USA v. Questar Gas Management

Filing 389

MEMORANDUM DECISION AND ORDER finding as moot 338 Motion to Strike Affidavit of Philip C. Pugsley ; granting 283 Motion for Partial Summary Judgment on EPA's Regulatory Authority and Defendant's Twenty-Fourth Affirmative Defense. Signed by Judge Ted Stewart on 5/11/2011. (las)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT ON EPA’S
REGULATORY AUTHORITY AND
DEFENDANT’S TWENTY-FOURTH
AFFIRMATIVE DEFENSE

UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION,

Plaintiff-Intervenor,
FRANCES M. POOWEGUP, IRENE C.
CUCH AND PHILLIP CHIMBURAS,
Plaintiff-Intervenor,
vs.

QUESTAR GAS MANAGEMENT
COMPANY,

Case No. 2:08-CV-167 TS

Defendant.

This matter is before the Court on Plaintiff’s Motion for Summary Judgment on EPA’s
Regulatory Authority and Defendant’s Twenty-Fourth Affirmative Defense. For the reasons
discussed below, the Court will grant the Motion.

1

I. BACKGROUND
The government brought this action against Defendant alleging violations of the Clean
Air Act (“CAA”) at five natural gas compressor stations Defendant owns and operates in the
Uintah basin. Plaintiff’s Complaint alleges violations of the CAA’s Prevention of Significant
Deterioration (“PSD”), National Emission Standard for Hazardous Air Pollutants (“NESHAP”),
and Title V programs. The compressor station facilities are known as Coyote Wash, Chapita,
Island, Wonsits Valley, and River Bend (collectively, the “Facilities”). The Facilities are all
“located within the historic boundaries of that portion of the Uintah and Ouray Indian
Reservation known as the Uncompahgre Reservation.”1
In its Twenty-Fourth Affirmative Defense Defendant alleges:
Plaintiff’s claims are barred or limited because it and the Ute Tribe disclaimed
regulatory authority over some or all of the lands at issue in this case in 1998 in
favor of the State of Utah, and, therefore, Plaintiff lacks jurisdictional authority to
bring claims under the federal provisions of the Clean Air Act against some or all
of the facilities at issue in this case.2
This affirmative defense is based on a Disclaimer executed by the Chairman of the Ute
Tribal Business Committee, General Counsel for the Tribe, and approved by the thenSuperintendent of the Uintah and Ouray Agency for the BIA in an attempt to settle long-running
litigation concerning the boundaries of the Reservation. That Disclaimer provides, in pertinent
part:

1

Docket No. 263, ¶ 7.

2

Id. ¶ 246.
2

[T]he tribe hereby disclaims all civil and/or regulatory authority over land
determined to be part of the Reservation and “Indian country”, as defined by 18
U.S.C. § 1151, under the decision of the United States Court of Appeals for the
Tenth Circuit in the case of Ute Indian Tribe v. Utah, 114 F.3d 1513 (1997),
which is owned by persons who are not members of federally recognized Indian
tribes. This disclaimer includes any right that the Tribe might otherwise assert to
. . . regulate activities thereon from the standpoint of their environmental effects.3
The government seeks summary judgment on this affirmative defense arguing: (1) that
only the EPA can approve Tribes or States to implement Clean Air Act (“CAA”) Programs, that
the EPA has not approved the Tribe or the State to implement CAA on the reservation, therefore
EPA has regulatory authority over the five facilities; (2) the EPA is not bound by the Disclaimer
because the former Superintendent of the Uintah and Ouray Agency for the Bureau of Indian
Affairs (“BIA”) did not have the authority to bind the EPA or the entire United States when he
approved the disclaimer; and (3) the Disclaimer does not apply to the Uncompahgre Reservation
where the facilities are located.
The Court agrees that summary judgment is appropriate because the authority to
administer CAA programs on the Reservation lies with the EPA.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the moving party can demonstrate that there is no genuine
issue of material fact and it is entitled to judgment as a matter of law.4 In considering whether a
genuine issue of material fact exists, the Court determines whether a reasonable jury could return

3

Docket No. 284, Ex. 2.

4

FED .R.CIV .P. 56(a).
3

a verdict for the nonmoving party in the face of all the evidence presented.5 The Court is
required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party.6
III. DISCUSSION
To properly understand the Disclaimer, it must be put in context. In 1975, the Ute Tribe
brought suit against the State of Utah and others “seeking declaratory and injunctive relief
establishing the exterior boundaries of the Uintah and Ouray Reservation.”7 In 1981, this Court,
per the Honorable Judge Jenkins, held that the Uncompahgre Reservation, where Defendants’
facilities are located, was disestablished and that the Uintah Valley Reservation was diminished.
In 1983, the Tenth Circuit Court of Appeals affirmed the district court’s holding that the
Uncompahgre Reservation had been disestablished, but reversed as to the Uintah Valley
Reservation, holding that it had also been disestablished.8 After the Supreme Court issued its
decision in Solem v. Bartlett,9 the Tenth Circuit, sitting en banc, again considered these issues in

5

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
6

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
7

Ute Indian Tribe v. Utah, 521 F.Supp. 1072, 1075 (D. Utah 1981) (hereinafter “Ute I”).

8

Ute Indian Tribe v. Utah, 716 F.2d 1298, 1315 (10th Cir. 1985) (hereinafter “Ute II”).

9

465 U.S. 463 (1984).
4

Ute III.10 In Ute III, the Tenth Circuit held that neither the Uncompahgre Reservation nor the
Uintah Reservation had been disestablished or diminished.11
The issue of the boundaries of the Reservation was also litigated in the Utah state courts.
In State v. Hagen,12 the Utah Supreme Court held that the Uintah Indian Reservation had been
diminished.13 The United States Supreme Court granted certiorari “to resolve the direct conflict
between the[] decisions of the Tenth Circuit and the Utah Supreme Court on the question
whether the Uintah Reservation has been diminished.”14 The Supreme Court affirmed the
judgment of the Utah Supreme Court, ultimately concluding that the Uintah Indian Reservation
had been diminished.15
After the United States Supreme Court issued its decision in Hagen, this Court found that
the mandate issued by the Tenth Circuit in Ute III remained in full force and effect, but requested
further instruction from the Court of Appeals on how best to proceed in light of Hagen.16 This

10

Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir. 1985) (hereinafter “Ute III”).

11

Id. at 1093

12

858 P.2d 925 (Utah 1992).

13

Id. at 926.

14

Hagen v. Utah, 510 U.S. 399, 409 (1994).

15

Id. at 421-22.

16

Ute Indian Tribe v. Utah, 935 F.Supp. 1473, 1529-30 (D. Utah 1996) (hereinafter “Ute

IV”).
5

Court noted, however, that the status of the Uncompahgre Reservation was not raised as an issue
before the Supreme Court.17
The Tenth Circuit Court of Appeals once again considered the boundaries of the
Reservation in Ute V.18 In that case, the Tenth Circuit found it appropriate to modify its earlier
decision in Ute III “to the extent that it directly conflicts with the holding in Hagen.”19 The court
held that “[t]o the extent that the boundary determinations made in Ute Indian Tribe III do not
directly conflict with Hagen, they remain in effect.”20 The Tenth Circuit stated that “[b]ecause
Hagen did not directly address our holding in Ute Indian Tribe III as it relates to . . . the
Uncompahgre Reservation, we have no reason to depart from that part of our prior judgment.”21
Therefore, the Tenth Circuit left in place its prior ruling that the Uncompahgre Reservation was
neither disestablished nor diminished.
The Tenth Circuit then went on to address the direct conflicts between Ute III and
Hagan.22 “In particular, [the court had to] decide which lands within the Uintah Valley
Reservation are no longer Indian country after Hagen.”23 The court focused on four categories of

17

Id. at 1528.

18

Ute Indian Tribe v. Utah, 114 F.3d 1513 (10th Cir. 1997) (hereinafter “Ute V”).

19

Id. at 1527.

20

Id. at 1528.

21

Id. at 1529.

22

Id.

23

Id.
6

non-trust lands: (1) lands that passed from trust to fee status pursuant to non-Indian settlement
under the 1902-1905 allotment legislation; (2) lands apportioned to the “Mixed Blood” Utes
under the Ute Partition Act; (3) lands allotted to individual Indians that have passed into fee
status after 1905; and (4) lands that were held in trust after the Uintah Valley Reservation was
opened in 1905 but that were later exchanged into fee status by the Tribe in order to consolidate
the Tribe’s land holdings.24 The Tenth Circuit modified its mandate in Ute III with regard to the
first category of lands—lands that passed from trust to fee status pursuant to non-Indian
settlement under the 1902-1905 allotment legislation—holding that these lands were no longer
“Indian country” under 18 U.S.C. § 1151.25 The court went on to state that “Hagen did not erase
the boundaries of the Uintah Valley Reservation and that the current ‘limits of [the] reservation’
thus embrace the three categories of non-trust lands at issue. In sum, Hagen does not conflict
with our holding in Ute Indian Tribe III that these categories of non-trust lands remain within
Indian country under section 1151(a).”26 The court concluded that “Indian country extends to all
trust lands, the National Forest Lands, the Uncompahgre Reservation, and the three disputed
categories of non-trust lands discussed above.”27
With this background in mind, the Court turns to the issues before it. As stated, the
Disclaimer provides:

24

Id.

25

Id. at 1530.

26

Id.

27

Id. at 1531.
7

[T]he tribe hereby disclaims all civil and/or regulatory authority over land
determined to be part of the Reservation and “Indian country”, as defined by 18
U.S.C. § 1151, under the decision of the United States Court of Appeals for the
Tenth Circuit in the case of Ute Indian Tribe v. Utah, 114 F.3d 1513 (1997) [Ute
V], which is owned by persons who are not members of federally recognized
Indian tribes. This disclaimer includes any right that the Tribe might otherwise
assert to . . . regulate activities thereon from the standpoint of their environmental
effects.28
Three of the facilities here are located on BLM land within the Uncompahgre Reservation and
two are located on tribal trust lands.
Plaintiff and Intervenor argue that the Disclaimer does not apply to the facilities because
the Disclaimer is limited to the Uintah Valley Reservation and because the United States is not a
“person” within the plain meaning of the Disclaimer. The Court need not resolve these disputes.
Even assuming that the Disclaimer does apply, the Court finds that the authority to administer
CAA programs on the Reservation lies with the EPA.
“Tribal environmental authority in Indian country stems from two interrelated sources.
First, Indian tribes possess inherent powers to govern their territories. . . . Second, Indian tribes
may exercise powers authorized by Congress.”29
The Clean Air Act, like a number of environmental regulations, establishes a federal-state
partnership to regulate air quality, giving the states the primary responsibility for ensuring that

28

Docket No. 284, Ex. 2.

29

Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW , § 10.01[1] (Matthew Bender,
2005 ed.) (hereinafter “Cohen Handbook”).
8

ambient air meets the EPA-established national ambient air quality standards (“NAAQS”).30 The
EPA is the agency primarily responsible for administering the CAA.31
Under the CAA, the states are directed to develop and submit for EPA approval state
implementation plans (“SIPs”) providing for the implementation, maintenance, and enforcement”
of NAAQS.32
Congress has authorized the EPA to treat Indian tribes as states (“TAS”) when certain
conditions are met.33 The EPA has promulgated regulations, known as the Tribal Authority Rule
(“TAR”), which “identif[ies] those provisions of the Clean Air Act . . . for which Indian tribes
are or may be treated in the same manner as States.”34 TAS designation is something for which
an Indian Tribe must apply to the EPA.35 40 C.F.R. § 49.9 establishes procedures for the EPA’s
review of applications for TAS.36
Along with its TAS application, “[a] tribe may simultaneously submit a request for an
eligibility determination and a request for approval of a Clean Air Act program.”37 “A request

30

42 U.S.C. §§ 7407(a); 7409.

31

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984).

32

42 U.S.C. § 7410(a)(1).

33

Id. § 7601(d)(2).

34

40 C.F.R. § 49.1.

35

Id. § 49.7(a).

36

Id. § 49.9.

37

Id. § 49.7(b).
9

for Clear Air Act program approval must meet any applicable Clean Air Act statutory and
regulatory requirements.”38 Tribal applications for program approvals are “reviewed by EPA in
accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA
would review a similar State submittal.”39
The tribal implementation plan (“TIP”) framework is similar to that of the SIPs.40 When
a TIP becomes effective, it generally applies to all areas located within the exterior boundaries of
the reservation.41
Tribes, however, are not required to engage in this process. Where a tribe chooses not to
develop a program, does not adopt an adequate program, or does not adequately implement a
CAA program, the EPA generally issues permits and otherwise administers the CAA in Indian
country in accordance with federal regulations.42

38

Id. § 49.7(c).

39

Id. § 49.9(h); 42 U.S.C. § 4710(o).

40

42 U.S.C. §§ 7601(d)(3), 7410(o).

41

Id. § 4710(o).

42

Id. §§ 7601(d)(4), 7661a; see also Michigan v. EPA, 268 F.3d 1075, 1079 (D.C. Cir.
2001) (“[I]n the absence of an EPA-approved tribal implementation program, EPA may adopt a
federal implementation program.”); Cohen Handbook at § 10.01[2][a] (“[T]he EPA retains
implementation authority in Indian country under statutes authorizing tribes to take primary
regulatory control unless and until the tribes do so.”); id. § 10.02[1] (“When a tribe does not take
primacy, the EPA will administer the environmental programs in Indian country . . . .”);
Environmental Protection Agency, EPA Policy for the Administration of Environmental
Programs on Indian Reservations (1984) (“Until Tribal Governments are willing and able to
assume full responsibility for delegable programs, the Agency will retain responsibility for
managing programs from reservations (unless the State has an express grant of jurisdiction from
Congress sufficient to support delegation to the State Government).”).
10

The following facts are undisputed. The Ute Tribe has never applied to EPA for a
determination of TAS eligibility to administer any regulatory program under the CAA. The Ute
Tribe has never submitted to the EPA or requested that the EPA approve any TIP, any operating
permit program under CAA Title V, or any other mechanism for the Tribe to administer any
CAA regulatory program. The EPA has never received, reviewed, or approved any TIP, any
operating permit program under CAA Title V, or any other mechanism for the Ute Tribe to
administer any CAA programs. The EPA has never granted the Tribe the authority to administer
CAA regulatory programs on the reservation. Further, the EPA has specifically limited its
approval of Utah CAA programs so that they do not apply on Indian country.43
Under these undisputed facts, it is clear that the authority to administer CAA programs on
the reservation lies with the EPA. As has been made clear in both statute and case law, if the
Tribe does not implement CAA programs on the reservation, the authority to do so reverts to the
EPA. Here, neither the Tribe nor the state has been authorized to implement CAA programs on
the reservation. Therefore, Defendant’s arguments to the contrary must be rejected.
Defendant, however, argues that the Tribe has given up its authority in favor of the State
of Utah. Defendant’s argument rests on the inherent authority a tribe has over matters having a

43

40 C.F.R. § 52.2346(a); 47 Fed. Reg. 6427; 60 Fed. Reg. 30192, 30195; 67 Fed. Reg.
58998, 58999; 74 Fed. Reg. 1899, 1903. Defendant disputes that the EPA has not approved the
State of Utah to administer CAA programs on the Reservation. Defendant points to the fact that
the state has, in fact, regulated facilities on the Reservation. However, the simple fact that the
state has regulated facilities on the Reservation does not mean that the EPA has approved the
practice or that the state had the authority to do so. As stated, the EPA has specifically provided
that Utah’s CAA programs do not apply in Indian country.
11

direct effect on the health and welfare of the tribe.44 Defendant argues that, by signing the
Disclaimer, the Tribe has chosen to give up this inherent authority to the State of Utah.
However, even assuming that the Tribe had the authority to do so and did seek to turn over
control of matters related to environmental regulation on the reservation, this is something that
cannot be done by the Disclaimer.
States may not generally exercise jurisdiction over Indian lands without the consent of
Congress.45 Here, there is nothing to show any congressional intent to allow the State to control
the environmental affairs on the reservation. Indeed, as set forth above, the congressional intent
shows just the opposite: that the EPA administers the programs under the CAA unless and until
the Tribe chooses to do so.46 Therefore, this argument must be rejected.
Defendant also argues that the State of Utah has authority to regulate on the Reservation
under its own emissions permitting program. However, as stated, states may not generally
exercise jurisdiction over Indian lands without the consent of Congress. Here, there is no
indication that Congress has consented to the State of Utah regulating the environmental affairs
on the Reservation. Defendant points to the fact that the State has, in fact, regulated facilities on

44

See Montana v. United States, 450 U.S. 544, 566 (1981).

45

Washington v. EPA, 752 F.2d 1465, 1469-70 (9th Cir. 1985); see also Cohen Handbook
at § 10.02[1] (“In general, states may exercise jurisdiction over Indians and Indian lands only as
authorized by Congress . . . .”); id. at § 7.079[4] (“Because of federal supremacy over Indian
affairs, tribes and state may not make agreements altering the scope of their jurisdiction in Indian
Country absent congressional consent.”).
46

42 U.S.C. § 7601(d)(4).
12

the Reservation. While this would certainly lead to confusion over the proper regulatory
authority, it does not show that the State has the authority to so regulate.
Defendant also argues that confusion over the boundaries of the Reservation creates a
genuine issues of material fact, precluding summary judgment. This argument fails for a number
of reasons. First, it was Congress, not the courts, that established the boundaries of the
Reservation. The various courts’ differing interpretations of congressional action did not alter
the boundaries of the Reservation. Second, as stated above, the boundaries of the Uncompahgre
Reservation, where all of the facilities are located, have been clear since 1985. Based on all of
these considerations, the Court finds that the EPA has the authority to regulate the facilities at
issue here.
IV. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Summary Judgment on EPA’s Regulatory
Authority and Defendant’s Twenty-Fourth Affirmative Defense (Docket No. 283) is GRANTED.
It is further
ORDERED that Plaintiff’s Motion to Strike the Affidavit of Philip C. Pugsley (Docket
No. 338) is DENIED AS MOOT.
DATED May 11, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge
13