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, Page 1 of 129
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH ...OPENING BRIEF OF PETITIONER THE HOPI TRIBE Michael D. Goodstein Anne E. Lynch HUNSUCKER GOODSTEIN PC 5335 Wisconsin Ave. NW,
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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
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
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
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
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
(“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).
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).
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).
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).
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.
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
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.
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
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
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-
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.
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
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.”
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
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
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
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
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.
_/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
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.
_/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
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
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.
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.
(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.)
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
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,
(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,
(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
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
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.
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.
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
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
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.
(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.
(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
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.
(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.
(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.
(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.
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.
(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.
(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).
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]
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
DEPARTMENT OF THE INTERIOR
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
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1943 Federal Register / Vol. 80, No. 9 / Wednesday, January 14, 2015 / Notices
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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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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1948 Federal Register / Vol. 80, No. 9 / Wednesday, January 14, 2015 / Notices
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
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[LLCA930; CACA 032220]
Notice of Application for Withdrawal Extension and Opportunity for Public Meeting, California
AGENCY: Bureau of Land Management, Interior. ACTION: Notice.
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 non- discretionary 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.
Notice of Realty Action: Competitive Sale of Public Lands (N–87866) in White Pine County, NV
AGENCY: Bureau of Land Management, Interior. ACTION: Notice.
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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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:
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(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
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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.
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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]
Billing code 3195–01–P
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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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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.
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.
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).
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.
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.
• 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.
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
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.
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