
which states that EPA-approved TIPs "shall become applica-
ble to all areas (except as expressly provided otherwise in the
plan) located within the exterior boundaries of the reserva-
tion, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation." 42 U.S.C.
s 7410(o). Petitioners read this to mean that EPA may only
approve a TIP if it applies within reservation areas. As EPA
points out, petitioners' interpretation cannot stand for several
reasons. First, s 7410(o) cross-references s 7601(d), which
allows for tribes to exercise jurisdiction over reservation
areas or "other areas within the tribe's jurisdiction." 42
U.S.C. s 7601(d)(2)(B). Most importantly, s 7410(o) provides
that TIPs apply to all areas within the borders of a reserva-
tion once the plan "becomes effective in accordance with the
regulations promulgated under section 7601(d) of this title."
42 U.S.C. s 7410(o). Therefore, it is permissible for EPA to
give s 7410(o) the reading it proffers: a reinforcement of
tribes' jurisdiction to implement TIPs in reservation land.
Petitioners would instead read the statute as an express
limitation of tribal jurisdiction. Under step one of Chevron,
we cannot say that congressional intent is free of ambiguity
on this question.
Accordingly, we turn to whether EPA's interpretation is
reasonable. We believe that it is undoubtedly so. To read
the statute otherwise would result in several anomalies.
First, EPA notes without dispute that petitioners' interpreta-
tion would allow a state's implementation plan to apply to
non-reservation areas, even where a tribe has demonstrated
inherent jurisdiction over those areas. Second, petitioners'
reading would disable a tribe from comprehensively adminis-
tering the Act. A tribe could implement, in non-reservation
areas, new source performance standards under the Act, but
not administer a TIP, even though the regulated activity
"threatens or has some direct effect on the ... health or
welfare of the tribe." Montana, 450 U.S. at 566. EPA's
reading of the statute to allow such regulation is a reasonable
interpretation of ss 7410(o) and 7601(d).
D. The Right of The Public To Comment on Tribal Applica-
tions to Regulate
EPA's final rule limited the opportunity of the public to
comment directly to the Agency on "competing claims over
tribes' reservation boundary assertions and assertions of jur-
isdiction over non-reservation areas," allowing only "appropri-
ate governmental entities" to submit comments. Tribal Au-
thority Rule, 63 Fed. Reg. at 7267. Petitioners challenge this
limitation of the public's opportunity to comment directly to
EPA. Before this court, however, EPA indicated its intent to
clarify that the Agency will accept comments directly from all
commenters on the determination of a tribe's eligibility to be
treated as a state. See Br. for Respondent at 43. Subse-
quently, EPA issued a clarification to this effect. See Indian
Tribes: Air Quality Planning and Management, 65 Fed. Reg.
1322, 1323 (2000).
Therefore, this issue is moot. See Motor & Equip. Mfrs.
Ass'n v. Nichols, 142 F.3d 449, 458 (D.C. Cir. 1998) (finding
challenge to EPA's waiver for state's program was moot
where actions complained of were revised after lawsuit was
filed). A dispute may be rendered moot where the com-
plained of conduct has been voluntarily discontinued if "(1)
there is no reasonable expectation that the conduct will recur
and (2) 'interim relief or events have completely and irrevoca-
bly eradicated the effects of the alleged violation.' " Id. at
459 (quoting County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979)). In this case, there is no indication that EPA will
revert to its past proposal only to receive direct comments
from "appropriate governmental units," and all of the adverse
effects of the Agency's alleged illegal action have been remed-
ied by EPA's clarification.
E. Abrogation of Existing Agreements By Tribes Not to
Regulate Certain Land
Petitioners argue that EPA's final rule abrogates preexist-
ing agreements by Native American nations not to regulate
certain individual parties. Specifically, petitioner APS points
to its 1960 lease with the Navajo Nation that APS claims
prohibits the Nation from regulating the operation of the
Four Corners Power Plant. See Br. of Petitioner APS at 2.
APS further claims that the Secretary of the Interior cove-
nanted to protect APS from tribal regulation. See id. at 3.
Petitioners point to footnote 5 in the final rule which states,
in response to industry comments that preexisting agree-
ments may limit the extent of a tribe's regulatory jurisdiction,
that "EPA believes that the CAA generally would supersede
pre-existing treaties or binding agreements that may limit the
scope of tribal authority over reservations." Tribal Authority
Rule, 63 Fed. Reg. at 7256 n.5. Petitioners ignore the
sentence following footnote 5, however, in which EPA states
that it "will consider on a case-by-case basis whether special
circumstances exist that would prevent a tribe from imple-
menting a CAA program over its reservation." Id. at 7256
(emphasis added). EPA maintains in its brief that it has
made no judgment on the scope and effect of the specific
agreements to which petitioners refer, and that it will consid-
er such questions as they arise. As counsel for APS acknowl-
edged at oral argument, it is quite possible that the abroga-
tion issue never will arise. For instance, if the Navajo Nation
agrees that it will not regulate the Four Corners Plant, there
will be no controversy in need of resolution.
There is still a concern, however. In EPA's preamble to a
proposed federal implementation plan, promulgated after the
Tribal Authority Rule, the Agency stated that,
[u]pon review of the circumstances surrounding the loca-
tion and operation of [the Four Corners Power Plant] on
the Navajo Indian Reservation, EPA concluded that jur-
isdiction under the Act over this facility lies with EPA
and the Navajo Nation.
64 Fed. Reg. 48,731, 48,732 (1999); see also 64 Fed. Reg.
48,725, 48,726 (1999) (taking same position with respect to the
Navajo Generating Station). EPA now acknowledges that, to
the extent these preambles imply that the Agency has deter-
mined that the indicated plants are subject to regulation by
the Navajo Nation, these statements were incorrect. See
Supp. Br. of Respondent at 4. In fact, EPA has confirmed
this position by publishing an official notice in the Federal
Register clearly indicating that it has not yet determined
whether the Navajo Nation may regulate the indicated power
plants under the Act. See id. at 4-5.
This issue, therefore, is not ripe for review before this
court. The ripeness doctrine seeks to balance institutional
interests in delaying review against litigants' interests in
promptly reviewing allegedly unlawful government actions.
See Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1420-
21 (D.C. Cir. 1998). First a court must ask if the disputed
issues are fit for judicial review. See Abbot Labs. v. Gardner,
387 U.S. 136, 149 (1967). If the institutional interests of the
agency or reviewing court favor postponing review, then a
party must demonstrate "hardship" in order to show that the
issue should nonetheless be made subject to judicial review.
See City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C. Cir.
1994).
The fitness inquiry asks if a case " 'presents a concrete
legal dispute [and] no further factual development is essential
to clarify the issues ... [and] there is no doubt whatever that
the challenged [agency] practice has "crystallized" sufficiently
for purposes of judicial review.' " Rio Grande Pipeline Co. v.
FERC, 178 F.3d 533, 540 (D.C. Cir. 1999) (quoting Payne
Enters., Inc. v. United States, 837 F.2d 486, 492-93 (D.C. Cir.
1988)) (alterations in original). Here, petitioners cannot sat-
isfy this prong because EPA has not issued any order relat-
ing to the preexisting covenants prohibiting regulation by
Native American nations. See Florida Power & Light, 145
F.3d at 1421 (finding lack of fitness for review where it was
unclear "whether, or on what grounds, EPA would even
apply" the challenged rule to petitioners).
Additionally, petitioners cannot point to any hardship they
would suffer from deferred judicial review. It is axiomatic
that mere delay, absent other extenuating circumstances, in
adjudication of a dispute cannot satisfy the hardship prong.
See Clean Air Implementation Project v. EPA, 150 F.3d
1200, 1205-06 (D.C. Cir. 1998); Florida Power & Light, 145
F.3d at 1421 (burden of participating in further proceedings
does not constitute a hardship).
Contrary to petitioners' argument, this case is not on all
fours with Better Government Association v. Department of
State, 780 F.2d 86 (D.C. Cir. 1986). In Better Government,
petitioners challenged Department of Justice regulations ap-
plied by the Department of State and the Department of the
Interior to evaluate fee waiver applications for Freedom of
Information Act requests. The court found that the claim
was ripe for review because the departments relied on the
Department of Justice guidelines, and the government agreed
that the regulations "govern[ ] and will continue to govern
its decisions." Id. at 93. Here, EPA has made no decision
that will govern its analysis of whether the preexisting agree-
ments are abrogated by its interpretation of the Act. Until
the Agency takes a position on the enforceability of the
covenants not to regulate, there is no concrete issue for this
court to consider.
F. Judicial Review of Tribal Permitting Programs
Under Title V of the Act, states must develop a comprehen-
sive permitting program applicable to major air pollution
sources. See 42 U.S.C. s 7661a. Section 7661a enunciates
the requirements for administering permitting programs, in-
cluding elements of judicial review. Pursuant to s 7661a,
[t]hese elements shall include ...
(6) Adequate, streamlined, and reasonable procedures
for ... expeditious review of permit actions, ... includ-
ing an opportunity for judicial review in State court of
the final permit action....
(7) To ensure against unreasonable delay by the permit-
ting authority, adequate authority and procedures to
provide that a failure of such permitting authority to act
on a permit application or permit renewal application ...
shall be treated as a final permit action solely for pur-
poses of obtaining judicial review in State court of an
action brought by any person referred to in paragraph
(6) to require that action be taken by the permitting
authority on such application without additional delay.
Id. s 7661a(b)(6), (7).
EPA initially proposed that tribes "will have to meet the
same requirements" as states in providing an opportunity for
judicial review of a final permit action. Proposed Tribal
Authority Rule, 59 Fed. Reg. at 43,972. EPA withdrew this
proposal in its final rule. Instead, EPA required tribes to
meet all the requirements of s 7661a(b)(6) and (7) except that
review of a tribe's Title V permitting program need not be
"judicial" or "in State court." See Tribal Authority Rule, 63
Fed. Reg. at 7261. Petitioners present two challenges to the
final rule on judicial review: (1) that EPA had no authority to
exempt tribes from the Act's judicial review requirements;
and (2) that interested parties received insufficient notice of
the final rule's content.
EPA promulgated its final rule in response to comments
that expressed concern over "waivers of tribal sovereign
immunity to judicial review." Id. Some Native American
representatives observed that requiring a waiver of sovereign
immunity for a tribe to administer a Title V permit program
would operate as a disincentive to a tribe's establishing such
programs. Industry commenters also sought assurances that
nonmembers of tribes would have access to tribal courts for
judicial review.
EPA identified two alternatives for ensuring that "some
form of citizen recourse be available for applicants and other
persons affected by permits issued under tribal Title V pro-
grams." Id. One option was for tribes to voluntarily waive
their sovereign immunity in tribal courts. A second possibili-
ty was for the Agency to consider "alternative options ...
that would not require tribes to waive their sovereign immu-
nity to judicial review but, at the same time, would provide
for an avenue for appeal of tribal government action or
inaction to an independent review body and for injunctive-
type relief to which the Tribe would agree to be bound." Id.
at 7262. EPA interpreted 42 U.S.C. s 7601(d) to "provide[ ]
EPA with the discretion to balance the goals of ensuring
meaningful opportunities for public participation under the
CAA and avoiding undue interference with tribal sovereignty
when determining those provisions for which it is appropriate
to treat tribes in the same manner as states." Id.
Section 7601(d) authorizes EPA to treat Native American
nations as states for the purposes of the Act. However, if
EPA determines "that the treatment of Indian tribes as
identical to states is inappropriate or administratively infeasi-
ble, the Administrator may provide, by regulation, other
means by which the Administrator will directly administer
such provisions so as to achieve the appropriate purpose." 42
U.S.C. s 7601(d)(4). EPA relies on this statutory provision
to justify the approach taken on judicial review.
Petitioners argue that EPA lacks authority to exempt
tribes from the judicial review requirements, because
s 7601(d) does not affect the operation of CAA provisions
"that define rights that must be afforded to those affected by
a program in order [for either a tribe or a state] to receive
EPA approval to administer a federally enforceable pro-
gram." Br. for Petitioners NAM at 42. We see no merit in
this claim. EPA's interpretation is not clearly contradicted
by the statute. In fact, s 7601(d)(4) allows the Agency the
discretion to determine whether it is "inappropriate or admin-
istratively infeasible" to treat Indian tribes exactly the same
as states in administering the Act. Petitioners offer no
support for their assertions that the judicial review require-
ments do not come within the EPA's discretion under this
section. It is obvious, then, that the Agency had a choice as
to whether to treat Indian tribes identical to states with
regard to the judicial review elements of s 7661a(b). The
clear meaning of the statute does not foreclose the Agency's
interpretation.
Nor is the Agency's interpretation unreasonable. EPA
understandably was concerned that the effect of requiring
tribes to submit their permitting disputes to state courts
would conflict with policies supporting tribal sovereignty and
also discourage the institution of tribal permitting programs.
The Agency's decision to allow tribes to submit alternatives to
waiving sovereign immunity accomplishes a reasonable bal-
ancing of these interests. This is bolstered by EPA's ex-
pressed intention to ensure that any alternative to a waiver of
sovereign immunity nonetheless provides an impartial forum
allowing for "injunctive-type relief." Tribal Authority Rule,
63 Fed. Reg. at 7262.
Petitioners also argue that, assuming that EPA could ex-
empt tribes from judicial review requirements, s 7601(d)(4)
requires that EPA provide an alternative means of ensuring
effective judicial review. Petitioners suggest that EPA must
at least "provide for review by the Regional Administrator of
all tribal permit decisions, and resolve all federal or tribal
challenges to the tribe's actions." Br. for Petitioners NAM at
44. To the extent that this argument merely reiterates the
contention that EPA has no authority to alter tribes' judicial
review responsibilities, nothing more need be said. To the
extent that this argument challenges the alternative tribal
review procedures to be approved by EPA in lieu of judicial
review in state court, this issue is not ripe for review. EPA
has not yet approved any alternative tribal judicial review
procedures. See Tribal Authority Rule, 63 Fed. Reg. at 7262
("EPA will develop guidance in the future on acceptable
alternatives to judicial review."). As such, there is no deci-
sion "fit" for judicial review, nor have petitioners demonstrat-
ed any hardship from deferred review.
Petitioners advance a separate contention in support of
vacating the rule: that interested parties did not receive
sufficient notice of the substance of the final rule. The
Administrative Procedure Act requires that an agency publish
notice of its proposed rulemaking that includes "either the
terms or substance of the proposed rule or a description of
the subjects and issues involved." 5 U.S.C. s 553(b)(3)
(1994). An agency satisfies this notice requirement if the
final rule is a "logical outgrowth" of the proposed rule. See
Aeronautical Radio, Inc. v. FCC, 928 F.2d 428, 445-46 (D.C.
Cir. 1991). In other words, we consider " 'whether ... [the
party], ex ante, should have anticipated that such a require-
ment might be imposed' " in determining whether adequate
notice was given in a notice of proposed rulemaking. Id. at
446 (quoting Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 549 (D.C. Cir. 1983)) (alterations in
original).
"In most cases, if the agency ... alters its course in
response to the comments it receives, little purpose would be
served by a second round of comment." American Water
Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994).
Thus, the "logical outgrowth" test normally is applied to
consider "whether a new round of notice and comment would
provide the first opportunity for interested parties to offer
comments that could persuade the agency to modify its rule."
Id. (emphasis added). In this case, there was more than
enough notice for interested parties to offer comments on
EPA's treatment of the judicial review provisions of the Act
vis a vis Indian tribes. The parties were not asked to "divine
the EPA's unspoken thoughts." Shell Oil Co., 950 F.2d at
751. And the final rule was not wholly unrelated or surpris-
ingly distant from what EPA initially suggested. In first
proposing that tribes would have to meet the "same require-
ments" as states, EPA effectively raised the question as to
whether this made sense. EPA's proposal was not a "bureau-
cratic game of hide and seek," MCI Telecomm. Corp. v. FCC,
57 F.3d 1136, 1142 (D.C. Cir. 1995); the proposal raised a
highly visible and controversial issue and elicited responses
from both tribal and industry commenters. Furthermore,
any reasonable party should have understood that EPA might
reach the opposite conclusion after considering public com-
ments. In short, it is fair to say that the purpose of notice
and comment rulemaking has been served, and that the
Agency's change of heart on this issue only demonstrates the
value of the comments it received.
III. CONCLUSION
Consistent with the foregoing opinion, we deny the peti-
tions for review in part, and dismiss in part for want of
jurisdiction and for lack of ripeness. Petitioners' motions for
vacatur and remand are dismissed as moot.
Ginsburg, Circuit Judge, dissenting in part: With certain
exceptions, of which more later, an Indian tribe lacks inherent
authority to regulate the conduct of a nonmember on land he
owns within the boundaries of the tribe's reservation. Lack-
ing inherent authority, a tribe may exercise regulatory au-
thority over such non-Indian lands only by express congres-
sional delegation. The court today determines that
s 301(d)(2)(B) of the Clean Air Act, 42 U.S.C. s 7601(d)(2)(B),
expressly delegates to tribes--contingent upon approval by
the EPA Administrator--authority to enforce the Clean Air
Act on nonmembers' lands within a reservation. Finding no
such express delegation in s 301(d)(2)(B), I dissent from Part
II.A of the opinion for the court.
I. Background
In State of Montana v. United States, 450 U.S. 544 (1981),
the Crow tribe had sought to regulate nonmembers' hunting
and fishing upon lands owned in fee by the State of Montana
but lying within the boundaries of the Crow reservation. The
Supreme Court, unanimous upon this point, held that a tribe
generally lacks authority to regulate the conduct of nonmem-
bers upon lands owned in fee by nonmembers ("fee lands");
of the two exceptions the Court noted, the only one arguably
relevant here is that "[a] tribe may ... retain inherent power
to exercise civil authority over the conduct of non-Indians on
fee lands within its reservation when that conduct threatens
or has some direct effect on the political integrity, the eco-
nomic security, or the health or welfare of the tribe." Id. at
566. Absent such a threat or effect, tribal regulation of fee
lands within a reservation requires an "express congressional
delegation." Id. at 564.
The two provisions of the Clean Air Act relevant to the
question of tribal authority to enforce the Act on fee lands
were added by s 107 of the 1990 Amendments, Pub. L. No.
101-549, 104 Stat. 2399, 2464. Section 301(d) of the Act, 42
U.S.C. s 7601(d), provides in relevant part:
(1) Subject to the provisions of paragraph (2), the Ad-
ministrator ... is authorized to treat Indian tribes as
States under this chapter ...
(2) The Administrator shall promulgate regulations ...
specifying those provisions of this chapter for which it is
appropriate to treat Indian tribes as States. Such treat-
ment shall be authorized only if--
(A) the Indian tribe has a governing body carrying out
substantial governmental duties and powers;
(B) the functions to be exercised by the Indian tribe
pertain to the management and protection of air re-
sources within the exterior boundaries of the reserva-
tion or other areas within the tribe's jurisdiction; and
(C) the Indian tribe is reasonably expected to be
capable, in the judgment of the Administrator, of
carrying out the functions to be exercised in a manner
consistent with the terms and purposes of this chapter
and all applicable regulations.
...
Section 110(o) of the Act, 42 U.S.C. s 7410(o), provides in its
entirety:
If an Indian tribe submits an implementation plan to the
Administrator pursuant to section [301(d), above], the
plan shall be reviewed in accordance with the provisions
for review set forth in this section for State plans, except
as otherwise provided by regulation promulgated pursu-
ant to section [301(d)(2)]. When such plan becomes
effective in accordance with the regulations promulgated
under section [301(d)], the plan shall become applicable
to all areas (except as expressly provided otherwise in
the plan) located within the exterior boundaries of the
reservation, notwithstanding the issuance of any patent
and including rights-of-way running through the reserva-
tion.
The EPA's Tribal Authority Rule (TAR) allows a tribe
(subject to approval by the Administrator of the EPA) to
enforce the Clean Air Act on all land within the boundaries of
a reservation without having to demonstrate its inherent
authority over all such land. Under the clear rule of Mon-
tana, however, a tribe lacks inherent sovereign authority to
regulate fee lands (and rights of way, see Strate v. A-1
Contractors, 520 U.S. 438, 456 (1997)) within a reservation
except under the aforementioned exception announced in that
case. Therefore, the TAR must be set aside as contrary to
law unless the 1990 Amendments expressly delegate to tribes
authority over fee lands and rights of way within a reserva-
tion. Upon that starting point for analysis the parties, the
court, and I agree.
The EPA claims to find a delegation of authority in
s 301(d)(2)(B) of the Clean Air Act. In evaluating this claim,
the court is to accord no deference to the EPA's interpreta-
tion of that section because Montana requires an "express
congressional delegation" in order to expand tribal authority.
In other words, the EPA cannot prevail merely by demon-
strating that its interpretation of s 301(d)(2)(B) is reasonable;
the agency's interpretation must be correct if the TAR is to
stand. Therefore, although we are reviewing an EPA rule-
making, on this issue the focal point for our inquiry is not the
EPA's interpretation but the statute itself. Upon this metho-
dological point, too, all agree.
II. Analysis
With these agreed upon principles in mind, it seems to me
clear that the 1990 Amendments do contain an express dele-
gation of authority over fee lands and rights of way--but not
in s 301(d), which governs tribal enforcement of all Clean Air
Act programs specified by the Administrator. Rather, the
delegation is in s 110(o), which governs only tribal implemen-
tation plans (TIPs). Because the specific delegatory text in
s 110(o) is significant to my conclusion that s 301(d) is not a
delegation, I consider s 110(o) first.
A. Section 110(o) and the "Notwithstanding" Proviso
The petitioners' convoluted argument to the contrary not-
withstanding, s 110(o) is self-evidently an express congres-
sional delegation of authority to enforce TIPs on fee lands
and rights of way within a reservation: "the [TIP] shall
become applicable to all areas ... located within the exterior
boundaries of the reservation, notwithstanding the issuance of
any patent and including rights-of-way running through the
reservation." The same "notwithstanding" proviso has been a
feature in the only two cases in which the Supreme Court has
found an express delegation of authority to tribes. In United
States v. Mazurie, 419 U.S. 544 (1975), and in Rice v. Rehner,
463 U.S. 713 (1983), the Court found an express delegation of
authority over fee lands within a reservation based upon two
statutory provisions: 18 U.S.C. s 1161, which authorizes the
tribes to enact ordinances regulating liquor in "Indian coun-
try"; and 18 U.S.C. s 1151, which defines "Indian country" to
include "all land within the limits of any Indian reservation
under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation." See Rice,
463 U.S. at 715 & n.1 ("Congress has delegated authority ...
in Indian country [as defined in] 18 U.S.C. s 1151"); see also
Brendale v. Confederated Tribes & Bands of the Yakima
Indian Nation, 492 U.S. 408, 428 (1989) (citing 18 U.S.C.
ss 1151 and 1161 together as an express congressional dele-
gation of authority over fee lands).*
B. Section 301(d)
The express congressional delegation just identified in
s 110(o) cannot by itself support the TAR, however: Because
the TAR allows a tribe to enforce all applicable Clean Air Act
programs--rather than just the TIP--on nonmember lands
within its reservation, the EPA must demonstrate that
__________
* In a dictum, the Brendale Court noted as a second example of
an express congressional delegation of authority ss 518(e), (h)(1) of
the Clean Water Act, 33 U.S.C. ss 1377(e), (h)(1), the latter of
which, significantly, contains the notwithstanding clause so glaringly
absent from s 301(d). 492 U.S. at 428. In terms that otherwise
track s 301(d) of the Clean Air Act, s 518(e) provides for condition-
ally treating a tribe as a state with regard to water resources
"within the borders of an Indian reservation," defined in s 518(h)(1)
as "all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation." In spite of the Brendale dictum, the EPA has
concluded s 518 is not an express congressional delegation of
authority, see 56 Fed. Reg. 64,876, 64,880 (1991), but no court has
yet resolved the issue.
s 301(d) likewise contains an express congressional delega-
tion of authority.
The EPA argues the following text distilled from s 301(d)
contains an express delegation to tribes of authority to regu-
late fee lands within a reservation:
[T]he Administrator ... is authorized to treat Indian
tribes as States.... Such treatment shall be authorized
only if ... the functions to be exercised by the Indian
tribe pertain to the management and protection of air
resources within the exterior boundaries of the reserva-
tion or other areas within the tribe's jurisdiction.
42 U.S.C. s 7601(d)(1)-(d)(2)(B) (emphasis added). The gist
of the agency's argument, which the court accepts, is that the
Congress expressly delegated authority over all lands within
a reservation by linking "within the exterior boundaries of the
reservation" disjunctively to "other areas within the tribe's
jurisdiction." For the following reasons, I do not agree.
As the petitioners emphasize, when one reads the relevant
sentence as a whole--rather than focusing solely upon the
last phrase--one sees that, rather than expressing a delega-
tion of authority over fee lands and rights-of-way within a
reservation, the sentence by its terms merely lays down a
precondition to the Administrator's treating a tribe as a state.
Even more certainly, there is no way to read the phrase
deemed crucial by the court ("within the exterior boundaries
of the reservation or other areas within the tribe's jurisdic-
tion") as an express delegation of authority.
One important indication that the Congress did not intend
this phrase as an express delegation is that it used the Court-
tested "notwithstanding" proviso in s 110(o) but not in
s 301(d)(2)(B). Sections 110(o) and 301(d)(2)(B) were enacted
at the same time, in the same section of the same bill, so the
different phrasing should not be thought just an artifact of
legislative haphazardry. I do not believe that the Congress,
obviously aware that it could enlarge tribal authority over
nonmember lands only through an express delegation, would
include the formulaic "notwithstanding" proviso--the gold
standard for such delegations--in the narrower of the two
sections, and then use an obscure and never-before-attempted
formulation to accomplish the same result in the broader of
the two sections. Further, the court's interpretation of
s 301(d)(2)(B) renders the "notwithstanding" proviso in
s 110(o) surplusage--a point the court euphemistically ac-
knowledges, Slip Op. at 23 ("a reinforcement of tribes' ...
[s 301(d)(2)(B) authority] to implement TIPs in reservation
land"). If s 301(d)(2)(B) is so clear as to constitute an
express congressional delegation, it is difficult to believe that
the Congress would "reinforce" this point in a narrower
provision enacted at the same time as and expressly cross-
referencing s 301(d).*
Finding an express congressional delegation in s 301(d) is
made even more difficult, as the petitioners contend, by the
Congress's having deleted a literal delegation to tribes that
was included in the corresponding section of the bills by
which the 1990 Amendments were first introduced in the
House and the Senate: "the Administrator ... may delegate
to [ ] tribes primary responsibility for assuring air quality and
enforcement of air pollution control." H.R. 2323, 101st Cong.
__________
* The court suggests the Congress may well have intentionally
avoided using the "notwithstanding" proviso in s 301(d) in response
to the EPA's having interpreted s 518 of the Clean Water Act as
not being a delegation. Slip Op. at 13. The EPA's interpretation
of the CWA was not adopted, however, until December 1991, more
than a year after enactment of the 1990 Amendments. See 56 Fed.
Reg. 64,876, 64,880. I am not willing blithely to "assume that
Congress was aware of," much less responded to, the EPA's mere
proposal to adopt that interpretation. When the 1990 Amendments
were enacted, the EPA's unexplained proposal was still subject to
change in the light of public comments, and even if finally adopted
would not receive deference from a reviewing court charged with
determining whether the Congress had made an express delegation
to tribes. In contrast, we know for a certainty that the Congress
was aware of Brendale, in which the Supreme Court instanced
CWA s 518(h)(1) as an express congressional delegation: That case
had been decided in June 1989, and is cited in the Senate Report on
an earlier version of the 1990 Amendments, see S. Rep. No.
101-228, at 79.
s 604, reprinted in 2 Legislative History of the Clean Air Act
Amendments of 1990, at 4053, 4101 (1993) [hereinafter 1990
Leg. Hist.]; S. 1630, 101st Cong. s 111, reprinted in 5 1990
Leg. Hist. 9050, 9145. The Senate passed S. 1630 with this
express delegation intact; the House, however, did not act
upon H.R. 2323 but instead passed H.R. 3030, in which the
delegation provision did not appear. See 2 1990 Leg. Hist.
1809, 1972-73 (House passage of S. 1630, amended in the
nature of a substitution of H.R. 3030). The House version
prevailed in conference, see id. at 478-79, so the 1990 Amend-
ments as finally enacted into law do not contain this literal
delegation provision. The court is of course correct that the
Congress need not use the word "delegate" in order to effect
an express delegation, Slip Op. at 15; s 110(o) illustrates the
point. That the Congress "specifically rejected language
favorable to [EPA's] position," Slip Op. at 12, however, is
further evidence that the legislature did not mean to enact a
delegation of authority. Indeed, to believe that the Congress
meant s 301(d)(2)(B) to serve as a delegation, after it had
included the "notwithstanding" proviso in the narrower
s 110(o) and removed from s 301(d) a provision that express-
ly provided a delegation to tribes, would require one to
believe the Congress was more interested in testing our
interpretive acumen than in clearly expressing its will upon
the important issue of tribal authority over nonmembers.
The court claims support for its contrary conclusion in the
Congress having "moved from authorizing tribal regulation
over the areas 'within the tribal government's jurisdiction' ...
to a bifurcated classification of all areas within 'the exterior
boundaries of the reservation' and 'other areas within the
tribe's jurisdiction.' " Slip Op. at 12. Putting aside the
question-begging interpolation of "all" into the quoted pas-
sage, I think the court misapprehends the significance of the
phrase "within the exterior boundaries of the reservation or
other areas within the tribe's jurisdiction." As originally
introduced, H.R. 3030 referred only to air resources "within
the exterior boundaries of the reservation." 2 1990 Leg.
Hist. 3737, 3853. The House Committee on Energy and
Commerce without comment added the phrase "or other
areas within the tribe's jurisdiction," id. at 3021, 3069, and as
mentioned, the House version later prevailed in conference.
The legislative record is silent about why the Committee
added that phrase. The most straightforward interpretation
of the addition is that the Committee wanted to ensure that
the treatment of tribes as states extended beyond the reser-
vation to non-contiguous areas of tribal authority, such as
dependent Indian communities. This seems far more likely
than that a House committee, with no discussion, inserted the
phrase "or other areas within the tribe's jurisdiction" in order
to turn a simple reference to reservations into a delegation of
authority over non-Indian lands within reservations.
Finally, I cannot agree with the court that we should find
an express congressional delegation of authority in
s 301(d)(2)(B) in any part because the contrary reading
"would result in a 'checkerboard' pattern of regulation within
a reservation's boundaries that would be inconsistent with the
purpose and provisions of the [Clean Air] Act." Slip Op. at
11-12. First, it is not at all clear that a "checkerboard"
pattern--really a matter of certain fee lands remaining sub-
ject to State (or federal) rather than tribal authority, while
surrounding areas go tribal--would result: a tribe remains
free to demonstrate its inherent authority over any activity on
fee lands that "threatens or has some direct effect on ... the
health or welfare of the tribe," Montana, 450 U.S. at 566.
Therefore, if a tribe does find itself without authority over
certain fee lands for want of an express delegation, that is
only because no activities on those fee lands threaten or
directly affect the health or welfare of the tribe.
Second, tribal authority over less than all lands within the
boundaries of a reservation is the logical result of the tribes'
"diminished status as sovereigns," Montana, 450 U.S. at 565.
The Montana rule on its face contemplates less than uniform
authority within a reservation; unless an exception applies,
the tribe cannot regulate a parcel owned by a nonmember
even though it retains authority over the surrounding lands
owned by the tribe. See, e.g., Brendale, 492 U.S. at 428
(White, J., for the Court in part and dissenting in part), 443,
445 (Stevens, J., for the Court in part and concurring in the
judgment in part) (each affirming non-uniform zoning authori-
ty). While the Congress could have chosen to sweep away
such non-uniformity in s 301(d), as it did in s 110(o), the
court's evident sense that the Congress should have done so
is no basis for reading an express delegation into the statute
where the Congress has not written one.*
III. Conclusion
In my view, s 301(d)(2)(B) is not an express delegation of
authority for Indian tribes to regulate the conduct of non-
members on fee lands within the boundaries of a reservation.
A tribe may be able, of course, to demonstrate its authority
over such fee lands under the exception recognized in Mon-
tana. Without making such a showing, however, I do not
believe the tribe may regulate the conduct of nonmembers on
fee lands and rights-of-way except as provided by s 110(o). I
__________
* Seymour v. Superintendent of Washington State Penitentiary,
368 U.S. 351 (1962) and Moe v. Confederated Salish and Kootenai
Tribes of Flathead Reservation, 425 U.S. 463 (1976), cited by the
court today, certainly do not counsel reading an express delegation
into a statute in order to avoid non-uniform tribal authority within a
reservation. In Seymour, the Court held that "an impractical
pattern of checkerboard jurisdiction was avoided by the plain
language of [18 U.S.C.] s 1151," namely, the "notwithstanding"
proviso. 368 U.S. at 358. And in Moe, the Court determined that
because the Congress had "repudiated" but never formally repealed
s 6 of the General Allotment Act, 25 U.S. s 349, the court would
read s 6 narrowly in order to avoid creating an inconsistency with
later-enacted statutes. 425 U.S. at 477-79. Thus, the Court was
merely "follow[ing] Congress' lead in this area." Id. at 479. So,
too, where the Congress has expressly delegated authority, as in
s 110(o), we should certainly give its command full rein; but where
it has not, we should not undertake to do so for it.
therefore respectfully dissent from Part II.A. of the opinion
for the court.