Here is today’s opinion in Coalition for Responsible Regulation v. EPA:
Regulations
Interior Office of Inspector General Follow-Up to 2003 Report on Tribal Per Capita Payments
In 2003, the OIG issued a report evaluating the Bureau of Indian Affairs’ process for approving tribal revenue allocation ordinances. A few days ago, the OIG issued a quick follow up to that report, determining whether and how the BIA responded to the OIG’s three recommendations. Here is that follow-up:
An excerpt:
Based on our review, we agree that BIA’s Office oflndian Gaming attempted to implement the first two recommendations but did not succeed due to resistance from tribal authorities and lack of enforcement capability. BIA concluded that it did not have the authority to force tribes to submit the additional financial information that would have been required to implement OIG’s first two recommendations. OIG agrees that there is no express authority in either applicable regulation or statute to require submittal of financial information from tribes to obtain approval for gaming Revenue Allocation Plans (RAPs). DOl and BIA could have, however, used their authority to deny RAPs to effectively compel requested financial information from tribes.
D.C. Circuit Strikes NRC Temporary Fuel Storage Rule (Prairie Island Indian Community Among Challengers)
Here is today’s opinion in State of New York v. Nuclear Regulatory Commission, and selected briefs:
Prairie Island and NY VT CT NJ Brief
NY VT CT NJ & Prairie Island Reply Brief
Colville Suit against IHS over Declination of Emergency Medical Services Self-Governance Compact Increase
Here is the complaint in Confederated Colville Tribes v. Sebelius (D. Or.):
Friday News Dump — NIGC Opines on Kialegee Broken Arrow Casino
Federal Agent Affidavit in United Auburn Community Fraud Case
Diné CARE National Parks Conservation Association v. EPA Complaint: Clean Air Act Suit regarding Navajo Coal
Here is the complaint, filed in D.C.:
An excerpt:
1. The federal Clean Air Act requires the Administrator of the United States Environmental Protection Agency (“Administrator” or “EPA”) to promulgate modern pollution control limits at the massive Navajo Generating Station (“NGS”) and Four Corners Power Plant (“Four Corners”), located on Navajo tribal lands in Arizona and New Mexico, to remedy unhealthful, scenery-impairing air pollution in protected national parks and wilderness areas in the American Southwest. Because EPA has failed to promulgate such pollution control limits without unreasonable delay, Plaintiffs bring this action to secure an order from the court that directs EPA to issue haze-reducing pollution control limits at NGS and Four Corners forthwith.
2. In particular, this Clean Air Act Section 304(a) citizen suit, 42 U.S.C. §7604(a), seeks an order compelling EPA to perform its nondiscretionary duties by date or dates certain to promulgate federal implementation plans (“FIPs”) establishing Best Available Retrofit Technology (“BART”) for NGS and Four Corners. EPA’s failure to perform these duties within a reasonable time has deprived Plaintiffs’ members of health, welfare, and procedural protections provided by the Clean Air Act.
New Scholarship on an Administrative Carcieri Fix
Howard Highland has posted his article, “A Regulatory Quick-Fix for Carcieri V. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine,” on SSRN. The Administrative Law Review published the article in its 2011 volume.
Here is the abstract:
Secretary of the Interior Ken Salazar has requested that Congress enact a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, a cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”
Whereas other proposals for a Carcieri fix presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.
25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. § 83.12(a), which entitles acknowledged tribes to “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes.” Hence, federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. This Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.
Updated Materials in Redding Rancheria v. Salazar
Redding Rancheria Challenge to IGRA Section 20 Regs Denied
Here is the order.
Briefs will go up once the N.D. Cal. pacer site comes back up.
Turtle Talk 
You must be logged in to post a comment.