FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE HOPI TRIBE, a federally No. 14-73055
recognized Indian Tribe,
Petitioner,
OPINION
v.
U.S. ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
SALT RIVER PROJECT
AGRICULTURAL
IMPROVEMENT AND POWER
DISTRICT; NAVAJO NATION;
CENTRAL ARIZONA WATER
CONSERVATION DISTRICT;
GILA RIVER INDIAN
COMMUNITY,
Respondents-Intervenors.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted November 18, 2016
San Francisco, California
Filed March 20, 2017
2 HOPI TRIBE V. U.S.E.P.A.
Before: Mary M. Schroeder, Stephen S. Trott,
and John B. Owens, Circuit Judges.
Opinion by Judge Schroeder
SUMMARY*
Environmental Law
The panel denied a petition for review by The Hopi Tribe
challenging the Environmental Protection Agency’s federal
implementation plan under the Clean Air Act for the Navajo
Generating Station in Arizona, which concerned the
production of haze that hinders clear views of the Grand
Canyon.
The federal implementation plan was promulgated
pursuant to the EPA’s Tribal Authority Rule that governs the
Clean Air Act’s requirements on tribal land, and the Hopi
Tribe objected to a proposed closure of the Station in 2044.
The panel held that the Hopi Tribe’s exclusion from a
Technical Working Group, which was a group of
stakeholders that developed the proposed Rule, did not
violate a duty on the part of the government to consult with
the Tribe. The panel held that the record showed that the
EPA did consult with the Hopi Tribe during the rulemaking
process.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HOPI TRIBE V. U.S.E.P.A. 3
The panel rejected the Tribe’s contention that the EPA
failed to analyze each of the five BART factors – the “best
available retrofit technology” to reduce emissions from the
Station. The panel held that because the Technical Working
Group proposal was an alternative to BART, there was no
error in the EPA not analyzing the BART factors under the
Technical Working Group alternative.
COUNSEL
Anne E. Lynch (argued) and Michael D. Goodstein,
Hunsucker Goodstein PC, Washington, D.C.; David M.
Waterman, Catherine Wright, and Karen Pennington, The
Hopi Tribe, Kykotsmovi, Arizona; for Petitioner.
Jennifer S. Neumann (argued), Attorney, Appellate Section;
Daniel R. Dertke, Attorney, Environmental Defense Section;
John C. Cruden, Assistant Attorney General; Environment &
Natural Resources Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Z.W. Julius Chen (argued), Akin Gump Strauss Hauer & Feld
LLP, Washington, D.C.; Aaron M. Flynn, Norman W.
Fichthorn, and William L. Wehrum, Hunton & Williams
LLP, Washington, D.C.; for Respondents-Intervenors.
4 HOPI TRIBE V. U.S.E.P.A.
OPINION
SCHROEDER, Circuit Judge:
The Hopi Tribe petitions for review of the Environmental
Protection Agency’s (“EPA”) federal implementation plan
(“FIP”) under the Clean Air Act (“CAA”) for the Navajo
Generating Station (“Station”) in Arizona. The station is
operated by a consortium of utilities led by the Salt River
Project and under a lease from the Navajo Nation that expires
in 2019. It is a coal-fired plant that uses coal for which the
Hopi Tribe receives royalties. The FIP was promulgated
pursuant to the EPA’s Tribal Authority Rule that governs
CAA requirements on tribal lands. The Hopi contend the
Tribe was not adequately consulted about its interests before
the plan was promulgated and object to a proposed closure of
the Station in 2044.
Before us as well are petitions from environmentalists.
They claim the continued operation of the Station harms their
environmental interests. We deny the Hopi’s petition and we
also deny the environmentalists’ petitions in a related opinion
filed today. See Yazzie v. Environmental Protection Agency,
— F.3d —, Nos. 14-73100, 14-73101, 14-73102 (9th Cir.
2017).
The background of this dispute is explained more fully in
our accompanying opinion in Yazzie. This FIP resulted from
the 1990 CAA amendments that expanded the CAA to
combat regional haze. Clean Air Act, Amendments, Pub. L.
N. 101-549, 104 Stat. 2399 (1990). A subject of particular
concern in the operation of the Station is the production of
haze that hinders clear views of the Grand Canyon. The
Station is a major source of emissions that implementation
HOPI TRIBE V. U.S.E.P.A. 5
plans promulgated pursuant to the CAA must reduce. The
reductions must be made by identifying the best available
retrofit technology (“BART”) and installing it or better
technology, known as a BART alternative. 40 C.F.R.
§ 51.308(e); see also Cent. Ariz. Water Conservation Dist. v.
EPA, 990 F.2d 1531, 1543 (9th Cir. 1993).
The EPA issued the final rule for the NGS in August 2014
after a process that took over five years, beginning with an
Advance Notice of Proposed Rulemaking (“ANPRM”) in
2009. 74 Fed. Reg. 44,313 (Aug. 28, 2009). The EPA
specifically notified the Hopi Tribe of the ANPRM, and had
multiple meetings and telephone calls with Hopi Tribal
representatives. The Hopi Tribe was invited to eight group
consultation sessions in Arizona, where the Hopi had the
option to request individual consultation sessions. The Tribe
filed a comment. EPA issued a Notice of Proposed
Rulemaking in February 2013. 78 Fed. Reg. 8,274 (Feb 5,
2013.) In October 2013, the EPA issued a Supplemental
Proposed Rule and Notice of Public Hearings. 78 Fed. Reg.
62,509 (Oct. 22, 2013). The proposed Rule was developed by
a group of stakeholders led by the utilities that operated the
Station. The group had met as a Technical Working Group
(“TWG”) that set an emissions cap for the future operation of
the Station and required it be shut down in 2044 or when the
cap was reached, whichever occurred first. The final rule,
issued in 2014, was materially the same as the Supplemental
Proposed Rule. 79 Fed. Reg. 46,514 (Aug. 8, 2014). The
Hopi Tribe was not part of the TWG.
The pre-TWG discussions apparently were nonproductive
because the interests of the Hopi were adverse to the goals of
the CAA. The projected phasing out of the Station’s
production and its eventual closure harm Hopi economic
6 HOPI TRIBE V. U.S.E.P.A.
interests. Fifty percent of the people, including fifty-four
percent of children, on the Hopi Reservation live in poverty;
unemployment is around fifty percent; and thirty-five percent
of homes lack a complete kitchen. Residents of the Hopi
Tribe are forty times more likely than the average American
to lack running water. The Station is responsible for some
1400 to 1900 Hopi jobs, about fifty to seventy percent of all
employment on the Hopi Reservation.
The principal issue before us is whether the Hopi’s
exclusion from the TWG negotiations violated a duty on the
part of the government to consult with the Tribe. The United
States has a general trust relationship with the Indian tribes.
See Seminole Nation v. United States, 316 U.S. 286, 296
(1942). The Hopi ask us to treat this as a duty to consult,
stemming from the trust relationship, and binding on the
United States as a single entity. No authority allows us to do
that, however, and agencies are required to be named
individually as parties to a lawsuit. Fed. R. App. P.
15(a)(2)(B), (C). The record shows that the EPA did, in fact,
consult with the Hopi Tribe throughout the rulemaking
process. The Tribe was invited to group consultations, there
was a hearing on their reservation and all parties were aware
at all times of the Hopi’s economic interests. Consultations
took place before and after EPA considered the TWG
Agreement. Therefore, regardless of the scope of
enforceability of any duty to consult on part of the EPA, the
EPA surely complied.
While the EPA did not participate in the TWG
negotiations, the Department of Interior (“DOI”) did. The
DOI was familiar with the adverse impact of mine closures on
Hopi interests. The Hopi, however, did not name the DOI as
a party to this petition. Therefore, even if the DOI violated
HOPI TRIBE V. U.S.E.P.A. 7
some independent duty to consult with the Hopi Tribe
because the Tribe was excluded from the TWG negotiations,
that issue is not properly before us in this case. To the extent
the Hopi contend the trust relationship required the United
States to put their interests above all others, we have rejected
that position. See Gros Ventre Tribe v. United States,
469 F.3d 801, 811 (9th Cir. 2006) (holding that the United
States does not have to regulate off-reservation resources in
a manner consistent with a tribe’s best interests so long as it
complies with general regulations and statutes).
The record also belies the Hopi’s contention that the EPA
failed to analyze each of the five BART factors. Under the
CAA, the EPA is required to analyze five factors when
determining BART. 42 U.S.C. § 7491(g)(2). The EPA did
so when determining BART for the NGS. It did not,
however, analyze these factors when evaluating the TWG
proposal. This was not contrary to law. By the CAA’s own
terms, the five factors are required only for BART. BART
alternatives, such as the TWG proposal, are governed
separately by a regulation that requires them to achieve
“greater reasonable progress” than BART. 40 C.F.R.
§ 51.308(e)(2); see also Yazzie. These regulations do not
require that the BART factors be evaluated when analyzing
a BART alternative. We have previously upheld the use of
BART alternatives governed by regulation. See Cent. Ariz.
Water Conservation Dist., 990 F.2d at 1543. Because the
TWG proposal was an alternative to BART, there was no
error in the EPA not analyzing the BART factors under the
TWG alternative.
The Petition for Review is DENIED.