Summary Judgement... Obama’s EPA Hangs Itself Int. Sec. Jewell Holds Rope

by William Perry Pendley

In an administration infamous for ignoring the Constitution and the rule of law, the Environmental Protection Agency (EPA) stands out. President Obama’s EPA: administratively implemented “cap and trade” after the Senate refused to enact requisite legislation; killed a multimillion dollar West Virginia coal mine by vetoing the Army Corps of Engineers’ approval-action so unprecedented 27 state attorneys general urged Supreme Court review; and, sought to “crucify” energy companies in the nation’s most productive oil and gas region, all while a senior, regulation-writing, job-killing employee masqueraded as a CIA agent and defrauded American taxpayers of nearly $900,000.

In December, however, the EPA outdid itself with the extraordinary decision that a million acres of land in west-central Wyoming, including the town of Riverton, lie within the Wind River Indian Reservation. Purportedly, the EPA’s action is required by the Clean Air Act’s provision allowing tribes to obtain the authority available to States to regulate their air quality programs but, in doing so, the EPA subjected land long known to be outside the Reservation to the tribal jurisdiction of the Northern Arapaho and Eastern Shoshone. In February, Wyoming challenged the EPA’s ruling in the U.S. Court of Appeals for the Tenth Circuit in Denver. Days later, the Wyoming Farm Bureau Federation, on behalf of its members who live and or work in Riverton and in greater Fremont and Hot Springs Counties, joined in the lawsuit.

Westerners, elected officials, and commentators nationwide heaped deserved abuse on the EPA, but there is plenty of blame to go around. The EPA wrote that it received “input from other federal agencies,” and that its “determination is consistent with a 2011 Opinion of the Solicitor of the U.S. Department of the Interior.” Secretary Sally Jewell’s Interior, home of the Indian Bureau since 1824, is the 500-pound gorilla on this issue, as it has been since 1873 when Congress transferred territorial responsibilities for the American West there from the State Department.

The Reservation was established in 1868, but, in 1904, the Tribes entered into an agreement with the United States to cede 1.48 million acres of land in exchange for per capita payments to tribal members and capital improvement projects within the Reservation. In 1905, Congress ratified the agreement, declared the lands were “ceded, granted, relinquished, and conveyed” to the United States, and referenced the new Reservation as “the diminished reserve.” In 1906, the ceded lands were opened for settlement by Presidential Proclamation; the land was sold to non-Indians, including land that became Riverton. In 1939, some of the unsold ceded lands were restored to the Reservation, but much of the land, including all land within Riverton city limits, was not.

Over the decades, Congress, the Supreme Court, and the Wyoming Supreme Court wrote of “lands formerly embraced in the [Reservation],” of the “diminished reservation,” and of lands that were “ceded, granted, and relinquished.” Challenges by tribal members of their convictions in state court for crimes committed in Riverton-putative “Indian country”-were rejected, on one occasion with amicus support for Wyoming from the United States.

Unfortunately, the Solicitor made unmitigated hash of this undisputed history. In fact, her opinion slavishly tracks the Tribes’ 2008 EPA application in which they cherry-pick bits of congressional hearings and self-serving tribal documents but ignore court rulings, the 1904 agreement, the 1905 Act, and their precise and binding language. Most egregious is the Solicitor’s failure to address a 1998 ruling of the U.S. Supreme Court on another tribe’s similar assertion. A unanimous Court, in an opinion by Justice O’Connor, held Congress set forth “the most certain statutory language, evincing [its] intent to diminish the [Reservation] by providing for total cession and fixed compensation.”

Last month, in another case from Wyoming, the Supreme Court rebuked the federal government for ignoring 139 years of legal precedent. The EPA will suffer the same fate, to paraphrase that ruling, for its “improbable (and self-serving) reading” of history.

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular ­­c­olum­nist in ­Loggers World