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Northern Arapahoe Tribe v. Hodel

Citation: 17 ELR 20682
No. No. 85-1007, 808 F.2d 741/(10th Cir., 01/09/1987)

The court holds that the Secretary of the Interior has the authority to establish an interim game code on the Wind River Indian Reservation in Wyoming if there is a risk of extinction or endangerment of the wildlife and the tribes fail to enact their own game code. The court initially holds that the Shoshone and Arapahoe Tribes have equal rights to hunt on the reservation. Although the Shoshone acquired exclusive hunting rights by implication in an 1868 treaty setting aside the reservation for their use, the Arapahoe acquired equal hunting rights through their status as occupants of the reservation when the federal government relocated them onto the reservation. The court next holds that the Secretary's broad authority to regulate Indian affairs under 25 U.S.C. §§ 2 and 9, along with the 1868 treaty, authorizes the Secretary to enact the game code. When viewed in light of the federal government's trust responsibility to Indians and the Shoshone's specific request for regulation, the Secretary has the authority to establish an interim game code when there is a risk of extinction or endangerment of wildlife and the tribes fail to enact their own code.

The court holds that the Secretary properly invoked the good cause exceptions of the Administrative Procedure Act in making the regulations immediately effective. The Secretary properly invoked the good cause exception in § 553(b)(B), since studies indicated that in the absence of a game code wildlife could be reduced to levels below which recovery would not occur and a large amount of game could be killed during the 30-day notice and comment period. The Secretary also met his burden of establishing good cause under § 553(d)(3), since the necessity for an immediately effective game code outweighed the minimal cost to the Arapahoe of compliance with the code. The court holds, however, that the district court erred when it consolidated the hearing on the temporary restraining order with the trial on the merits without notice to the parties. Since the Arapahoe had no opportunity to present additional evidence or request a continuance, the district court's fact-finding procedures were inadequate to support its finding that reservation wildlife are sufficiently endangered to warrant the denial of permanent injunctive relief.

Counsel for Plaintiff-Appellant
Dale T. White
Fredericks & Pelcyger
1881 9th St., Suite 216, Boulder CO 80302
(303) 443-1683

Counsel for Defendants-Appellees
Blake A. Watson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

Counsel for Intervenor
Kenneth J. Guido Jr.
2033 M St. NW, Suite 404, Washington DC 20036
(202) 452-1930

Before SEYMOUR and SETH, Circuit Judges, and BROWN, District Judge.*