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Nance v. EPA

Citation: 11 ELR 20526
No. Nos. 77-3058 et al., 645 F.2d 701/16 ERC 1497/(9th Cir., 05/18/1981)

The court of appeals upholds the Environmental Protection Agency's (EPA's) approval of the Northern Cheyenne Tribe's redesignation of its reservation, for purposes of the prevention of significant deterioration (PSD) program under the Clean Air Act, from Class II to Class I. The gravamen of the arguments presented by petitioner strip-mining companies was that EPA arbitrarily refused to consider the effect of the 1977 amendments to the Clean Air Act, which were pending when the redesignation was finally approved and were signed into law only two days later. The court rules, however, that since the effect of the amendments on strip mining, if any, is not clear now and could not have been accurately anticipated prior to the date of enactment, it was not arbitrary and capricious not to evaluate the effects of the redesignation on petitioners' strip-mining activities. Nor was it error for the Agency to make the redesignation immediately effective rather than to defer the effective date until after passage of the amendments. The court rejects the contention of the intervenor Crow Tribe that the Department of the Interior's concurrence in the action was not sufficiently explicit, as well as its claim that EPA violated its fiduciary duty to the tribe by failing to consider the possible effects of the redesignation upon the tribe's nearby strip-mining operations. The Analysis Document prepared by the Northern Cheyennes, though perhaps deficient under the standards of adequacy applicable to environmental impact statements, provides sufficient justification for the action. Finally, the court finds that the delegation of redesignation authority to Indian tribes is consistent with the applicable provisions of the Clean Air Act and does not constitute a violation of the Tenth Amendment despite the fact that it tends to give tribal authorities some control over land uses outside their reservations.

A dissent expresses some doubt as to whether EPA satisfied the notice and comment requirement of the Administrative Procedure Act but in any event would dismiss the case for lack of ripeness.

Counsel for Petitioners
William Morrow
Holland & Hart
P.O. Box 8749, Denver CO 80201
(303) 578-8000

Counsel for Respondent
Nancy L. Long, Angus Macbeth; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Earl Salo
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor Northern Cheyenne Tribe
Bruce J. Terris
Terris & Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Before TANG, SCHROEDER and NELSON, Circuit Judges.