[00:00:00] Speaker 04:
Twenty-five dash nine five three one you Indian tribe versus EPA mr.. Well that you may proceed May please the court good morning your honors my name is Michael hold itch I am appearing on behalf of the appellant the youth Indian tribe I'm joined by my co-counseling colleague mr.. Jeffrey Ross moosen

[00:00:22] Speaker 04:
Your Honor, this case revolves around a 500 megawatt coal-fired power plant, electric generation unit, the only one of its kind, located not near, not around, but on the reservation homeland of the appellant Indian tribe.

[00:00:35] Speaker 04:
The Bonanza power plant emits nitrogen oxide, sulfur dioxide, particulate matters, and other known pollutants directly into tribal airspace.

[00:00:44] Speaker 04:
For around 15 years, from around 2000 to 2015, emitted these pollutants into tribal airspace without the controls, conditions, or limitations of a Title V operating permit as required by the United States Clean Air Act.

[00:01:03] Speaker 04:
The air quality impacts that resulted from these unbridled emissions have never been meaningfully addressed, mitigated, or studied.

[00:01:12] Speaker 04:
The United States Environmental Protection Agency stood by for a decade and a half and allowed these unbridled emissions only to subsequently issue and now renew a Title V operating permit as if nothing had ever happened.

[00:01:28] Speaker 04:
So at its core, this is not a case about forcing an operator to comply with air quality standards, nor is this a case to antagonize producers engaged in fossil fuel production on the U of Tandoy reservation.

[00:01:45] Speaker 04:
What this is a case is about EPA and its failure to uphold its unique government-to-government relationship with the Indian tribe, which is defined not only by

[00:01:54] Speaker 04:
the exacting fiduciary standards of a trustee, but also by their mutual relationship as sovereigns with concurrent jurisdiction over the lands and airspace in question.

[00:02:08] Speaker 02:
If you wanted to challenge the efficacy of the pollution control measures that EPA approved, is there another form or another way to do that?

[00:02:21] Speaker 02:
You're not really making a direct attack on

[00:02:24] Speaker 02:
You know, whether they're adequately protecting the health and safety of the people that live near it, you're attacking basically the process that was used.

[00:02:35] Speaker 02:
Is there a substantive case that you have somewhere where you challenge that?

[00:02:39] Speaker 04:
There's no substantive case right now challenging directly the adequacy of the control measures.

[00:02:43] Speaker 04:
What we're challenging here, Your Honor, is the adequacy of the assurances that have been provided to the tribe, whether that's through studies or data provided, that these control measures actually do what they're supposed to do.

[00:02:56] Speaker 03:
Let me stop you for a minute.

[00:02:57] Speaker 03:
I don't think that was responsive.

[00:02:59] Speaker 03:
I think what the judge was asking you was if there was another forum where you could get relief

[00:03:08] Speaker 03:
another another Avenue like challenging the permit or something like that.

[00:03:15] Speaker 04:
There is yes that you could you could challenge the permit itself for

[00:03:22] Speaker 04:
the adequacy of the control measures, whether that's through a violation of the permit itself through a citizen suit provision under the Clean Air Act or through a separate APA action that's slightly different in nature and character from the current one in which there would be a direct challenge to

[00:03:39] Speaker 04:
the sufficiency of the controls where we say this control is not sufficient and here's why.

[00:03:44] Speaker 04:
But this case is more focused on the EPA and its abject failure to uphold its requirements vis-a-vis its government-to-government relationship with the tribe.

[00:03:57] Speaker 04:
So here EPA's approval of the Title V permit renewal can be broken down into two salient shortcomings.

[00:04:04] Speaker 04:
First, EPA failed to engage in meaningful government-to-government consultation in compliance with its own tribal consultation policy.

[00:04:13] Speaker 04:
And second, EPA failed to consider all relevant factors when issuing its approval, including

[00:04:20] Speaker 04:
factors pertinent to the best interest of the tribe pursuant to its trust responsibility and relationship, rendering EPA's decision arbitrary and capricious under the APA standard.

[00:04:30] Speaker 02:
The record does disclose there was some consultation.

[00:04:34] Speaker 02:
Where do you think there's

[00:04:38] Speaker 02:
kind of a line drawing exercise that we have here.

[00:04:41] Speaker 02:
How much is enough under the EPA's policy guidance?

[00:04:46] Speaker 02:
What was the specific failure here?

[00:04:48] Speaker 04:
So the specific, there's a few specific failures here.

[00:04:52] Speaker 04:
One is simply that we have a 92 page Title V permit and there was a grand total aggregate of less than two hours of government to government consultation.

[00:05:02] Speaker 04:
Now we are not as, I think the briefing makes clear, we're not trying to draw a bright line of

[00:05:08] Speaker 04:
you know, does this issue require two hours versus this level of complexity requires three hours, four hours, etc.

[00:05:14] Speaker 04:
It's not a time-based test, it's a functionality test.

[00:05:17] Speaker 04:
So we know that the consultation was deficient in cursory because the legitimate questions and concerns that were raised by the tribe during this consultation process were never meaningfully addressed.

[00:05:29] Speaker 04:
And those include things like how does this SCR, selective catalytic reduction technology, and I'm talking from a lay perspective now, that's the technology that once installed is supposed to function to lift the lifetime cap or the cap on coal combustion at the facility and allow coal consumption indefinitely.

[00:05:52] Speaker 04:
What studies and what scope of that technology provides the assurances necessary that indefinite coal consumption at this location on the tribe's reservation will not result in localized adverse air quality impacts, things like that.

[00:06:09] Speaker 04:
And that's kind of a forward-looking example.

[00:06:12] Speaker 04:
As a backward-looking example,

[00:06:13] Speaker 04:
a tribe had requested consideration of what controls could be put in place or measures could be put in place to offset the 15 plus years of unbridled emissions that took place on the tribe's reservation as a result of EPA's failure to establish those control measures before it was required to.

[00:06:30] Speaker 02:
Before you get to the substantive aspects of the consultation,

[00:06:35] Speaker 02:
Don't our cases generally say that a policy guidance document is not legally binding on the agency?

[00:06:43] Speaker 02:
We have a couple cases in the briefs that stand for that proposition.

[00:06:48] Speaker 02:
Why is this policy guidance legally binding as opposed to the general rule that they are not?

[00:06:55] Speaker 04:
So that's a fantastic question, Your Honor, and I think the title of this agency document as a policy can be misleading, but really the distinction here is between a general policy statement and a procedure that impacts the public.

[00:07:10] Speaker 04:
So under 10th Circuit case law, the agency is required to follow its own procedures

[00:07:17] Speaker 04:
especially when those procedures directly impact the public or individual rights.

[00:07:22] Speaker 04:
Here we're talking about the rights of the sovereign Udendian tribe to provide meaningful input and have that input considered in a real way.

[00:07:32] Speaker 04:
So I think a key...

[00:07:36] Speaker 02:
I think a key illustrative... What's the case that is the best support for that proposition?

[00:07:43] Speaker 04:
I think the best case would be actually the U.S.

[00:07:45] Speaker 04:
Supreme Court case in Morton Route versus Ruiz because that sets a good illustrative point of distinction between the primary case that the EPA has cited, which is the Amrep Corp case.

[00:07:56] Speaker 04:
In the Morton versus Ruiz case, the Supreme Court found that there was an agency procedure in place, and this deals with Indian tribal issues as well, where any departure from or determination relating to the eligibility requirement of enrolled tribal members for general assistance program funding required, you know, certain procedures, publications, things like that, their departure from that standard without any rational

[00:08:23] Speaker 04:
Explanation rendered the agency action arbitrary and was in the policy there after notice and comment traditional rulemaking I Don't believe in Morton versus Ruiz it was I believe this was their policy and practice of Public publication use me any

[00:08:47] Speaker 04:
departure or deviation or protocol regarding eligibility requirements.

[00:08:52] Speaker 04:
I don't believe that went through a notice a notice of rulemaking process now.

[00:08:56] Speaker 04:
That would be, Your Honor, the process for something like a general policy statement to suddenly become binding upon the agency.

[00:09:04] Speaker 04:
So we have a general policy statement, which under the case law supplied by the EPA is more like an informal pronouncement for the legal standard that the agency will use when applying its enforcement or adjudicatory authority.

[00:09:19] Speaker 04:
For example, in the Amrep Corp case that they cited,

[00:09:21] Speaker 04:
at length in their briefing.

[00:09:24] Speaker 04:
The general policy statement in question was just an informal letter from the Federal Trade Commission to a member of Congress, one of the committee chairmans, about a general

[00:09:38] Speaker 04:
Outline of the standards they would follow for deceptive trade practices so of course something that would have the force of law like that Couldn't be done through such an informal process, but here So that's why it was a general policy statement does require that rulemaking process now we were talking about something That's not a general let me ask you something real real fast just in it sort of you'll work into this probably but

[00:10:01] Speaker 03:
At the base of this is the executive order 13175.

[00:10:04] Speaker 03:
Correct.

[00:10:05] Speaker 03:
And you're not making a direct challenge on that.

[00:10:09] Speaker 03:
Correct.

[00:10:09] Speaker 03:
But that's the document that results in the creation of this policy.

[00:10:15] Speaker 03:
Correct.

[00:10:16] Speaker 03:
OK.

[00:10:16] Speaker 03:
And the executive order expressly disavows that it's creating any rights that are judicially enforceable in anyone.

[00:10:25] Speaker 03:
You agree with that?

[00:10:26] Speaker 03:
I do.

[00:10:26] Speaker 03:
OK, so my question is,

[00:10:31] Speaker 03:
Can the policy, without any rulemaking, notice and comment, expand on the base document?

[00:10:41] Speaker 03:
Can it create rights that the base document expressly disavows?

[00:10:47] Speaker 04:
I think it can because it would not be, what the executive order functions to do is it creates a directive for agencies to create their own procedures and protocols for tribal consultation.

[00:10:59] Speaker 04:
So by disavowing any right to relief under the executive order itself, what it's doing is disavowing a citizen or whoever's, an aggrieved party's right to

[00:11:10] Speaker 04:
challenge an agency's failure to establish a procedure for tribal consultation pursuant to the directive of the executive order.

[00:11:20] Speaker 04:
Once an agency has done that and established procedures that directly impact, in this case, tribal governments and their membership, then they are held to the Morton v. Ruiz standard, as well as the 10th Circuit's Big Horn Coal Company standard, which says that agencies do have to follow their own procedures and protocols

[00:11:40] Speaker 02:
Or provides at least at the very least an explanation for their departure to follow up on that the you know executive orders merely a pronouncement by the President in those cases that this is the way You know my agencies are you the EPA are going to?

[00:11:57] Speaker 02:
operate you know generally if the EP if the agency doesn't follow an executive order that's You know that's a dispute between the agency and the president correct and

[00:12:09] Speaker 02:
Because of that kind of Article 2 issue, most of the cases, as I understand them, require a statutory basis to ensure that there's a judicial review process, right?

[00:12:27] Speaker 02:
What's the statutory basis that we can hang our hat on that would allow us to give judicial review of this particular policy document?

[00:12:36] Speaker 04:
Well, there's no statutory basis for the executive order, nor is there a statutory basis for the consultation policy.

[00:12:44] Speaker 04:
It's a normative standard that's been set by the courts for a policy, or excuse me, not a policy, but a procedure of this nature.

[00:12:53] Speaker 04:
And of course, there's also the APA would be the statutory hook in that sense, in that

[00:13:01] Speaker 04:
the precedent provides that a failure to comply or uphold procedures that impact the rights of others does render that agency action arbitrary and capricious.

[00:13:14] Speaker 04:
Your Honor, I'd like to reserve the remainder of my time.

[00:13:17] Speaker 04:
Thank you.

[00:13:23] Speaker 02:
Let's hear from Mr. Higgins.

[00:13:34] Speaker 01:
Good morning.

[00:13:36] Speaker 01:
May it please the court.

[00:13:37] Speaker 01:
I am Elliott Higgins from the Department of Justice, representing EPA.

[00:13:40] Speaker 01:
With me at counsel's table is Makram Jobber.

[00:13:44] Speaker 01:
He is the Counsel for Respondent Intervener Deseret Generation and Transmission Cooperative.

[00:13:50] Speaker 01:
Your Honors, I will seek to make three points today.

[00:13:53] Speaker 01:
First, EPA was under no enforceable duty to consult the Ute tribe here.

[00:13:58] Speaker 01:
Second, even if there were such a duty, EPA discharged it by meaningfully consulting the tribe.

[00:14:03] Speaker 01:
And third, EPA acted consistently with its trust responsibility.

[00:14:08] Speaker 01:
I will start with the lack of any enforceable duty to consult the tribe.

[00:14:12] Speaker 01:
The only two potential sources of that duty are Executive Order 13175 and EPA's related Tribal Consultation Policy.

[00:14:21] Speaker 01:
The Executive Order is not enforceable for the reasons explained in EPA's brief at pages 14 through 15.

[00:14:27] Speaker 01:
That is, the order is not based on any statute, the order itself expressly precludes judicial review, and the order supplies no law to apply.

[00:14:36] Speaker 02:
Perhaps in recognition of these...

[00:14:39] Speaker 02:
arbitrate capricious review or failure to follow the law as the jurisdictional book here?

[00:14:47] Speaker 01:
Well, as an initial matter, Your Honor, I would say that the agency did follow the policy, you know, the agency.

[00:14:55] Speaker 01:
There are four phases set forth in the policy, identification of the agency action, notification of the tribe, solicitation of comments, and then response to those comments.

[00:15:04] Speaker 01:
EPA followed all of those steps.

[00:15:07] Speaker 01:
So I think there is no argument that

[00:15:09] Speaker 01:
EPA in fact departed from the policy and therefore under the APA required to provide some explanation for the departure because there was no departure.

[00:15:21] Speaker 01:
But you're right, Your Honor.

[00:15:22] Speaker 01:
I mean, EPA does hang its hat on the tribal consultation policy.

[00:15:27] Speaker 01:
And like the executive order, the policy is unenforceable.

[00:15:32] Speaker 01:
The AMREP case, which my friend mentioned earlier, is that

[00:15:35] Speaker 01:
holds that there are only two methods by which an agency may formulate binding policy, through rulemaking procedures or through adjudications that create binding precedents.

[00:15:46] Speaker 01:
The EPA's tribal consultation policy was not promulgated under either of these mechanisms.

[00:15:52] Speaker 01:
In its reply, the tribe attempts to get around that straightforward conclusion by insisting that

[00:15:58] Speaker 01:
The tribal consultation policy is not, in fact, a policy at all, but a procedural rule enforceable under Morton v. Ruiz.

[00:16:07] Speaker 01:
As an initial matter, Your Honors, we would proffer that petitioner waive this argument by making it for the first time on reply.

[00:16:15] Speaker 01:
And in any event, the argument fails on merits.

[00:16:18] Speaker 01:
The legal treatise Wright and Miller, sections 8202 and 8203,

[00:16:24] Speaker 01:
provide guidance on the distinction between policy statements and procedural rules.

[00:16:29] Speaker 01:
Generally speaking, a policy statement advises the public about how the agency intends to exercise a discretionary powder prospectively in the future.

[00:16:39] Speaker 01:
A procedural rule, on the other hand, is a rule that dictates the manner in which parties present themselves or their viewpoints to the agencies.

[00:16:47] Speaker 01:
Here, considering these two definitions,

[00:16:49] Speaker 01:
The tribal consultation policy is just that, a policy, a policy statement.

[00:16:55] Speaker 01:
Would you do me a favor?

[00:16:56] Speaker 03:
Sure.

[00:16:57] Speaker 03:
What were the sections on your right, Miller-Saint?

[00:17:00] Speaker 01:
Sections 8202.

[00:17:03] Speaker 01:
and 8,203.

[00:17:04] Speaker 01:
And those sections surveyed the case law describing what is a general statement of policy as well as what is a procedural rule under the APA.

[00:17:15] Speaker 01:
As far as I know, those terms aren't defined by statute, but they've been interpreted through the years through case law.

[00:17:23] Speaker 01:
Again, a policy statement, according to Wright Miller, advises the public about how an agency intends to prospectively exercise discretionary authority while a procedural rule dictates the terms by which parties present themselves or their viewpoints to the agency.

[00:17:41] Speaker 02:
So can the agency arbitrarily depart from its policy statements?

[00:17:48] Speaker 01:
Well, I think you need to look at whether the policy statement is binding or not.

[00:17:54] Speaker 01:
If a statement is binding, I think certainly an agency would need to explain why it is departing from that policy.

[00:18:02] Speaker 01:
What's your distinction between a binding and a non-binding?

[00:18:05] Speaker 01:
Well, a binding policy has been promulgated via notice and comment or via an adjudication that sets precedent for the agency, whereas a non-binding policy is not promulgated under either of those mechanisms.

[00:18:21] Speaker 02:
And the agency can depart from a non-binding policy arbitrarily, on a whim, capriciously?

[00:18:30] Speaker 01:
I think that's an open question, Your Honor.

[00:18:32] Speaker 01:
I think it would be certainly best practice if an agency departed from a non-binding policy that... Well, if it's an open question, then maybe we do have judicial review here.

[00:18:43] Speaker 01:
Well, in that case, Your Honor, we would take the position that there's no departure from the policy here.

[00:18:49] Speaker 01:
You know, EPA followed it to the letter of the policy.

[00:18:52] Speaker 01:
I won't say the letter of the law because it's not binding, but followed it to the letter of the policy.

[00:18:58] Speaker 01:
The policy identifies four stages.

[00:19:00] Speaker 01:
You must identify actions that implicate tribal interests.

[00:19:04] Speaker 01:
You must notify the tribe about those actions, solicit the tribe's comments, and then respond to the tribe's comments.

[00:19:10] Speaker 01:
EPA did all of those things here.

[00:19:12] Speaker 01:
And if you look at it more granularly, EPA held four meetings.

[00:19:18] Speaker 01:
There was a pre-consultation meeting, an information meeting, and then two technical consultation meetings.

[00:19:27] Speaker 01:
So while my friend earlier said that there were only two hours' worth of consultation,

[00:19:32] Speaker 01:
I think actually if you look at it in the broader context, including those, the pre-consultation meeting and the informational meeting, we had many hours of opportunities for the tribe to provide input on this action.

[00:19:44] Speaker 01:
What are the different forms that consultation may take?

[00:19:50] Speaker 01:
Well, EPA seeks to facilitate consultation typically via in-person meetings or via Zoom or Skype.

[00:20:00] Speaker 01:
In this particular case, and I think there is some variance because, again, it's a non-binding policy.

[00:20:06] Speaker 01:
But in this particular case, there were four meetings.

[00:20:10] Speaker 01:
a pre-consultation meeting in which the agency notifies the tribe about this impending action, an informational meeting in which it describes the imminent proposed action, and then two consultation meetings where the tribe actually has an opportunity to provide feedback once they've had an opportunity to review the draft, in this case the draft Title V permit.

[00:20:33] Speaker 01:
But there were also opportunities for the exchange of written documents.

[00:20:38] Speaker 01:
So in this case, pursuant to notice and comment, the tribe submitted written comments on the draft permit.

[00:20:44] Speaker 01:
The agency created a response to comments document.

[00:20:49] Speaker 01:
And here, even though it was under no obligation to do so, provided a draft copy of that response to comments document to the tribe so the tribe could provide further written feedback

[00:20:59] Speaker 01:
And all of this, you know, the end goal of all of this was to facilitate meaningful consultation between the tribe and the agency here.

[00:21:10] Speaker 03:
What do you do with the argument that a large part of the EPA's consultation didn't occur with the right people within the tribe?

[00:21:24] Speaker 01:
Well, Your Honor, neither the executive order nor the tribal consultation policy dictate who on the part of the tribal government, who on the part of the tribe must be present for those consultation meetings.

[00:21:35] Speaker 03:
No, I get that.

[00:21:36] Speaker 03:
But I mean, at some point, if your point is that

[00:21:40] Speaker 03:
You can talk to whoever you want.

[00:21:42] Speaker 03:
At some point that becomes, could be a sham.

[00:21:45] Speaker 03:
You could go seek out somebody who didn't really care, who had no authority, those types of things and have consultation with them.

[00:21:54] Speaker 03:
And you would effectively be circumventing the policy behind the whole thing.

[00:22:00] Speaker 01:
Yes, Your Honor.

[00:22:01] Speaker 01:
Two points in response to that.

[00:22:02] Speaker 01:
The executive order does require or at least advise the agency to consult with tribal officials.

[00:22:11] Speaker 01:
Here we did that.

[00:22:12] Speaker 01:
The agency consulted with tribal officials throughout the four meetings.

[00:22:17] Speaker 01:
Petitioners' main complaint, as far as I understand it, is in one of the two

[00:22:22] Speaker 01:
explicit consultation meetings, the full tribal government was not in attendance.

[00:22:28] Speaker 01:
But neither the executive order nor the policy say that consultation may only occur

[00:22:34] Speaker 01:
if the full tribal government is attendance.

[00:22:37] Speaker 01:
Or, you know, likewise, the policy does not insist that EPA must consult in the manner in which the tribe would most prefer.

[00:22:47] Speaker 01:
Now, to be sure, the agency does endeavor to consult in accordance with the tribe's preference

[00:22:53] Speaker 01:
But I think the more salient point is it's under no obligation to do so.

[00:22:57] Speaker 01:
And certainly here on these facts, it was no sham.

[00:23:00] Speaker 01:
EPA sought to consult with the right people.

[00:23:02] Speaker 01:
And in at least one occasion, the petitioner concedes that EPA did consult with the full tribal government, which is their preference.

[00:23:14] Speaker 01:
Finally, Your Honors, I'd like to move to my third point, which is that EPA acted consistently with its federal trust relationship.

[00:23:22] Speaker 01:
To prevail on a breach of trust claim, a tribe must establish that the text of a treaty, statute, or regulation impose certain duties on the United States.

[00:23:31] Speaker 01:
Here, the tribe fails to identify any statutory, regulatory, or treaty-based duty requiring EPA to act in a trustee capacity with respect to issuing Title V permits.

[00:23:43] Speaker 00:
Council, can I stop you there?

[00:23:45] Speaker 00:
So let me just ask you, are you taking the position that you could make all decisions with regard to this plant without speaking to the tribe?

[00:23:59] Speaker 00:
I know you say you wouldn't do that, but does your position suggest that you have no obligation, either under the trust responsibility or any other source, to speak to the tribe at all?

[00:24:14] Speaker 01:
Well, Your Honor, I think we have two distinct issues here.

[00:24:17] Speaker 01:
So one is the conventional fiduciary duty, trust-creating duty under which a tribe may bring a breach of trust claim.

[00:24:26] Speaker 00:
That is not this case because the... Right, but I mean, you're saying you don't have an obligation under the trust responsibility.

[00:24:33] Speaker 00:
Well, Your Honor... They could try to bring a claim, but it would lose, correct?

[00:24:39] Speaker 01:
That is correct, Your Honor.

[00:24:40] Speaker 01:
Although I would say that the agency does feel strongly about adhering to its more general trust responsibility to tribes.

[00:24:49] Speaker 01:
So, you know, it's our position that we discharge that responsibility by complying with the Clean Air Act.

[00:24:56] Speaker 01:
by considering the tribe's interest to the extent we have discretion to do so.

[00:25:02] Speaker 01:
So I would be reluctant to say the EPA has absolutely no obligation whatsoever.

[00:25:07] Speaker 00:
Well, tell me what the obligation would be.

[00:25:09] Speaker 00:
I understand you don't want to say that, and that's why I'm pushing you on it.

[00:25:13] Speaker 00:
But I'm trying to figure out, is there any obligation under anything to speak to the tribe before you make decisions with regard to the plant?

[00:25:25] Speaker 01:
Your Honor, yes, under the General Trust Responsibility EPA

[00:25:31] Speaker 01:
You know, EPA respects that relationship, and EPA does endeavor to consult with the tribe to the extent.

[00:25:37] Speaker 00:
I know, but that's not what I asked.

[00:25:39] Speaker 00:
I'm sorry.

[00:25:40] Speaker 00:
But I just have to push you.

[00:25:42] Speaker 00:
There is no legal obligation.

[00:25:44] Speaker 00:
You want to do what's right.

[00:25:46] Speaker 00:
That's what you're telling me.

[00:25:47] Speaker 00:
You endeavor to do what's right.

[00:25:49] Speaker 00:
But there is no legal obligation to speak to the tribe at all under your position.

[00:25:55] Speaker 00:
Just tell me.

[00:25:57] Speaker 00:
Just tell me, is there anywhere

[00:25:59] Speaker 01:
I would be reluctant to go that far, Your Honor, but I think the more salient point from our perspective is that a tribe could not bring a claim solely under the general trust obligation.

[00:26:12] Speaker 01:
That general trust obligation exists.

[00:26:14] Speaker 01:
EPA endeavors to treat the tribes with respect as sovereigns, but the tribe cannot

[00:26:21] Speaker 01:
You know, under recent Supreme Court case law, the Hickory case, the Navajo Nation case, EPA cannot bring a standalone claim under that general trust obligation.

[00:26:32] Speaker 02:
Well, yeah.

[00:26:32] Speaker 02:
And just to follow up on that, assume that the executive order was rescinded.

[00:26:39] Speaker 02:
So there's no policy document here.

[00:26:43] Speaker 02:
I thought, I wondered why you were reluctant to say you had no duty if it's not binding, but let's say it's repealed.

[00:26:51] Speaker 02:
Does the general trust obligation provide, would that be the only avenue for the tribe to claim a right to some type of consultation?

[00:27:02] Speaker 01:
Yes.

[00:27:03] Speaker 01:
Well, Your Honor, I think that would be the only basis for such a claim.

[00:27:07] Speaker 01:
Although, again, our position- But there's no basis for a claim here because there was consultation or because- Because the general trust obligation does not provide jurisdiction to the courts or otherwise

[00:27:22] Speaker 01:
enable tribes to bring standalone claims under that.

[00:27:25] Speaker 01:
They have to identify a treaty that's been violated, a treaty that imposes a duty on the United States, a statute, a regulation that imposes a duty.

[00:27:33] Speaker 02:
The Clean Air Act claim would be... Right.

[00:27:36] Speaker 01:
So here our position is the Clean Air Act imposes no such duty.

[00:27:39] Speaker 01:
Had it imposed such a duty, they could bring such a claim, but it does not.

[00:27:45] Speaker 01:
So inclusion, Your Honors, if there are no further questions, I'll see the rest of my time and sum up by saying the petition.

[00:27:51] Speaker 02:
Just before you sit down, if we were talking about a state instead of a tribe, would all of your answers be the same, say the state of Utah?

[00:28:05] Speaker 01:
If the state took the position that we had not consulted with the state,

[00:28:14] Speaker 01:
Your Honor, we didn't brief that question.

[00:28:16] Speaker 01:
And well, certainly all of the truss case law that we have been discussing would not be relevant.

[00:28:23] Speaker 01:
It may be the case that under the Constitution, the 10th Amendment or something to that effect, there would be.

[00:28:29] Speaker 01:
But I'm reluctant to speculate having not actually particularly researched that question.

[00:28:35] Speaker 01:
All right, thank you.

[00:28:36] Speaker 01:
I see that my time's up.

[00:28:37] Speaker 01:
Thank you very much.

[00:28:43] Speaker 02:
Have some rebuttal time?

[00:28:48] Speaker 04:
Thank you very much, Your Honor.

[00:28:50] Speaker 04:
I would like to use my limited rebuttal time to discuss the trust responsibility and the EPA's trust relationship with the Yudindian tribe.

[00:28:58] Speaker 04:
Now what the EPA is trying to push here is essentially what we call the Mitchell 2 standard, which is the standard for establishing a specific enforceable fiduciary duty

[00:29:09] Speaker 04:
normally in money damages that you can enforce for failing to uphold that specific duty.

[00:29:14] Speaker 04:
In the Mitchell II standard, that was the management of tribal timber for the economic benefit of the tribe.

[00:29:22] Speaker 04:
I want to make a very important clarification that the trust relationship does not begin and end with the Mitchell II standard for specific enforceable trust duties.

[00:29:31] Speaker 04:
The trust relationship exists notwithstanding that, and that's important here for two distinct reasons.

[00:29:37] Speaker 04:
One, as EPA indicated, there is a tie between the general trust responsibility and the agency's obligation to engage in some level of consultation with the tribal government.

[00:29:51] Speaker 04:
Now, part of that trust relationship is upholding tribal sovereignty.

[00:29:55] Speaker 04:
And the very constitution and bylaws of the Uintian tribe provide that the Tribal Business Committee is the governing body of the tribe that interfaces with federal agencies.

[00:30:03] Speaker 04:
So the EPA is inconsistent with this trust relationship for the EPA to pick and choose who it consults with, whether that's low-level tribal officials or the business committee.

[00:30:11] Speaker 04:
Second, I want to clarify that even the standard for the relevant factors test, which is all parties have agreed that an agency action is arbitrary and capricious.

[00:30:24] Speaker 04:
If not all relevant factors were considered under Cheyenne Arapaho and under Woods Petroleum, the trust relationship and the consideration of the best interest of the tribe is inseverable from this relevant factors analysis, regardless of whether we've identified a specific fiduciary duty by statute under the Mitchell 2 standard.

[00:30:42] Speaker 04:
Thank you.

[00:30:43] Speaker 04:
Thank you, counsel.

[00:30:44] Speaker 04:
Appreciate the arguments.

[00:30:45] Speaker 04:
Those are helpful.

[00:30:47] Speaker 02:
The case is submitted and you're excused.