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Feds unsure whether appeal of border ruling will go forward

Mar 16, 2017 - From staff reports

A requested extension would push the deadline out.

Newly appointed Environmental Protection Agency administrator Scott Pruitt has asked for a 45-day extension on the deadline to appeal the Feb. 22 ruling by the 10th Circuit Court of Appeals which determined Riverton does not lie within the Wind River Indian Reservation.

The EPA had ruled that Riverton was within the reservation boundary in 2013, when the agency determined the reservation had not been diminished by a 1905 Act of Congress that allowed the federal government to begin selling land north of the Wind River to white settlers.

New administration

In their extension request approved Thursday, Department of Justice attorneys said the change in presidential administration means they're "currently considering whether to seek rehearing in these cases."

"The requested extension is necessary in order to allow the Solicitor General of the United States, in coordination with other branches of the Department of Justice, EPA and the Department of the Interior, to complete consideration of whether to file such a petition," the attorneys said.

The extension would push the deadline out to May 25 for all parties to petition for appeal.

The Eastern Shoshone and Northern Arapaho tribes have already vowed to seek a en banc hearing, which would allow all 12 judges in the 10th Circuit to weigh in on the case, instead of the three who made the current decision.

New officials

The federal government's interest in pursuing the case is questionable after an overhaul of top officials in relevant agencies.

When the EPA made its decision in 2013, it relied upon a legal argument from Hilary Tompkins, then the Department of Interior Solicitor, who argued that "the circumstances surrounding (the 1905 Act) do not reveal clear congressional intent to diminish and alter the exterior boundaries of the Wind River Reservation."

Tompkins, an environmental attorney with roots in Indian law, resigned shortly after the inauguration of President Donald Trump.

Shaun McGrath, the regional EPA administrator who signed off on the decision, also left this year.

Tribes

If the United States pulls out of case, the tribes' legal muscle would be even more drained: They already lost some of the original players who, in 2008, made the 95-page application to the EPA requesting the reservation be treated as a state for the purpose of environmental monitoring.

The EPA's approval of the treatment as a state request required that the reservation boundary be defined. In defining the boundary, the EPA determined the 1905 Act did not diminish the reservation.

John Arum, a Seattle attorney whose environmental law expertise was used for that request, died in 2010 after falling during a hike in North Cascades National Park.

Kimberly Varilek, who was attorney general for the Eastern Shoshone Tribe at the time and co-wrote the application, resigned from that role in 2014.
 

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