IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH ...OPENING BRIEF OF PETITIONER THE HOPI TRIBE...

365523.1

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 14-73055

THE HOPI TRIBE, A Federally Recognized Tribe,

Petitioner, v. THE UNITED STATES OF AMERICA,

Respondent, SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT DISTRICT, et. al.,

Intervenors.

OPENING BRIEF OF PETITIONER THE HOPI TRIBE Michael D. Goodstein Anne E. Lynch HUNSUCKER GOODSTEIN PC 5335 Wisconsin Ave. NW, Ste. 360 Washington, DC 20015 Telephone: (202) 895-5380 Fax: (202) 895-5390

David M. Waterman THE HOPI TRIBE Office of General Counsel P.O. Box 123 Kykotsmovi, AZ 86039 Telephone: (928) 734-3141 Fax: (928) 734-3149

Attorneys for Petitioner The Hopi Tribe

Case: 14-73055, 10/16/2015, ID: 9721169, DktEntry: 65-1, of 129

ii 365523.1

CORPORATE DISCLOSURE STATEMENT

The Hopi Tribe is a federally recognized tribe and not a

corporation. The Hopi Tribe does not have any parent corporation and

no publicly held corporation owns ten percent or more of the Hopi Tribe.


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TABLE OF CONTENTS

Corporate Disclosure Statement ................................................................ ii

Table of Contents ...................................................................................... iii

Table of Authorities .................................................................................... v

Glossary ................................................................................................... viii

Jurisdictional Statement ............................................................................ 1

Statement of the Issues Presented for Review .......................................... 2

Statement of the Case ................................................................................ 3

A. The Hopi Tribe and the United States ........................................... 3

B. The Hopi Tribe and NGS ................................................................ 4

C. The United States’ Plan for NGS ................................................... 9

1. The Advanced Notice of Proposed Rulemaking ...................... 10

2. The Proposed Rule .................................................................... 12

3. The TWG Agreement and Proposal ......................................... 14

4. Supplemental Proposed Rule ................................................... 17

5. The Final Rule .......................................................................... 20

Summary of Argument ............................................................................. 20

Standard of review ................................................................................... 22

A. Actions that Do Not Observe Procedure Required by Law, including Meaningful Consultation with Impacted Tribes, Must be Reversed pursuant to APA § 706(2)(D). .................................. 23

B. Actions that Are Not in Accordance with Law, including the United States’ Trust Duties to Indian Tribes, Must be Reversed Pursuant to APA § 706(2)(A). ....................................................... 32

C. Actions that Are Arbitrary and Capricious Must be Reversed Pursuant to APA § 706(2)(A). ....................................................... 34

Argument .................................................................................................. 35


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A. The Court Must Reverse the Final Rule Because the United States Failed to Engage in Meaningful Consultation with the Hopi Tribe as Required by Law. ................................................... 37

B. The Court Must Reverse the Final Rule Because It Is Not in Accordance with Law Concerning the United States’ Trusteeship Duties to the Hopi Tribe. .............................................................. 48

C. The Court Must Reverse the Final Rule Because It Is Arbitrary and Capricious for Failure to Consider the Required BART Factors. .......................................................................................... 53

Conclusion ................................................................................................. 58

Statement of Related Cases ..................................................................... 59

Certificate of Compliance ......................................................................... 60

Statutory and Regulatory Addendum ..................................................... 61


v 365523.1

TABLE OF AUTHORITIES

CASES

Beno v. Shalala 30 F.3d 1057 (9th Cir. 1994) ............................................................ 34, 54

California Wilderness Coalition v. U.S. Department of Energy, 631 F.3d 1072 (9th Cir. 2011) .................................. 27, 40, 42, 44, 47, 57

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .......................................................................... 32, 54

Clinton v. Jones, 520 U.S. 681 (1997) .......................................................................... 47, 48

Community of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988) .......................................................... 32, 54

Confederated Tribes and Bands of the Yakama Nation v. U.S. Fish & Wildlife Service, No. 1:14-CV-3052-TOR, 2015 WL 1276811 (Mar. 20, 2015) ................................ 24, 42, 43, 45, 52

Confederated Tribes and Bands of Yakama Nation v. U.S. Department of Agriculture, No. CV-10-3050-EFS, 2010 WL 3434091 (E.D. Wash. Aug. 30, 2010) .................................................................................. 26, 52

Center for Biological Diversity v. U.S. Bureau of Land Management, 698 F.3d 1101 (9th Cir. 2012) .......................................................... 34, 54

EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001) .......................................................... 33, 34

Getty v. Federal Savings & Loan Insurance Corp., 805 F.2d 1050 (D.C. Cir. 1986) ........................................................ 34, 38

Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962) ............................................................. 3


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Klamath Tribes v. United States, No. 96-381-HA, 1996 WL 924509 (D. Or. Oct. 2, 1996) ..... 23, 24, 26, 52

Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395 (D.S.D. 1995) ...................................... 26, 28, 44, 52-53

Mescalero Apache Tribe v. Rhoades, 804 F. Supp. 251 (D.N.M. 1992) ................................................ 25, 27, 52

Nance v. EPA, 645 F.2d 701 (9th Cir. 1981) ............................................................ 33, 52

Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991) .................................................................. 33

Nez Perce Tribe v. U.S. Forest Service, No. 3:13-CV-348-BLW, 2013 WL 5212317 (D. Idaho Sept. 12, 2013) ....................................................................... 28

Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979) ................................................ 23, 25, 26, 52

Okanogan Highlands Alliance v. Williams, No. CIV. 97-806-JE, 1999 WL 1029106 (D. Or. Jan. 12 1999) ............ 26

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992) ........................................................... 44-45

Seminole Nation v. United States, 316 U.S. 286 (1942) .............................................................. 26, 27, 33, 48

WildEarth Guardians v. U.S. Environmental Protection Agency, 759 F.3d 919 (10th Cir. 2014) .......................................................... 34, 54

Winnebago Tribe of Nebraska v. Babbitt, 915 F. Supp. 157 (D.S.D. 1996) ................................................. 26, 44, 52

Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774 (D.S.D. 2006) ................ 23, 24, 25-26, 41, 45, 51-52


vii 365523.1

STATUTES

5 U.S.C. § 706 ........................................................................................... 33

5 U.S.C. § 706(2)(A) .......................................................... 23, 32, 34, 36, 54

5 U.S.C. § 706(2)(D) ............................................................................ 23, 35

42 U.S.C. § 7601(a)(1) ........................................................................... 1, 22

42 U.S.C. § 7601(d) ............................................................................... 1, 22

42 U.S.C. § 7607(b)(1) ................................................................................. 1

CODE OF FEDERAL REGULATIONS

40 C.F.R. 51.308(e)(1)(ii)(a) .................................................... 12, 46, 53, 57

FEDERAL REGISTER

80 Fed. Reg. 1,943 (Jan. 14, 2015) ....................................................... 3, 25

EXECUTIVE MATERIALS

Executive Order 13,175, Consultation and Coordination with Indian Tribal Goverments, 65 Fed. Reg. 67,249 (Nov. 6, 2000) ... .25, 28, 29, 51

Presidential Memorandum on Tribal Consultation, 74 Fed. Reg. 57,881 (Nov. 5, 2009) ............................................ 29, 39, 51

U.S. Environmental Protection Agency, Policy on Consultation and Coordination with Indian Tribes (May 4, 2011) ........... 25, 30, 31, 41, 51

U.S. Department of Interior, Policy on Consultation with Indian Tribes ........................................................................ 25, 30, 31, 40


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GLOSSARY

APA – Administrative Procedure Act

BART – Best Available Retrofit Technology

CAA – Clean Air Act

CAP – Central Arizona Project

CAWCD – Central Arizona Water Conservation District

EPA – U.S. Environmental Protection Agency

FIP – Federal Implementation Plan

NGS – Navajo Generating Station

NOx – Nitrogen Oxides

NREL – National Renewable Energy Laboratory

SCR – Selective Catalytic Reduction

SRP – Salt River Project

TSD – Technical Support Document

TWG – NGS Technical Working Group


365523.1

JURISDICTIONAL STATEMENT

On August 8, 2014 the United States Environmental Protection

Agency (“EPA”) promulgated a source-specific Federal Implementation

Plan (“FIP”) for the Navajo Generating Station (“NGS”) pursuant to

section 301(a)(1) and 301(d)(4) of the Clean Air Act (“CAA”), 42 U.S.C.

§ 7601(a)(1) (authorizing EPA Administrator to “prescribe such

regulations as are necessary to carry out his functions under this

chapter”); 42 U.S.C. § 7601(d)(4) (authorizing the EPA Administrator to

directly administer the CAA for Indian tribes where “treatment of

Indian tribes as identical to States is inappropriate or administratively

infeasible”). See also Proposed Rule, 78 Fed. Reg. 8,274, 8,276/3 (Feb. 3,

2013) (a ER25/31) (explaining that EPA is exercising authority under

sections 301(a) and 301(d)(4)).

This Court has jurisdiction to consider the Hopi Tribe’s Petition

for Review of the Final Rule pursuant to Section 307(b)(1) of the Clean

Air Act, 42 U.S.C. § 7607(b)(1); see also Final Rule 79 Fed. Reg. 46,514,

1 References to materials contained in the Excerpt of Record, filed concurrently herewith, are designated “ER__.”


2 365523.1

46,552/1 (Aug. 8, 2014) (at ER101/1) (stating that the Final Rule is

reviewable in this Court under CAA section 307(b)(1)).

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. May the United States enter into a binding agreement that it

knows will significantly impact a Federally Recognized Tribe

without first engaging in government-to-government consultation

with that Tribe?

2. Did the United States meet its trust obligations to the Hopi Tribe,

a Federally Recognized Tribe, when it provided certain benefits

and safeguards to mitigate the economic impact from the Final

Rule to certain affected tribes, but not to the Hopi Tribe?

3. Is it arbitrary and capricious for the United States to promulgate

a Federal Implementation Plan under Clean Air Act section 301

without analyzing each of the five statutory “BART Factors”?

STATUTORY, REGULATORY, AND EXECUTIVE AUTHORITIES

The pertinent statutory, regulatory, and executive authorities are

set forth verbatim in an addendum included herewith, starting at page

61.


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STATEMENT OF THE CASE

A. The Hopi Tribe and the United States

The Hopi Tribe has occupied what is now the Hopi Reservation

since time immemorial. Indeed “[n]o Indians in this country have a

longer authenticated history than the Hopis. As far back as the Middle

Ages the ancestors of the Hopis occupied the area between Navaho

Mountain and the Little Colorado River, and between the San Francisco

Mountains and the Luckachukas.” Healing v. Jones, 210 F. Supp. 125,

134 (D. Ariz. 1962). When the Spanish first explored Arizona, they

“found the Hopis living in villages on mesa tops, cultivating adjacent

fields, and tending their flocks and herbs.” Id.

The Hopi Tribe and the United States have a long and peaceful

history. See generally, Healing, 210 F. Supp. at 133-38. The United

States officially recognizes the Hopi Tribe, acknowledging that the Hopi

Tribe is entitled to “the immunities and privileges available to federally

recognized Indian tribes by virtue of [its] government-to-government

relationship with the United States . . . .” See Notice, Indian Entities

Recognized and Eligible to Receive Services from the United States

Bureau of Indian Affairs, 80 Fed. Reg. 1,943, 1,944 (Jan. 14, 2015). The


4 365523.1

United States thus recognizes that the Hopi Tribe is entitled to a

privileged relationship with the United States as its co-sovereign.

B. The Hopi Tribe and NGS

“The Navajo Generating Station (NGS) is a mine-mouth coal-fired

power plant located on the Navajo Nation Indian Reservation” that

burns coal that is mined on reservation lands of the Hopi Tribe and the

Navajo Nation. EPA, Proposed Rule Technical Support Document

(“TSD”) at 18 (ER117). NGS “came into being at the initiative of the

federal government.” U.S. Department of Energy, National Renewable

Energy Laboratory, NGS and Air Visibility Regulations: Alternatives

and Impacts (“NREL Report”) at ii (ER155). “Of the six entities that

have an ownership interest in the plant, the U.S. Bureau of

Reclamation holds the largest—24.3%.” Id. at 9 (ER167); see also id. at

10, Table 1-1 (ER168).

NGS is unique in several ways, not least of which is that it is a

single-source facility, burning coal only from the Kayenta Mine

Complex located on the Hopi and Navajo reservations. ICF

International, Analysis of Economic Impacts on the Hopi Tribe and

Navajo Nation (Mar. 1, 2010) (“ICF International Study”) at 6 (ER189)


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(“NGS purchases all of its coal from the Hopi Trie and the Navajo

Nation, and was designed for use of these tribally owned resources.”).

The Kayenta Mine, in turn, is unique because NGS is the sole customer

for the coal mined there. Id. (“Neither the plant nor the mine has

alternative coal transportation options, and hence, NGS essentially has

a dedicated coal supply and the Hopi and Navajo have only one

customer.”). NGS and the Kayenta Mine were designed by the United

States as a single integrated system, id. at 5-6 (ER188-89), and must be

considered as such.

The United States also designed the NGS and Kayenta Mine as

the pillar of the Hopi economy. The United States plainly admits that

NGS “anchors the local economies of the Navajo and Hopi Indian tribes

in northeastern Arizona.” NREL Report at 1 (ER159).

Activities related to NGS account for 88 percent of the total budget of the Hopi Nation. The Hopi Nation operates the Kayenta Mine, which supplies the fuel for the NGS. The Mine is geographically isolated, and there are no existing means to supply potential alternative purchasers with coal produced from that mine in the event of the closure of the NGS. In addition, the Kayenta Mine employs approximately 400 people from both the Navajo and Hopi Nations, in an area where Navajo and Hopi unemployment averages nearly 50 percent.

Letter from DOI to EPA (Mar. 5, 2010) at 1 (ER208).


6 365523.1

Indeed, the Hopi Tribe receives approximately $13 million

annually in coal royalties and bonus payments, NREL Report at 96,

Table 6-3 (ER174) & 98 (ER176), approximately another $1.6 million in

annual water fees, id., and hundreds of thousands of dollars in

scholarship funds related to the coal leases, id. at 97 (ER175). NGS is

responsible for 1,400 to 1,900 Hopi jobs, accounting for fifty to seventy

percent of the employment on the Hopi Reservation. ICF International

Study at 41-42 (ER204-05).

The Hopi Tribe uses the NGS coal revenues for the provision of

basic services and other essential government functions such as health

care, education, housing, law enforcement, and social services. ICF

International Study at 39 (ER202); see also NREL Report at 98-99

(ER176-77). These services are crucial to the Hopi Tribe. The United

States recognizes that “the Hopi Tribe [has] communities living in

extreme poverty.” NREL Report at 95 (ER173). Nearly fifty percent of

people on the Hopi Reservation are living in poverty; unemployment is

approximately fifty percent; and thirty-five percent of homes on the

Hopi Reservation lack a complete kitchen and are more than forty times

more likely than the average American home to not have running


7 365523.1

water. ICF International Study at 35-36 (ER198-99). Fifty-four percent

of children under 18 on the Hopi Reservation are living in poverty.

NREL Report at 95 (ER173). The proportion of people living below the

poverty line in the Hopi Tribe is more than twice that of Arizona as a

whole and the average annual income on the reservation is nearly half

of that of the state population. ICF International Study at 35-36

(ER198-99). Indeed, conditions on the Hopi Reservation are closer to

those found in developing Third World countries than those expected in

the United States. Id. at 35 (ER198). See also Demographic Profiles

for Arizona Indian Reservations (ER212-16).

Without the coal revenues from NGS the Hopi Tribe effectively

will be shut down as a Tribal government, ICF International Study at

38-39 (ER201-02); NREL Report at 98-99 (ER176-77), and the Hopi

people will plunge deeper into poverty. The impact of the Final Rule

promulgated by the United States, which will curtail production (and

associated coal use) from NGS by a third within the next four years and

completely by 2044 will have a devastating and permanent impact on

the Hopi people.

Closure of the NGS and, subsequently, the Kayenta Mine would dramatically increase unemployment for two Tribes –


8 365523.1

Navajo and Hopi – that already suffer from staggering unemployment. It would also deprive the Hopi Nation of nearly all of its revenue, which could cause it to eliminate basic governmental services and lay off those that have been able to achieve employment with the tribal government. This loss of jobs, and revenues would have concomitant affects throught [sic] the Reservation economy and could ultimately force tribal members and their families to leave their tribal communities in droves, in search of work and other basic needs.

Letter from DOI to EPA (Mar. 5, 2010) at 1 (ER208).

NGS also plays a role in provision of water to certain other Tribes

in the region that have water rights settlements with the United States

utilizing water from the “Central Arizona Project” or “CAP”.2

Approximately two-thirds of the United States’ share of energy

production from NGS goes to operate the CAP, see EPA, Affordability

Analysis of BART Options for NGS (Jan. 14, 2013) (“EPA Affordability

Analysis”) at 30-31 (ER224-25), and the remaining one-third of the

United States’ share of the NGS energy production is sold to the

market, id. at 31 (ER225), with proceeds funding the Arizona Tribes

2 The CAP is “an aqueduct system that delivers Colorado River water into the CAP’s service area,” EPA Affordability Analysis at 8 n.2 (ER222), and “the Central Arizona Water Conservation District (CAWCD) relies almost exclusively on power from NGS to pump water from the Colorado River to its customers in Arizona through the CAP system,” id. at 8 (ER222).


9 365523.1

with approved water rights settlements with the United States.3 NREL

Report at 8, Fig. 1-1 (ER166).

C. The United States’ Plan for NGS

The United States has decided that it will reduce capacity at NGS

instead of investing in standard pollution control devices that have been

in regular use for decades and—as concluded by the United States

itself—are cost effective and affordable for NGS. See TSD at 67

(ER131) (“our analysis suggests that SCR or SNCR should not force

electricity production costs to be uneconomical” at NGS); see also Final

Rule, 79 Fed. Reg. at 46,525/3 (ER74/3). The United States apparently

agreed to this alternative after industry and other NGS stakeholders

threatened to shut down NGS if forced to properly control the emissions

from NGS. The United States engaged in secret negotiations with these

groups in the NGS “Technical Working Group” (the “TWG”), with the

deliberate exclusion of the Hopi Tribe.

3 Indian Tribes with a CAP water allocation include the Ak-Chin Indian Community, Fort McDowell Yavapai Nation, Gila River Indian Community, Salt River-Pima Maricopa Indian Community, San Carlos Apache Tribe, Tohono-O’odham Nation, Yavapai-Prescott Indian Tribe, White Mountain Apache Indian Tribe. TSD at 7, Table ES-2 (ER111).


10 365523.1

1. The Advanced Notice of Proposed Rulemaking

When the United States first began the process of evaluating and

implementing new emissions limits for nitrogen oxides (NOx) from

NGS, it recognized the importance of NGS on the Hopi economy and

proposed installation of conventional pollution control devices that

would allow NGS to continue operating while meeting the goals and

requirements of the Clean Air Act. After publication of an Advance

Notice of Proposed Rulemaking, 74 Fed. Reg. 44,313 (Aug. 28, 2009)

(ER1-22), the Hopi Tribe provided information to the United States

concerning the economic importance of NGS to the Hopi Tribe. See

Letter from EPA to Chairman Leroy Shingoitewa (June 30, 2011), at 1

(ER226).

In March 2012, the U.S. National Renewable Energy Laboratory

(“NREL”) published its analysis, which “aim[ed] to assist both Interior

and EPA by providing an objective assessment of issues relating to the

power sector that may be outside the primary expertise of either, yet

nevertheless will be crucial to a BART determination for [NGS].” NREL

Report at 1 (ER159). The NREL Report compared the costs of

retrofitting NGS with pollution control technology to reduce NOX


11 365523.1

emissions against shutting down NGS, and the anticipated impacts of

those actions on various stakeholders, including the Hopi Tribe.

The NREL Report concluded that “Early plant retirement is the

only BART scenario that would seriously harm the econom[y] of the . . .

Hopi Tribe . . . .” NREL Report at 93 (ER171) (emphasis added). In

contrast, the NREL Report found that installation of pollution control

devices on NGS would be “unlikely to force retirement of [NGS] for

economic reasons,” id. at 112 (ER179), “would likely be less than the

basic costs of shutting [NGS] down and replacing it with power from

unused capacity elsewhere in the West,” id. at 111 (ER178), and that

even with the cost of installing SCRs, NGS “would still be one of the

lowest-cost resources in the Desert Southwest,” id. at 112 (ER179).

In January 2013, EPA, along with DOI and DOE issued a Joint

Federal Agency Statement Regarding NGS recognizing the multi-

faceted government interests and responsibilities with respect to the

NGS (ER227-29). The Joint Statement specifically recognized the need

to reduce emissions from the NGS to promote visibility goals, while

maintaining trust responsibilities to the Hopi Tribe and others. As a

member of the DOI-EPA-DOE Navajo Generating Station Working


12 365523.1

Group, EPA has promised to “minimiz[e] negative impacts on those who

currently obtain significant benefits from NGS, including tribal

nations,” Joint Statement, at 2 (ER228) (“Goals”), and has promised to

“work with stakeholders, including . . . the Hopi Tribe . . . to develop a

roadmap for accomplishing the goals described,” in a manner that is

“consistent with Federal trust responsibilities,” id. ¶ 2 (ER228). Indeed,

the Joint Statement sets forth “fulfillment of Federal trust

responsibilities to Indian tribes affected by NGS” as a “primary

consideration.” Id. ¶ 4 (ER228).

2. The Proposed Rule

Shortly thereafter, in February 2013, the United States published

a proposed plan for the NGS to require reductions of NOX emissions

based on Best Available Retrofit Technology (“BART”) as provided in

the CAA Regional Haze Rule. Proposed Rule, 78 Fed. Reg. 8,274,

8,288/1-2 (Feb. 5, 2013) (ER38/1-2). In making a BART determination,

EPA is required to consider five factors. See 40 C.F.R.

51.308(e)(1)(ii)(a). BART was determined to be the installation of

conventional pollution control technology (known as Selective Catalytic


13 365523.1

Reduction or “SCR”) on NGS. Proposed Rule, 78 Fed. Reg. at 8,288/1

(ER38/1).

The Proposed BART Rule was issued contemporaneously with a

Technical Support Document, the “TSD” (ER105-53). The TSD

conclusions with respect to the five BART factors are summarized in

TSD Table ES-1 (ER109). Significantly, the TSD found that under no

scenario where conventional pollution control technology is installed on

NGS would it force NGS to close. Id. This conclusion was based on the

fact that “it would be more economical for the owners of NGS to install

new NOx controls and continue operating [than] to close and purchase

an equivalent amount of power on the wholesale power market.” Id. at

6 (ER110). Under its analysis of Factor 2, the United States explained:

EPA understands and is sensitive to the important role NGS plays in the economies of the Navajo Nation and Hopi Tribe. As long as NGS continues to burn coal from the Kayenta Mine to produce electricity, royalties, taxes, lease payments, and other sources of revenue associated with NGS should continue for the Navajo Nation and Hopi Tribe. Because our analysis suggests that SCR or SNCR should not force electricity production costs to be uneconomical compared to market costs of power, EPA does not expect adverse impacts to the Navajo Nation and Hopi Tribe from any of the BART options (SCR, SNCR, and LNB/SOFA) under consideration.

Id. at 67 (ER131) (emphasis added); see also, id. at 136-38 (ER147-49).


14 365523.1

The United States also conducted an affordability analysis of the

installation of the proposed pollution control technology at NGS. EPA

Affordability Analysis at 4 (ER218). The Affordability Analysis

compared the relative power costs associated with installation of these

controls against a “Business as Usual” scenario, id., as well as the

impact of installation of BART control equipment on the CAWCD water

rates, id. at 8 (ER222). The Affordability Analysis concluded that

electric rates would increase less than 1% in the peak investment year

if SCRs are installed at NGS. Id. at 9 (ER223). CAP water rates were

modeled to increase by 14% per acre-foot with the addition of SCR. Id.

at Table E-4 (ER223).

3. The TWG Agreement and Proposal

After publication of the Proposed Rule, a number of stakeholders,

including the U.S. Bureau of Reclamation, an arm of the United States

Department of Interior, formed the “Technical Work Group” (the

“TWG”)4. According to Senior Counsel in the Department of Interior

4 The TWG is comprised of the Central Arizona Water Conservation District, the Environmental Defense Fund, the Gila River Indian Community, the Navajo Nation, the Salt River Project, the United States, and Western Resource Advocates.


15 365523.1

Deputy Secretary’s office, the Hopi Tribe was intentionally excluded

from the TWG because “if Hopi was at the table, [they] knew there

would be no agreement” and that “SRP didn’t want Hopi at the table.”

See Letter from Chairman Singoitewa to Sally Jewell (Sept. 9, 2013), at

1 (ER230) (recounting statements made to the Hopi Tribal Counsel).

The TWG met pursuant to a Non-Disclosure Agreement, which was

signed by the United States as well as the other parties. Id. at 2

(ER231); TWG Non-Disclosure Agreement (ER236-42). EPA met with

the TWG on July 9, 2013 to discuss their intended “better-than-BART”

alternative proposal. See ER243. From at least March through July,

2013, the TWG met pursuant to the confidentiality and non-disclosure

agreement.

The result of these negotiations was the TWG Agreement, which

set forth a proposal for an alternate scenario to reduce NOX emissions

from NGS. See Supplemental Proposed Rule, 78 Fed. Reg. 62,509,

62,509/1 (Oct. 22, 2013) (ER47/1). The United States signed the TWG

Agreement (ER325), which imposes specific requirements on the United

States to support the TWG Proposal, see TWG Agreement ¶ III.B

(ER306). The day the TWG Proposal was submitted to EPA was the


16 365523.1

first time that the Hopi Tribe learned of the existence of the TWG.

Letter from Leroy Shingoitewa to EPA (Aug. 19, 2013) at 1 (ER244).

The TWG Proposal set forth two overlapping lifetime caps of NOX

emissions for the NGS, one running from 2009 to 2029, and the other

from 2009 to 2044. See TWG Agreement ¶ III.A (ER305) and App’x B

¶¶ I.A, I.B.f.2 (ER337, ER340). Under the TWG Proposal, NGS would

be permitted to use various emissions reduction techniques to stay

under the lifetime cap. The TWG and NGS would not commit to a

particular technique, and thus offered several different potential

operating scenarios in their proposal. “In general, the alternative plan

in the TWG Agreement included closure of one unit at NGS, or

curtailment of net generating capacity by an equivalent amount, in

2019,” “compliance with a NOX emission limit of 0.07 lb/MMBtu on two

units at NGS beginning in 2030,” and permanent cessation of

conventional coal-fired generation by the end of 2044. 79 Fed. Reg.

46,514, 46,516/3 to 46,517/1 (Aug. 8, 2014) (ER65/3 to ER66/1). In other

words, under the TWG Proposal negotiated and agreed to by the U.S.

Bureau of Reclamation, NGS will be closed partially by 2019 and


17 365523.1

completely by 2044. Coal sales and royalties, water fees, and economic

conditions on the Hopi Reservation will follow suit.

EPA also engaged in direct consultation with the Gila River

Indian Community and Navajo Nation concerning the TWG Alternative

in August-September, 2013. These consultations apparently included

discussion of these two tribes’ thoughts on the TWG Alternative,

including the loss of coal revenues to the Navajo Nation. EPA

Memorandum to File: Record of Consultation with Gila River Indian

Community (Aug. 22, 2013) (ER249); EPA Memorandum: Consultation

Meeting with Navajo Nation (Sept. 5, 2013) (ER250). Hopi was not

consulted during this period leading up to submission of the TWG

Proposal. See EPA Timeline of Correspondence and Consultation at 9-

10 (ER377-78).

4. Supplemental Proposed Rule

After reviewing the TWG Proposal, on October 22, 2013, EPA

determined that the alternative proposed by TWG was “better than

BART,” because the emissions reductions would be greater than would

be achieved in the original Proposed Rule. Supplemental Proposed

Rule, 78 Fed. Reg. at 62,509/2 (ER47/2). In its October 2013


18 365523.1

Supplemental Proposed Rule, EPA proposed “to determine that the

TWG Alternative is ‘better than BART’ because maintaining emission

below the 2009-2044 NOX Cap, as provided in the TWG Alternative,

achieves greater reasonable progress than EPA’s proposed BART

determination towards the national visibility goal.” Id. at 62,509/2

(ER47/2).

In the Supplemental Proposed Rule, EPA admitted that the

proposed action will have tribal implications, requiring consultation.

Id. at 62,519/1 (ER57/1). EPA also acknowledged that the proposed

action will have an indirect impact on the Hopi Tribe from reduction in

coal-related royalties, taxes, and employment at NGS and the Kayenta

Mine. Id. at 62,519/2 (ER57/2). The Supplemental Proposed Rule

states:

EPA understands that Chairman Shingoitewa has numerous concerns related to the TWG Agreement and Alternative, including the exclusion of the Hopi Tribe from the TWG and the development of the TWG Agreement, and the extended timeframe for the installation of new air pollution controls at NGS under the TWG Alternative.

Id. at 62,519/3 (ER57/3).

After publication of the Supplemental Proposed Rule, the Hopi

Tribe, including the Chairman, Councilmembers, and Tribal members


19 365523.1

participated in several meetings with the United States to voice their

concerns and to request additional information that would help the

Hopi Tribe further understand how the Supplemental Proposed Rule

would impact the Tribe, its members, and its lands.5

The Hopi Tribe’s comments to the United States on the

Supplemental Proposed Rule included that: (1) the United States had

not complied with the requirement to analyze the five BART Factors,

(2) the United States had violated its trustee duties to the Hopi Tribe,

and (3) EPA had violated its duty to engage in meaningful consultation

with the Hopi Tribe. See Letter from Chairman Shingoitewa to EPA

(Jan. 3, 2014) (ER253). At this point, however, the United States had

5 Because of the United States’ reluctance to provide information to the Hopi Tribe in light of the TWG Non-Disclosure Agreement (ER236-42); Letter from Chairman Shingoitewa to DOI (Sept. 9, 2013) at 2-3 (ER231-32), the Hopi Tribe was forced to use the Freedom of Information Act (“FOIA”) process as a general member of the public, not as a co-sovereign nation entitled to information from its Trustee on an action that would significantly adversely impact the Tribe. See FOIA Correspondence between the Hopi Tribe and the United States (ER271-300). The United States withheld documentation from its productions to the Hopi Tribe based on the exemptions included in FOIA, see, e.g., ER294-96, ER297-98, ER299-300, without any accommodation for or acknowledgement of the Hopi Tribe’s co-sovereign status or the United States’ duty to engage in meaningful consultation.


20 365523.1

already signed the TWG Agreement and the Hopi Tribe’s opportunity

for early meaningful consultation was lost.

5. The Final Rule

On August 8, 2014, EPA issued the Final Rule. Final Rule, 79

Fed. Reg. 46,514 (Aug. 8, 2014) (ER62). In the Final Rule, EPA largely

adopted the TWG Proposal. 79 Fed. Reg. at 46,514/2 (ER63/2). The

Final Rule “limits emissions of NOX from NGS by establishing a long-

term facility-wide cap on total NOX emissions from 2009 to 2044 and

requires the implementation of one of several alternative operating

scenarios to ensure that the 2009-2044 cap is met.” 79 Fed. Reg. at

46,514/2-3 (ER63/2-3). “Generally, the alternative operating scenarios

require the closure of one unit at NGS (or the curtailment of electricity

generation by a similar amount) in 2019, and compliance with a NOx

emission limit . . . in 2030.” Final Rule, 79 Fed. Reg. at 46,514/3

(ER63/3).

SUMMARY OF ARGUMENT

The United States has failed to properly promulgate the Final

Rule for NGS. In cutting the Hopi Tribe out of the TWG, failing to

consult with the Hopi Tribe in development of the TWG alternative, and


21 365523.1

treating the Hopi Tribe differently than the other federally recognized

tribes that were permitted to participate in the TWG, the United States

has breached important obligations it owes to the Hopi Tribe. In such a

situation, the only remedy is for the Court to strike the rule and

remand for further proceedings in accordance with the United States’

consultation and trust obligations.

In addition to failing to consult with the Hopi Tribe or to protect

its trust assets, the United States also failed to consider one of the

mandatory factors in determining BART for NGS, which includes

“whether a given alternative would result in significant economic

disruption or unemployment.” Proposed Rule, 78 Fed. Reg. at 8,281/2

(ER31/2) (quoting EPA BART Guidelines). The EPA initially believed

that regulation of NGS would not result in its closure, and so it

considered the resulting dire economic impact to the Hopi Tribe to be

based on “conjectures regarding the future decisions of NGS owners.”

TSD at 67 (ER131). When, however, the United States ultimately

adopted its own proposal to curtail production at NGS and eventually

cease burning coal at NGS altogether, it reviewed only the NOx

emissions reductions from that proposal, and failed to return to the


22 365523.1

other BART factors, including the “significant economic disruption [and]

unemployment,” Final Rule, 79 Fed. Reg. at 8,281/2 (ER31/2), that will

result from the proposed Final Rule.

As shown below, the United States’ breaches of its consultation

and trust obligations, as well as its failure to consider a factor

mandated by Congress, renders the resulting Final Rule arbitrary and

capricious or otherwise not in accordance with law, and must be

remanded to the agency for further proceedings to correct these

deficiencies.

STANDARD OF REVIEW

EPA issued the Final NGS Implementation Plan at issue here

pursuant to CAA section 301(a)(1), 42 U.S.C. § 7601(a)(1) (authorizing

EPA Administrator to “prescribe such regulations as are necessary to

carry out his functions under this chapter”), and CAA section 301(d)(4),

42 U.S.C. § 7601(d)(4) (authorizing the EPA Administrator to directly

administer the CAA for Indian tribes where “treatment of Indian tribes

as identical to States is inappropriate or administratively infeasible”).

See also Proposed Rule, 78 Fed. Reg. at 8,276/3 (ER26/3) & 8,289/1

(ER39/1) (explaining EPA is exercising authority under sections 301(a)


23 365523.1

and 301(d)(4)). The CAA does not supply the standard of review for

actions taken under section 301. In such a situation, the

Administrative Procedure Act (the “APA”) supplies the appropriate

standard of review. The APA provides that a reviewing court “shall

hold unlawful” any agency action that is made “without observance of

procedure required by law,” 5 U.S.C. § 706(2)(D), or that is found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A).

A. Actions that Do Not Observe Procedure Required by Law, including Meaningful Consultation with Impacted Tribes, Must be Reversed pursuant to APA § 706(2)(D).

The APA plainly states that a reviewing court “shall . . . hold

unlawful and set aside agency action, findings, and conclusions found to

be . . . without observance of procedure required by law . . . .” 5 U.S.C. §

706(2)(D).

During the course of this inquiry, the reviewing court must be satisfied that the agency not only employed procedures which conform to the procedural requirements of the [applicable law], but which also conform to the agency’s own internal procedures. This is true even where the internal procedures are possibly more rigorous than otherwise would be required.

Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 713 (8th Cir.

1979) (internal quotations and citations omitted). Meaningful


24 365523.1

consultation is a “procedural right guaranteed by federal law and

[agency] policy.” Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d

774, 781 (D.S.D. 2006); see also Klamath Tribes v. United States, No.

96-381-HA, 1996 WL 924509, at *8 (D. Or. Oct. 2, 1996) (“In practical

terms, a procedural duty has arisen from the trust relationship such

that the federal government must consult with an Indian Tribe in the

decision-making process to avoid adverse effects on treaty resources.”).

The procedures required by law—and safeguarded by the APA—

include the requirement that the United States engage in meaningful

consultation with tribes in any instance where an agency’s action will

impact a tribe’s interests. If the United States “has not complied with

the mandatory procedural requirements” of consultation, “on the record

such finding is ‘arbitrary and capricious’ or otherwise ‘without

observance of procedure required by law[’] and must be set aside.”

Confederated Tribes and Bands of the Yakama Nation v. U.S. Fish &

Wildlife Service, No. 1:14-CV-3052-TOR, 2015 WL 1276811, at *9 (Mar.

20, 2015).

The duty to consult is grounded in common law arising from the

unique trust relationship between the United States and Indian Tribes.


25 365523.1

The United States has acknowledged that “the federal government’s

trust responsibility . . . derives from the historical relationship between

the federal government and Indian tribes as expressed in certain

treaties and federal Indian law . . . .” EPA Policy on Consultation and

Coordination with Indian Tribes (May 4, 2011) (“EPA Consultation

Policy”), at 3 (ADD054). The “obligation for Federal agencies to engage

with Indian Tribes on a government-to-government basis is based on

the U.S. Constitution and Federal treaties, statutes, executive orders,

and policies. Federal agencies help to meet that obligation through

meaningful consultation with Indian Tribes.” DOI Policy on

Consultation with Indian Tribes (“DOI Consultation Policy”), at 1

(ADD036). Indeed, “[t]he Constitution affirms the United States’

government-to-government relationship with Indian tribes . . . .” Exec.

Order 13,175, Consultation and Coordination with Indian Tribal

Governments, 65 Fed. Reg. 67,249 (Nov. 6, 2000); see also 80 Fed. Reg.

at 1,944.

In order to fulfill its consultation requirements, the United States

must provide an opportunity for meaningful consultation. See Oglala

Sioux Tribe, 603 F.2d at 720-21; Mescalero Apache Tribe v. Rhoades,


26 365523.1

804 F. Supp. 251, 259, 261-62 (D.N.M. 1992); Yankton Sioux Tribe, 442

F. Supp. 2d at 783-84; Lower Brule Sioux Tribe v. Deer, 911 F. Supp.

395, 401-2 (D.S.D. 1995); Winnebago Tribe of Neb. v. Babbitt, 915 F.

Supp. 157, 167-68 (D.S.D. 1996); Confederated Tribes and Bands of

Yakama Nation v. U.S. Dep’t of Ag., No. CV-10-3050-EFS, 2010 WL

3434091, at *4 (E.D. Wash. Aug. 30, 2010); Klamath Tribes, 1996 WL

924509, at *8.

The U.S. Supreme Court has instructed in no uncertain terms

that the United States is required to act with “moral obligations of the

highest responsibility and trust” in its dealings with Indian Tribes.

Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (listing

cases in support). “Its conduct, as disclosed in the acts of those who

represent it in dealings with the Indians, should therefore be judged by

the most exacting fiduciary standards.” Id. at 297.

“In practical terms, the trust relationship gives rise to a

procedural requirement that the federal government at the very least

investigate and consider the impact of its action upon a potentially

affected Indian tribe.” Okanogan Highlands Alliance v. Williams, No.

CIV. 97-806-JE, 1999 WL 1029106, at *16 (D. Or. Jan. 12 1999)


27 365523.1

(internal quotations omitted). “An ordinary meaning of the word

consult is to seek information or advice from someone with expertise in

a particular area or to have discussions or confer with someone,

typically before undertaking a course of action.” Cal. Wilderness

Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1087 (9th Cir. 2011)

(internal quotations omitted) (emphasis original). Meaningful

consultation requires “formally soliciting the Tribe’s view,”

“consider[ing] the views expressed,” and “tak[ing] them into account in

coming to a decision . . . .” Mescalero Apache Tribe, 804 F. Supp. at 262.

Cf. Cal. Wilderness Coalition, 631 F.3d at 1088 (finding that DOE failed

to comply with statutory requirement to develop regulations “in

consultation with States” where “[n]o draft was circulated to the States,

no committee was created that included representatives from the

States, and the affected States were not given access to the supporting

data.”).

The United States has repeatedly acknowledged the importance of

and commitment to meaningful consultation. In 1994, President

Clinton issued a Presidential Memorandum “outlining principles that

executive departments and agencies, including every component bureau


28 365523.1

and office, are to follow in their interactions with Native American

tribal governments.” Lower Brule Sioux Tribe, 911 F. Supp. at 400

(quoting April 29, 1994 Presidential Memorandum) (emphasis supplied

by court). The 1994 Presidential Memorandum stated that executive

branch agencies “shall consult, to the greatest extent practicable and to

the extent permitted by law, with tribal governments prior to taking

actions that affect federally recognized tribal governments . . . .” Id. at

400-01; see also Nez Perce Tribe v. U.S. Forest Serv., No. 3:13-CV-348-

BLW, 2013 WL 5212317, at *6 (D. Idaho Sept. 12, 2013) (“A meaningful

consultation takes place typically before undertaking a course of

action.” (emphasis original)).

In 2000, President Clinton signed Executive Order 13,175, which

mandates that:

To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless . . . the agency, prior to the formal promulgation of the regulation . . . consulted with tribal officials early in the process of developing the proposed regulation . . . .

Exec. Order 13,175 § 5(c), 65 Fed. Reg. at 67,250. The Executive Order

further provides that “[e]ach agency shall have an accountable process


29 365523.1

to ensure meaningful and timely input by tribal officials in the

development of regulatory policies that have tribal implications.” Id.

§ 5(a), 65 Fed. Reg. at 67,250. In issuing this Executive Order,

President Clinton recognized that “there is nothing more important in

Federal-tribal relations than fostering true government-to-government

relations . . . .” Id. at 67,249.

In 2010, President Obama reiterated the importance of

meaningful government-to-government consultation and compliance

with Executive Order 13,175. In a Presidential Memorandum to the

executive branch agencies, President Obama stated:

History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.

Presidential Memorandum on Tribal Consultation, 74 Fed. Reg. 57,881

(Nov. 5, 2009).

Both EPA and DOI have policies to implement their consultation

requirements, including as set forth in Executive Order 13,175 and the

presidential memoranda. “EPA’s policy is to consult on a government-


30 365523.1

to-government basis with federally recognized tribal governments when

EPA actions and decisions may affect tribal interests.” EPA

Consultation Policy at 1 (ADD052). The EPA Policy “establishes

national guidelines and institutional controls for consultation across

EPA.” Id. The EPA Policy provides that “[c]onsultation is a process of

meaningful communication and coordination between EPA and tribal

officials prior to EPA taking actions or implementing decisions that may

affect tribes.” Id. (emphasis added). The EPA Policy is meant to

establish “an accountable process to ensure meaningful and timely

input by tribal officials in the development of regulatory policies that

have tribal implications.” Id. at 2 (ADD053).

The DOI Policy likewise “requires a government-to-government

consultation between appropriate Tribal Officials and Departmental

officials.” DOI Consultation Policy at 2 (ADD037). The DOI Policy also

specifically recognizes that:

Consultation is a deliberative process that aims to create effective collaboration and informed Federal decision-making. Consultation is built upon government-to-government exchange of information and promotes enhanced communication that emphasizes trust, respect, and shared responsibility. Communication will be open and transparent without compromising the rights of Indian Tribes or the government-to-government consultation process.


31 365523.1

Id.

In addition, EPA and DOI have committed to working together in

the consultation process where there are overlapping issues. The EPA

Policy provides that “[w]hen EPA issues involve other federal agencies,

EPA carries out its consultation responsibilities jointly with those other

agencies, where appropriate.” EPA Consultation Policy at 4 (ADD055).

Likewise, the DOI Policy commits that its “Bureaus and Offices will

seek and promote cooperation, participation, and efficiencies between

agencies with overlapping jurisdiction, special expertise, or related

responsibilities regarding a Departmental Action with Tribal

Implications.” Id. at 2-3 (ADD037-38). Indeed, EPA and DOI, along

with the Department of Energy entered into the Joint Statement

concerning NGS, and committed to “minimize[e] negative impacts on

those who currently obtain significant benefits from NGS, including

tribal nations,” Joint Federal Agency Statement at 2 (“Goals”) (ER228),

and to “work with stakeholders, including . . . the Hopi Tribe . . . to

develop a roadmap for accomplishing the goals described,” in a manner

that is “consistent with Federal trust responsibilities,” id. ¶ 2 (ER228)

(emphasis added). Indeed, the Joint Statement sets forth “fulfillment of


32 365523.1

Federal trust responsibilities to Indian tribes affected by NGS” as a

“primary consideration.” Id. ¶ 4 (ER228-29).

In accordance with the consultation duty owed to the Hopi Tribe,

the United States was required to provide early notification and an

opportunity for meaningful government-to-government consultation

with the United States on operation of the NGS, which is acknowledged

as being critical to the Hopi Tribe’s wellbeing and existence.

B. Actions that Are Not in Accordance with Law, including the United States’ Trust Duties to Indian Tribes, Must be Reversed Pursuant to APA § 706(2)(A).

The Court must “hold unlawful” any agency action that is “not in

accordance with law,” 5 U.S.C. § 706(2)(A). An agency action that is not

in accordance with any “operative part of domestic law” must be

reversed. See Comm. of U.S. Citizens Living in Nicaragua v. Reagan,

859 F.2d 929, 942-43 (D.C. Cir. 1988). Indeed, even when an agency

action arguably complies with the requirements of the statute the

agency administers, that action will be “not in accordance with law” if it

violates any other legal requirement. See, e.g., Chrysler Corp. v.

Brown, 441 U.S. 281, 317-19 (1979) (Any agency action that violates the

Trade Secrets Act is “‘not in accordance with law’ within the meaning


33 365523.1

5 U.S.C. § 706(2)(A).”). Under the APA, “the reviewing court shall

decide all relevant questions of law . . . .” 5 U.S.C. § 706.

The Court must also bear in mind that “because of the unique

legal status of Indians in American jurisprudence, legal doctrines often

must be viewed from a different perspective from that which would

obtain in other areas of the law.” EEOC v. Karuk Tribe Housing Auth.,

260 F.3d 1071, 1082 (9th Cir. 2001) (quoting Native Village of Venetie

I.R.A. Council v. Alaska, 944 F.2d 548, 553 (9th Cir. 1991)). Whether

EPA violated the federal government’s trust obligations is a “separate

question” from whether EPA acted in accordance with its own

regulations. Nance v. EPA, 645 F.2d 701, 710 (9th Cir. 1981). As such,

EPA’s determinations that its procedures have satisfied the United

States’ obligations to the Hopi Tribe in its capacity as a separate

sovereign should be reviewed de novo. See Karuk Tribe Housing Auth.,

260 F.3d at 1077. Simply following the CAA and its implementing

regulations may not be enough to meet the “most exacting fiduciary

standards” required of the United States in its relationship with Indian

Tribes. Seminole Nation, 316 U.S. at 296-97.


34 365523.1

C. Actions that Are Arbitrary and Capricious Must be Reversed Pursuant to APA § 706(2)(A).

The APA also requires reversal of agency actions that are

arbitrary or capricious. An agency action is arbitrary and capricious if

the agency has: (1) relied on factors which Congress has not intended it

to consider; (2) entirely failed to consider an important aspect of the

problem; (3) offered an explanation for its decision that runs counter to

the evidence before the agency; (4) or is so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.

WildEarth Guardians, 759 F.3d at 1069-70; Ctr. for Biological Diversity

v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109 (9th Cir. 2012)).

Conclusory determinations by the agency are not sufficient to

support its action. “Stating that a factor was considered . . . is not a

substitute for considering it.” Beno v. Shalala, 30 F.3d 1057, 1075 (9th

Cir. 1994) (quoting Getty v. Federal Savs. & Loan Ins. Corp., 805 F.2d

1050, 1055 (D.C.Cir.1986)).


35 365523.1

ARGUMENT

There are three main problems with the Final Rule that EPA

promulgated for NGS. First, the United States failed to engage in

meaningful consultation with the Hopi Tribe prior to adopting the Rule.

The United States must engage in early consultation, with full

exchange of information. Instead the United States proposed to do one

thing (require installation of conventional pollution control technology

on NGS), engaged in secret discussions with other NGS stakeholders

and agreed to a plan for NGS without the input of the Hopi Tribe, and

then adopted its own proposal. The Final Rule was thus improperly

adopted without observance of consultation procedure required by law

and must be struck. 5 U.S.C. § 706(2)(D).

Second, the United States has failed to fulfil its trust obligations

to the Hopi Tribe. Not only did the United States fail to consult the

Hopi Tribe, but it then agreed to certain protections for the other Tribes

that were permitted to participate in the process. There is no question

that the United States’ actions will have a lasting and permanent

negative impact on the Hopi Tribe. The Final Rule therefore is not in


36 365523.1

accordance with the law of the United States and must be struck.

5 U.S.C. § 706(2)(A).

Finally, the United States failed to consider the economic impact

of curtailment and closure of NGS on the Hopi economy, even though

that is one of the five statutorily mandated BART Factors that must be

considered. The United States achieved this sleight of hand by

analyzing a proposed rule that it determined would not require

curtailment or closure of NGS, and then adopting a final rule that

expressly requires curtailment and closure of the plant. In determining

that the final rule was “better than BART,” EPA looked only at the total

NOx emissions, and failed to consider the other BART Factors. The

final rule is thus arbitrary and capricious and otherwise not in

accordance with law and must be struck. 5 U.S.C. § 706(2)(A).

These flaws render the Final Rule for NGS unlawful, and require

that this Court strike the Final Rule and mandate that EPA engage in

meaningful consultation with the Hopi Tribe in a manner that complies

with its trust obligations and the Clean Air Act mandates for BART

determinations.


37 365523.1

A. The Court Must Reverse the Final Rule Because the United States Failed to Engage in Meaningful Consultation with the Hopi Tribe as Required by Law.

There can be no question here that the TWG Agreement

significantly impacts the Hopi Tribe, triggering consultation duties.

See, e.g., Letter from Chairman Shingoitewa to DOI (Sept. 9, 2013)

(ER230-35); Letter from Chairman Shingoitewa to EPA (Aug. 19, 2013)

(ER244-48) (discussing the Hopi Tribe’s interests in the operations of

the NGS); NREL Report at 93-99 (ER171-77); ICF International Study

at 4, 13-14, 35-42 (ER187-88, ER196-205); TSD at 57-58, 67, 135

(ER121-22, ER131, ER146) (discussing economic significance of NGS to

the Hopi Tribe); Supplemental Proposed Rule, 78 Fed. Reg. at 62,519/2

(ER57/2) (acknowledging that the supplemental proposal would affect

the Hopi Tribe); Final Rule, 79 Fed. Reg. at 46,548/3 (ER97/3) (noting

that “Because the TWG Alternative involves the closure or curtailment

of production on one unit and an associated decline in the amount of

coal mined and combusted . . . the revenues to the Hopi Tribe and

Navajo Nation may be expected to decline” as a result of EPA’s adoption

of the Final Rule).


38 365523.1

The United States itself has found that NGS “anchors the local

economies of the Navajo and Hopi Indian tribes in northeastern

Arizona.” NREL Report at 1 (ER159). Based on the importance of NGS

to the Hopi economy, see supra 4-8, the United States concluded and

advised that closure of NGS was the “only BART scenario that would

seriously harm the econom[y] of the . . . Hopi Tribe . . . .” NREL Report

at 93 (ER171) (emphasis added). “Closure of the NGS and,

subsequently, the Kayenta Mine [will] dramatically increase

unemployment for [the Hopi Tribe],” which “suffer[s] from staggering

unemployment.” TSD at 1 (ER105). It will “deprive the Hopi Nation of

nearly all of its revenue,” causing the Hopi Tribe “to eliminate basic

governmental services and lay off those that have been able to achieve

employment with the tribal government.” Id. It is anticipated that the

devastating effect on the Hopi economy from closure of NGS will “force

tribal members and their families to leave their tribal communities in

droves, in search of work and other basic needs.” Id. President Obama

invoked history in his Presidential Memorandum on Consultation, but

the United States’ rulemaking at NGS shows still today the United

States’ “failure to include the voices of tribal officials in formulating


39 365523.1

policy affecting their communities” leads to “undesirable and, at times,

devastating and tragic results.” Presidential Memorandum, 74 Fed.

Reg. at 57,881 (ADD034).

The United States failed to properly provide for meaningful

consultation with the Hopi Tribe in at least three ways. First, the

United States failed to provide pre-decision notification to the Hopi

Tribe before signing the TWG Agreement. Second, the United States is

withholding critical information from the Hopi Tribe concerning NGS’s

operations. Third, the United States presumed to know the Hopi

Tribe’s position, without engaging in any actual conversation with the

Tribe.

The United States completely failed to provide meaningful

consultation with the Hopi Tribe in development of the TWG

Alternative. Indeed, the United States entered into the TWG pursuant

to a Non-Disclosure Agreement that prevented it from consulting with

the Hopi Tribe. See TWG Non-Disclosure Agreement (ER236-42);

Letter from Chairman Shingoitewa to DOI (Sept. 9, 2013) at 2-3

(ER231-32). The United States has admitted that the TWG Alternative

was developed without the participation of the Hopi Tribe. See 78 Fed.


40 365523.1

Reg. at 62,512/1-2; 79 Fed. Reg. at 46,516/3. In fact, the Hopi Tribe only

learned of the TWG Agreement and proposal the very same day that it

was submitted to EPA. Letter from Chairman Shingoitewa to EPA

(Aug. 19, 2013) at 1 (ER248). This surely does not constitute early

notification such that meaningful consultation could occur. As this

Court has previously articulated:

Consultation requires an exchange of information and opinions before the agency makes a decision. This requirement is distinct from the opportunity to offer comments on the agency’s decision. The essential verity of this distinction is illustrated by posing the question: would any attorney forgo the opportunity to argue his client’s case before a judge renders a decision in favor of seeking reconsideration after the judge has made a decision? Of course not; such a decision might well amount to malpractice.

Cal. Wilderness Coalition, 631 F.3d at 1093 (emphasis original).

Failure to open the dialogue with the Hopi Tribe concerning the TWG

Agreement prior to signing it and submitting it to EPA violates the

United States’ government-to-government consultation requirements.

Additionally, for consultation to be meaningful, the United States

must provide “sufficient information for tribal officials to make an

informed decision about the desire to continue with consultation and

sufficient information to understand how to provide informed input.”


41 365523.1

EPA Consultation Policy at 4 (ADD055). “Consultation is built upon

government-to-government exchange of information and promotes

enhanced communication that emphasizes trust, respect, and shared

responsibility.” DOI Consultation Policy at 2 (ADD037). Indeed,

consultation cannot be meaningful where all pertinent information is

not available to the Tribe. See Yankton Sioux, 442 F. Supp. 2d at 784-

85 (finding failure to comply with consultation requirements where the

Tribe was not informed of the potential ramifications of the proposed

rule).

The Hopi Tribe has been requesting the information necessary to

participate in meaningful consultation with the United States, and to

fully participate in the public comment process. The Tribe has

undertaken no fewer than three separate avenues to try to obtain the

necessary information from EPA, from DOI, and from the Salt River

Project (“SRP”). The Hopi Tribe obtained some of the information it

sought concerning negotiation of the TWG Agreement by the Bureau of

Reclamation after filing multiple FOIA requests, but never was able to

obtain full access to the information necessary to engage in complete

consultation. See supra 18-19 & n.5. As this Court has previously


42 365523.1

correctly recognized, “[t]he ability to ‘consult’ on a matter is severely

compromised when an entity is denied access to the basis of the

decision.” Cal. Wilderness Coalition, 631 F.3d at 1090.

The United States must actually confer with the Hopi Tribe in

order to fulfill its trust and consultation obligations, and cannot

presume to know the Hopi Tribe’s position without consultation.

Indeed, an assumption concerning the Tribe’s position on an issue does

not alleviate the duty to consult. In Confederated Tribes and Bands of

the Yakama Nation v. U.S. Fish & Wildlife Service, the Eastern District

of Washington carefully considered a similar situation. There, the

United States had been exploring the idea of offering limited public

access tours of a sacred area to tribes in the Hanford, Washington area.

2015 WL 1276811, at *2. The United States had consulted with the

Yakama Tribe in response to earlier proposals for bus tours of the area.

Id. After expanding the proposal from two tours on a single day to a

program of up to twelve tours per year for a period of five years, the

United States failed to reengage in consultation with the Yakama Tribe.

Id. at *3. The United States felt there was “no harm in failing to

reinitiate consultation with the Tribes because any consultation would,


43 365523.1

once again, result in the Tribes’ blanket opposition to tours within the

Lalíik TCP.” Id. at *7. The court rejected this argument, holding

instead that “this hypothetical cannot influence the Court’s current

analysis.” Id. at *9. The court explained that the relevant focus:

Did the [United States] ‘stop, look, listen,’ and carefully consider the tribal input before moving ahead with the greatly expanded undertaking? Or, instead, did the [United States] stop, look at past tribal consultation on similar proposals, and inappropriately assume that each Tribe would merely voice its blanket opposition rather than providing additional insight to or suggested mitigation measures for the expanded undertaking?

Id. In other words, the court found that the United States cannot avoid

the consultation requirements based on an assumption of the Tribe’s

position on a particular issue. Even if the United States believes that it

knows what the Tribe will say, it still must have the conversation. The

United States failed to open such a dialogue here when it cut the Hopi

Tribe out of development of the TWG Agreement.

Indeed, the Hopi Tribe likely had important information to

provide to the United States in development of the TWG Agreement.

For example, the TWG Agreement establishes a Local Benefit Fund for

use on certain projects within 100 miles of NGS or the Kayenta Mine,

TWG Agreement § VI (ER312-13), and specifies the parties who are


44 365523.1

eligible to sit on the committee that decides which projects will receive

funding, TWG Agreement, Appendix A-5 (ER332) (definition of “LBF

Oversight Committee”). Without a member on the board of the Local

Benefit Fund, there is little chance that any of the Local Benefit Fund

will go towards Hopi projects. If the Hopi Tribe had been a TWG party,

it would be able to sit on the LBF Oversight Committee. Similarly, the

Hopi Tribe could have provided input into possible projects on the Hopi

Reservation to accommodate the loss of power generation from NGS and

the economic hit to the Hopi economy.

As set forth above, the Final Rule is “invalid due to the [United

States’] failure to follow its own guidelines and policies, including

affording the tribe meaningful prior consultation regarding these

staffing decisions.” Lower Brule Sioux Tribe, 911 F. Supp. at 402; see

also Winnebago Tribe of Nebraska, 915 F. Supp. at 168 (holding BIA

actions “invalid due to the BIA’s failure to follow its own guidelines and

policies, including affording the tribe meaningful prior consultation

. . . .”). See also Cal. Wilderness Coalition, 631 F.3d at 1090 (holding

that “harmless error analysis in administrative rulemaking must

therefore focus on the process as well as the result.”) (quoting Riverbend


45 365523.1

Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992)). Here, the

United States’ “failure to comply with its own consultation policy

violates general principles that govern administrative decisionmaking.”

Yankton Sioux Tribe, 442 F. Supp. 2d at 785. Because the United

States “has not complied with the mandatory procedural requirements”

of consultation, “on the record such finding is ‘arbitrary and capricious’

or otherwise ‘without observance of procedure required by law[’] and

must be set aside.” Yakama Nation, 2015 WL 1276811, at *9.

EPA has attempted to protect the Final Rule by distancing itself

from the TWG. See Final Rule, 79 Fed. Reg. at 46,516/3 (ER65/3). The

abject failure of the United States to consult with the Hopi Tribe on

development of the TWG, however, irretrievably taints the Final Rule.

The United States arrived at the Final Rule in three main steps.

First, the United States made a determination of what constitutes

BART for NGS. The United States determined that for NGS, BART is

the installation of certain conventional pollution control technology.

Supplemental Proposed Rule, 78 Fed. Reg. at 8,287-88. In making its

BART determination, the United States was required to consider five

factors, including “energy and non-air quality environmental impacts of


46 365523.1

compliance,” 40 C.F.R. 51.308(e)(1)(ii)(a), which included impact to the

Hopi Tribe and its economic wellbeing, see TSD at 62 (ER126)

(admitting that EPA’s BART Guidelines provide that Factor 2 includes

“whether a given alternative would result in significant economic

disruption or unemployment,” and that “there may be unusual

circumstances that justify taking into consideration the conditions of

the plant and the economic effects of requiring the use of a given control

technology.” (internal citations omitted)). Because the United States

determined that installation of BART at NGS would not result in the

shut down or curtailment of NGS, it did not consider the resulting

economic impact in its BART determination. See TSD at 67 (ER131)

(concluding that future curtailment or shutdown of NGS was, at that

time, “conjecture” and thus EPA could not give it “a significant amount

of weight”).

Second, the United States entered into the TWG and agreed to a

proposal whereby NGS would continue operation for a period of time,

but then curtail operations and eventually completely stop burning coal

by 2044. See Final Rule, 79 Fed. Reg. at 46,516/3 to 46,517/1 (ER65/3-

ER66/1). The TWG Agreement thus offered to reach the emissions


47 365523.1

reductions goals by curtailing energy production at NGS, id., even

though the United States had already determined that shutting down

NGS would be “the only BART scenario that would seriously harm the

econom[y] of the . . . Hopi Tribe . . . .” NREL Study at 93 (ER171)

(emphasis added); id. at 113 (ER180).

Third, the United States adopted the “Better-than-BART”

curtailment scenario simply by finding that it would result in total

fewer tons of NOx emissions than installation of BART and without any

consideration of any of the other BART factors. Supplemental Proposed

Rule, 78 Fed. Reg. at 62,514/3 to 62,517/3 (ER63/3 to ER66/3); Final

Rule, 79 Fed. Reg. at 46,516/2 (ER65/2). As a result, the United States

effectively danced around the requirement to engage in meaningful

consultation with the Hopi Tribe on the impact of closure of NGS on the

Hopi economy. The “opportunity to comment” on the completed TWG

Agreement “does not compensate for the lost opportunity of consulting

with [the United States] in the formation of” the TWG Agreement. Cal.

Wilderness Coalition, 631 F.3d at 1093.

Indeed, the EPA cannot avoid the consequences of the actions of

its sister agency. “Article II makes a single President responsible for


48 365523.1

the actions of the Executive Branch,” Clinton v. Jones, 520 U.S. 681,

712 (1997), this was intentionally done by the Founders to “focus,

rather than spread, Executive responsibility thereby facilitating

accountability.” Id. (internal citations omitted). Therefore the United

States must be treated as a single entity for purposes of evaluating its

actions and failures in this case.

Moreover, EPA was complicit in the United States’ participation

in the TWG. EPA met with the TWG on multiple occasions, and thus

was aware of the composition and intended purpose of the TWG. See

EPA Memorandum to File: Record of Meeting with NGS Stakeholders

(July 18, 2013) (ER243); EPA Memorandum to File: Record of

Consultation Meeting with Gila River Indian Community (Aug. 22,

2013) (ER249); EPA Memorandum to File: Consultation Meeting with

Navajo Nation (Sept. 5, 2013) (ER250). Thus EPA’s attempts to

distance itself from the actions of DOI must be rejected.

B. The Court Must Reverse the Final Rule Because It Is Not in Accordance with Law Concerning the United States’ Trusteeship Duties to the Hopi Tribe.

The United States owes a broad trust obligation to the Hopi Tribe.

See Seminole Nation, 316 U.S. 286. The Hopi Tribe has numerous


49 365523.1

varied interests in ensuring that the NGS is properly controlled instead

of shut down. As shown above, NGS provides significant economic

support for the Tribe. The Final Rule specifically provides for reduction

in plant capacity and corresponding reduction in coal and water

purchases from the Tribe, resulting in economic impairment of a nation

already suffering the burdens of staggering unemployment and poverty.

This economic threat to the Hopi Tribe is contrasted against the

benefits given to the Tribes that were permitted to participate in the

TWG. For example, the TWG Agreement states that the Salt River

Project will advocate to EPA for the Navajo Nation’s “Treatment as a

State” status. TWG Agreement ¶ VII.A (ER313). The TWG Agreement

likewise names a partnership with the Navajo Tribal Utility Authority

to identify and fund infrastructure projects near the NGS. Id. ¶ VI.C.2

(ER313). Similarly, the Supplemental Proposal states that the United

States will identify, prioritize, and further low-emitting energy projects

to benefit affected tribes, particularly the 33 MW solar facility proposed

by the Gila River Indian Community. Id. § V.B.7.b (ER311). By its

exclusion from the TWG, the Hopi Tribe has been unable to advocate for

similar projects for the Hopi Tribe, despite the fact that the Hopi Tribe


50 365523.1

will be disproportionately adversely impacted by the reduction in

capacity at NGS. Thus the economic interests of the Gila River

Community and the Navajo Nation are addressed by the TWG

Agreement but there is no protection offered to the Hopi Tribe to offset

the compromised coal revenues or to mitigate the significant adverse

economic impact to the Hopi Tribe.

Finally, it should be noted that the parties who were permitted to

participate in development of the SRP-Alternative have taken positions

directly adverse to the interests of the Hopi Tribe in the context of the

Hopi Tribe’s efforts to assert water rights claims to the Colorado River

and to the Little Colorado River, both of which directly implicate the

operations of the NGS. Letter from Chairman Honanie to EPA (Jan. 3,

2014) at 5-6 (ER257-258). In the ongoing LCR adjudication, SRP and

the Navajo Nation have advocated positions directly opposed to the

Hopi Tribe’s water rights claims. Id. at 5 (ER257). SRP, the Gila River

Community and the Navajo Nation all are competing claimants to the

Hopi Tribe for water from the LCR and the mainstem Colorado River.

Id. at 5-6 (ER257-258). As such, these parties are at an unfair

advantage over the Hopi Tribe by being direct participants in the TWG.


51 365523.1

The history of the development of the TWG Agreement also

supports this conclusion. The fact that SRP demanded that the Hopi

Tribe be excluded from the development of the TWG Agreement

indicates that SRP knew that there would be aspects of the TWG

Agreement that the Hopi Tribe would not agree to due to adverse

impacts on the Tribe. See id. at 6 (ER257). The fact that DOI

capitulated to SRP’s demand that the Hopi Tribe not be consulted

further indicates that unless the Hopi Tribe is allowed to participate as

a TWG member it has no chance of being treated equally with the other

Tribes directly affected by the Final Rule based on the TWG Agreement.

The Hopi Tribe has objected and continues to object to the

treatment of the Tribe by the United States throughout this process.

Indeed, even after being excluded from development of the TWG

Agreement, the United States continued to sideline the Hopi Tribe. In

fact, as shown below, the United States has not fully considered the

impact of the Final Rule on the Hopi Tribe, see infra 53-57, despite

being required to do so. See generally, EPA Consultation Policy

(ADD050); Exec. Order 13,175, 65 Fed. Reg. at 67,250; Presidential

Memorandum, 74 Fed. Reg. at 57,881; Yankton Sioux, 442 F. Supp. 2d


52 365523.1

at 781; Klamath Tribes, 1996 WL 924509, at *8; Yakama Nation, 2015

WL 1276811, at *9; Oglala Sioux, 603 F.2d at 720–21; Mescalero

Apache Tribe, 804 F. Supp. at 259, 261-62; Lower Brule Sioux, 911 F.

Supp. at 401-2; Winnebago Tribe, 915 F. Supp. at 167-68; Yakama

Nation, 2010 WL 3434091, at *4.

In addition to being directed to consider the impacts of its actions

on Indian Tribes by the President of the United States, the Ninth

Circuit has likewise recognized that EPA has trust obligations to

affected Tribes. See Nance, 645 F.2d at 710, 711 (recognizing “the trust

obligation owed by the United States to the Indians be exercised

according to the strictest fiduciary standards,” and that “any Federal

government action is subject to the United States’ fiduciary

responsibilities towards the Indian tribes.” (emphasis added)). Thus,

EPA is obligated to consider the impacts on the Hopi Tribe in this

rulemaking. The United States’ abject failure to act as trustee for the

Hopi Tribe from inception to implementation renders the Final Rule

arbitrary and capricious and otherwise not in accordance with law.


53 365523.1

C. The Court Must Reverse the Final Rule Because It Is Arbitrary and Capricious for Failure to Consider the Required BART Factors.

EPA has failed to consider the five BART Factors in its Final

Rule. The five “BART Factors” (in addition to consideration of available

technology) include (1) the costs of compliance, (2) the energy and non-

air quality environmental impacts of compliance, (3) any pollution

control equipment in use at the source, (4) the remaining useful life of

the source, and (5) the degree of improvement in visibility which may

reasonably be anticipated to result from the use of such technology. 40

C.F.R. 51.308(e)(1)(ii)(a). The United States has acknowledged that the

second factor includes “whether a given alternative would result in

significant economic disruption or unemployment.” Proposed Rule, 78

Fed. Reg. at 8,281/2 (ER31/2) (citing EPA BART Guidelines).

As shown below, the United States has failed to analyze the

second BART Factor. In the its initial review of the Proposed Rule,

EPA determined it need not consider closure of NGS under its analysis

because the Affordability Analysis and TSD had both indicated that

NGS would not be forced to close if standard pollution control

equipment were required. Then, after the TWG proposed the BART


54 365523.1

alternative that did include curtailment and closure of NGS, EPA

reviewed only total NOx reductions, and ignored the second BART

Factor. By this creative rulemaking process, the United States has

completely avoided analysis of the economic disruption and

unemployment from the Final Rule. When an agency fails to consider a

factor required by Congress, its decision is arbitrary and capricious.

See WildEarth Guardians, 759 F.3d at 1069-70; Ctr. for Biological

Diversity, 698 F.3d at 1109. “Stating that a factor was considered . . . is

not a substitute for considering it.” Beno, 30 F.3d at 1075. Rules that

are not in accordance with any aspect of domestic law are invalid and

must be struck. See 5 U.S.C. § 706(2)(A); Comm. of U.S. Citizens Living

in Nicaragua, 859 F.2d at 942-43; Chrysler Corp., 441 U.S. at 317-19.

In its initial analysis in the Proposed Rule, the United States

recognized the importance of NGS to the Hopi Tribe, as well as other

tribes in the region, and stated that the importance “cannot be

overemphasized.” Proposed Rule, 78 Fed. Reg. at 8,278/1 & 8,292/2

(ER28/1, ER42/2) (emphasis added). In the TSD accompanying the

Proposed Rule, the United States acknowledges that “[b]ecause of the

importance of NGS to the economy of the Navajo Nation and the Hopi


55 365523.1

Tribe, EPA also considered the concern expressed to EPA that requiring

SCR as BART will cause NGS to shut down and result in a loss of jobs

at NGS and the Kayenta Mine.” TSD at 6 (ER110). The United States

articulated the concerns raised by the Hopi Tribe in its public

comments:

The Hopi Tribe commented that the Hopi supply coal and water to NGS, thus an [sic] significant fraction of the annual Hopi tribal budget comes from revenue derived or associated with NGS. Comments from the Hopi Tribe describe that the tribe is geographically isolated from Arizona, there is no on-site industrial development and because the Hopi have rejected gaming as a potential source of revenue because gaming conflicts with the Hopi culture, employment opportunities on Hopi land are limited. The Hopi stated that the Federal Government has a trust and fiduciary responsibility to Indian Tribes, which includes the duty to administer programs in such as [a] way to avoid adverse impacts to Indian Rights and natural resources owned by Tribes.

Id. at 57-58 (ER121-22).

In evaluating the second BART Factor, the United States

concluded that it would not include the Hopi Tribe’s concerns about

NGS closure and thus the potential economic impact on the Hopi Tribe,

because the U.S. studies had indicated that construction and operation

of the proposed control technology would not lead to the closure of the

NGS:


56 365523.1

In the absence of compelling evidence of closure in the near future resulting from one or more regulatory factors, EPA is relying on the results of our analysis that shows that based on the 25-year NPV, SCR or SNCR will not cause the cost of electricity generation to exceed the wholesale market cost of electricity. EPA understands and is sensitive to the important role NGS plays in the economies of the Navajo Nation and Hopi Tribe. As long as NGS continues to burn coal from the Kayenta Mine to produce electricity, royalties, taxes, lease payments, and other sources of revenue associated with NGS should continue for the Navajo Nation and Hopi Tribe. Because our analysis suggests that SCR or SNCR should not force electricity production costs to be uneconomical compared to market costs of power, EPA does not expect adverse impacts to the Navajo Nation and Hopi Tribe from any of the BART options (SCR, SNCR, and LNB/SOFA) under consideration.

Id. at 67 (ER131) (emphasis added). EPA concluded that the second

BART Factor weighed in favor of the Proposed Rule, because the rule

was not expected to have significant non-air impacts.

The Final Rule, of course, does include the closure of at least one

of the units at NGS by 2019 and complete cessation of coal burning by

2044. Neither the Supplemental Proposal nor the Final Rule, however,

include any discussion of the second BART Factor. Instead, the United

States’ analysis, as articulated in the Supplemental Proposal and the

Final Rule, was based entirely on whether the total tons of NOX emitted

from NGS were equivalent under the TWG-Alternative as under the


57 365523.1

initial Proposed Rule. See Supplemental Proposed Rule, 78 Fed. Reg. at

62,514/3 to 62,517/3 (ER52/3 to ER55/3); Final Rule, 79 Fed. Reg. at

46,516/2 (ER65/2). The United States determined that the TWG

Alternative was “Better than BART” based solely on the total tons of

NOX emissions. NOX emissions are only one of five mandatory factors

for consideration. 40 C.F.R. 51.308(e)(1)(ii)(a). The TWG Alternative is

decidedly worse than BART with respect to the second BART Factor,

and perhaps others.

By selecting the “better-than-BART” alternative in the Final Rule,

the United States effectively did an end-run around the BART factors

and the requirement that it consider impacts to the Hopi Tribe under

the second BART factor. The Final Rule, therefore, is arbitrary and

capricious and not in accordance with law and must be set aside to

allow EPA to perform the statutory analysis required under the Clean

Air Act. Cal. Wilderness Coalition, 631 F.3d at 1095 (“where a

regulation is promulgated in violation of the APA and the violation is

not harmless, the remedy is to invalidate the regulation.”).


58 365523.1

CONCLUSION

For the foregoing reasons, the Final Rule for NGS was

promulgated without observance of the procedure required by law, is

contrary to U.S. domestic law governing the relationship with the

United States’ co-sovereign the Hopi Tribe, and is arbitrary and

capricious because the United States failed to consider one of the five

statutorily mandated BART factors.

Respectfully Submitted this 16th day of October, 2015.

_/s/Michael D. Goodstein Michael D. Goodstein Anne E. Lynch HUNSUCKER GOODSTEIN PC 5335 Wisconsin Ave. NW, Ste. 360 Washington, DC 20015 Telephone: (202) 895-5380 Fax: (202) 895-5390 David Waterman THE HOPI TRIBE Office of General Counsel P.O. Box 123 Kykotsmovi, AZ 86039 Telephone: (928) 734-3141 Fax: (928) 734-3149


59 365523.1

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, undersigned counsel certifies that

there are no known related cases pending in this Court, except for the

cases consolidated under the caption Yazzie v. U.S. Environmental

Protection Agency, Case Nos. 14-73100, 14-73101, and 14-73102, which

challenge the same agency action.

Respectfully Submitted this 16th day of October, 2015.



60 365523.1

CERTIFICATE OF COMPLIANCE

WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A)

I hereby certify that this brief complies with the requirements of

Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been

prepared in century 14-pt font, a proportionally spaced font. I further

certify that this brief contains 11,617 words, excluding parts of the brief

exempted under Rule 32(a)(7)(B)(iii), according to the word count

function in Microsoft Word.



61 365523.1

STATUTORY AND REGULATORY ADDENDUM

TABLE OF CONTENTS

STATUTES

5 U.S.C. § 706 .................................................................................ADD001

42 U.S.C. § 7601 .............................................................................ADD002

42 U.S.C. § 7607 .............................................................................ADD004

CODE OF FEDERAL REGULATIONS

40 C.F.R. § 51.308 ..........................................................................ADD011

FEDERAL REGISTER

80 Fed. Reg. 1,942 (Jan. 14, 2015) ….............................................ADD023

EXECUTIVE ORDERS

Executive Order 13,175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) .......ADD030

Presidential Memorandum for the Heads of Executive Departments and Agencies, 74, Fed. Reg. 57,881 (Nov. 5, 2009) .......................ADD034 AGENCY GUIDANCE DOCUMENTS U.S. Department of the Interior Policy on Consultation with Indian Tribes ……………………………………….………………….ADD036

U.S. Environmental Protection Agency Policy on Consultation and Coordination with Indian Tribes (May 4, 2011) ..........................ADD050


§ 706. Scope of review, 5 USCA § 706

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedTitle 5. Government Organization and Employees (Refs & Annos)

Part I. The Agencies GenerallyChapter 7. Judicial Review (Refs & Annos)

5 U.S.C.A. § 706

§ 706. Scope of review

Currentness

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpretconstitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Thereviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed onthe record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and dueaccount shall be taken of the rule of prejudicial error.

CREDIT(S)(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

5 U.S.C.A. § 706, 5 USCA § 706Current through P.L. 114-49 approved 8-7-2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

ADD001


§ 7601. Administration, 42 USCA § 7601


United States Code AnnotatedTitle 42. The Public Health and Welfare

Chapter 85. Air Pollution Prevention and Control (Refs & Annos)Subchapter III. General Provisions

42 U.S.C.A. § 7601

§ 7601. Administration

Currentness

(a) Regulations; delegation of powers and duties; regional officers and employees

(1) The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter.The Administrator may delegate to any officer or employee of the Environmental Protection Agency such of his powers andduties under this chapter, except the making of regulations subject to section 7607(d) of this title, as he may deem necessaryor expedient.

(2) Not later than one year after August 7, 1977, the Administrator shall promulgate regulations establishing general applicableprocedures and policies for regional officers and employees (including the Regional Administrator) to follow in carrying out adelegation under paragraph (1), if any. Such regulations shall be designed--

(A) to assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in implementingand enforcing the chapter;

(B) to assure at least an adequate quality audit of each State's performance and adherence to the requirements of this chapterin implementing and enforcing the chapter, particularly in the review of new sources and in enforcement of the chapter; and

(C) to provide a mechanism for identifying and standardizing inconsistent or varying criteria, procedures, and policies beingemployed by such officers and employees in implementing and enforcing the chapter.

(b) Detail of Environmental Protection Agency personnel to air pollution control agencies

Upon the request of an air pollution control agency, personnel of the Environmental Protection Agency may be detailed to suchagency for the purpose of carrying out the provisions of this chapter.

(c) Payments under grants; installments; advances or reimbursements

Payments under grants made under this chapter may be made in installments, and in advance or by way of reimbursement, asmay be determined by the Administrator.

(d) Tribal authority

ADD002


§ 7601. Administration, 42 USCA § 7601


(1) Subject to the provisions of paragraph (2), the Administrator--

(A) is authorized to treat Indian tribes as States under this chapter, except for purposes of the requirement that makes availablefor application by each State no less than one-half of 1 percent of annual appropriations under section 7405 of this title; and

(B) may provide any such Indian tribe grant and contract assistance to carry out functions provided by this chapter.

(2) The Administrator shall promulgate regulations within 18 months after November 15, 1990, specifying those provisions ofthis chapter for which it is appropriate to treat Indian tribes as States. Such treatment 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 resources within theexterior boundaries of the reservation 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 functionsto be exercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations.

(3) The Administrator may promulgate regulations which establish the elements of tribal implementation plans and proceduresfor approval or disapproval of tribal implementation plans and portions thereof.

(4) In any case in which the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate oradministratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directlyadminister such provisions so as to achieve the appropriate purpose.

(5) Until such time as the Administrator promulgates regulations pursuant to this subsection, the Administrator may continueto provide financial assistance to eligible Indian tribes under section 7405 of this title.

CREDIT(S)(July 14, 1955, c. 360, Title III, § 301, formerly § 8, as added Dec. 17, 1963, Pub.L. 88-206, § 1, 77 Stat. 400, renumbered

Oct. 20, 1965, Pub.L. 89-272, Title I, § 101(4), 79 Stat. 992; amended Nov. 21, 1967, Pub.L. 90-148, § 2, 81 Stat. 504; Dec.31, 1970, Pub.L. 91-604, §§ 3(b)(2), 15(c)(2), 84 Stat. 1677, 1713; Aug. 7, 1977, Pub.L. 95-95, Title III, § 305(e), 91 Stat. 776;Nov. 15, 1990, Pub.L. 101-549, Title I, §§ 107(d), 108(i), 104 Stat. 2464, 2467.)



ADD003


§ 7607. Administrative proceedings and judicial review, 42 USCA § 7607


United States Code AnnotatedTitle 42. The Public Health and Welfare

Chapter 85. Air Pollution Prevention and Control (Refs & Annos)Subchapter III. General Provisions

42 U.S.C.A. § 7607

§ 7607. Administrative proceedings and judicial review

Currentness

(a) Administrative subpenas; confidentiality; witnesses

In connection with any determination under section 7410(f) of this title, or for purposes of obtaining information under section7521(b)(4) or 7545(c)(3) of this title, any investigation, monitoring, reporting requirement, entry, compliance inspection, or

administrative enforcement proceeding under the 1 chapter (including but not limited to section 7413, section 7414, section

7420, section 7429, section 7477, section 7524, section 7525, section 7542, section 7603, or section 7606 of this title),, 2 theAdministrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books,and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the Administrator by suchowner or operator that such papers, books, documents, or information or particular part thereof, if made public, would divulgetrade secrets or secret processes of such owner or operator, the Administrator shall consider such record, report, or informationor particular portion thereof confidential in accordance with the purposes of section 1905 of Title 18, except that such paper,book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United Statesconcerned with carrying out this chapter, to persons carrying out the National Academy of Sciences' study and investigationprovided for in section 7521(c) of this title, or when relevant in any proceeding under this chapter. Witnesses summoned shallbe paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal

to obey a subpena served upon any person under this subparagraph 3 , the district court of the United States for any districtin which such person is found or resides or transacts business, upon application by the United States and after notice to suchperson, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administratorto appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order ofthe court may be punished by such court as a contempt thereof.

(b) Judicial review

(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air qualitystandard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement

under section 7411 of this title,, 2 any standard under section 7521 of this title (other than a standard required to be prescribedunder section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title, any control or prohibition undersection 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator underthis chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of theAdministrator's action in approving or promulgating any implementation plan under section 7410 of this title or section 7411(d)of this title, any order under section 7411(j) of this title, under section 7412 of this title, under section 7419 of this title, or undersection 7420 of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7,1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification programsunder section 7414(a)(3) of this title, or any other final action of the Administrator under this chapter (including any denial or

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disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed onlyin the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for reviewof any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbiaif such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator findsand publishes that such action is based on such a determination. Any petition for review under this subsection shall be filedwithin sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except thatif such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsectionshall be filed within sixty days after such grounds arise. The filing of a petition for reconsideration by the Administrator of anyotherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor extend thetime within which a petition for judicial review of such rule or action under this section may be filed, and shall not postponethe effectiveness of such rule or action.

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject tojudicial review in civil or criminal proceedings for enforcement. Where a final decision by the Administrator defers performanceof any nondiscretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1).

(c) Additional evidence

In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the recordafter notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows tothe satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure toadduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence

in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to 4 the courtmay deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additionalevidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification orsetting aside of his original determination, with the return of such additional evidence.

(d) Rulemaking

(1) This subsection applies to--

(A) the promulgation or revision of any national ambient air quality standard under section 7409 of this title,

(B) the promulgation or revision of an implementation plan by the Administrator under section 7410(c) of this title,

(C) the promulgation or revision of any standard of performance under section 7411 of this title, or emission standard orlimitation under section 7412(d) of this title, any standard under section 7412(f) of this title, or any regulation under section7412(g)(1)(D) and (F) of this title, or any regulation under section 7412(m) or (n) of this title,

(D) the promulgation of any requirement for solid waste combustion under section 7429 of this title,

(E) the promulgation or revision of any regulation pertaining to any fuel or fuel additive under section 7545 of this title,

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(F) the promulgation or revision of any aircraft emission standard under section 7571 of this title,

(G) the promulgation or revision of any regulation under subchapter IV-A of this chapter (relating to control of aciddeposition),

(H) promulgation or revision of regulations pertaining to primary nonferrous smelter orders under section 7419 of this title(but not including the granting or denying of any such order),

(I) promulgation or revision of regulations under subchapter VI of this chapter (relating to stratosphere and ozone protection),

(J) promulgation or revision of regulations under part C of subchapter I of this chapter (relating to prevention of significantdeterioration of air quality and protection of visibility),

(K) promulgation or revision of regulations under section 7521 of this title and test procedures for new motor vehicles orengines under section 7525 of this title, and the revision of a standard under section 7521(a)(3) of this title,

(L) promulgation or revision of regulations for noncompliance penalties under section 7420 of this title,

(M) promulgation or revision of any regulations promulgated under section 7541 of this title (relating to warranties andcompliance by vehicles in actual use),

(N) action of the Administrator under section 7426 of this title (relating to interstate pollution abatement),

(O) the promulgation or revision of any regulation pertaining to consumer and commercial products under section 7511b(e)of this title,

(P) the promulgation or revision of any regulation pertaining to field citations under section 7413(d)(3) of this title,

(Q) the promulgation or revision of any regulation pertaining to urban buses or the clean-fuel vehicle, clean-fuel fleet, andclean fuel programs under part C of subchapter II of this chapter,

(R) the promulgation or revision of any regulation pertaining to nonroad engines or nonroad vehicles under section 7547of this title,

(S) the promulgation or revision of any regulation relating to motor vehicle compliance program fees under section 7552of this title,

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(T) the promulgation or revision of any regulation under subchapter IV-A of this chapter (relating to acid deposition),

(U) the promulgation or revision of any regulation under section 7511b(f) of this title pertaining to marine vessels, and

(V) such other actions as the Administrator may determine.

The provisions of section 553 through 557 and section 706 of Title 5 shall not, except as expressly provided in this subsection,apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or circumstance referredto in subparagraphs (A) or (B) of subsection 553(b) of Title 5.

(2) Not later than the date of proposal of any action to which this subsection applies, the Administrator shall establish arulemaking docket for such action (hereinafter in this subsection referred to as a “rule”). Whenever a rule applies only withina particular State, a second (identical) docket shall be simultaneously established in the appropriate regional office of theEnvironmental Protection Agency.

(3) In the case of any rule to which this subsection applies, notice of proposed rulemaking shall be published in the FederalRegister, as provided under section 553(b) of Title 5, shall be accompanied by a statement of its basis and purpose and shallspecify the period available for public comment (hereinafter referred to as the “comment period”). The notice of proposedrulemaking shall also state the docket number, the location or locations of the docket, and the times it will be open to publicinspection. The statement of basis and purpose shall include a summary of--

(A) the factual data on which the proposed rule is based;

(B) the methodology used in obtaining the data and in analyzing the data; and

(C) the major legal interpretations and policy considerations underlying the proposed rule.

The statement shall also set forth or summarize and provide a reference to any pertinent findings, recommendations, andcomments by the Scientific Review Committee established under section 7409(d) of this title and the National Academy ofSciences, and, if the proposal differs in any important respect from any of these recommendations, an explanation of the reasonsfor such differences. All data, information, and documents referred to in this paragraph on which the proposed rule relies shallbe included in the docket on the date of publication of the proposed rule.

(4)(A) The rulemaking docket required under paragraph (2) shall be open for inspection by the public at reasonable timesspecified in the notice of proposed rulemaking. Any person may copy documents contained in the docket. The Administratorshall provide copying facilities which may be used at the expense of the person seeking copies, but the Administrator maywaive or reduce such expenses in such instances as the public interest requires. Any person may request copies by mail if theperson pays the expenses, including personnel costs to do the copying.

(B)(i) Promptly upon receipt by the agency, all written comments and documentary information on the proposed rule receivedfrom any person for inclusion in the docket during the comment period shall be placed in the docket. The transcript of publichearings, if any, on the proposed rule shall also be included in the docket promptly upon receipt from the person who transcribed

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such hearings. All documents which become available after the proposed rule has been published and which the Administratordetermines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.

(ii) The drafts of proposed rules submitted by the Administrator to the Office of Management and Budget for any interagencyreview process prior to proposal of any such rule, all documents accompanying such drafts, and all written comments thereonby other agencies and all written responses to such written comments by the Administrator shall be placed in the docket nolater than the date of proposal of the rule. The drafts of the final rule submitted for such review process prior to promulgationand all such written comments thereon, all documents accompanying such drafts, and written responses thereto shall be placedin the docket no later than the date of promulgation.

(5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow any person to submit writtencomments, data, or documentary information; (ii) the Administrator shall give interested persons an opportunity for the oralpresentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall bekept of any oral presentation; and (iv) the Administrator shall keep the record of such proceeding open for thirty days aftercompletion of the proceeding to provide an opportunity for submission of rebuttal and supplementary information.

(6)(A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose like that referred to in paragraph(3) with respect to a proposed rule and (ii) an explanation of the reasons for any major changes in the promulgated rule fromthe proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of the significant comments, criticisms, and newdata submitted in written or oral presentations during the comment period.

(C) The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in thedocket as of the date of such promulgation.

(7)(A) The record for judicial review shall consist exclusively of the material referred to in paragraph (3), clause (i) of paragraph(4)(B), and subparagraphs (A) and (B) of paragraph (6).

(B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment(including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to theAdministrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose afterthe period for public comment (but within the time specified for judicial review) and if such objection is of central relevanceto the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the sameprocedural rights as would have been afforded had the information been available at the time the rule was proposed. If theAdministrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court ofappeals for the appropriate circuit (as provided in subsection (b) of this section). Such reconsideration shall not postpone theeffectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administratoror the court for a period not to exceed three months.

(8) The sole forum for challenging procedural determinations made by the Administrator under this subsection shall be inthe United States court of appeals for the appropriate circuit (as provided in subsection (b) of this section) at the time of thesubstantive review of the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In

ADD008




reviewing alleged procedural errors, the court may invalidate the rule only if the errors were so serious and related to mattersof such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changedif such errors had not been made.

(9) In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any suchaction found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or

(D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious,(ii) the requirement of paragraph (7)(B) has been met, and (iii) the condition of the last sentence of paragraph (8) is met.

(10) Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less thansix months after date of proposal may be extended to not more than six months after date of proposal by the Administratorupon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry outthe purposes of this subsection.

(11) The requirements of this subsection shall take effect with respect to any rule the proposal of which occurs after ninetydays after August 7, 1977.

(e) Other methods of judicial review not authorized

Nothing in this chapter shall be construed to authorize judicial review of regulations or orders of the Administrator under thischapter, except as provided in this section.

(f) Costs

In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expertwitness fees) whenever it determines that such award is appropriate.

(g) Stay, injunction, or similar relief in proceedings relating to noncompliance penalties

In any action respecting the promulgation of regulations under section 7420 of this title or the administration or enforcementof section 7420 of this title no court shall grant any stay, injunctive, or similar relief before final judgment by such court insuch action.

(h) Public participation

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It is the intent of Congress that, consistent with the policy of subchapter II of chapter 5 of Title 5, the Administrator inpromulgating any regulation under this chapter, including a regulation subject to a deadline, shall ensure a reasonable period

for public participation of at least 30 days, except as otherwise expressly provided in section 5 7407(d), 7502(a), 7511(a) and(b), and 7512(a) and (b) of this title.

CREDIT(S)(July 14, 1955, c. 360, Title III, § 307, as added Dec. 31, 1970, Pub.L. 91-604, § 12(a), 84 Stat. 1707; amended Nov. 18,

1971, Pub.L. 92-157, Title III, § 302(a), 85 Stat. 464; June 22, 1974, Pub.L. 93-319, § 6(c), 88 Stat. 259; Aug. 7, 1977, Pub.L.95-95, Title III, §§ 303(d), 305(a), (c), (f)-(h), 91 Stat. 772, 776, 777; Nov. 16, 1977, Pub.L. 95-190, § 14(a)(79), (80), 91 Stat.1404; Nov. 15, 1990, Pub.L. 101-549, Title I, §§ 108(p), 110(5), Title III, § 302(g), (h), Title VII, §§ 702(c), 703, 706, 707(h),710(b), 104 Stat. 2469, 2470, 2574, 2681-2684.)

Footnotes1 So in original. Probably should be “this”.

2 So in original.

3 So in original. Probably should be “subsection,”.

4 So in original. The word “to” probably should not appear.

5 So in original. Probably should be “sections”.



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§ 51.308 Regional haze program requirements., 40 C.F.R. § 51.308


Code of Federal RegulationsTitle 40. Protection of Environment

Chapter I. Environmental Protection Agency (Refs & Annos)Subchapter C. Air Programs

Part 51. Requirements for Preparation, Adoption, and Submittal of Implementation Plans (Refs &Annos)

Subpart P. Protection of Visibility (Refs & Annos)

40 C.F.R. § 51.308

§ 51.308 Regional haze program requirements.

Effective: August 6, 2012Currentness

(a) What is the purpose of this section? This section establishes requirements for implementation plans, plan revisions, andperiodic progress reviews to address regional haze.

(b) When are the first implementation plans due under the regional haze program? Except as provided in § 51.309(c), each Stateidentified in § 51.300(b)(3) must submit, for the entire State, an implementation plan for regional haze meeting the requirementsof paragraphs (d) and (e) of this section no later than December 17, 2007.

(c) [Reserved]

(d) What are the core requirements for the implementation plan for regional haze? The State must address regional haze ineach mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside theState which may be affected by emissions from within the State. To meet the core requirements for regional haze for theseareas, the State must submit an implementation plan containing the following plan elements and supporting documentation forall required analyses:

(1) Reasonable progress goals. For each mandatory Class I Federal area located within the State, the State must establishgoals (expressed in deciviews) that provide for reasonable progress towards achieving natural visibility conditions. Thereasonable progress goals must provide for an improvement in visibility for the most impaired days over the period of theimplementation plan and ensure no degradation in visibility for the least impaired days over the same period.

(i) In establishing a reasonable progress goal for any mandatory Class I Federal area within the State, the State must:

(A) Consider the costs of compliance, the time necessary for compliance, the energy and non-air quality environmentalimpacts of compliance, and the remaining useful life of any potentially affected sources, and include a demonstrationshowing how these factors were taken into consideration in selecting the goal.

(B) Analyze and determine the rate of progress needed to attain natural visibility conditions by the year 2064. Tocalculate this rate of progress, the State must compare baseline visibility conditions to natural visibility conditions in

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the mandatory Federal Class I area and determine the uniform rate of visibility improvement (measured in deciviews)that would need to be maintained during each implementation period in order to attain natural visibility conditionsby 2064. In establishing the reasonable progress goal, the State must consider the uniform rate of improvement invisibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.

(ii) For the period of the implementation plan, if the State establishes a reasonable progress goal that provides for a slowerrate of improvement in visibility than the rate that would be needed to attain natural conditions by 2064, the State mustdemonstrate, based on the factors in paragraph (d)(1)(i)(A) of this section, that the rate of progress for the implementationplan to attain natural conditions by 2064 is not reasonable; and that the progress goal adopted by the State is reasonable.The State must provide to the public for review as part of its implementation plan an assessment of the number of yearsit would take to attain natural conditions if visibility improvement continues at the rate of progress selected by the Stateas reasonable.

(iii) In determining whether the State's goal for visibility improvement provides for reasonable progress towards naturalvisibility conditions, the Administrator will evaluate the demonstrations developed by the State pursuant to paragraphs(d)(1)(i) and (d)(1)(ii) of this section.

(iv) In developing each reasonable progress goal, the State must consult with those States which may reasonably beanticipated to cause or contribute to visibility impairment in the mandatory Class I Federal area. In any situation in whichthe State cannot agree with another such State or group of States that a goal provides for reasonable progress, the Statemust describe in its submittal the actions taken to resolve the disagreement. In reviewing the State's implementation plansubmittal, the Administrator will take this information into account in determining whether the State's goal for visibilityimprovement provides for reasonable progress towards natural visibility conditions.

(v) The reasonable progress goals established by the State are not directly enforceable but will be considered by theAdministrator in evaluating the adequacy of the measures in the implementation plan to achieve the progress goal adoptedby the State.

(vi) The State may not adopt a reasonable progress goal that represents less visibility improvement than is expected toresult from implementation of other requirements of the CAA during the applicable planning period.

(2) Calculations of baseline and natural visibility conditions. For each mandatory Class I Federal area located within theState, the State must determine the following visibility conditions (expressed in deciviews):

(i) Baseline visibility conditions for the most impaired and least impaired days. The period for establishing baselinevisibility conditions is 2000 to 2004. Baseline visibility conditions must be calculated, using available monitoring data, byestablishing the average degree of visibility impairment for the most and least impaired days for each calendar year from2000 to 2004. The baseline visibility conditions are the average of these annual values. For mandatory Class I Federalareas without onsite monitoring data for 2000–2004, the State must establish baseline values using the most representativeavailable monitoring data for 2000–2004, in consultation with the Administrator or his or her designee;

(ii) For an implementation plan that is submitted by 2003, the period for establishing baseline visibility conditions for theperiod of the first long-term strategy is the most recent 5–year period for which visibility monitoring data are available for

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the mandatory Class I Federal areas addressed by the plan. For mandatory Class I Federal areas without onsite monitoringdata, the State must establish baseline values using the most representative available monitoring data, in consultation withthe Administrator or his or her designee;

(iii) Natural visibility conditions for the most impaired and least impaired days. Natural visibility conditions must becalculated by estimating the degree of visibility impairment existing under natural conditions for the most impaired andleast impaired days, based on available monitoring information and appropriate data analysis techniques; and

(iv)(A) For the first implementation plan addressing the requirements of paragraphs (d) and (e) of this section, the numberof deciviews by which baseline conditions exceed natural visibility conditions for the most impaired and least impaireddays; or

(B) For all future implementation plan revisions, the number of deciviews by which current conditions, as calculatedunder paragraph (f)(1) of this section, exceed natural visibility conditions for the most impaired and least impaireddays.

(3) Long-term strategy for regional haze. Each State listed in § 51.300(b)(3) must submit a long-term strategy that addressesregional haze visibility impairment for each mandatory Class I Federal area within the State and for each mandatoryClass I Federal area located outside the State which may be affected by emissions from the State. The long-term strategymust include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve thereasonable progress goals established by States having mandatory Class I Federal areas. In establishing its long-termstrategy for regional haze, the State must meet the following requirements:

(i) Where the State has emissions that are reasonably anticipated to contribute to visibility impairment in any mandatoryClass I Federal area located in another State or States, the State must consult with the other State(s) in order to developcoordinated emission management strategies. The State must consult with any other State having emissions that arereasonably anticipated to contribute to visibility impairment in any mandatory Class I Federal area within the State.

(ii) Where other States cause or contribute to impairment in a mandatory Class I Federal area, the State must demonstratethat it has included in its implementation plan all measures necessary to obtain its share of the emission reductions neededto meet the progress goal for the area. If the State has participated in a regional planning process, the State must ensureit has included all measures needed to achieve its apportionment of emission reduction obligations agreed upon throughthat process.

(iii) The State must document the technical basis, including modeling, monitoring and emissions information, on whichthe State is relying to determine its apportionment of emission reduction obligations necessary for achieving reasonableprogress in each mandatory Class I Federal area it affects. The State may meet this requirement by relying on technicalanalyses developed by the regional planning organization and approved by all State participants. The State must identifythe baseline emissions inventory on which its strategies are based. The baseline emissions inventory year is presumed tobe the most recent year of the consolidate periodic emissions inventory.

(iv) The State must identify all anthropogenic sources of visibility impairment considered by the State in developing itslong-term strategy. The State should consider major and minor stationary sources, mobile sources, and area sources.

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(v) The State must consider, at a minimum, the following factors in developing its long-term strategy:

(A) Emission reductions due to ongoing air pollution control programs, including measures to address reasonablyattributable visibility impairment;

(B) Measures to mitigate the impacts of construction activities;

(C) Emissions limitations and schedules for compliance to achieve the reasonable progress goal;

(D) Source retirement and replacement schedules;

(E) Smoke management techniques for agricultural and forestry management purposes including plans as currentlyexist within the State for these purposes;

(F) Enforceability of emissions limitations and control measures; and

(G) The anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions overthe period addressed by the long-term strategy.

(4) Monitoring strategy and other implementation plan requirements. The State must submit with the implementationplan a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that isrepresentative of all mandatory Class I Federal areas within the State. This monitoring strategy must be coordinatedwith the monitoring strategy required in § 51.305 for reasonably attributable visibility impairment. Compliance with thisrequirement may be met through participation in the Interagency Monitoring of Protected Visual Environments network.The implementation plan must also provide for the following:

(i) The establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goalsto address regional haze for all mandatory Class I Federal areas within the State are being achieved.

(ii) Procedures by which monitoring data and other information are used in determining the contribution of emissions fromwithin the State to regional haze visibility impairment at mandatory Class I Federal areas both within and outside the State.

(iii) For a State with no mandatory Class I Federal areas, procedures by which monitoring data and other information areused in determining the contribution of emissions from within the State to regional haze visibility impairment at mandatoryClass I Federal areas in other States.

(iv) The implementation plan must provide for the reporting of all visibility monitoring data to the Administrator at leastannually for each mandatory Class I Federal area in the State. To the extent possible, the State should report visibilitymonitoring data electronically.

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(v) A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibilityimpairment in any mandatory Class I Federal area. The inventory must include emissions for a baseline year, emissionsfor the most recent year for which data are available, and estimates of future projected emissions. The State must alsoinclude a commitment to update the inventory periodically.

(vi) Other elements, including reporting, recordkeeping, and other measures, necessary to assess and report on visibility.

(e) Best Available Retrofit Technology (BART) requirements for regional haze visibility impairment. The State must submitan implementation plan containing emission limitations representing BART and schedules for compliance with BART for eachBART–eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatoryClass I Federal area, unless the State demonstrates that an emissions trading program or other alternative will achieve greaterreasonable progress toward natural visibility conditions.

(1) To address the requirements for BART, the State must submit an implementation plan containing the following planelements and include documentation for all required analyses:

(i) A list of all BART–eligible sources within the State.

(ii) A determination of BART for each BART–eligible source in the State that emits any air pollutant which may reasonablybe anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area. All such sourcesare subject to BART.

(A) The determination of BART must be based on an analysis of the best system of continuous emission controltechnology available and associated emission reductions achievable for each BART–eligible source that is subjectto BART within the State. In this analysis, the State must take into consideration the technology available, the costsof compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipmentin use at the source, the remaining useful life of the source, and the degree of improvement in visibility which mayreasonably be anticipated to result from the use of such technology.

(B) The determination of BART for fossil-fuel fired power plants having a total generating capacity greater than 750megawatts must be made pursuant to the guidelines in appendix Y of this part (Guidelines for BART DeterminationsUnder the Regional Haze Rule).

(C) Exception. A State is not required to make a determination of BART for SO2 or for NOX if a BART–eligible

source has the potential to emit less than 40 tons per year of such pollutant(s), or for PM10 if a BART–eligible source

has the potential to emit less than 15 tons per year of such pollutant.

(iii) If the State determines in establishing BART that technological or economic limitations on the applicability ofmeasurement methodology to a particular source would make the imposition of an emission standard infeasible, it mayinstead prescribe a design, equipment, work practice, or other operational standard, or combination thereof, to requirethe application of BART. Such standard, to the degree possible, is to set forth the emission reduction to be achieved by

ADD015




implementation of such design, equipment, work practice or operation, and must provide for compliance by means whichachieve equivalent results.

(iv) A requirement that each source subject to BART be required to install and operate BART as expeditiously aspracticable, but in no event later than 5 years after approval of the implementation plan revision.

(v) A requirement that each source subject to BART maintain the control equipment required by this subpart and establishprocedures to ensure such equipment is properly operated and maintained.

(2) A State may opt to implement or require participation in an emissions trading program or other alternative measurerather than to require sources subject to BART to install, operate, and maintain BART. Such an emissions trading programor other alternative measure must achieve greater reasonable progress than would be achieved through the installationand operation of BART. For all such emission trading programs or other alternative measures, the State must submit animplementation plan containing the following plan elements and include documentation for all required analyses:

(i) A demonstration that the emissions trading program or other alternative measure will achieve greater reasonableprogress than would have resulted from the installation and operation of BART at all sources subject to BART in the Stateand covered by the alternative program. This demonstration must be based on the following:

(A) A list of all BART–eligible sources within the State.

(B) A list of all BART–eligible sources and all BART source categories covered by the alternative program. TheState is not required to include every BART source category or every BART–eligible source within a BART sourcecategory in an alternative program, but each BART–eligible source in the State must be subject to the requirementsof the alternative program, have a federally enforceable emission limitation determined by the State and approved byEPA as meeting BART in accordance with section 302(c) or paragraph (e)(1) of this section, or otherwise addressedunder paragraphs (e)(1) or (e)(4)of this section.

(C) An analysis of the best system of continuous emission control technology available and associated emissionreductions achievable for each source within the State subject to BART and covered by the alternative program. Thisanalysis must be conducted by making a determination of BART for each source subject to BART and covered bythe alternative program as provided for in paragraph (e)(1) of this section, unless the emissions trading program orother alternative measure has been designed to meet a requirement other than BART (such as the core requirementto have a long-term strategy to achieve the reasonable progress goals established by States). In this case, the Statemay determine the best system of continuous emission control technology and associated emission reductions forsimilar types of sources within a source category based on both source-specific and category-wide information, asappropriate.

(D) An analysis of the projected emissions reductions achievable through the trading program or other alternativemeasure.

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(E) A determination under paragraph (e)(3) of this section or otherwise based on the clear weight of evidence that thetrading program or other alternative measure achieves greater reasonable progress than would be achieved throughthe installation and operation of BART at the covered sources.

(ii) [Reserved]

(iii) A requirement that all necessary emission reductions take place during the period of the first long-term strategy forregional haze. To meet this requirement, the State must provide a detailed description of the emissions trading programor other alternative measure, including schedules for implementation, the emission reductions required by the program,all necessary administrative and technical procedures for implementing the program, rules for accounting and monitoringemissions, and procedures for enforcement.

(iv) A demonstration that the emission reductions resulting from the emissions trading program or other alternative measurewill be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baselinedate of the SIP.

(v) At the State's option, a provision that the emissions trading program or other alternative measure may include ageographic enhancement to the program to address the requirement under § 51.302(c) related to BART for reasonablyattributable impairment from the pollutants covered under the emissions trading program or other alternative measure.

(vi) For plans that include an emissions trading program that establishes a cap on total annual emissions of SO2 or NOX

from sources subject to the program, requires the owners and operators of sources to hold allowances or authorizations toemit equal to emissions, and allows the owners and operators of sources and other entities to purchase, sell, and transferallowances, the following elements are required concerning the emissions covered by the cap:

(A) Applicability provisions defining the sources subject to the program. The State must demonstrate that theapplicability provisions (including the size criteria for including sources in the program) are designed to prevent anysignificant potential shifting within the State of production and emissions from sources in the program to sourcesoutside the program. In the case of a program covering sources in multiple States, the States must demonstrate that theapplicability provisions in each State cover essentially the same size facilities and, if source categories are specified,cover the same source categories and prevent any significant, potential shifting within such States of production andemissions to sources outside the program.

(B) Allowance provisions ensuring that the total value of allowances (in tons) issued each year under the programwill not exceed the emissions cap (in tons) on total annual emissions from the sources in the program.

(C) Monitoring provisions providing for consistent and accurate measurements of emissions from sources in theprogram to ensure that each allowance actually represents the same specified tonnage of emissions and that emissionsare measured with similar accuracy at all sources in the program. The monitoring provisions must require thatboilers, combustion turbines, and cement kilns in the program allowed to sell or transfer allowances must complywith the requirements of part 75 of this chapter. The monitoring provisions must require that other sources in theprogram allowed to sell or transfer allowances must provide emissions information with the same precision, reliability,accessibility, and timeliness as information provided under part 75 of this chapter.

ADD017




(D) Recordkeeping provisions that ensure the enforceability of the emissions monitoring provisions and other programrequirements. The recordkeeping provisions must require that boilers, combustion turbines, and cement kilns in theprogram allowed to sell or transfer allowances must comply with the recordkeeping provisions of part 75 of thischapter. The recordkeeping provisions must require that other sources in the program allowed to sell or transferallowances must comply with recordkeeping requirements that, as compared with the recordkeeping provisions underpart 75 of this chapter, are of comparable stringency and require recording of comparable types of information andretention of the records for comparable periods of time.

(E) Reporting provisions requiring timely reporting of monitoring data with sufficient frequency to ensure theenforceability of the emissions monitoring provisions and other program requirements and the ability to audit theprogram. The reporting provisions must require that boilers, combustion turbines, and cement kilns in the programallowed to sell or transfer allowances must comply with the reporting provisions of part 75 of this chapter, except that,if the Administrator is not the tracking system administrator for the program, emissions may be reported to the trackingsystem administrator, rather than to the Administrator. The reporting provisions must require that other sources in theprogram allowed to sell or transfer allowances must comply with reporting requirements that, as compared with thereporting provisions under part 75 of this chapter, are of comparable stringency and require reporting of comparabletypes of information and require comparable timeliness and frequency of reporting.

(F) Tracking system provisions which provide for a tracking system that is publicly available in a secure, centralizeddatabase to track in a consistent manner all allowances and emissions in the program.

(G) Authorized account representative provisions ensuring that the owners and operators of a source designate oneindividual who is authorized to represent the owners and operators in all matters pertaining to the trading program.

(H) Allowance transfer provisions providing procedures that allow timely transfer and recording of allowances,minimize administrative barriers to the operation of the allowance market, and ensure that such procedures applyuniformly to all sources and other potential participants in the allowance market.

(I) Compliance provisions prohibiting a source from emitting a total tonnage of a pollutant that exceeds the tonnagevalue of its allowance holdings, including the methods and procedures for determining whether emissions exceedallowance holdings. Such method and procedures shall apply consistently from source to source.

(J) Penalty provisions providing for mandatory allowance deductions for excess emissions that apply consistentlyfrom source to source. The tonnage value of the allowances deducted shall equal at least three times the tonnage ofthe excess emissions.

(K) For a trading program that allows banking of allowances, provisions clarifying any restrictions on the use of thesebanked allowances.

(L) Program assessment provisions providing for periodic program evaluation to assess whether the program isaccomplishing its goals and whether modifications to the program are needed to enhance performance of the program.

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(3) A State which opts under 40 CFR 51.308(e)(2) to implement an emissions trading program or other alternative measurerather than to require sources subject to BART to install, operate, and maintain BART may satisfy the final step of thedemonstration required by that section as follows: If the distribution of emissions is not substantially different than underBART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemedto achieve greater reasonable progress. If the distribution of emissions is significantly different, the State must conductdispersion modeling to determine differences in visibility between BART and the trading program for each impacted ClassI area, for the worst and best 20 percent of days. The modeling would demonstrate “greater reasonable progress” if bothof the following two criteria are met:

(i) Visibility does not decline in any Class I area, and

(ii) There is an overall improvement in visibility, determined by comparing the average differences between BART andthe alternative over all affected Class I areas.

(4) A State subject to a trading program established in accordance with § 52.38 or § 52.39 under a Transport Rule FederalImplementation Plan need not require BART–eligible fossil fuel-fired steam electric plants in the State to install, operate,and maintain BART for the pollutant covered by such trading program in the State. A State that chooses to meet theemission reduction requirements of the Transport Rule by submitting a SIP revision that establishes a trading programand is approved as meeting the requirements of § 52.38 or § 52.39 also need not require BART–eligible fossil fuel-firedsteam electric plants in the State to install, operate, and maintain BART for the pollutant covered by such trading programin the State. A State may adopt provisions, consistent with the requirements applicable to the State for a trading programestablished in accordance with § 52.38 or § 52.39 under the Transport Rule Federal Implementation Plan or establishedunder a SIP revision that is approved as meeting the requirements of § 52.38 or § 52.39, for a geographic enhancement tothe program to address the requirement under § 51.302(c) related to BART for reasonably attributable impairment fromthe pollutant covered by such trading program in that State.

(5) After a State has met the requirements for BART or implemented emissions trading program or other alternativemeasure that achieves more reasonable progress than the installation and operation of BART, BART–eligible sources willbe subject to the requirements of paragraph (d) of this section in the same manner as other sources.

(6) Any BART–eligible facility subject to the requirement under paragraph (e) of this section to install, operate, andmaintain BART may apply to the Administrator for an exemption from that requirement. An application for an exemptionwill be subject to the requirements of § 51.303(a)(2)-(h).

(f) Requirements for comprehensive periodic revisions of implementation plans for regional haze. Each State identified in §51.300(b)(3) must revise and submit its regional haze implementation plan revision to EPA by July 31, 2018 and every tenyears thereafter. In each plan revision, the State must evaluate and reassess all of the elements required in paragraph (d) ofthis section, taking into account improvements in monitoring data collection and analysis techniques, control technologies, andother relevant factors. In evaluating and reassessing these elements, the State must address the following:

(1) Current visibility conditions for the most impaired and least impaired days, and actual progress made towards naturalconditions during the previous implementation period. The period for calculating current visibility conditions is the mostrecent five year period preceding the required date of the implementation plan submittal for which data are available.

ADD019




Current visibility conditions must be calculated based on the annual average level of visibility impairment for the mostand least impaired days for each of these five years. Current visibility conditions are the average of these annual values.

(2) The effectiveness of the long-term strategy for achieving reasonable progress goals over the prior implementationperiod(s); and

(3) Affirmation of, or revision to, the reasonable progress goal in accordance with the procedures set forth in paragraph(d)(1) of this section. If the State established a reasonable progress goal for the prior period which provided a slowerrate of progress than that needed to attain natural conditions by the year 2064, the State must evaluate and determinethe reasonableness, based on the factors in paragraph (d)(1)(i)(A) of this section, of additional measures that could beadopted to achieve the degree of visibility improvement projected by the analysis contained in the first implementationplan described in paragraph (d)(1)(i)(B) of this section.

(g) Requirements for periodic reports describing progress towards the reasonable progress goals. Each State identified in §51.300(b)(3) must submit a report to the Administrator every 5 years evaluating progress towards the reasonable progress goalfor each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outsidethe State which may be affected by emissions from within the State. The first progress report is due 5 years from submittalof the initial implementation plan addressing paragraphs (d) and (e) of this section. The progress reports must be in the formof implementation plan revisions that comply with the procedural requirements of § 51.102 and § 51.103. Periodic progressreports must contain at a minimum the following elements:

(1) A description of the status of implementation of all measures included in the implementation plan for achievingreasonable progress goals for mandatory Class I Federal areas both within and outside the State.

(2) A summary of the emissions reductions achieved throughout the State through implementation of the measuresdescribed in paragraph (g)(1) of this section.

(3) For each mandatory Class I Federal area within the State, the State must assess the following visibility conditions andchanges, with values for most impaired and least impaired days expressed in terms of 5–year averages of these annualvalues.

(i) The current visibility conditions for the most impaired and least impaired days;

(ii) The difference between current visibility conditions for the most impaired and least impaired days and baseline visibilityconditions;

(iii) The change in visibility impairment for the most impaired and least impaired days over the past 5 years;

(4) An analysis tracking the change over the past 5 years in emissions of pollutants contributing to visibility impairmentfrom all sources and activities within the State. Emissions changes should be identified by type of source or activity. Theanalysis must be based on the most recent updated emissions inventory, with estimates projected forward as necessary andappropriate, to account for emissions changes during the applicable 5–year period.

ADD020




(5) An assessment of any significant changes in anthropogenic emissions within or outside the State that have occurredover the past 5 years that have limited or impeded progress in reducing pollutant emissions and improving visibility.

(6) An assessment of whether the current implementation plan elements and strategies are sufficient to enable the State, orother States with mandatory Federal Class I areas affected by emissions from the State, to meet all established reasonableprogress goals.

(7) A review of the State's visibility monitoring strategy and any modifications to the strategy as necessary.

(h) Determination of the adequacy of existing implementation plan. At the same time the State is required to submit any 5–yearprogress report to EPA in accordance with paragraph (g) of this section, the State must also take one of the following actionsbased upon the information presented in the progress report:

(1) If the State determines that the existing implementation plan requires no further substantive revision at this time inorder to achieve established goals for visibility improvement and emissions reductions, the State must provide to theAdministrator a negative declaration that further revision of the existing implementation plan is not needed at this time.

(2) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due toemissions from sources in another State(s) which participated in a regional planning process, the State must providenotification to the Administrator and to the other State(s) which participated in the regional planning process with theStates. The State must also collaborate with the other State(s) through the regional planning process for the purpose ofdeveloping additional strategies to address the plan's deficiencies.

(3) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress dueto emissions from sources in another country, the State shall provide notification, along with available information, tothe Administrator.

(4) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress dueto emissions from sources within the State, the State shall revise its implementation plan to address the plan's deficiencieswithin one year.

(i) What are the requirements for State and Federal Land Manager coordination?

(1) By November 29, 1999, the State must identify in writing to the Federal Land Managers the title of the official to whichthe Federal Land Manager of any mandatory Class I Federal area can submit any recommendations on the implementationof this subpart including, but not limited to:

(i) Identification of impairment of visibility in any mandatory Class I Federal area(s); and

(ii) Identification of elements for inclusion in the visibility monitoring strategy required by § 51.305 and this section.

ADD021




(2) The State must provide the Federal Land Manager with an opportunity for consultation, in person and at least 60 daysprior to holding any public hearing on an implementation plan (or plan revision) for regional haze required by this subpart.This consultation must include the opportunity for the affected Federal Land Managers to discuss their:

(i) Assessment of impairment of visibility in any mandatory Class I Federal area; and

(ii) Recommendations on the development of the reasonable progress goal and on the development and implementationof strategies to address visibility impairment.

(3) In developing any implementation plan (or plan revision), the State must include a description of how it addressed anycomments provided by the Federal Land Managers.

(4) The plan (or plan revision) must provide procedures for continuing consultation between the State and Federal LandManager on the implementation of the visibility protection program required by this subpart, including development andreview of implementation plan revisions and 5–year progress reports, and on the implementation of other programs havingthe potential to contribute to impairment of visibility in mandatory Class I Federal areas.

Credits[64 FR 35765, July 1, 1999; 70 FR 39156, July 6, 2005; 71 FR 60631, Oct. 13, 2006; 77 FR 33656, June 7, 2012]

SOURCE: 36 FR 22398, Nov. 25, 1971; 45 FR 80089, Dec. 2, 1980; 52 FR 24712, July 1, 1987; 55 FR 14249, April 17, 1990;56 FR 42219, Aug. 26, 1991; 57 FR 32334, July 21, 1992; 57 FR 52987, Nov. 5, 1992; 58 FR 38821, July 20, 1993; 60 FR40100, Aug. 7, 1995; 62 FR 8328, Feb. 24, 1997; 62 FR 43801, Aug. 15, 1997; 62 FR 44903, Aug. 25, 1997; 63 FR 24433,May 4, 1998; 64 FR 35763, July 1, 1999; 65 FR 45532, July 24, 2000; 72 FR 28613, May 22, 2007, unless otherwise noted.

AUTHORITY: 23 U.S.C. 101; 42 U.S.C. 7401–7671q.; Secs. 110, 114, 121, 160–169, 169A, and 301 of the Clean Air Act,(42 U.S.C. 7410, 7414, 7421, 7470–7479, and 7601).

Notes of Decisions (25)

Current through Oct. 8, 2015; 80 FR 60808.


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1942 Federal Register / Vol. 80, No. 9 / Wednesday, January 14, 2015 / Notices

or question with the above individual. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: A person or party who wishes to protest against this survey must file a written notice with the Oregon State Director, Bureau of Land Management, stating that they wish to protest. A statement of reasons for a protest may be filed with the notice of protest and must be filed with the Oregon State Director within thirty days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Mary J.M. Hartel, Chief Cadastral Surveyor of Oregon/Washington. [FR Doc. 2015–00413 Filed 1–13–15; 8:45 am]

BILLING CODE 4310–33–P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[LLNV952000 L14400000.BJ0000 LXSSF2210000.241A; 13–08807; MO# 4500075689; TAS: 15X1109]

Filing of Plats of Survey; NV

AGENCY: Bureau of Land Management, Interior. ACTION: Notice.

SUMMARY: The purpose of this notice is to inform the public and interested State and local government officials of the filing of Plats of Survey in Nevada. DATES: Effective Dates: Unless otherwise stated filing is effective at 10:00 a.m. on the dates indicated below. FOR FURTHER INFORMATION CONTACT: Michael O. Harmening, Chief, Branch of Geographic Sciences, Bureau of Land Management, Nevada State Office, 1340 Financial Blvd., Reno, NV 89502–7147, phone: 775–861–6490. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above

individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION:

1. The Plat of Survey of the following described lands was officially filed at the Bureau of Land Management (BLM) Nevada State Office, Reno, Nevada on October 14, 2014:

The plat, in 1 sheet, representing the dependent resurvey of the east boundary, a portion of the west boundary, the north boundary and a portion of the subdivisional lines, Township 26 North, Range 49 East, Mount Diablo Meridian, Nevada, under Group No. 919, was accepted October 10, 2014. This survey was executed to meet certain administrative needs of the Bureau of Land Management.

2. The Plat of Survey of the following described lands was officially filed at the BLM Nevada State Office, Reno, Nevada on December 19, 2014:

The plat, in 2 sheets, representing the dependent resurvey of a portion of the east boundary and a portion of the subdivisional lines, and a metes-and- bounds survey in section 13, Township 15 North, Range 64 East, of the Mount Diablo Meridian, Nevada, under Group No. 927, was accepted December 17, 2014. This survey was executed to meet certain administrative needs of the Bureau of Land Management.

3. The Plat of Survey of the following described lands was officially filed at the BLM Nevada State Office, Reno, Nevada on December 19, 2014:

The plat, in 4 sheets, representing the dependent resurvey of the Third Standard Parallel North through a portion of Range 65 East, a portion of the west boundary and a portion of the subdivisional lines, and the corrective dependent resurvey of a portion of the subdivisional lines, the subdivision of section 7, and metes-and-bounds surveys in sections 3, 7 and 18, Township 15 North, Range 65 East, of the Mount Diablo Meridian, Nevada, under Group No. 927, was accepted December 17, 2014. This survey was executed to meet certain administrative needs of the Bureau of Land Management.

4. The Plat of Survey of the following described lands was officially filed at the BLM Nevada State Office, Reno, Nevada on November 7, 2014:

The plat, in 6 sheets, representing the dependent resurvey of a portion of the south and west boundaries, a portion of the subdivisional lines and a portion of the subdivision of section 18, and a

metes-and-bounds survey of a line 30 feet easterly and parallel with the apparent centerline of a portion of Cave Valley road, through sections 18, 19, 30 and 31, and a metes-and-bounds survey of a line 30 feet southerly and parallel with the apparent centerline of an unimproved dirt road and a portion of the westerly right-of-way line of Highway Nos. 6, 50 and 93, through a portion of section 34, Township 15 North, Range 64 East, of the Mount Diablo Meridian, Nevada, under Group No. 928, was accepted October 31, 2014. This survey was executed to meet certain administrative needs of the Bureau of Land Management to affect the transfer of Federal Lands to the State of Nevada, as directed by Public Law 109–432.

5. The Plat of Survey of the following described lands was officially filed at the BLM Nevada State Office, Reno, Nevada on November 7, 2014:

The plat, in 1 sheet, representing the dependent resurvey of the First Standard Parallel North through a portion of Range 40 East, as portion of the subdivisional lines and a portion of Mineral Survey No. 4414, Township 6 North, Range 40 East, of the Mount Diablo Meridian, Nevada, under Group No. 932, was accepted November 5, 2014. This survey was executed to meet certain administrative needs of the Bureau of Land Management.

The surveys listed above are now the basic record for describing the lands for all authorized purposes. These records have been placed in the open files in the BLM Nevada State Office and are available to the public as a matter of information. Copies of the surveys and related field notes may be furnished to the public upon payment of the appropriate fees.

Dated: January 6, 2015. Michael O. Harmening, Chief Cadastral Surveyor, Nevada. [FR Doc. 2015–00426 Filed 1–13–15; 8:45 am]

BILLING CODE 4310–HC–P


Bureau of Indian Affairs

[145A2100DD/A0T500000.000000/AAK3000000]

Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs

AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice.

SUMMARY: This notice publishes the current list of 566 tribal entities

VerDate Sep<11>2014 13:56 Jan 13, 2015 Jkt 235001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\14JAN1.SGM 14JAN1mst

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recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes. The list is updated from the notice published on January 29, 2014 (79 FR 4748). FOR FURTHER INFORMATION CONTACT: Laurel Iron Cloud, Bureau of Indian Affairs, Division of Tribal Government Services, Mail Stop 4513–MIB, 1849 C Street NW., Washington, DC 20240. Telephone number: (202) 513–7641. SUPPLEMENTARY INFORMATION: This notice is published pursuant to Section 104 of the Act of November 2, 1994 (Pub. L. 103–454; 108 Stat. 4791, 4792), and in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8.

Published below is a list of federally acknowledged tribes in the contiguous 48 states and Alaska.

Amendments to the list include name changes and name corrections. To aid in identifying tribal name changes and corrections, the tribe’s previously listed or former name is included in parentheses after the correct current tribal name. We will continue to list the tribe’s former or previously listed name for several years before dropping the former or previously listed name from the list.

The listed Indian entities are acknowledged to have the immunities and privileges available to federally recognized Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. We have continued the practice of listing the Alaska Native entities separately solely for the purpose of facilitating identification of them and reference to them given the large number of complex Native names.

Dated: January 8, 2015. Kevin K. Washburn, Assistant Secretary—Indian Affairs.

INDIAN TRIBAL ENTITIES WITHIN THE CONTIGUOUS 48 STATES RECOGNIZED AND ELIGIBLE TO RECEIVE SERVICES FROM THE UNITED STATES BUREAU OF INDIAN AFFAIRS Absentee-Shawnee Tribe of Indians of

Oklahoma Agua Caliente Band of Cahuilla Indians

of the Agua Caliente Indian Reservation, California

Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona

Alabama-Coushatta Tribe of Texas (previously listed as the Alabama- Coushatta Tribes of Texas)

Alabama-Quassarte Tribal Town Alturas Indian Rancheria, California Apache Tribe of Oklahoma Arapaho Tribe of the Wind River

Reservation, Wyoming Aroostook Band of Micmacs (previously

listed as the Aroostook Band of Micmac Indians)

Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana

Augustine Band of Cahuilla Indians, California (previously listed as the Augustine Band of Cahuilla Mission Indians of the Augustine Reservation)

Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin

Bay Mills Indian Community, Michigan Bear River Band of the Rohnerville

Rancheria, California Berry Creek Rancheria of Maidu Indians

of California Big Lagoon Rancheria, California Big Pine Paiute Tribe of the Owens

Valley (previously listed as the Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California)

Big Sandy Rancheria of Western Mono Indians of California (previously listed as the Big Sandy Rancheria of Mono Indians of California)

Big Valley Band of Pomo Indians of the Big Valley Rancheria, California

Bishop Paiute Tribe (previously listed as the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California)

Blackfeet Tribe of the Blackfeet Indian Reservation of Montana

Blue Lake Rancheria, California Bridgeport Indian Colony (previously

listed as the Bridgeport Paiute Indian Colony of California)

Buena Vista Rancheria of Me-Wuk Indians of California

Burns Paiute Tribe (previously listed as the Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon)

Cabazon Band of Mission Indians, California

Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California

Caddo Nation of Oklahoma Cahto Tribe of the Laytonville Rancheria Cahuilla Band of Mission Indians of the

Cahuilla Reservation, California California Valley Miwok Tribe,

California Campo Band of Diegueno Mission

Indians of the Campo Indian Reservation, California

Capitan Grande Band of Diegueno Mission Indians of California: (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation, California; Viejas (Baron Long) Group of Capitan Grande Band

of Mission Indians of the Viejas Reservation, California)

Catawba Indian Nation (aka Catawba Tribe of South Carolina)

Cayuga Nation Cedarville Rancheria, California Chemehuevi Indian Tribe of the

Chemehuevi Reservation, California Cher-Ae Heights Indian Community of

the Trinidad Rancheria, California Cherokee Nation Cheyenne and Arapaho Tribes,

Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma)

Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota

Chicken Ranch Rancheria of Me-Wuk Indians of California

Chippewa Cree Indians of the Rocky Boy’s Reservation, Montana (previously listed as the Chippewa- Cree Indians of the Rocky Boy’s Reservation, Montana)

Chitimacha Tribe of Louisiana Citizen Potawatomi Nation, Oklahoma Cloverdale Rancheria of Pomo Indians

of California Cocopah Tribe of Arizona Coeur D’Alene Tribe (previously listed

as the Coeur D’Alene Tribe of the Coeur D’Alene Reservation, Idaho)

Cold Springs Rancheria of Mono Indians of California

Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California

Comanche Nation, Oklahoma Confederated Salish and Kootenai

Tribes of the Flathead Reservation Confederated Tribes and Bands of the

Yakama Nation Confederated Tribes of Siletz Indians of

Oregon (previously listed as the Confederated Tribes of the Siletz Reservation)

Confederated Tribes of the Chehalis Reservation

Confederated Tribes of the Colville Reservation

Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians

Confederated Tribes of the Goshute Reservation, Nevada and Utah

Confederated Tribes of the Grand Ronde Community of Oregon

Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon)

Confederated Tribes of the Warm Springs Reservation of Oregon

Coquille Indian Tribe (previously listed as the Coquille Tribe of Oregon)

Cortina Indian Rancheria (previously listed as the Cortina Indian Rancheria of Wintun Indians of California)

Coushatta Tribe of Louisiana


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Cow Creek Band of Umpqua Tribe of Indians (previously listed as the Cow Creek Band of Umpqua Indians of Oregon)

Cowlitz Indian Tribe Coyote Valley Band of Pomo Indians of

California Crow Creek Sioux Tribe of the Crow

Creek Reservation, South Dakota Crow Tribe of Montana Death Valley Timbi-sha Shoshone Tribe

(previously listed as the Death Valley Timbi-Sha Shoshone Band of California)

Delaware Nation, Oklahoma Delaware Tribe of Indians Dry Creek Rancheria Band of Pomo

Indians, California (previously listed as the Dry Creek Rancheria of Pomo Indians of California)

Duckwater Shoshone Tribe of the Duckwater Reservation, Nevada

Eastern Band of Cherokee Indians Eastern Shawnee Tribe of Oklahoma Elem Indian Colony of Pomo Indians of

the Sulphur Bank Rancheria, California

Elk Valley Rancheria, California Ely Shoshone Tribe of Nevada Enterprise Rancheria of Maidu Indians

of California Ewiiaapaayp Band of Kumeyaay

Indians, California Federated Indians of Graton Rancheria,

California Flandreau Santee Sioux Tribe of South

Dakota Forest County Potawatomi Community,

Wisconsin Fort Belknap Indian Community of the

Fort Belknap Reservation of Montana Fort Bidwell Indian Community of the

Fort Bidwell Reservation of California Fort Independence Indian Community

of Paiute Indians of the Fort Independence Reservation, California

Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon

Fort McDowell Yavapai Nation, Arizona Fort Mojave Indian Tribe of Arizona,

California & Nevada Fort Sill Apache Tribe of Oklahoma Gila River Indian Community of the Gila

River Indian Reservation, Arizona Grand Traverse Band of Ottawa and

Chippewa Indians, Michigan Greenville Rancheria (previously listed

as the Greenville Rancheria of Maidu Indians of California)

Grindstone Indian Rancheria of Wintun- Wailaki Indians of California

Guidiville Rancheria of California Habematolel Pomo of Upper Lake,

California Hannahville Indian Community,

Michigan Havasupai Tribe of the Havasupai

Reservation, Arizona

Ho-Chunk Nation of Wisconsin Hoh Indian Tribe (previously listed as

the Hoh Indian Tribe of the Hoh Indian Reservation, Washington)

Hoopa Valley Tribe, California Hopi Tribe of Arizona Hopland Band of Pomo Indians,

California (formerly Hopland Band of Pomo Indians of the Hopland Rancheria, California)

Houlton Band of Maliseet Indians Hualapai Indian Tribe of the Hualapai

Indian Reservation, Arizona Iipay Nation of Santa Ysabel, California

(previously listed as the Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation)

Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation, California

Ione Band of Miwok Indians of California

Iowa Tribe of Kansas and Nebraska Iowa Tribe of Oklahoma Jackson Band of Miwuk Indians

(previously listed as the Jackson Rancheria of Me-Wuk Indians of California)

Jamestown S’Klallam Tribe Jamul Indian Village of California Jena Band of Choctaw Indians Jicarilla Apache Nation, New Mexico Kaibab Band of Paiute Indians of the

Kaibab Indian Reservation, Arizona Kalispel Indian Community of the

Kalispel Reservation Karuk Tribe (previously listed as the

Karuk Tribe of California) Kashia Band of Pomo Indians of the

Stewarts Point Rancheria, California Kaw Nation, Oklahoma Kewa Pueblo, New Mexico (previously

listed as the Pueblo of Santo Domingo)

Keweenaw Bay Indian Community, Michigan

Kialegee Tribal Town Kickapoo Traditional Tribe of Texas Kickapoo Tribe of Indians of the

Kickapoo Reservation in Kansas Kickapoo Tribe of Oklahoma Kiowa Indian Tribe of Oklahoma Klamath Tribes Koi Nation of Northern California

(previously listed as the Lower Lake Rancheria, California)

Kootenai Tribe of Idaho La Jolla Band of Luiseno Indians,

California (previously listed as the La Jolla Band of Luiseno Mission Indians of the La Jolla Reservation)

La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation, California

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin

Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin

Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan

Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada

Little River Band of Ottawa Indians, Michigan

Little Traverse Bay Bands of Odawa Indians, Michigan

Lone Pine Paiute-Shoshone Tribe (previously listed as the Paiute- Shoshone Indians of the Lone Pine Community of the Lone Pine Reservation, California)

Los Coyotes Band of Cahuilla and Cupeno Indians, California (previously listed as the Los Coyotes Band of Cahuilla & Cupeno Indians of the Los Coyotes Reservation)

Lovelock Paiute Tribe of the Lovelock Indian Colony, Nevada

Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota

Lower Elwha Tribal Community (previously listed as the Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington)

Lower Sioux Indian Community in the State of Minnesota

Lummi Tribe of the Lummi Reservation Lytton Rancheria of California Makah Indian Tribe of the Makah Indian

Reservation Manchester Band of Pomo Indians of the

Manchester Rancheria, California (previously listed as the Manchester Band of Pomo Indians of the Manchester-Point Arena Rancheria, California)

Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation, California

Mashantucket Pequot Indian Tribe (previously listed as the Mashantucket Pequot Tribe of Connecticut)

Mashpee Wampanoag Tribe (previously listed as the Mashpee Wampanoag Indian Tribal Council, Inc.)

Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan

Mechoopda Indian Tribe of Chico Rancheria, California

Menominee Indian Tribe of Wisconsin Mesa Grande Band of Diegueno Mission

Indians of the Mesa Grande Reservation, California

Mescalero Apache Tribe of the Mescalero Reservation, New Mexico

Miami Tribe of Oklahoma Miccosukee Tribe of Indians Middletown Rancheria of Pomo Indians

of California Minnesota Chippewa Tribe, Minnesota

(Six component reservations: Bois Forte Band (Nett Lake); Fond du Lac Band; Grand Portage Band; Leech Lake Band; Mille Lacs Band; White Earth Band)

Mississippi Band of Choctaw Indians


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Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada

Mohegan Tribe of Indians of Connecticut (previously listed as Mohegan Indian Tribe of Connecticut)

Mooretown Rancheria of Maidu Indians of California

Morongo Band of Mission Indians, California (previously listed as the Morongo Band of Cahuilla Mission Indians of the Morongo Reservation)

Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington)

Narragansett Indian Tribe Navajo Nation, Arizona, New Mexico &

Utah Nez Perce Tribe (previously listed as the

Nez Perce Tribe of Idaho) Nisqually Indian Tribe (previously

listed as the Nisqually Indian Tribe of the Nisqually Reservation, Washington)

Nooksack Indian Tribe Northern Cheyenne Tribe of the

Northern Cheyenne Indian Reservation, Montana

Northfork Rancheria of Mono Indians of California

Northwestern Band of Shoshoni Nation (previously listed as the Northwestern Band of Shoshoni Nation of Utah (Washakie)

Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.)

Oglala Sioux Tribe (previously listed as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota)

Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan)

Omaha Tribe of Nebraska Oneida Nation of New York Oneida Tribe of Indians of Wisconsin Onondaga Nation Otoe-Missouria Tribe of Indians,

Oklahoma Ottawa Tribe of Oklahoma Paiute Indian Tribe of Utah (Cedar Band

of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes))

Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada

Pala Band of Luiseno Mission Indians of the Pala Reservation, California

Pascua Yaqui Tribe of Arizona Paskenta Band of Nomlaki Indians of

California Passamaquoddy Tribe

Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation, California

Pawnee Nation of Oklahoma Pechanga Band of Luiseno Mission

Indians of the Pechanga Reservation, California

Penobscot Nation (previously listed as the Penobscot Tribe of Maine)

Peoria Tribe of Indians of Oklahoma Picayune Rancheria of Chukchansi

Indians of California Pinoleville Pomo Nation, California

(previously listed as the Pinoleville Rancheria of Pomo Indians of California)

Pit River Tribe, California (includes XL Ranch, Big Bend, Likely, Lookout, Montgomery Creek and Roaring Creek Rancherias)

Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama)

Pokagon Band of Potawatomi Indians, Michigan and Indiana

Ponca Tribe of Indians of Oklahoma Ponca Tribe of Nebraska Port Gamble S’Klallam Tribe (previously

listed as the Port Gamble Band of S’Klallam Indians)

Potter Valley Tribe, California Prairie Band Potawatomi Nation

(previously listed as the Prairie Band of Potawatomi Nation, Kansas)

Prairie Island Indian Community in the State of Minnesota

Pueblo of Acoma, New Mexico Pueblo of Cochiti, New Mexico Pueblo of Isleta, New Mexico Pueblo of Jemez, New Mexico Pueblo of Laguna, New Mexico Pueblo of Nambe, New Mexico Pueblo of Picuris, New Mexico Pueblo of Pojoaque, New Mexico Pueblo of San Felipe, New Mexico Pueblo of San Ildefonso, New Mexico Pueblo of Sandia, New Mexico Pueblo of Santa Ana, New Mexico Pueblo of Santa Clara, New Mexico Pueblo of Taos, New Mexico Pueblo of Tesuque, New Mexico Pueblo of Zia, New Mexico Puyallup Tribe of the Puyallup

Reservation Pyramid Lake Paiute Tribe of the

Pyramid Lake Reservation, Nevada Quartz Valley Indian Community of the

Quartz Valley Reservation of California

Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona

Quileute Tribe of the Quileute Reservation

Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington)

Ramona Band of Cahuilla, California (previously listed as the Ramona Band or Village of Cahuilla Mission Indians of California)

Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin

Red Lake Band of Chippewa Indians, Minnesota

Redding Rancheria, California Redwood Valley or Little River Band of

Pomo Indians of the Redwood Valley Rancheria California (previously listed as the Redwood Valley Rancheria of Pomo Indians of California)

Reno-Sparks Indian Colony, Nevada Resighini Rancheria, California Rincon Band of Luiseno Mission

Indians of the Rincon Reservation, California

Robinson Rancheria (previously listed as the Robinson Rancheria Band of Pomo Indians, California and the Robinson Rancheria of Pomo Indians of California)

Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota

Round Valley Indian Tribes, Round Valley Reservation, California (previously listed as the Round Valley Indian Tribes of the Round Valley Reservation, California)

Sac & Fox Nation of Missouri in Kansas and Nebraska

Sac & Fox Nation, Oklahoma Sac & Fox Tribe of the Mississippi in

Iowa Saginaw Chippewa Indian Tribe of

Michigan Saint Regis Mohawk Tribe (previously

listed as the St. Regis Band of Mohawk Indians of New York)

Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona

Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington)

San Carlos Apache Tribe of the San Carlos Reservation, Arizona

San Juan Southern Paiute Tribe of Arizona

San Manuel Band of Mission Indians, California (previously listed as the San Manual Band of Serrano Mission Indians of the San Manual Reservation)

San Pasqual Band of Diegueno Mission Indians of California

Santa Rosa Band of Cahuilla Indians, California (previously listed as the Santa Rosa Band of Cahuilla Mission Indians of the Santa Rosa Reservation)

Santa Rosa Indian Community of the Santa Rosa Rancheria, California

Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California

Santee Sioux Nation, Nebraska Sauk-Suiattle Indian Tribe Sault Ste. Marie Tribe of Chippewa

Indians, Michigan Scotts Valley Band of Pomo Indians of

California


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Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations))

Seneca Nation of Indians (previously listed as the Seneca Nation of New York)

Seneca-Cayuga Nation (previously listed as the Seneca-Cayuga Tribe of Oklahoma)

Shakopee Mdewakanton Sioux Community of Minnesota

Shawnee Tribe Sherwood Valley Rancheria of Pomo

Indians of California Shingle Springs Band of Miwok Indians,

Shingle Springs Rancheria (Verona Tract), California

Shinnecock Indian Nation Shoalwater Bay Indian Tribe of the

Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington)

Shoshone Tribe of the Wind River Reservation, Wyoming

Shoshone-Bannock Tribes of the Fort Hall Reservation

Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada

Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota

Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington)

Skull Valley Band of Goshute Indians of Utah

Smith River Rancheria, California Snoqualmie Indian Tribe (previously

listed as the Snoqualmie Tribe, Washington)

Soboba Band of Luiseno Indians, California

Sokaogon Chippewa Community, Wisconsin

Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado

Spirit Lake Tribe, North Dakota Spokane Tribe of the Spokane

Reservation Squaxin Island Tribe of the Squaxin

Island Reservation St. Croix Chippewa Indians of

Wisconsin Standing Rock Sioux Tribe of North &

South Dakota Stillaguamish Tribe of Indians of

Washington (previously listed as the Stillaguamish Tribe of Washington)

Stockbridge Munsee Community, Wisconsin

Summit Lake Paiute Tribe of Nevada Suquamish Indian Tribe of the Port

Madison Reservation Susanville Indian Rancheria, California Swinomish Indian Tribal Community

(previously listed as the Swinomish Indians of the Swinomish Reservation of Washington)

Sycuan Band of the Kumeyaay Nation Table Mountain Rancheria of California Tejon Indian Tribe Te-Moak Tribe of Western Shoshone

Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band)

The Chickasaw Nation The Choctaw Nation of Oklahoma The Modoc Tribe of Oklahoma The Muscogee (Creek) Nation The Osage Nation (previously listed as

the Osage Tribe) The Quapaw Tribe of Indians The Seminole Nation of Oklahoma Thlopthlocco Tribal Town Three Affiliated Tribes of the Fort

Berthold Reservation, North Dakota Tohono O’odham Nation of Arizona Tonawanda Band of Seneca (previously

listed as the Tonawanda Band of Seneca Indians of New York)

Tonkawa Tribe of Indians of Oklahoma Tonto Apache Tribe of Arizona Torres Martinez Desert Cahuilla Indians,

California (previously listed as the Torres-Martinez Band of Cahuilla Mission Indians of California)

Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington)

Tule River Indian Tribe of the Tule River Reservation, California

Tunica-Biloxi Indian Tribe Tuolumne Band of Me-Wuk Indians of

the Tuolumne Rancheria of California Turtle Mountain Band of Chippewa

Indians of North Dakota Tuscarora Nation Twenty-Nine Palms Band of Mission

Indians of California United Auburn Indian Community of

the Auburn Rancheria of California United Keetoowah Band of Cherokee

Indians in Oklahoma Upper Sioux Community, Minnesota Upper Skagit Indian Tribe Ute Indian Tribe of the Uintah & Ouray

Reservation, Utah Ute Mountain Tribe of the Ute Mountain

Reservation, Colorado, New Mexico & Utah

Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California

Walker River Paiute Tribe of the Walker River Reservation, Nevada

Wampanoag Tribe of Gay Head (Aquinnah)

Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches)

White Mountain Apache Tribe of the Fort Apache Reservation, Arizona

Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma

Wilton Rancheria, California Winnebago Tribe of Nebraska Winnemucca Indian Colony of Nevada Wiyot Tribe, California (previously

listed as the Table Bluff Reservation— Wiyot Tribe)

Wyandotte Nation Yankton Sioux Tribe of South Dakota Yavapai-Apache Nation of the Camp

Verde Indian Reservation, Arizona Yavapai-Prescott Indian Tribe

(previously listed as the Yavapai- Prescott Tribe of the Yavapai Reservation, Arizona)

Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch, Nevada

Yocha Dehe Wintun Nation, California (previously listed as the Rumsey Indian Rancheria of Wintun Indians of California)

Yomba Shoshone Tribe of the Yomba Reservation, Nevada

Ysleta del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas)

Yurok Tribe of the Yurok Reservation, California

Zuni Tribe of the Zuni Reservation, New Mexico

NATIVE ENTITIES WITHIN THE STATE OF ALASKA RECOGNIZED AND ELIGIBLE TO RECEIVE SERVICES FROM THE UNITED STATES BUREAU OF INDIAN AFFAIRS

Agdaagux Tribe of King Cove Akiachak Native Community Akiak Native Community Alatna Village Algaaciq Native Village (St. Mary’s) Allakaket Village Angoon Community Association Anvik Village Arctic Village (See Native Village of

Venetie Tribal Government) Asa’carsarmiut Tribe Atqasuk Village (Atkasook) Beaver Village Birch Creek Tribe Central Council of the Tlingit & Haida

Indian Tribes Chalkyitsik Village Cheesh-Na Tribe (previously listed as

the Native Village of Chistochina) Chevak Native Village Chickaloon Native Village Chignik Bay Tribal Council (previously

listed as the Native Village of Chignik) Chignik Lake Village Chilkat Indian Village (Klukwan) Chilkoot Indian Association (Haines) Chinik Eskimo Community (Golovin) Chuloonawick Native Village Circle Native Community Craig Tribal Association (previously

listed as the Craig Community Association)

Curyung Tribal Council Douglas Indian Association


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Egegik Village Eklutna Native VillageEmmonak Village Evansville Village (aka Bettles Field) Galena Village (aka Louden Village) Gulkana Village Healy Lake Village Holy Cross Village Hoonah Indian Association Hughes Village Huslia Village Hydaburg Cooperative Association Igiugig Village Inupiat Community of the Arctic Slope Iqurmuit Traditional Council Ivanoff Bay Village Kaguyak Village Kaktovik Village (aka Barter Island) Kasigluk Traditional Elders Council Kenaitze Indian Tribe Ketchikan Indian Corporation King Island Native Community King Salmon Tribe Klawock Cooperative Association Knik Tribe Kokhanok Village Koyukuk Native Village Levelock Village Lime Village Manley Hot Springs Village Manokotak Village McGrath Native Village Mentasta Traditional Council Metlakatla Indian Community, Annette

Island Reserve Naknek Native Village Native Village of Afognak Native Village of Akhiok Native Village of Akutan Native Village of Aleknagik Native Village of Ambler Native Village of Atka Native Village of Barrow Inupiat

Traditional Government Native Village of Belkofski Native Village of Brevig Mission Native Village of Buckland Native Village of Cantwell Native Village of Chenega (aka Chanega) Native Village of Chignik Lagoon Native Village of Chitina Native Village of Chuathbaluk (Russian

Mission, Kuskokwim) Native Village of Council Native Village of Deering Native Village of Diomede (aka Inalik) Native Village of Eagle Native Village of Eek Native Village of Ekuk Native Village of Ekwok (previously

listed as Ekwok Village) Native Village of Elim Native Village of Eyak (Cordova) Native Village of False Pass Native Village of Fort Yukon Native Village of Gakona Native Village of Gambell Native Village of Georgetown Native Village of Goodnews Bay Native Village of Hamilton

Native Village of Hooper Bay Native Village of Kanatak Native Village of Karluk Native Village of Kiana Native Village of Kipnuk Native Village of Kivalina Native Village of Kluti Kaah (aka Copper

Center) Native Village of Kobuk Native Village of Kongiganak Native Village of Kotzebue Native Village of Koyuk Native Village of Kwigillingok Native Village of Kwinhagak (aka

Quinhagak) Native Village of Larsen Bay Native Village of Marshall (aka Fortuna

Ledge) Native Village of Mary’s Igloo Native Village of Mekoryuk Native Village of Minto Native Village of Nanwalek (aka English

Bay) Native Village of Napaimute Native Village of Napakiak Native Village of Napaskiak Native Village of Nelson Lagoon Native Village of Nightmute Native Village of Nikolski Native Village of Noatak Native Village of Nuiqsut (aka Nooiksut) Native Village of Nunam Iqua

(previously listed as the Native Village of Sheldon’s Point)

Native Village of Nunapitchuk Native Village of Old Harbor (previously

listed as Village of Old Harbor) Native Village of Ouzinkie Native Village of Paimiut Native Village of Perryville Native Village of Pilot Point Native Village of Pitka’s Point Native Village of Point Hope Native Village of Point Lay Native Village of Port Graham Native Village of Port Heiden Native Village of Port Lions Native Village of Ruby Native Village of Saint Michael Native Village of Savoonga Native Village of Scammon Bay Native Village of Selawik Native Village of Shaktoolik Native Village of Shishmaref Native Village of Shungnak Native Village of Stevens Native Village of Tanacross Native Village of Tanana Native Village of Tatitlek Native Village of Tazlina Native Village of Teller Native Village of Tetlin Native Village of Tuntutuliak Native Village of Tununak Native Village of Tyonek Native Village of Unalakleet Native Village of Unga Native Village of Venetie Tribal

Government (Arctic Village and Village of Venetie)

Native Village of Wales Native Village of White Mountain Nenana Native Association New Koliganek Village Council New Stuyahok Village Newhalen Village Newtok Village Nikolai Village Ninilchik Village Nome Eskimo Community Nondalton Village Noorvik Native Community Northway Village Nulato Village Nunakauyarmiut Tribe Organized Village of Grayling (aka

Holikachuk) Organized Village of Kake Organized Village of Kasaan Organized Village of Kwethluk Organized Village of Saxman Orutsararmiut Traditional Native

Council (previously listed as Orutsararmuit Native Village (aka Bethel))

Oscarville Traditional Village Pauloff Harbor Village Pedro Bay Village Petersburg Indian Association Pilot Station Traditional Village Platinum Traditional Village Portage Creek Village (aka Ohgsenakale) Pribilof Islands Aleut Communities of

St. Paul & St. George Islands Qagan Tayagungin Tribe of Sand Point

Village Qawalangin Tribe of Unalaska Rampart Village Saint George Island (See Pribilof Islands

Aleut Communities of St. Paul & St. George Islands)

Saint Paul Island (See Pribilof Islands Aleut Communities of St. Paul & St. George Islands)

Seldovia Village Tribe Shageluk Native Village Sitka Tribe of Alaska Skagway Village South Naknek Village Stebbins Community Association Sun’aq Tribe of Kodiak (previously

listed as the Shoonaq’ Tribe of Kodiak)

Takotna Village Tangirnaq Native Village (formerly

Lesnoi Village (aka Woody Island)) Telida Village Traditional Village of Togiak Tuluksak Native Community Twin Hills Village Ugashik Village Umkumiut Native Village (previously

listed as Umkumiute Native Village) Village of Alakanuk Village of Anaktuvuk Pass Village of Aniak Village of Atmautluak Village of Bill Moore’s Slough Village of Chefornak


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Village of Clarks Point Village of Crooked Creek Village of Dot Lake Village of Iliamna Village of Kalskag Village of Kaltag Village of Kotlik Village of Lower Kalskag Village of Ohogamiut Village of Old Harbor Village of Red Devil Village of Salamatoff Village of Sleetmute Village of Solomon Village of Stony River Village of Venetie (See Native Village of

Venetie Tribal Government) Village of Wainwright Wrangell Cooperative Association Yakutat Tlingit Tribe Yupiit of Andreafski [FR Doc. 2015–00509 Filed 1–13–15; 8:45 am]

BILLING CODE 4310–4J–P



[LLCA930; CACA 032220]

Notice of Application for Withdrawal Extension and Opportunity for Public Meeting, California


SUMMARY: The United States Forest Service (USFS) has filed an application with the Bureau of Land Management (BLM) requesting that the Secretary of the Interior extend the duration of the withdrawal created by Public Land Order (PLO) No. 7179 for an additional 20-year term. PLO No. 7179 withdrew 45 acres of National Forest System land from location and entry under the United States mining laws, but not from leasing under the mineral leasing laws, to protect the seismic integrity of the University of California—Berkeley Seismic Observatory located in Siskiyou County, California. The withdrawal created by PLO No. 7179 will expire on January 24, 2016, unless extended. This notice provides an opportunity to comment on the withdrawal extension application and to request a public meeting.

DATES: Comments and requests for a public meeting must be received by April 14, 2015. ADDRESSES: Comments and requests for a public meeting must be sent to the California State Director, Bureau of Land Management, 2800 Cottage Way, W–1928, Sacramento, CA 95814.

FOR FURTHER INFORMATION CONTACT: Elizabeth Easley, BLM California State Office, 916–978–4673 or David Betz, Klamath National Forest Headquarters, 530–842–6131, during regular business hours: 8:00 a.m. to 4:30 p.m., Monday through Friday, except holidays. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: The USFS has filed an application requesting that the Secretary of the Interior extend PLO No. 7179 (61 FR 2137, January 25, 1996), which withdrew 45 acres of land in the Klamath National Forest, Siskiyou County, California, from location and entry under the United States mining laws (30 U.S.C. Ch. 2), but not from leasing under the mineral leasing laws, for an additional 20-year term, subject to valid existing rights. PLO No. 7179 is incorporated herein by reference.

The purpose of the withdrawal is to protect the seismic integrity of a University of California—Berkeley Seismic Observatory.

The use of a right-of-way, interagency agreement, or cooperative agreement would not adequately constrain nondiscretionary uses and would not provide adequate protection for the improvements located on the lands.

There are no suitable alternative sites with equal or greater benefit to the government.

No water rights are required to fulfill the purpose of the requested withdrawal extension.

Records relating to the application may be examined by contacting the BLM-California State Office, Public Room at the above address.

For a period until April 14, 2015, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal extension may present their views in writing to the BLM California State Office at the address listed above. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. If you are submitting comments as an individual you may request confidentiality by asking us in your comment to withhold your personal identifying information

from public review; however, we cannot guarantee that we will be able to do so.

Notice is also hereby given that the opportunity for a public meeting is afforded in connection with the withdrawal extension application. All interested parties who desire a public meeting on the withdrawal extension application must submit a written request to BLM California State Office at the address listed above by April 14, 2015. If it is determined that a public meeting will be held, a notice will be published to announce the time and place in the Federal Register and a local newspaper at least 30 days before the scheduled date of the meeting.

This withdrawal extension proposal will be processed in accordance with the applicable regulations set forth in 43 CFR 2310.4.

Authority: 43 CFR 2310.3–1.

Sandra McGinnis, Acting Associate Deputy State Director, Natural Resources. [FR Doc. 2015–00420 Filed 1–13–15; 8:45 am]

BILLING CODE 4310–40–P



[LLNVL01000.L14300000.EU0000 LXSS122F0000 241A; N–87866; 12–08807; MO#4500066682;TAS: 14X5232]

Notice of Realty Action: Competitive Sale of Public Lands (N–87866) in White Pine County, NV


SUMMARY: The Bureau of Land Management (BLM) proposes to offer by competitive sale, a 38.02-acre parcel of public land in White Pine County, NV, at no less than the appraised fair market value (FMV) of $135,000. The sale will be subject to the applicable provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and applicable BLM land sale regulations. DATES: Interested parties may submit written comments to the BLM at the address below. The BLM must receive your comments on or before March 2, 2015. The oral auction will be held on April 1, 2015, at 10:00 a.m., Pacific Standard Time at the Ely District Office, 702 North Industrial Way, Ely, NV 89301.

ADDRESSES: Send written comments concerning the proposed sale to the BLM Ely District Office, HC 33 Box


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Presidential Documents67249

Federal Register

Vol. 65, No. 218

Thursday, November 9, 2000

Title 3—

The President

Executive Order 13175 of November 6, 2000

Consultation and Coordination With Indian TribalGovernments

By the authority vested in me as President by the Constitution and thelaws of the United States of America, and in order to establish regularand meaningful consultation and collaboration with tribal officials in thedevelopment of Federal policies that have tribal implications, to strengthenthe United States government-to-government relationships with Indian tribes,and to reduce the imposition of unfunded mandates upon Indian tribes;it is hereby ordered as follows:

Section 1. Definitions. For purposes of this order:(a) ‘‘Policies that have tribal implications’’ refers to regulations, legislative

comments or proposed legislation, and other policy statements or actionsthat have substantial direct effects on one or more Indian tribes, on therelationship between the Federal Government and Indian tribes, or on thedistribution of power and responsibilities between the Federal Governmentand Indian tribes.

(b) ‘‘Indian tribe’’ means an Indian or Alaska Native tribe, band, nation,pueblo, village, or community that the Secretary of the Interior acknowledgesto exist as an Indian tribe pursuant to the Federally Recognized IndianTribe List Act of 1994, 25 U.S.C. 479a.

(c) ‘‘Agency’’ means any authority of the United States that is an ‘‘agency’’under 44 U.S.C. 3502(1), other than those considered to be independentregulatory agencies, as defined in 44 U.S.C. 3502(5).

(d) ‘‘Tribal officials’’ means elected or duly appointed officials of Indiantribal governments or authorized intertribal organizations.Sec. 2. Fundamental Principles. In formulating or implementing policiesthat have tribal implications, agencies shall be guided by the followingfundamental principles:

(a) The United States has a unique legal relationship with Indian tribalgovernments as set forth in the Constitution of the United States, treaties,statutes, Executive Orders, and court decisions. Since the formation of theUnion, the United States has recognized Indian tribes as domestic dependentnations under its protection. The Federal Government has enacted numerousstatutes and promulgated numerous regulations that establish and definea trust relationship with Indian tribes.

(b) Our Nation, under the law of the United States, in accordance withtreaties, statutes, Executive Orders, and judicial decisions, has recognizedthe right of Indian tribes to self-government. As domestic dependent nations,Indian tribes exercise inherent sovereign powers over their members andterritory. The United States continues to work with Indian tribes on agovernment-to-government basis to address issues concerning Indian tribalself-government, tribal trust resources, and Indian tribal treaty and otherrights.

(c) The United States recognizes the right of Indian tribes to self-governmentand supports tribal sovereignty and self-determination.Sec. 3. Policymaking Criteria. In addition to adhering to the fundamentalprinciples set forth in section 2, agencies shall adhere, to the extent permittedby law, to the following criteria when formulating and implementing policiesthat have tribal implications:

VerDate 11<MAY>2000 09:24 Nov 08, 2000 Jkt 194001 PO 00000 Frm 00001 Fmt 4705 Sfmt 4790 E:\FR\FM\09NOE0.SGM pfrm03 PsN: 09NOE0ADD030


67250 Federal Register / Vol. 65, No. 218 / Thursday, November 9, 2000 / Presidential Documents

(a) Agencies shall respect Indian tribal self-government and sovereignty,honor tribal treaty and other rights, and strive to meet the responsibilitiesthat arise from the unique legal relationship between the Federal Governmentand Indian tribal governments.

(b) With respect to Federal statutes and regulations administered by Indiantribal governments, the Federal Government shall grant Indian tribal govern-ments the maximum administrative discretion possible.

(c) When undertaking to formulate and implement policies that have tribalimplications, agencies shall:

(1) encourage Indian tribes to develop their own policies to achieve pro-gram objectives;

(2) where possible, defer to Indian tribes to establish standards; and

(3) in determining whether to establish Federal standards, consult withtribal officials as to the need for Federal standards and any alternativesthat would limit the scope of Federal standards or otherwise preserve theprerogatives and authority of Indian tribes.Sec. 4. Special Requirements for Legislative Proposals. Agencies shall notsubmit to the Congress legislation that would be inconsistent with the policy-making criteria in Section 3.

Sec. 5. Consultation. (a) Each agency shall have an accountable processto ensure meaningful and timely input by tribal officials in the developmentof regulatory policies that have tribal implications. Within 30 days afterthe effective date of this order, the head of each agency shall designatean official with principal responsibility for the agency’s implementationof this order. Within 60 days of the effective date of this order, the designatedofficial shall submit to the Office of Management and Budget (OMB) adescription of the agency’s consultation process.

(b) To the extent practicable and permitted by law, no agency shall promul-gate any regulation that has tribal implications, that imposes substantialdirect compliance costs on Indian tribal governments, and that is not requiredby statute, unless:

(1) funds necessary to pay the direct costs incurred by the Indian tribalgovernment or the tribe in complying with the regulation are providedby the Federal Government; or

(2) the agency, prior to the formal promulgation of the regulation,(A) consulted with tribal officials early in the process of developing theproposed regulation;

(B) in a separately identified portion of the preamble to the regulationas it is to be issued in the Federal Register, provides to the Director ofOMB a tribal summary impact statement, which consists of a descriptionof the extent of the agency’s prior consultation with tribal officials, a summaryof the nature of their concerns and the agency’s position supporting theneed to issue the regulation, and a statement of the extent to which theconcerns of tribal officials have been met; and

(C) makes available to the Director of OMB any written communicationssubmitted to the agency by tribal officials.

(c) To the extent practicable and permitted by law, no agency shall promul-gate any regulation that has tribal implications and that preempts triballaw unless the agency, prior to the formal promulgation of the regulation,

(1) consulted with tribal officials early in the process of developing theproposed regulation;

(2) in a separately identified portion of the preamble to the regulationas it is to be issued in the Federal Register, provides to the Director ofOMB a tribal summary impact statement, which consists of a descriptionof the extent of the agency’s prior consultation with tribal officials, a summaryof the nature of their concerns and the agency’s position supporting the



67251Federal Register / Vol. 65, No. 218 / Thursday, November 9, 2000 / Presidential Documents

need to issue the regulation, and a statement of the extent to which theconcerns of tribal officials have been met; and

(3) makes available to the Director of OMB any written communicationssubmitted to the agency by tribal officials.

(d) On issues relating to tribal self-government, tribal trust resources,or Indian tribal treaty and other rights, each agency should explore and,where appropriate, use consensual mechanisms for developing regulations,including negotiated rulemaking.

Sec. 6. Increasing Flexibility for Indian Tribal Waivers.

(a) Agencies shall review the processes under which Indian tribes applyfor waivers of statutory and regulatory requirements and take appropriatesteps to streamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law,consider any application by an Indian tribe for a waiver of statutory orregulatory requirements in connection with any program administered bythe agency with a general view toward increasing opportunities for utilizingflexible policy approaches at the Indian tribal level in cases in which theproposed waiver is consistent with the applicable Federal policy objectivesand is otherwise appropriate.

(c) Each agency shall, to the extent practicable and permitted by law,render a decision upon a complete application for a waiver within 120days of receipt of such application by the agency, or as otherwise providedby law or regulation. If the application for waiver is not granted, the agencyshall provide the applicant with timely written notice of the decision andthe reasons therefor.

(d) This section applies only to statutory or regulatory requirements thatare discretionary and subject to waiver by the agency.

Sec. 7. Accountability.

(a) In transmitting any draft final regulation that has tribal implicationsto OMB pursuant to Executive Order 12866 of September 30, 1993, eachagency shall include a certification from the official designated to ensurecompliance with this order stating that the requirements of this order havebeen met in a meaningful and timely manner.

(b) In transmitting proposed legislation that has tribal implications toOMB, each agency shall include a certification from the official designatedto ensure compliance with this order that all relevant requirements of thisorder have been met.

(c) Within 180 days after the effective date of this order the Directorof OMB and the Assistant to the President for Intergovernmental Affairsshall confer with tribal officials to ensure that this order is being properlyand effectively implemented.

Sec. 8. Independent Agencies. Independent regulatory agencies are encour-aged to comply with the provisions of this order.

Sec. 9. General Provisions. (a) This order shall supplement but not supersedethe requirements contained in Executive Order 12866 (Regulatory Planningand Review), Executive Order 12988 (Civil Justice Reform), OMB CircularA–19, and the Executive Memorandum of April 29, 1994, on Government-to-Government Relations with Native American Tribal Governments.

(b) This order shall complement the consultation and waiver provisionsin sections 6 and 7 of Executive Order 13132 (Federalism).

(c) Executive Order 13084 (Consultation and Coordination with IndianTribal Governments) is revoked at the time this order takes effect.

(d) This order shall be effective 60 days after the date of this order.



67252 Federal Register / Vol. 65, No. 218 / Thursday, November 9, 2000 / Presidential Documents

Sec. 10. Judicial Review. This order is intended only to improve the internalmanagement of the executive branch, and is not intended to create anyright, benefit, or trust responsibility, substantive or procedural, enforceableat law by a party against the United States, its agencies, or any person.

œ–THE WHITE HOUSE,November 6, 2000.

[FR Doc. 00–29003

Filed 11–8–00; 8:45 am]

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Presidential Documents

57881

Federal Register

Vol. 74, No. 215

Monday, November 9, 2009

Title 3—

The President

Memorandum of November 5, 2009

Tribal Consultation

Memorandum for the Heads of Executive Departments And Agencies

The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial deci-sions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and col-laboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the govern-ment-to-government relationship between the United States and Indian tribes.

History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to unde-sirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.

My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its plan.

Each agency’s plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175.

In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report.

The terms ‘‘Indian tribe,’’ ‘‘tribal officials,’’ and ‘‘policies that have tribal implications’’ as used in this memorandum are as defined in Executive Order 13175.

The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.

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This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

THE WHITE HOUSE, Washington, November 5, 2009.

[FR Doc. E9–27142

Filed 11–6–09; 11:15 am]

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1

Department of the Interior Policy on Consultation with Indian Tribes

I. Preamble

The obligation for Federal agencies to engage with Indian Tribes on a government-to-

government basis is based on the U.S. Constitution and Federal treaties, statutes, executive

orders, and policies. Federal agencies help to meet that obligation through meaningful

consultation with Indian Tribes.

The Department of the Interior (Department) is committed to fulfilling its Tribal

consultation obligations—whether directed by statute or administrative action such as Executive

Order (EO) 13175 (Consultation and Coordination with Indian Tribal Governments) or other

applicable Secretarial Orders or policies—by adhering to the consultation framework described

in this Policy. Through this Policy, the Department strives to strengthen its government-to-

government relationship with Indian Tribes and begin a new era of consultation. This Policy

reflects the Secretary’s commitment to consultation with Indian Tribes, recognition of Indian

Tribes’ right to self- governance and Tribal sovereignty.

The Department’s Bureaus and Offices shall review their existing practices and revise

them as needed to comply with this Policy. All Bureaus and Offices will report to the Secretary,

through the designee, on their efforts to comply with this Policy, as described in a companion

Secretarial Order.

II. Guiding Principles

This Policy broadly defines provisions for enhancing the Department’s consultation

ADD036


2

processes with Indian Tribes. This Policy shall complement, not supersede, any existing laws,

rules, statutes, or regulations that guide consultation processes with Indian Tribes.

This Policy requires a government-to-government consultation between appropriate

Tribal Officials and Departmental officials. The appropriate Departmental officials are those

individuals who are knowledgeable about the matters at hand, are authorized to speak for the

Department, and exercise delegated authority in the disposition and implementation of an agency

action. Departmental officials will identify appropriate Tribal consulting parties early in the

planning process and provide Indian Tribes a meaningful opportunity to participate in the

consultation process as described in Section VII of this Policy. Departmental officials will

participate in the consultation process in a manner that demonstrates a meaningful commitment

and ensures continuity in the process. The Policy thus honors the government-to-government

relationship between the United States and Indian Tribes, and complies with the Presidential

Memorandum of November 5, 2009, which affirms this relationship and obligates the

Department to meet the spirit and intent of EO 13175.

Consultation is a deliberative process that aims to create effective collaboration and

informed Federal decision-making. Consultation is built upon government-to-government

exchange of information and promotes enhanced communication that emphasizes trust, respect,

and shared responsibility. Communication will be open and transparent without compromising

the rights of Indian Tribes or the government-to-government consultation process. Federal

consultation conducted in a meaningful and good-faith manner further facilitates effective

Department operations and governance practices. To that end, Bureaus and Offices will seek and

promote cooperation, participation, and efficiencies between agencies with overlapping

ADD037


3

jurisdiction, special expertise, or related responsibilities regarding a Departmental Action with

Tribal Implications. Efficiencies derived from the inclusion of Indian Tribes in the Department’s

decision-making processes through Tribal consultation will help ensure that future Federal action

is achievable, comprehensive, long-lasting, and reflective of Tribal input.

III. Definitions

Bureau or Office – As defined in the Department Manual.

Collaboration – The Department and Indian Tribes working together to implement this

Policy.

Consultation Policies – Those policies established to comply with the procedures

described in Section VII.

Departmental Action with Tribal Implications – Any Departmental regulation,

rulemaking, policy, guidance, legislative proposal, grant funding formula changes, or operational

activity that may have a substantial direct effect on an Indian Tribe on matters including, but not

limited to:

1. Tribal cultural practices, lands, resources, or access to traditional areas of cultural or

religious importance on federally managed lands;

2. The ability of an Indian Tribe to govern or provide services to its members;

3. An Indian Tribe’s formal relationship with the Department; or

4. The consideration of the Department’s trust responsibilities to Indian Tribes.

This, however, does not include matters that are in litigation or in settlement negotiations, or

matters for which a court order limits the Department’s discretion to engage in consultation.

ADD038


4

Indian Tribe or Tribe – Any Indian or Alaska Native Tribe, band, nation, pueblo, village,

or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe pursuant

to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. § 479a.

Tribal Governance Officer (TGO) – An individual designated by the Department to carry

out responsibilities defined in this Policy.

Tribal Liaison Officer (TLO) – One or more individuals designated by a Bureau or Office

to carry out responsibilities defined in this Policy.

Tribal Official – An elected or appointed Tribal leader or official designated in writing by

an Indian Tribe to represent the Tribe in government-to-government consultations.

IV. Accountability and Reporting

Methods that ensure accountability and reporting are essential to regular and meaningful

consultation. The heads of Bureaus and Offices shall include appropriate performance measures

consistent with this Policy in future annual performance plans of their employees.

On an annual basis, Bureaus and Offices shall report to the Secretary the results of their

efforts to promote consultation with Indian Tribes. Reporting is intended to be comprehensive

and may include, but is not limited to, the scope of consultation efforts, the cost of these efforts,

and the effectiveness of consultation activities. As part of its annual report, Bureaus and Offices

shall provide a comprehensive listing of the topics on which consultations were held, training,

innovations, and the engagement of senior leadership in these efforts. Where possible, such

reports shall include feedback from Indian Tribes with whom the Bureau or Office has consulted.

Reports should reference the documents and correspondence with Indian Tribes that address the

ADD039


5

Implementation of the Final Federal Action Stage described in Section VII of this Policy, a

description of budget expenditures in the execution of consultation efforts, narratives describing

significant consultation efforts, and forthcoming consultation opportunities.

Based on information received from the Bureaus and Offices, the Secretary will provide

an annual report to Indian Tribes on implementation of the Department’s Consultation Policy.

The Department will use its website to share report information, where appropriate.

V. Training

The Department will design training for Department staff aimed at improving the

Department’s capacity for promoting collaboration with Indian Tribes and executing the

consultation provisions of Section VII of this Policy. The training will:

A. Promote consultation, communication, collaboration, and other interaction with Tribes;

B. Outline and reinforce the Department’s duties concerning tribal interests;

C. Describe the legal trust obligation of the Federal-Tribal relationship; and

D. Highlight and provide the knowledge, skills, and tools necessary for collaborative

engagement to Tribal and Departmental staff engaged in the consultative process with

attention to the unique distinctions within Indian Country.

The Department, through the Department of the Interior University (DOIU), in

collaboration with Bureaus, Offices, Tribal colleges and universities, and other entities with

Indian expertise, will develop and deliver training to facilitate implementation of this Policy.

DOIU will develop required core competencies, which Bureaus and Offices may enhance

ADD040


6

through other appropriate sources of Tribal expertise. This training will seek to enhance mutual

understanding of cultural perspectives and administrative requirements between Tribal and

Federal officials and to promote inter-governmental relationships. Tribal representatives will be

encouraged to participate in training along with Federal employees.

VI. Innovative and Effective Consultation Practices

The Department’s leadership will strive to advance Federal consultation practices and to

offer examples for innovation across the Administration. The Department will identify and seek

to address impediments, both external and internal, to improving its consultation processes.

In consultation with Indian Tribes, the Secretary will establish a joint Federal-Tribal

Team for the purpose of making recommendations on the implementation of this Policy and for

ensuring continued improvement of this Policy. The Federal Tribal Team may:

A. Host regular meetings between the Secretary and Indian Tribes;

B. Communicate through a regular gathering of Indian Tribes to discuss improving

consultation practices and procedures;

C. Solicit recommendations from Indian Tribes for the initial development of performance

measures described in Section IV, and thereafter for the evaluation of consultation

practices.

VII. Consultation Guidelines

Consultation guidelines are meant to establish uniform practices and common standards,

which all Bureaus and Offices will use except when otherwise agreed to in writing by a Bureau

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or Office and Indian Tribe, through an individual protocol conforming to the guidelines in this

Section. Consultation and individual protocols will provide greater efficiency and transparency

in Department practices in order to maximize Indian Tribes’ participation. Departmental Actions

with Tribal Implications that are regional or impact a limited number of Indian Tribes shall be

carried out in a manner consistent with this Policy while allowing discretion to employ only

appropriate parts of this Section.

A. Initiating Consultation. When considering a Departmental Action with Tribal

Implications, a Bureau or Office must notify the appropriate Indian Tribe(s) of the opportunity to

consult pursuant to this Policy. The Bureau or Office will strive to ensure that a notice is given

at least 30-days prior to scheduling a consultation. If exceptional circumstances prevent notice

within 30-days of the consultation, an explanation for the abbreviated notification will be

provided in the invitation letter. An Indian Tribe may request an extension for timelines

associated with this Policy.

Adequate notice entails providing a description of the topic(s) to be discussed, a timeline

of the process, and possible outcomes. Notification of a consultation should include sufficient

detail of the topic to be discussed to allow Tribal leaders an opportunity to fully engage in the

consultation. The notice should also give Tribal leaders the opportunity to provide feedback

prior to the consultation, including any request for technical assistance or request for clarification

of how the consultation process conforms to this Policy.

Beginning at the Initial Planning Stage, see Section VII, Part E, Subsection 1, a Bureau or

Office will consult with Indian Tribes on a Departmental Action with Tribal Implications.

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8

An Indian Tribe may request that the Department initiate consultation when the Indian

Tribe believes that a Bureau or Office is considering a Departmental Action with Tribal

Implications. Requests should be made in writing to the Department’s TGO and should describe

the specific Departmental Action with Tribal Implications. However, in the event that an Indian

Tribe may choose not to engage the TGO, a Bureau or Office is not relieved of its obligation to

engage in consultation as described by this Policy. If the Bureau or Office initiates consultation

with a Tribe but does not receive a response, the Bureau or Office should make reasonable and

periodic efforts to repeat the invitation and, whenever feasible, should allow an Indian Tribe to

join an ongoing consultation. These efforts of engagement shall be appropriately documented.

B. Role of Tribal Governance Officer and Tribal Liaison Officer in Consultation

Process.

1. The Secretary shall designate a TGO, who will have access to the Secretary or Deputy

Secretary, to carry out the responsibilities defined in this Policy. These responsibilities shall

include:

a. Monitoring compliance with this Policy, EO 13175, and other Consultation Policies

pertaining to government-to-government consultation;

b. Serving as the Secretary’s representative when requested to do so in matters pertaining to

consultation;

c. Promoting government-to-government consultation;

d. Communicating and coordinating with TLOs concerning Bureau and Office compliance

with this Policy;

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9

e. Encouraging Indian Tribes to request consultation directly with the appropriate Bureau or

Office representative or the TLO and helping to ensure the resolution of all requests.

f. Implementing, in coordination with the TLOs, a reporting system to ensure that

consultation efforts are documented and reported to the Secretary and to the

Department’s TGO for EO 13175; and

g. Facilitating a government-to-government relationship that is honored by all parties in

Tribal consultations of national significance or involving multiple Bureaus or Offices.

2. Each Bureau or Office shall designate one or more TLOs whose responsibilities shall

include:

a. Working with the Bureau or Office to achieve compliance with this Policy, the

Consultation Policies of the Bureau or Office, and any future policies related to EO

13175 or other government-to-government consultation policies;

b. Promoting and facilitating consultation and collaboration between Indian Tribes and the

Bureau or Office;

c. Advocating opportunities for and consideration of the positions of Indian Tribes,

consistent with Bureau or Office mission;

d. Serving as the principal point of contact for the TGO concerning compliance with this

Policy, including the Bureau’s and Office’s reporting requirements;

e. Striving to enhance a trusting and on-going relationship with Indian Tribes, consistent

with applicable law and executive orders;

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10

f. Serving as an initial contact for Indian Tribes to request or inquire about consultation

when it is unclear whom to contact in the Bureau or Office; and

g. Carrying out other responsibilities as assigned by Bureau or Office Consultation Policies.

3. Identify TLOs and TGO – Each Bureau or Office shall take appropriate measures to

identify and disseminate the name and contact information of the TGO and the TLO(s) to

facilitate contacts by Tribal Officials.

C. Guidelines for Response to Request for Consultation. The TGO or appropriate

representative will confirm receipt of a request for consultation from a Tribal Official. When the

request is directed to the TGO, the request is to be forwarded to the appropriate Bureau or

Office. The TGO or appropriate representative will treat an official request for consultation in an

expedited fashion and respond in writing that the Department has received the request, using the

most expedient methods to communicate to the Indian Tribe.

D. Consultation Process Support. The Office of Collaborative Action and Dispute

Resolution can assist in planning and facilitating an effective consultation process, negotiated

rulemaking, or other collaborative approach to decision-making. In planning consultation

processes as outlined below in Paragraph E, Bureaus and Offices are encouraged to consider best

practices for engagement, including but not limited to, the use of neutral facilitation and other

collaborative problem-solving approaches to promote effective dialogue and conflict resolution.

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11

E. Stages of Consultation. Bureaus and Offices shall carry out the consultation stages

described below for a Departmental Action with Tribal Implications.

1. Initial Planning Stage.

Each Bureau or Office will consult with Indian Tribes as early as possible when

considering a Departmental Action with Tribal Implications. A Bureau or Office may conduct a

meeting or other forms of interaction with Indian Tribes in order to receive and evaluate

comments received as part of the Initial Planning Stage. Bureaus and Offices will work with

each other and with other Federal agencies, where appropriate, to avoid duplicative

consultations.

2. Proposal Development Stage.

The Proposal Development Stage begins once the Department discloses the scope of a

Departmental Action with Tribal Implications. Indian Tribes should be considered appropriate

collaborative partners, particularly where negotiated rulemaking or a Tribal Leader Task Force is

created.

The Bureau or Office shall develop a process for the Proposal Development Stage that

maximizes the opportunity for timely input by Indian Tribes and is consistent with both Tribal

and Bureau or Office schedules. The Bureau or Office will solicit the views of affected Indian

Tribes regarding the process timeline to consult on a Departmental Action with Tribal

Implications. The Bureau or Office should work with Indian Tribes to structure a process, to the

extent feasible, that considers specific Indian Tribal structures, traditional needs, and schedules

of the Indian Tribes. The Bureau or Office should make all reasonable efforts to comply with the

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12

expressed views of the affected Indian Tribes regarding the process timeline at this Stage, taking

into account the level of impact, the scope, and the complexity of the issues involved in the

Departmental Action with Tribal Implications, along with the other factors driving the schedule.

The process will be open and transparent. The Bureau or Office then may proceed with the

expectation that interested Indian Tribes will respond within a reasonable time period.

When the matter under consultation involves confidential or culturally sensitive information,

the Bureau or Office will work with the Indian Tribe to develop a consultation process that

addresses the sensitivity of the information to the extent permitted by Federal law. If litigation

or legal requirements impact a Bureau’s or Office’s schedule for conducting consultation, the

Bureau or Office shall explain these constraints to the Indian Tribe.

Examples of appropriate processes for the Proposal Development Stage include, but are

not limited to, the following:

• Negotiated Rulemaking. Where appropriate, the Bureau or Office shall consider using

negotiated rulemaking for developing significant regulations or other formal policies in

accordance with the Federal Advisory Committee Act (FACA) and the Negotiated

Rulemaking Act.

• Tribal Leader Task Force. A Tribal Leader Task Force may be used, in appropriate

circumstances, on regional or issue-specific matters (e.g., timber). In each instance, the

composition of the Task Force shall be collaboratively determined by the Indian Tribes,

provided that the Task Force shall be a process open to all Indian Tribes and, to the extent

possible, represent a cross-section of Tribal interests with respect to the matter at issue.

The location and number of meetings to be held will conform to the expressed views of

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13

the Indian Tribes, to the extent practicable and permitted by law and in accordance with

FACA.

• Series of Open Tribal Meetings. The Bureau or Office may provide open invitations for

Tribal leaders to attend a series of open meetings. Open meetings can be used for

national, regional or subject-matter specific issues.

• Single Meetings. The Bureau or Office may host Tribal Officials in a single meeting to

discuss a Departmental Action with Tribal Implications under consideration. Single

meetings are particularly appropriate for local or regional issues, or a Tribe-specific issue.

If either the Bureau or Office determines that the Administrative Procedure Act or other

Federal law or regulation expressly prohibits continued discussion at a specified point in the

decision-making process, the Bureau or Office should so inform the Indian Tribes at the earliest

opportunity in this Stage in the process.

3. Implementation of Final Federal Action Stage.

A Bureau or Office may consider implementing a post-consultation review process where

it is consistent with law, regulations, and EO 13175. The review process shall not limit the

Department’s deliberative process privilege regarding internal considerations or any other

applicable privilege. The Department may invite feedback from the Indian Tribe of the

consultation process at this Stage. The Bureau or Office also will consider the need for training

or technical assistance concerning the final Federal action.

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14

F. Impact of Consultation Guidelines. Consultation does not preclude requests or

recommendations by Bureaus, Offices, or Indian Tribes to collaborate and foster collaborative

relationships between the Department and Indian Tribes outside of the processes described in

this Section.

VIII. Supplemental Policies.

Bureaus and Offices, in collaboration with the TGO, shall review existing policies

affected by this Policy. All existing policies shall conform to this Policy and, where necessary, a

Bureau or Office may develop a new policy in order to conform to this Policy.

Consistent with Federal law, the Department shall develop a policy for consultation with

Alaska Native Corporations and other entities as appropriate following the principles set out in

this Policy.

Departmental entities that are not Bureaus and Offices may develop policies consistent

with this Policy and in coordination with the TGO.

IX. Disclaimer.

Except to the extent already established by law, this Policy is intended only to improve

the internal management of the Department, and is not intended to create any right, benefit, or

trust responsibility, substantive or procedural, enforceable at law by a party against the

Department or any person. The Department also does not waive by virtue of this Policy any

applicable privilege that it may hold.

ADD049


EPA POLICY

ON

CONSULTATION AND COORDINATION

WITH

INDIAN TRIBES

May 4, 2011

ADD050


Table of Contents

I. Policy Statement 1

II. Background 2

III. Definitions 3

IV. Guiding Principles 3

V. Consultation 4

A. The Consultation Process 4

B. What Activities May Involve Consultation 5

C. When Consultation Occurs 7

D. How Consultation Occurs 7

VI. Managing the Consultation Process 7

A. Roles and Responsibilities 7

B. National Consultation Meeting 8

C. Reporting 8

D. EPA Senior Management Review 8

ADD051


I. Policy Statement

EPA’s policy is to consult on a government-to-government basis with federally recognizedgovernments when EPA actions and decisions may affect tribal interests. Consultation is process of meaningful communication and coordination between EPA and tribal officials pEPA taking actions or implementing decisions that may affect tribes. As a process, consultincludes several methods of interaction that may occur at different levels. The appropriate lof interaction is determined by past and current practices, adjustments made through this Pthe continuing dialogue between EPA and tribal governments, and program and regional ofconsultation procedures and plans.

tribal a rior to ation evel olicy, fice

This Policy establishes national guidelines and institutional controls for consultation across EPA. EPA program and regional offices have the primary responsibility for consulting with tribes. All program and regional office consultation plans and practices must be in accord with this Policy. This Policy seeks to strike a balance between providing sufficient guidance for purposes of achieving consistency and predictability and allowing for, and encouraging, the tailoring of consultation approaches to reflect the circumstances of each consultation situation and to accommodate the preferences of tribal governments. The consultation process is further detailed in Section V of this document.

1

ADD052


II. Background

To put into effect the policy statement above, EPA has developed this proposed EPA Consultation and Coordination with Indian Tribes (Policy). The Policy complies witPresidential Memorandum (Memorandum) issued November 5, 2009, directing agendevelop a plan to implement fully Executive Order 13175 (Executive Order). The EOrder specifies that each Agency must have an accountable process to ensure meanintimely input by tribal officials in the development of regulatory policies that have tribimplications.

This Policy reflects the principles expressed in the 1984 EPA Policy for the AdministEnvironmental Programs on Indian Reservations (1984 Policy) for interacting with t

Policy on h the cies to xecutive gful and al

ration of ribes. The

1984 Policy remains the cornerstone for EPA’s Indian program and “assure[s] that tribal concerns and interests are considered whenever EPA’s actions and/or decisions may affect” tribes (1984 Policy, p. 3, principle no. 5).

One of the primary goals of this Policy is to fully implement both the Executive Order and the 1984 Indian Policy, with the ultimate goal of strengthening the consultation, coordination, and partnership between tribal governments and EPA.

The most basic result of this full implementation is that EPA takes an expansive view of the need for consultation in line with the 1984 Policy’s directive to consider tribal interests whenever EPA takes an action that “may affect” tribal interests.

The Policy is intended to be implemented using existing EPA structures to the extent possible. The use of current EPA business processes, such as the Action Development Process, National and Regional Tribal Operations Committees, and tribal partnership groups is purposeful so that consultation with tribal governments becomes a standard EPA practice and not an additional requirement.

The issuance of this Policy supports and guides the development and use of program and regional office consultation plans and practices consistent with this Policy.

2

ADD053


III. Definitions

A. “Indian tribe” or “tribe” means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1944, 25 U.S.C. 479a.

B. “Tribal official” means an elected, appointed, or designated official or employee of a tribe.

C. “Indian country” means:

1. All land within limits of any Indian reservation1 under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;

2. All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and

3. All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

IV. Guiding Principles

To understand both the purpose and scope of the Policy as well as the integration of the Policy, Memorandum, and Executive Order, it is helpful to list principles found in EPA’s January 2010 Plan to Develop a Tribal Consultation and Coordination Policy Implementing Executive Order 13175:

EPA’s fundamental objective in carrying out its responsibilities in Indian country is to protect human health and the environment.

EPA recognizes and works directly with federally recognized tribes as sovereign entities with primary authority and responsibility for each tribe’s land and membership, and not as political subdivisions of states or other governmental units.

EPA recognizes the federal government’s trust responsibility, which derives from the historical relationship between the federal government and Indian tribes as expressed in certain treaties and federal Indian law.

1 EPA’s definition of “reservation” encompasses both formal reservations and “informal” reservations, i.e., trust lands set aside for Indian tribes. See for example Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123 (1993); 56 Fed. Reg. 64876, 64881 (1991); or 63 Fed. Reg. 7254, 7258 (1998).

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EPA ensures the close involvement of tribal governments and gives special consideration to their interests whenever EPA’s actions may affect Indian country or other tribal interests.

When EPA issues involve other federal agencies, EPA carries out its consultation responsibilities jointly with those other agencies, where appropriate.

In addition, it is helpful to note the distinction between this Policy, federal environmental laws pertaining to public involvement, and Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. Under this Policy, EPA consults with federally recognized tribal governments when Agency actions and decisions may affect tribal interests. EPA also recognizes its obligations to involve the public as required by federal environmental laws. Finally, EPA recognizes the need to be responsive to the environmental justice concerns of non-federally recognized tribes, individual tribal members, tribal community-based/grassroots organizations and other indigenous stakeholders.

V. Consultation

A. The Consultation Process. To the fullest extent possible, EPA plans to use existing EPA business operations to put this Policy into effect.

Tribal officials may request consultation in addition to EPA’s ability to determine what requires consultation. EPA attempts to honor the tribal government’s request with consideration of the nature of the activity, past consultation efforts, available resources, timing considerations, and all other relevant factors.

Consultation at EPA consists of four phases: Identification, Notification, Input, and Follow-up:

1. Identification Phase: EPA identifies activities that may be appropriate for consultation, using the mechanisms described in section B.2, below. The identification phase should include a determination of the complexity of the activity, its potential implications for tribes, and any time and/or resource constraints relevant to the consultation process. This phase should also include an initial identification of the potentially affected tribe(s).

2. Notification Phase: EPA notifies the tribes of activities that may be appropriate for consultation.

Notification can occur in a number of ways depending on the nature of the activity and the number of tribes potentially affected. For example, EPA may send out a mass mailing to all tribes, may contact the tribal governments by telephone, or provide notice through other agreed upon means. EPA normally honors tribal preferences regarding the specific mode of contact.

Notification includes sufficient information for tribal officials to make an informed decision about the desire to continue with consultation and sufficient information to understand how to provide informed input.

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Notification should occur sufficiently early in the process to allow for meaningful input by the tribe(s).

3. Input Phase: Tribes provide input to EPA on the consultation matter. This phase may include a range of interactions including written and oral communications including exchanges of information, phone calls, meetings, and other appropriate interactions depending upon the specific circumstances involved. EPA coordinates with tribal officials during this phase to be responsive to their needs for information and to provide opportunities to provide, receive, and discuss input. During this phase, EPA considers the input regarding the activity in question. EPA may need to undertake subsequent rounds of consultation if there are significant changes in the originally-proposed activity or as new issues arise.

4. Follow-up Phase: EPA provides feedback to the tribes(s) involved in the consultation to explain how their input was considered in the final action. This feedback should be a formal, written communication from a senior EPA official involved to the most senior tribal official involved in the consultation.

B. What Activities May Involve Consultation?

1. General Categories of Activities Appropriate for Consultation: The broad scope of consultation contemplated by this Policy creates a large number of actions that may be appropriate for consultation.

The following list of EPA activity categories provides a general framework from which to begin the determination of whether any particular action or decision is appropriate for consultation. The final decision on consultation is normally made after examining the complexity of the activity, its implications for tribes, time and/or resource constraints, an initial identification of the potentially affected tribe(s), application of the mechanisms for identifying matters for consultation, described below, and interaction with tribal partnership groups and tribal governments.

The following, non-exclusive list of EPA activity categories are normally appropriate for consultation if they may affect a tribe(s):

• Regulations or rules

• Policies, guidance documents, directives

• Budget and priority planning development

• Legislative comments2

• Permits

2 Legislative comments are a special case where, due to short legislative timeframes, consultation in advance of comment submission may not always be possible. Nevertheless, EPA will strive to inform tribes when it submits legislative comments on activities that may affect Indian country or other tribal governmental interests.

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• Civil enforcement and compliance monitoring actions3

• Response actions and emergency preparedness4

• State or tribal authorizations or delegations

• EPA activities in implementation of U.S. obligations under an international treaty or agreement.

2. EPA’s Mechanisms for Identifying Matters for Consultation: The mechanisms EPA uses for identifying matters appropriate for consultation are as follows:

a. Tribal Government-Requested Consultation. Tribal officials may request consultation in addition to EPA’s ability to determine what requires consultation. EPA attempts to honor the tribal government’s request with consideration of the nature of the activity, past consultation efforts, available resources, timing considerations, and all other relevant factors.

b. Action Development Process (ADP). Early in the process, the lead program office assesses whether consultation is appropriate for the subject action. Its determination is available to tribes in the semiannual Regulatory Agenda as well as in the subset of rules on the Regulatory Gateway accessed through the EPA website.

This Policy is not intended to subject additional Agency actions to the ADP process for the sole purpose of a consultation analysis. Non-ADP actions are subject to consultation analysis through other mechanisms identified within the Policy.

c. National Program Offices and Regional Offices. For those actions and decisions not in the ADP process, program and regional offices also determine if consultation is appropriate under this Policy. EPA’s Tribal Consultation Advisors, described below, provide assistance with that determination. Such determination includes coordination with national and/or regional tribal partnership groups.

d. National and Regional Tribal Partnership Groups. EPA meets regularly with a number of national and regional tribal partnership groups. These groups assist in the identification of matters that may be appropriate for consultation.

3 Primary guidance on civil enforcement matters involving tribes can be found in "Guidance on the Enforcement Priorities Outlined in the 1984 Indian Policy," and "Questions and Answers on the Tribal Enforcement Process." This guidance is intended to work with the Tribal Consultation Policy in a complementary fashion to ensure appropriate consultation with tribes on civil enforcement matters. 4 The term “response” as defined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) includes removals and remedial actions.

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C. When Consultation Occurs. Consultation should occur early enough to allow tribes the opportunity to provide meaningful input that can be considered prior to EPA deciding whether, how, or when to act on the matter under consideration. As proposals and options are developed, consultation and coordination should be continued, to ensure that the overall range of options and decisions is shared and deliberated by all concerned parties, including additions or amendments that occur later in the process.

D. How Consultation Occurs. There is no single formula for what constitutes appropriate consultation, and the analysis, planning, and implementation of consultation should consider all aspects of the action under consideration. In the case of national rulemaking, a series of meetings in geographically diverse areas may be appropriate. For more routine operational matters, a less formal process may be sufficient.

VI. Managing the Consultation Process

A. Roles and Responsibilities

The following roles and responsibilities have been defined to allow EPA to effectively implement this Policy. These roles and responsibilities reflect the fact that, while oversight and coordination of consultation occurs at EPA headquarters, as a practical matter, much of the actual consultation activity occurs in EPA’s program and regional offices. The responsibility for initially analyzing the need for consultation and then subsequently carrying it out, resides with these offices.

1. Designated Consultation Official: In addition to being the EPA’s National Program Manager for the EPA Tribal Program, EPA’s Assistant Administrator for the Office of International and Tribal Affairs (OITA) is the EPA-Designated Consultation Official under the Executive Order. These responsibilities include coordination and implementation of tribal consultation in accordance with this Policy and Agency compliance with the 1984 Indian Policy.

The Designated Consultation Official has the authority for: (1) defining EPA actions appropriate for consultation, (2) evaluating the adequacy of that consultation, and (3) ensuring that EPA program and regional office consultation practices are consistent with this Policy.

Per the Memorandum, the Designated Consultation Official reports annually to OMB on the implementation of the Executive Order.5 Further, the Designated Consultation Official certifies compliance with the Executive Order for applicable EPA activities. The American Indian Environmental Office (AIEO) is located within OITA and coordinates the operational details of the Policy and compiles consultation-related information for the Designated Consultation Official.

2. Assistant Administrators: Assistant Administrators oversee the consultation process in their respective offices including analysis for potential

5 Report is filed annually by August 3rd.

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consultation and the consultation process. Each program office is directed to prepare a semi-annual agenda of matters appropriate for consultation and a brief summary of consultation that has occurred. The program offices provide this information to AIEO for reporting to OMB. Each office is directed to designate a Tribal Consultation Advisor.

3. Regional Administrators: Regional Administrators oversee the consultation process in their respective offices including analysis for potential consultation and the consultation process. Each region is directed to prepare a semi-annual agenda of matters appropriate for consultation and a brief summary of consultation that has occurred. The regions provide this information to AIEO for reporting to OMB. Each region is directed to designate a Tribal Consultation Advisor.

4. Tribal Consultation Advisors: Tribal Consultation Advisors (TCAs) assist in identifying matters appropriate for consultation and prepare summary information on consultation activities and provide it to AIEO. TCAs receive and provide advice within their respective program offices and regions on what actions may be appropriate for consultation. TCAs also serve as a point-of-contact for EPA staff, tribal governments, and other parties interested in the consultation process. TCAs are the in-office subject matter experts to assist staff and management in the implementation of the Policy.

B. National Consultation Meeting

OITA/AIEO may convene a periodic National Consultation Meeting to be chaired by the Designated Consultation Official to review the consultation process across the Agency.

C. Reporting

Pursuant to the Memorandum, EPA submits annual progress reports to OMB on the status of the consultation process and actions and provides any updates to this Policy.

D. EPA Senior Management Review

The Designated Consultation Official communicates regularly with the Assistant and Regional Administrators to review the consultation system, to consider any matters requiring senior management attention, and to make adjustments necessary to improve the Policy or its implementation.

EPA plans to receive ongoing feedback on the Policy from all parties to assess its effectiveness and implement improvements.

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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

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Signature (use "s/" format)

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

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s/ Michael D. Goodstein

14-73055

Oct 16, 2015


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH ...OPENING BRIEF OF PETITIONER THE HOPI TRIBE...

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Transcript of IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH ...OPENING BRIEF OF PETITIONER THE HOPI TRIBE...