Feb 16, 2018
By William Perry Pendley
Rural Wyoming farmers freed from an illegal EPA decree by a federal appeals court ruling must now defend their rights at the Supreme Court against powerful Washington, D.C. law firms.
DENVER, CO. The Wyoming Farm Bureau Federation learned today that a former top official of the Obama administration, now with one of the nation’s most prestigious law firms, joined with another preeminent Washington, D.C. law firm, in an effort to overturn the Farm Bureau’s successful challenge to an edict from the Environmental Protection Agency (EPA). Represented by Mountain States Legal Foundation (MSLF), the Farm Bureau challenged the EPA’s 2013 decision to grant the Northern Arapahoe Tribe and the Eastern Shoshone Tribe—of the Wind River Indian Reservation— jurisdiction over 1.48 million acres of Wyoming, including the town of Riverton. Farm Bureau members who live, work, and own property in and near Riverton and who would be subject to tribal jurisdiction although they are not tribal members, argued the EPA’s order ignores more than one hundred years of actions by Congress, Wyoming, the Tribes, and rulings by a host of federal and state courts. In November of 2017, the U.S. Court of Appeals for the Tenth Circuit in Denver, ruled 2-1 against the EPA.
“We are disappointed our client must face the daunting challenge of battling two of the nation’s most renown Supreme Court practitioners,” said William Perry Pendley of MSLF.
The Eastern Shoshone Tribe represented by Seth P. Waxman, and Kenneth L. Salazar, former Secretary of the Interior during the Obama administration, both of WilmerHale, and the Northern Arapahoe Tribe represented by Paul D. Clement of Kirland & Ellis LLP filed separate petitions seeking Supreme Court review.
In December of 2008, the Tribes sought Tribe-as-State status under §301(d)(2) of the Clean Air Act, which provides an “express congressional delegation” to tribes of the EPA’s authority to regulate air quality on fee lands within the exterior boundaries of a reservation; however, the tribes expended 82 of their 87-page application arguing for their jurisdiction over Riverton. The State of Wyoming, the Farm Bureau, and other entities opposed the application.
The Reservation, which is shared by the Tribes, was established in 1868. In 1904, the Tribes signed an agreement with the federal government ceding 1,480,000 acres of land, which were to be opened for sale under the homestead, townsite, coal, and mineral land laws. The agreement was entered into with the United States Indian Inspector in exchange for per capita payments to tribal members and capital improvement projects inside “the diminished reserve” or Reservation. In 1905, Congress ratified the 1904 agreement.
In 1906, the ceded lands were opened for settlement by a Presidential Proclamation and allotments were sold to non-Indians in an area that today makes up Riverton. In 1939, some unsold ceded lands were restored to the Reservation, but a significant portion was not. Riverton is located wholly on lands ceded in the 1904 agreement and never restored to the Tribes.
MSLF, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
For more information: Wyoming Farm Bureau Federation v. Environmental Protection Agency