Wyoming Farm Bureau Defeats EPA Wyoming Land Grab

Feb 22, 2017 | by William Perry Pendley

DENVER, CO.  The Wyoming Farm Bureau today celebrated the 2-1 ruling of a three-judge panel of a Denver-based federal appeals court that struck down an edict from the U.S. Environmental Protection Agency (EPA) that the Northern Arapahoe Tribe and the Eastern Shoshone Tribe—of the Wind River Indian Reservation in Fremont and Hot Springs Counties in west central Wyoming—have jurisdiction over 1.48 million acres of Wyoming.  In early 2014, the group petitioned the U.S. Court of Appeals for the Tenth Circuit contesting the EPA’s December of 2013 decision to grant “Tribe-as-State” status under the federal Clean Air Act.  The Farm Bureau, some of whose members live, work, and own property in and near Riverton, argues that the EPA’s decision ignores more than one hundred years of actions by Congress, Wyoming, the Tribes, and various rulings by a host of federal and state courts including the Supreme Court of the United States.  During arguments in November of 2015 the parties were asked to file supplement briefs on whether the withholding of Clean Air Act funds by the EPA mooted the lawsuit, which the Farm Bureau filed on December 1, 2015.

“We are thrilled with the ruling by the panel that 1.48 million acres of Wyoming are no longer considered ‘Indian country’ and therefore the subject of controversy and conflict over whether the Tribes have jurisdiction over non-Indians and non-reservation lands,” said William Perry Pendley of Mountain States Legal Foundation, which represents the Farm Bureau.

In December 2008, both 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 located within the exterior boundaries of a reservation.  The tribes expended 82 of their 87-page application arguing that they possessed jurisdiction over Riverton.  Because their application ignored a host of federal statutes and federal and state court rulings, in 2009, the State of Wyoming, the Wyoming Farm Bureau, and other entities filed comments opposing 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, which 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.

Mountain States Legal Foundation, 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.

Note:  This case has HUGE implications for our state, federal, and tribal government’s overreach problems in western Montana.  For those of you who might be interested in seeing the briefs and historic documents submitted in this case, reference the State of Wyoming’s Attorney General’s website at this linkScroll about 1/2 way down the page for links to the documents.

Here are a few additional comments from Perry Pendley concerning this issue:

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in Denver ruled 2-1 that the EPA had no right to ruled that 1.48 million acres of Wyoming did not belong to Wyoming—my home state—but was instead “Indian country” and subject to the jurisdiction of the two American Indian tribes that reside on the Wind River Indian Reservation in west central Wyoming.

The question before the panel was simple, as Judge Tymkovich who wrote the opinion for the majority, put it:  “This case requires us to determine whether Congress diminished the boundaries of the Wind River Reservation in Wyoming in l905. We find that it did.”  As a result, the Tenth Circuit rejected the arguments of the Obama administration that Congress did NOT reduce the size of the reservation and that the 1.48 million acres remained “Indian country,” even though the tribes had been provided compensation for the land, even though the land was opened for homesteading, even though some of that land was occupied by the town of Riverton (population 10,000), and even though the Wyoming Supreme Court and other courts, including the Supreme Court of the United States in a related case, had upheld the reduction of the reservation.

In reaching its opinion, the panel did what court should do.  It looked at the words Congress used to accomplish its objective:

  • [O]ur task is not to divine why Congress may have chosen certain synonyms over others in this particular Act.  We believe Congress’s use of the word “cede” can only mean one thing—a diminished reservation.  A review of several dictionaries from the turn of the twentieth century confirms that adding the words “sell” or “convey” would not materially change the intent Congress evinced in the 1905 Act.  And in any event, Article II of the 1905 Act includes the word “conveyed”[.]

The panel also ruled that MSLF’s client, the Wyoming Farm Bureau Federation had the right to file its lawsuit (“standing”):

  • We also find the Wyoming Farm Bureau has standing to sue on behalf of its members…..  In this case, some Farm Bureau members own farms within the disputed area and face the costs of complying with a new regulatory regime following the EPA’s decision…. Therefore, we find the Farm Bureau has standing to sue on behalf of its members.

Exactly what kinds of problems did MSLF’s clients face?  Nothing short of the possibility that non-Indians would be sued in tribal courts that, under the Constitution, have no jurisdiction over non-Indians.  And the possibility that those convicted of crimes in Wyoming courts would be set free because of claims that the case should have been tried in tribal court.  I wrote about these problems here and here.

This case had many important elements, including:  (1) the utter lawlessness of the Department of the Interior Solicitor’s opinion (on which the EPA relied), (2) the involvement of an out-of-control EPA, (3) the jurisdictional muddle into which rural westerners were thrown, that is, not knowing whether they (like the Riverton Memorial Hospital) might be hauled into tribal courts, and (4) MSLF standing alone with its client the Wyoming Farm Bureau Federation alongside the State of Wyoming.

Thank you for your support of MSLF’s battle in this hugely important case.  You may renew your support for MSLF’s battles for freedom here.

Best, Perry

William Perry Pendley, Esq.
Mountain States Legal Foundation
2596 S. Lewis Way
Lakewood, CO 80227
303-292-2021; FAX 303-292-1980