UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AZ PUB SVC CO

v.

EPA


98-1196a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: In 1990, Congress passed a com- pendium of
amendments to the Clean Air Act ("CAA" or "the  Act"). This case
concerns those amendments that specifically  address the power of
Native American nations (or "tribes") to  implement air quality
regulations under the Act. Petitioners  challenge the Environmental
Protection Agency's ("EPA" or  "the Agency") regulations, promulgated


ing the 1990 Amendments. See Indian Tribes: Air Quality  Planning and
Management, 63 Fed. Reg. 7254 (1998) (to be  codified at 40 C.F.R.
pts. 9, 35, 49, 50, and 81) ("Tribal  Authority Rule"). Petitioners'
principal contention is that  EPA has granted too much authority to
tribes.


Petitioners' primary challenges focus on two issues. The  first is
whether Congress expressly delegated to Native  American nations
authority to regulate air quality on all land  within reservations,
including fee land held by private land- owners who are not tribe
members. The second is whether  EPA has properly construed
"reservation" to include trust  lands and Pueblos.


Petitioners also raise several other challenges to the Tribal 
Authority Rule. They argue: (1) that EPA violated the Act  in
authorizing tribes to administer programs affecting non- reservation
"allotted lands" and "dependent Indian communi- ties"; (2) that EPA
unlawfully declined to accept public  comments on applications to
regulate by Native American  nations; (3) that EPA improperly held
that the 1990 Amend- ments abrogated preexisting contracts under which
tribes  agreed not to regulate certain privately-held land; and (4) 
that EPA improperly interpreted the 1990 Amendments to  exempt Native
American nations from certain of the Act's  judicial review


We find petitioners' challenges to be mostly meritless. We  hold that
the Agency did not err in finding delegated authori- ty to Native
American nations to regulate all land within  reservations, including
fee land owned by nonmembers. We  also uphold EPA's construction of
"reservation" to include  trust lands and Pueblos. Likewise, we reject
the challenge to  the Agency's decision to exempt Native American
nations  from some of the Act's judicial review requirements. Peti-
tioners' complaint regarding the adequacy of public comment  on tribal
applications is moot. And petitioners' claim that  EPA has abrogated
preexisting agreements not to regulate is  unripe for review, as is
one of petitioners' arguments chal- lenging the Agency's decision on
the Act's judicial review  requirements.


I. BACKGROUND


A. Statutory Background


The Act establishes a framework for a federal-state part- nership to
regulate air quality. The provisions of the 1990  Amendments under
review, fairly read, constitute an attempt  by Congress to increase
the role of Native American nations  in this partnership. There are
three areas of regulation  under the Act particularly relevant to this


First, the Act grants states primary responsibility for  assuring that
air quality meets national standards. See 42  U.S.C. s 7407(a) (1994).
States meet this burden by submit- ting state implementation plans
("SIPs") that "provide[ ] for  implementation, maintenance, and
enforcement" of these  standards. Id. s 7410(a)(1) (1994). SIPs must
be approved  by the Agency before they may be federally enforced. In 
1990, s 7410 was amended to authorize Native American  nations to
submit tribal implementation plans ("TIPs") "appli- cable to all areas
... located within the exterior boundaries  of the reservation." Id. s


Second, the Act permits states and Native American na- tions to
"redesignate" lands pursuant to the Act's Prevention  of Significant
Deterioration ("PSD") program. See id.  s 7474(a), (c) (1994). Under
the PSD program, land is classi- fied as Class I, II, or III. The
land's classification deter- mines the maximum allowable increase over
the baseline by  which concentrations of sulfur dioxide and other
particulate  matter shall not be exceeded. See id. s 7473 (1994). Land
 may, under certain circumstances, be redesignated as Class I,  II, or
III. See id. s 7474(a). Since 1977, Native American  nations have had
authority to redesignate land "within the  exterior boundaries of
reservations." Id. s 7474(c).


Finally, under Title V of the Act, states must develop a  comprehensive
permitting program applicable to major air  pollution sources. See id.
s 7661a (1994). The Agency must  approve the permitting program; if
none is approved, EPA  must promulgate a permitting program that will
be federally  enforceable. See id. s 7661a(d)(3). One of the
requirements 


for approval is that the program provide for judicial review of 
permitting actions. See id. s 7661a(b)(6), (7). Petitioners  claim
that the Agency has improperly interpreted the 1990  Amendments to
give Native American nations the possibility  of exemption from some
portions of the judicial review re- quirements.


Importantly, the 1990 Amendments added language to the  Act granting
EPA the "author[ity] to treat Indian tribes as  States under this
chapter," id. s 7601(d)(1)(A) (1994), provid- ed tribes meet the
following requirements:


(A) the Indian tribe has a governing body carrying out  substantial
governmental duties and powers;


(B) the functions to be exercised by the Indian tribe  pertain to the
management and protection of air re- sources within the exterior
boundaries of the reservation  or other areas within the tribe's
jurisdiction; and


(C) the Indian tribe is reasonably expected to be capa- ble, in the
judgment of the Administrator, of carrying out  the functions to be
exercised in a manner consistent with  the terms and purposes of this
chapter and all applicable  regulations.


Id. s 7601(d)(2).


The 1990 Amendments also directed EPA to promulgate  regulations
"specifying those provisions of this chapter for  which it is
appropriate to treat Indian tribes as States." Id.  If the Agency
"determines that the treatment of Indian tribes  as identical to
States is inappropriate or administratively  infeasible," EPA may
announce other ways for the Agency to  administer the program "so as
to achieve the appropriate  purpose." Id. s 7601(d)(4).


B. The Challenged Rule


On August 25, 1994, EPA proposed rules to implement the  1990
Amendments. See Proposed Tribal Authority Rule, 59  Fed. Reg. 43,956
(1994) (proposed Aug. 25, 1994). On Febru- ary 12, 1998, after
receiving and responding to public com- ments, EPA issued the final
Tribal Authority Rule. See 


Tribal Authority Rule, 63 Fed. Reg. at 7254. The Agency  first found
that the 1990 Amendments constitute a delegation  of federal authority
to regulate air quality to Native American  nations within the
boundaries of reservations, regardless of  whether the land is owned
by the tribes. See id. The  Agency read the statute to support this
"territorial view of  tribal jurisdiction," authorizing a "tribal role
for all air re- sources within the exterior boundaries of Indian
reservations  without distinguishing among various categories of on-
reservation land." Id. EPA believed that this "territorial  approach
... best advances rational, sound, air quality man- agement." Id. at
7255. Thus, the Agency determined that  Congress delegated to tribes
the authority to regulate air  quality in areas within the exterior
boundaries of a reserva- tion.


The Act does not define "reservation" for the purposes of  tribal
regulation. EPA interpreted "reservation" to include  "trust lands
that have been validly set apart for the use of a  tribe even though
the land has not been formally designated  as a reservation." Id. at
7258. The Agency explained that  this interpretation was consistent
with the Supreme Court's  definition of "reservation" in Oklahoma Tax
Commission v.  Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 
U.S. 505 (1991). EPA held that it would decide on a case-by- case
basis whether other types of land may be considered  "reservations"
under the Act. See Tribal Authority Rule, 63  Fed. Reg. at 7258.


For areas not within a "reservation," the Agency deter- mined that a
tribe would be allowed to regulate such areas if  the tribe could
demonstrate inherent jurisdiction over the  particular non-reservation
area under general principles of  federal Indian law. See id. at 7259.
This means that tribes  may propose air quality regulations in
"allotted land" and  "dependent Indian communities" provided they can
otherwise  demonstrate inherent jurisdiction over these areas.
Allotted  land is land "owned by individual Indians and either held in
 trust by the United States or subject to a statutory restric- tion on
alienation." Felix S. Cohen, Handbook of Federal  Indian Law 40
(1982). Dependent Indian communities in-


clude "those tribal Indian communities under federal protec- tion that
did not originate in either a federal or tribal act of  'reserving,'
or were not specifically designated a reservation."  Id. at 38.


Some commenters claimed that the Act precludes tribal  regulation in
the form of TIPs in non-reservation areas.  These parties argued that
the section of the Act authorizing  TIPs includes a specific provision
limiting such regulation  within reservations lands. See 42 U.S.C. s
7410(o) (providing  that TIPs "shall become applicable to all areas
... located  within the exterior boundaries of the reservation"). EPA,
 however, interpreted "reservation" in s 7410(o) to be "simply  a
description of the type of area over which a TIP may  apply," and
ruled that "the provision was [not] intended to  limit the scope of
TIPs to reservations." Tribal Authority  Rule, 63 Fed. Reg. at 7259.
EPA's ruling was informed by  s 7601(d)(1) under which the Agency
"decided to include  most of the provisions of [s 7410] in the group
of provisions  for which treatment of tribes in the same manner as a
state is  appropriate." Id.


The final aspect of the Tribal Authority Rule under review  relates to
the provisions covering judicial review of permitting  programs. Title
V of the Act authorizes regulating authori- ties to establish
permitting programs for pollution sources.  Section 7661a(b)(6)
requires the authority to afford "an op- portunity for judicial review
in State court of the final permit  action." 42 U.S.C. s 7661a(b)(6).
In its proposed rule, EPA  indicated an intention to treat tribes like
states with respect  to judicial review. See Proposed Tribal Authority
Rule, 59  Fed. Reg. at 43,972. In its final rule, EPA withdrew this 
proposal, requiring instead that, for Title V programs, tribes  must
meet all of the requirements of s 7661a(b)(6) and (7)  "except those
provisions that specify that review of final  action under the Title V
permitting program be 'judicial' and  'in State court.' " Tribal
Authority Rule, 63 Fed. Reg. at  7261. EPA adopted this provision in
response to concerns  over tribal sovereign immunity. See id. Thus,
EPA indicat- ed its willingness "to consider alternative options,
developed  and proposed by a tribe in the context of a tribal CAA


program submittal, that would not require tribes to waive  their
sovereign immunity to judicial review but, at the same  time, would
provide for an avenue for appeal of tribal govern- ment action or
inaction to an independent review body and  for injunctive-type relief
to which the Tribe would agree to be  bound." Id. at 7262.


Petitioner Arizona Public Service Company ("APS") filed a  petition for
review on April 10, 1998. The remaining petitions  for review were
filed shortly thereafter; the petitions were  subsequently
consolidated for consideration by this court.


II. ANALYSIS


Petitioners raise several challenges to EPA's final rule.  First,
petitioners claim that the 1990 Amendments cannot be  interpreted to
constitute an express delegation of authority to  Native American
nations to regulate privately owned fee land  located within a
reservation. Second, petitioners argue that  EPA impermissibly
interpreted the word "reservation" to  include lands held in trust and
Pueblos. Third, petitioners  contend that EPA impermissibly
interpreted the Act to per- mit Native American nations to issue TIPs
and redesignations  for land outside the boundaries of a reservation.
Fourth,  petitioners assert that EPA has failed to allow public com-
ment on tribal applications to issue regulations under the Act. 
Fifth, petitioners argue that EPA's interpretation of the 1990 
Amendments effectively abrogates preexisting agreements  between
tribes and regulated industry. Finally, petitioners  contend that
EPA's final rule covering judicial review proce- dures for Title V
programs was promulgated with insufficient  notice to affected parties
and that it rests on an impermissible  interpretation of the Act.


We analyze EPA's interpretation of the Act under familiar  principles.
"Where congressional intent is ambiguous, ... an  agency's
interpretation of a statute entrusted to its adminis- tration is
entitled to deference, so long as it is reasonable."  Shell Oil Co. v.
EPA, 950 F.2d 741, 747 (D.C. Cir. 1992) (per  curiam) (citing Chevron
U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837,
842-43 (1984)). Our 


primary concern under Chevron is to ensure that an agency  acts within
the bounds of congressional delegation. "[A]s  long as the agency
stays within [Congress'] delegation, it is  free to make policy
choices in interpreting the statute, and  such interpretations are
entitled to deference." Arent v.  Shalala, 70 F.3d 610, 615 (D.C. Cir.


In evaluating the extent of congressional delegation, a  reviewing
court first exhausts the traditional tools of statuto- ry construction
to determine whether a congressional act  admits of plain meaning. See
Bell Atlantic Tel. Cos. v. FCC,  131 F.3d 1044, 1047 (D.C. Cir. 1997).
If, in light of its text,  legislative history, structure, and
purpose, a statute is found  to be plain in its meaning, "then
Congress has expressed its  intention as to the question, and
deference is not appropri- ate." Id. If congressional intent is
ambiguous, then we move  to the second step of the Chevron analysis,
and uphold an  agency's interpretation if it is reasonable. The
reasonable- ness prong includes an inquiry into whether the agency 
reasonably filled a gap in the statute left by Congress. See  United
Techs. Corp. v. EPA, 821 F.2d 714, 723 (D.C. Cir.  1987) (upholding
filling of gap that is rational and "not  inconsistent" with
amendments to the Resource Conservation  and Recovery Act of 1976).


A. Express Delegation of Authority to Native American  Nations


It is undisputed that Native American nations retain signif- icant
sovereign power. Native American nations have inher- ent power to
determine forms of tribal government, to deter- mine tribal
membership, to make substantive criminal and  civil laws governing
internal matters, to administer tribal  judicial systems, to exclude
others from tribal lands, and, to  some extent, to exercise civil
jurisdiction over nonmembers,  including non-Indians. See Cohen,
Handbook of Federal  Indian Law, at 247-53; Montana v. United States,
450 U.S.  544, 564 (1981). It is this last category of power that is
at  issue in the instant case, because petitioners claim that the 
1990 Amendments to the Act do not authorize tribes to 


administer the Act over fee land within a reservation that is  owned by
nonmembers. As the Supreme Court has held,


exercise of tribal power beyond what is necessary to  protect tribal
self-government or to control internal rela- tions is inconsistent
with the dependent status of the  tribes, and so cannot survive
without express congres- sional delegation.


Montana, 450 U.S. at 564.


There is no doubt that tribes hold "inherent sovereign  power to
exercise some forms of civil jurisdiction over non- Indians on their
reservations, even on non-Indian fee lands."  Id. at 565. For
instance, if the behavior of non-Indians on fee  lands within the
reservation "threatens or has some direct  effect on the political
integrity, the economic security, or the  health or welfare of the
tribe," the tribe may regulate that  activity. Id. at 566. To satisfy
this standard, however, a  tribe must show, on a case-by-case basis,
that the disputed  activity constitutes a "demonstrably serious"
impact that "im- peril[s] the political integrity, the economic
security, or the  health and welfare of the tribe." Brendale v.
Confederated  Tribes and Bands of the Yakima Indian Nation, 492 U.S. 
408, 431 (1989) (plurality opinion). EPA suggests, not im- plausibly,
that "inherent sovereign power" may apply to tribal  regulation under
the Act of fee lands within a reservation, see  Proposed Tribal
Authority Rule, 59 Fed. Reg. at 43,598 n.5,  but the Agency does not
press this argument on appeal.  Rather, EPA contends that the 1990
Amendments constitute  an express congressional delegation to the
tribes of the  authority to regulate air quality on fee lands located


"There are few examples of congressional delegation of  authority to
tribes." Cohen, Handbook of Federal Indian  Law, at 253. However, as
is the case in any situation in  which we are called upon to find
congressional intent in  construing a contested statute, we start with
traditional  sources of statutory interpretation, including the
statute's  text, structure, purpose, and legislative history. See,
e.g.,  Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984) 
("Whether and to what extent a particular statute precludes 


judicial review is determined not only from its express lan- guage, but
also from the structure of the statutory scheme,  its objectives, its
legislative history, and the nature of the  administrative action
involved."). Our review of the CAA  indicates that EPA's
interpretation comports with congres- sional intent.


Section 7601(d), in pertinent part, authorizes EPA to treat  otherwise
eligible tribes as states if "the functions to be  exercised by the
Indian tribe pertain to the management and  protection of air
resources within the exterior boundaries of  the reservation or other
areas within the tribe's jurisdiction."  42 U.S.C. s 7601(d)(2)(B).
The statute's clear distinction  between areas "within the exterior
boundaries of the reserva- tion" and "other areas within the tribe's
jurisdiction" carries  with it the implication that Congress
considered the areas  within the exterior boundaries of a tribe's
reservation to be  per se within the tribe's jurisdiction. Thus, EPA
correctly  interpreted s 7601(d) to express congressional intent to
grant  tribal jurisdiction over nonmember owned fee land within a 
reservation without the need to determine, on a case-specific  basis,
whether a tribe possesses "inherent sovereign power"  under Montana.


Petitioners do not dispute that an important purpose of the  Act is to
ensure effective enforcement of clean air standards.  Obviously, this
is best done by allowing states and tribes to  establish uniform
standards within their boundaries. As  EPA explained in its proposed


[a]ir pollutants disperse over areas several and some- times even
hundreds of miles from their source of origin,  as dictated by the
physical and chemical properties of the  pollutants at issue and the
prevailing winds and other  meteorological conditions. The high
mobility of air pollu- tants, resulting areawide effects and the
seriousness of  such impacts, underscores the undesirability of
fragment- ed air quality management within reservations.


Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,959.


Accepting petitioners' interpretation of the 1990 Amend- ments would
result in a "checkerboard" pattern of regulation 


within a reservation's boundaries that would be inconsistent  with the
purpose and provisions of the Act. Indeed, the  Supreme Court has
condemned such an approach. See Moe  v. Confederated Salish and
Kootenai Tribes of Flathead  Reservation, 425 U.S. 463, 479 (1976)
(rejecting checkerboard  approach in interpreting s 6 of the General
Allotment Act, 25  U.S.C. s 349); Seymour v. Superintendent of
Washington  State Penitentiary, 368 U.S. 351, 358 (1962) (terming "im-
practical" a pattern of checkerboard jurisdiction under 18  U.S.C. s


Finally, we note that the legislative history of the 1990  Amendments
supports EPA's interpretation. As originally  introduced, 42 U.S.C. s
7601(d) differed in significant respect  from the final adopted
version. The original s 7601(d)(2)(B)  provided that treatment of
tribes as states was authorized if  "the functions to be exercised by
the Indian tribe are within  the area of the tribal government's
jurisdiction." S. 1630,  101st Cong. s 113(a) (1990), reprinted in
Senate Comm. on  Env't and Pub. Works, 103d Cong., Legislative History
of the  Clean Air Act Amendments of 1990, at 4283 (1993) (emphasis 
added); see also H.R. 2323, 101st Cong. s 604 (1989), reprint- ed in
Legislative History of the Clean Air Act Amendments  of 1990, at 4101.
The statute as finally enacted, however,  treats tribes and states as
equivalent if the tribe is to exercise  functions "within the exterior
boundaries of the reservation or  other areas within the tribe's
jurisdiction." 42 U.S.C.  s 7601(d)(2)(B).


Thus, Congress moved from authorizing tribal regulation  over the areas
"within the tribal government's jurisdiction"  (an admittedly general
category) to a bifurcated classification  of all areas within "the
exterior boundaries of the reserva- tion" and "other areas within the
tribe's jurisdiction." This  change strongly suggests that Congress
viewed all areas  within "the exterior boundaries of the reservation"
to be  "within the area of the tribal government's jurisdiction." The 
change also indicates that Congress knew how to draft the  1990
Amendments to support petitioners' interpretation. The  fact that
Congress specifically rejected language favorable to  petitioners'
position and enacted instead language that is 


consistent with EPA's interpretation only strengthens our  conclusion
that the Agency has correctly ascertained Con- gress' intent in
passing the 1990 Amendments.


The dissent's contrary contentions regarding the meaning  of the 1990
Amendments do not cause us to question this  conclusion. The dissent's
argument that Congress would not  use a "never-before-attempted"
formulation to accomplish an  express delegation when it could use the
"formulaic 'notwith- standing' proviso [used in s 7410(o)]--the gold
standard for  such delegations," cannot carry much weight. Dissent Op.
at  5-6. That a provision uses a new formulation is not disposi- tive
of the question as to whether it constitutes an express  delegation.
Indeed, it is noteworthy that, in construing 33  U.S.C. s 1337(h)(1),
which uses the dissent's so-called "gold  standard," EPA has declined
to find an express delegation in  such language. We can assume that
Congress was aware of  EPA's contemporaneous interpretation of the
Clean Water  Act, first proposed in 1989 (while Congress contemplated
the  1990 Amendments). See Amendments to the Water Quality  Standards
Regulations That Pertain to Standards on Indian  Reservations, 54 Fed.
Reg. 39,098, 39,101 (1989) (proposed  Sept. 22, 1989) (to be codified
at 40 C.F.R. pt. 131) ("EPA  may treat an Indian Tribe as a State ...
only where the  Tribe already possesses and can adequately demonstrate
 authority to manage and protect water resources within the  borders
of the reservation. The Clean Water Act ... does  not grant additional
authority to Tribes."). Thus, Congress'  failure to use the same
language in s 7601(d) does not at all  imply that it meant to avoid
delegation to the tribes; rather,  it may suggest just the opposite.


The dissent's argument resting on Congress' omission of a  "literal
delegation" to tribes is seductive, but, ultimately, also 
unconvincing. It is true that, as originally introduced, the  bills in
the Senate and the House contained language provid- ing that "the
Administrator ... may delegate to [ ] tribes  [that the Administrator
is authorized to treat as States]  primary responsibility for assuring
air quality and enforce- ment of air pollution control." H.R. 2323,
101st Cong. s 604  (1989), reprinted in Legislative History of the


Amendments of 1990, at 4101. The absence of this language  from the
final bill, however, does not compel the dissent's  conclusion that
Congress "specifically rejected" language fa- vorable to EPA's
position. Neither the majority nor the  dissent can call upon
determinative legislative history to  illuminate the motivations
behind this unexplained change to  the provisions at issue. We
suggest, however, that there are  at least two other explanations that
account for the absence of  the cited language from the final bill.
First, Congress simply  may have deemed the language to be redundant
and confus- ing in light of s 7601(d)(2)(B). It would have been
redundant  because s 7601(d)(2)(B) already accomplishes an express
del- egation. It would have been confusing because the omitted 
language can be read to apply to areas both outside and  inside the
boundaries of the reservation, and, as we hold,  Congress intended to
expressly delegate only with respect to  areas within the boundaries


Second, the language contained in the original bills hardly 
represents, as the dissent declares ipse dixit, a "literal dele-
gation." Providing that the "Administrator ... may dele- gate"
authority to tribes reads less like an express delegation  from
Congress to the tribes than a permissive instruction to  the
Administrator. Moreover, the omitted language did not  expressly
expand tribal jurisdiction to include those areas  within the
boundaries of a reservation owned by non- members--which is what is
necessary for express delega- tion--as does the language in the
adopted s 7601(d)(2)(B).  In other words, the language used in the
progenitors to  s 7601(d) that the dissent claims is a "literal
delegation" is  not easily manipulated to fit the contours of the
traditional  express delegation inquiry. We also note, as an aside,
that by  treating the original bills' language as an express
delegation,  our colleague seemingly abandons the "gold standard" that
he  claims Congress consistently has utilized expressly to dele- gate
authority to Indian tribes. In short, we take more from  the language


What little precedent there is addressing express delega- tions of
authority to Native American nations in other con-


texts supports our interpretation of s 7601(d). In United  States v.
Mazurie, the Supreme Court reviewed 18 U.S.C.  s 1161 and concluded
that the statute was an express delega- tion to tribes of the
authority to regulate alcohol transactions.  419 U.S. 544, 556-57
(1975). The Court reaffirmed this  holding almost a decade later. See
Rice v. Rehner, 463 U.S.  713, 728-29 (1983). Section 1161 provides in
pertinent part  that various federal liquor laws applicable to
transactions  within Indian country shall not apply


within any area of Indian country provided such act or  transaction is
in conformity both with the laws of the  State in which such act or
transaction occurs and with an  ordinance duly adopted by the tribe
having jurisdiction  over such area of Indian country, certified by
the Secre- tary of the Interior, and published in the Federal Regis-


18 U.S.C. s 1161 (1994). The Court read this language to  make


clear that Congress contemplated that its absolute but  not exclusive
power to regulate Indian liquor transac- tions would be delegated to
the tribes themselves, and to  the States, which historically shared
concurrent jurisdic- tion with the Federal Government in this area.


Rehner, 463 U.S. at 728-29.


The decisions in Mazurie and Rehner are significant be- cause the Court
found an express delegation despite the  absence of any "we hereby
delegate" language in the statute.  The Court did not find any precise
language of delegation in  the disputed statute, but, rather, rested
on the implication  inherent in recognizing the power of tribes to
adopt an  ordinance pertinent to liquor transactions on Indian
country.  See Rehner, 463 U.S. at 730-31. Similarly, in this case, we 
find an express congressional delegation from the implication 
inherent in the distinction between areas "within the exterior 
boundaries of the reservation" and "other areas within the  tribe's


Petitioners claim that the 1990 Amendments delegate au- thority to EPA
to approve state or tribal air quality programs  for federal
enforcement, not authority to tribes to "adopt  regulatory programs
that the tribes could not adopt under  tribal and federal Indian law
prior to the 1990 Amendments."  Br. for Petitioners National Ass'n of
Mfrs. ("NAM") at 23.  Petitioners' claim misses a crucial point,
however, that there  are two different powers at issue here: (1) the
authority to  regulate and (2) the derivative authority to enforce
specific  provisions of the Act. Petitioners focus on the derivative 
authority. Of course the 1990 Amendments do not constitute  an express
delegation to the tribes to enact regulatory provi- sions absent any
federal oversight or approval. Rather, the  1990 Amendments simply
establish the palette with which  tribes are permitted to paint their


Petitioners additionally argue that although states are au- thorized
under 42 U.S.C. s 7407(a) to enact programs "within  the entire
geographic area comprising such State," EPA has  never interpreted
this provision as allowing states to promul- gate air quality
regulations applicable to Native American  reservations located within
a state's geographic area. In  other words, petitioners claim that
because states may not  promulgate regulations affecting Native
American reserva- tions, tribes may not promulgate regulations
covering lands  held in fee by persons other than tribal members. This
 argument is obviously flawed, because it fails to recognize  that the
relationship between fee holders and tribes is quite  different from
the relationship between tribes and states. As  the Supreme Court


Indian tribes are unique aggregations possessing attrib- utes of
sovereignty over both their members and their  territory; they are "a
separate people" possessing "the  power of regulating their internal
and social rela- tions...."


419 U.S. at 557 (citations omitted). And there is no doubt  that
Congress may delegate authority to tribes "even though 


the lands [are] held in fee by non-Indians, and even though  the
persons regulated [are] non-Indians." Id. at 554.


Finally, petitioners note that the Agency declined to find an  express
delegation of power to regulate fee lands under  ss 518(e) and (h) of
the Clean Water Act; this is noteworthy  to petitioners, because they
can glean no difference between  the cited provisions under the Clean
Water Act and the  disputed provisions in this case under the Clean
Air Act. We  find no merit in this argument. The Clean Water Act
states  that "[t]he Administrator is authorized to treat an Indian 
tribe as a State ... if ... the functions to be exercised by the 
Indian tribe pertain to the management and protection of  water
resources which are held by an Indian tribe ... within  the borders of
an Indian reservation." 33 U.S.C. s 1377(e)(2)  (1994). "Reservation"
is defined as "all land within the limits  of any Indian reservation
under the jurisdiction of the United  States Government,
notwithstanding the issuance of any pat- ent, and including
rights-of-way running through the reserva- tion." Id. s 1377(h)(1). In
construing these provisions, EPA  concluded that because the
legislative history was "ambiguous  and inconclusive," it would not
find that the Clean Water Act  expanded or limited the scope of tribal
authority beyond that  inherent in the tribe. Amendments to the Water
Quality  Standards Regulation That Pertain to Standards on Indian 
Reservations, 56 Fed. Reg. 64,876, 64,880 (1991) (codified at  40


The situation here is quite different from what EPA found  with respect
to the Clean Water Act. Although the disputed  language in the Clean
Air Act and the Clean Water Act is  somewhat similar, it is far from
identical. As noted above,  EPA correctly relied on the CAA's clear
distinction between  areas "within the exterior boundaries of the
reservation" and  "other areas within the tribe's jurisdiction" to
find a congres- sional intention to define the areas within the
exterior bound- aries of a tribe's reservation to be per se within the
tribe's  jurisdiction. Furthermore, as we have already indicated, the 
legislative history of the 1990 Amendments plainly supports  EPA's
interpretation. Thus, the legislative history underly-


ing the Clean Air Act is not "ambiguous and inconclusive," as  was
found to be the case with respect to the Clean Water Act.


It is also of some significance that EPA's interpretation of  the Clean
Water Act never has been subject to judicial review  on the question
of the presence or absence of an express  delegation to tribes to
regulate fee lands within the bounds of  reservations. One federal
court has observed, in dicta, that  "the statutory language [in the
Clean Water Act] seems to  indicate plainly that Congress did intend
to delegate ...  authority to tribes." State of Montana v. EPA, 941 F.
Supp.  945, 951 (D. Mont. 1996). The court noted, however, that in 
construing the provisions of the Clean Water Act, "EPA  determined
that it would take the more cautious view, that  Congress did not
expressly delegate jurisdiction to tribes  over non-Indians and that
tribes would have to prove on a  case-by-case basis that they possess
such jurisdiction." Id. at  952. There was no reason for EPA to take a
similarly  "cautious view" with respect to the Clean Air Act, because
the  language and legislative history of the 1990 Amendments  differ
from that of the Clean Water Act.


B. EPA's Interpretation of "Reservation"


Given that EPA correctly interpreted s 7601(d) to express- ly delegate
jurisdiction to otherwise eligible tribes over all  land within the
exterior boundaries of reservations, including  fee land, the next
question is what areas are covered by a  "reservation." EPA interprets
"reservation" as used in three  different statutory provisions (42
U.S.C. ss 7410(o), 7474(c),  7601(d)(2)(B)) to mean formally
designated reservations as  well as "trust lands that have been
validly set apart for the  use of a tribe even though the land has not
been formally  designated as a reservation." Tribal Authority Rule, 63
Fed.  Reg. at 7258. This includes what EPA terms "Pueblos" and  tribal
trust land. Pueblos are villages, primarily located in  New Mexico,
held by tribes in communal fee-simple owner- ship, originally acquired
under grants from Spain and Mexico,  and confirmed by Congress in the
late 1800s. See United  States v. Sandoval, 231 U.S. 28, 38-39 (1913).
Petitioners  ignore the status of Pueblos and concentrate their attack


EPA's interpretation of "reservation" to include tribal trust  land.


The Secretary of the Interior is authorized to acquire land  in trust
for a tribe under 25 U.S.C. s 465 (1994), and such  land can only
formally be designated a reservation via the  process provided by 25
U.S.C. s 467 (1994). Petitioners  claim that EPA's interpretation
contravenes the Act's plain  language and renders 25 U.S.C. s 467
superfluous by ignor- ing the distinction between "trust lands" and
"reservations."  EPA counters that the statute is ambiguous, and that
its  reasonable interpretation is entitled to Chevron deference.


We start with Chevron step one and rely on traditional  principles of
statutory construction to determine whether  EPA's interpretation
contravenes congressional intent as  manifested by the 1990
Amendments. Significantly, the Act  nowhere defines "reservation."
Therefore, we look to the  term's ordinary and natural meaning, and
the context in  which the term is used. See Smith v. United States,
508 U.S.  223, 228-30 (1993). And we must remain cognizant of the 
rule that courts construe federal statutes liberally to benefit 
Native American nations. See Montana v. Blackfeet Tribe of  Indians,


The dictionary defines "reservation" to be a "tract of public  land set
aside for a particular purpose (as schools, forest, or  the use of
Indians)." Webster's Third New Int'l Dictionary  1930 (1993). This
definition surely encompasses both trust  lands and formally
designated reservations. Nothing in the  United States Code is clearly
to the contrary, for the term  "reservation" has no rigid meaning as
suggested by petition- ers. See 7 U.S.C. s 1985(e)(1)(A)(ii) (Supp. IV
1998) (defining  "reservation" to include land "within the limits of
any Indian  reservation under the jurisdiction of the United States,
...  trust or restricted land located within the boundaries of a 
former reservation of a federally recognized Indian tribe in  the
State of Oklahoma[,] ... [and] all Indian allotments the  Indian
titles to which have not been extinguished if such  allotments are
subject to the jurisdiction of a federally recog- nized Indian
tribe"); id. s 2012(j) (1994) (defining "reserva-


tion" as "the geographically defined area or areas over which  a tribal
organization ... exercises governmental jurisdic- tion"); 25 U.S.C. s
1452(d) (1994) (defining "reservation" to  include Indian
reservations, public domain Indian allotments,  former Indian
reservations in Oklahoma, and land held by  incorporated Native
groups, regional corporations, and village  corporations under the
provisions of the Alaska Native  Claims Settlement Act); id. s
1903(10) (1994) (defining "res- ervation" to be "Indian country as
defined in section 1151 of  Title 18" and any trust land not
encompassed by s 1151); id.  s 3103(12) (1994) (" '[R]eservation'
includes Indian reserva- tions established pursuant to treaties, Acts
of Congress or  Executive orders, public domain Indian allotments, and
for- mer Indian reservations in Oklahoma"); 33 U.S.C.  s 1377(h)(1)
(defining "Federal Indian reservation" to mean  "all land within the
limits of any Indian reservation under the  jurisdiction of the United
States Government, notwithstand- ing the issuance of any patent, and
including rights-of-way  running through the reservation").


These varying definitions of "reservation" lay to waste  petitioners'
argument. Petitioners appear to assert that, in  the absence of any
specific definition, "reservation" as used in  the 1990 Amendments to
the Act can only mean the formal  reservation contemplated by 25
U.S.C. s 467. This is a  specious contention. First, s 467 does not
purport to offer an  exclusive definition of "reservation"; it simply
defines the  terms under which federal land is formally designated a 
reservation. Second, if Congress had wanted to limit the  term
"reservation" as petitioners suggest, Congress could  have done so.
Indeed, Congress on many occasions has  defined "reservation" in terms
of other statutes. See 12  U.S.C. s 4702(11) (1994) (defining
"reservation" according to  25 U.S.C. s 1903(10)); 22 U.S.C. s
2124c(m)(1) (1994) (defin- ing "Indian reservation" with reference to
25 U.S.C.  s 1452(d)); 25 U.S.C. s 1903(10) (defining "reservation"
with  reference to 18 U.S.C. s 1151, as well as trust land); 26 
U.S.C. s 168(j)(6) (1994 & Supp. III 1997) (defining "Indian 
reservation" with reference to 25 U.S.C. s 1452(d) and 25  U.S.C. s
1903(10)); 42 U.S.C. s 10101(19) (1994) (defining 


"reservation" to include communities referred to in 18 U.S.C.  s
1151(a), (b)); id. s 11332(a) (1994) (defining "reservation" 
according to 25 U.S.C. s 1452(d)). Moreover, given the vary- ing
definitions of the term used throughout the Code, it would  be a
curious result indeed for this court to insist that the  absence of a
definition requires EPA to advance the most  restrictive definition as
put forth by petitioners.


Aside from the statute's plain meaning and its context,  other sources
of statutory interpretation offer no insight into  congressional
intent with respect to the meaning of "reserva- tion." The Report of
the Senate Committee on Environment  and Public Works refers to the
authority of Indian tribes to  "administer and enforce the Clean Air
Act in Indian lands,"  as well as enforcement of the Act in "Indian
country."  S. Rep. No. 101-228, at 79, 80 (1989), reprinted in
Legislative  History of the Clean Air Act Amendments of 1990, at 8419-
20. These terms are arguably broader than the definition of 
"reservation" urged by petitioners, and simply confirm the  term's
ambiguity as used by Congress.


Accordingly, we turn to step two of the Chevron inquiry.  That is, did
the Agency reasonably interpret the term "reser- vation" to include
formal reservations, Pueblos, and trust  lands? EPA supported its
interpretation of "reservation" by  looking to relevant case law, in
particular Supreme Court  precedent holding that there is no relevant
distinction be- tween tribal trust land and reservations for the
purpose of  tribal sovereign immunity. See Oklahoma Tax Comm'n, 498 
U.S. at 511. This view is consonant with other federal court  holdings
that an Indian reservation includes trust lands. See  United States v.
John, 437 U.S. 634, 649 (1978) (finding "no  apparent reason" why
lands held in trust should not be  considered a "reservation" under s
1151(a)); HRI, Inc. v.  EPA, 198 F.3d 1224, 1249-54 (10th Cir. 2000)
(same); United  States v. Azure, 801 F.2d 336, 339 (8th Cir. 1986)
(considering  tribal trust land to be Indian country under either s
1151(a)  as a "de facto" reservation or s 1151(b) as a dependent
Indian  community); United States v. Sohappy, 770 F.2d 816, 822-23 
(9th Cir. 1985) (holding that trust land is a "reservation"  under s


Petitioners note that, for several years, EPA has defined  reservation,
for the purposes of the PSD program, to be "any  federally recognized
reservation established by Treaty,  Agreement, executive order, or act
of Congress." 40 C.F.R.  52.21(b)(27) (1999). Given the Agency's
reasoned justification  for a broader definition of "reservation" in
the Tribal Authori- ty Rule, and its proposal to amend the PSD
definition to  ensure consistency with the Tribal Authority Rule,
EPA's  departure from the PSD definition does not preclude this  court
from upholding EPA's new definition. In light of the  ample precedent
treating trust land as reservation land in  other contexts, and the
canon of statutory interpretation  calling for statutes to be
interpreted favorably towards Na- tive American nations, we cannot
condemn as unreasonable  EPA's interpretation of "reservations" to
include Pueblos and  tribal trust land.


C. Areas over which Tribes May Exercise Jurisdiction to  Propose TIPs
and Redesignations


The next issue that arises in this case is whether EPA  defensibly
interprets the extent of Native American authority  to redesignate
geographic areas and propose TIPs under the  Act. Native American
nations are authorized to redesignate  "[l]ands within the exterior
boundaries of reservations of  federally recognized Indian tribes." 42
U.S.C. s 7474(c).  Similarly, Indian tribes may submit TIPs
"applicable to all  areas ... located within the exterior boundaries
of the reser- vation, notwithstanding the issuance of any patent and
includ- ing rights-of-way running through the reservation." 42  U.S.C.


EPA interpreted both of these provisions to authorize  tribal
redesignation and implementation of TIPs not just  within the limits
of reservations (including trust lands and  Pueblos), but also within
allotted lands and dependent Indian  communities. No one argues that
allotted lands and depen- dent Indian communities are within the
compass of a "reser- vation." Instead, EPA contends that so long as a
tribe  demonstrates inherent jurisdiction over non-reservation ar-
eas, it may issue redesignations and TIPs for those lands. In 


other words, although tribes do not have express delegated  authority
to issue redesignations and TIPs for non- reservation areas, neither
does the Act bar tribes from acting  on a case-by-case basis pursuant
to demonstrated inherent  sovereign power.


Petitioners contend that both s 7474(c) and 7410(o) operate  as
geographical limitations on the power of tribes to redes- ignate areas
and issue TIPs. Petitioners' argument with  respect to s 7474(c) falls
flat. This provision says that  "[l]ands within the exterior
boundaries of reservations of  federally recognized Indian tribes may
be redesignated only  by the appropriate Indian governing body." 42
U.S.C.  s 7474(c). Petitioners seek to twist this language into the 
following: "Indian tribes may only redesignate lands within  the
exterior boundaries of reservations." All s 7474(c) estab- lishes,
however, is the exclusive power of Indian tribes to  redesignate land
within a reservation; it does not address the  inherent power of
tribes to redesignate land in non- reservation areas.


Nor do petitioners fare better with respect to s 7410(o),  which states
that EPA-approved TIPs "shall become applica- ble to all areas (except
as expressly provided otherwise in the  plan) located within the
exterior boundaries of the reserva- tion, notwithstanding the issuance
of any patent and including  rights-of-way running through the
reservation." 42 U.S.C.  s 7410(o). Petitioners read this to mean that
EPA may only  approve a TIP if it applies within reservation areas. As
EPA  points out, petitioners' interpretation cannot stand for several 
reasons. First, s 7410(o) cross-references s 7601(d), which  allows
for tribes to exercise jurisdiction over reservation  areas or "other
areas within the tribe's jurisdiction." 42  U.S.C. s 7601(d)(2)(B).
Most importantly, s 7410(o) provides  that TIPs apply to all areas
within the borders of a reserva- tion once the plan "becomes effective
in accordance with the  regulations promulgated under section 7601(d)
of this title."  42 U.S.C. s 7410(o). Therefore, it is permissible for
EPA to  give s 7410(o) the reading it proffers: a reinforcement of 
tribes' jurisdiction to implement TIPs in reservation land. 
Petitioners would instead read the statute as an express 


limitation of tribal jurisdiction. Under step one of Chevron,  we
cannot say that congressional intent is free of ambiguity  on this
question.


Accordingly, we turn to whether EPA's interpretation is  reasonable. We
believe that it is undoubtedly so. To read  the statute otherwise
would result in several anomalies.  First, EPA notes without dispute
that petitioners' interpreta- tion would allow a state's
implementation plan to apply to  non-reservation areas, even where a
tribe has demonstrated  inherent jurisdiction over those areas.
Second, petitioners'  reading would disable a tribe from
comprehensively adminis- tering the Act. A tribe could implement, in
non-reservation  areas, new source performance standards under the
Act, but  not administer a TIP, even though the regulated activity 
"threatens or has some direct effect on the ... health or  welfare of
the tribe." Montana, 450 U.S. at 566. EPA's  reading of the statute to
allow such regulation is a reasonable  interpretation of ss 7410(o)


D. The Right of The Public To Comment on Tribal Applica- tions to
Regulate


EPA's final rule limited the opportunity of the public to  comment
directly to the Agency on "competing claims over  tribes' reservation
boundary assertions and assertions of jur- isdiction over
non-reservation areas," allowing only "appropri- ate governmental
entities" to submit comments. Tribal Au- thority Rule, 63 Fed. Reg. at
7267. Petitioners challenge this  limitation of the public's
opportunity to comment directly to  EPA. Before this court, however,
EPA indicated its intent to  clarify that the Agency will accept
comments directly from all  commenters on the determination of a
tribe's eligibility to be  treated as a state. See Br. for Respondent
at 43. Subse- quently, EPA issued a clarification to this effect. See
Indian  Tribes: Air Quality Planning and Management, 65 Fed. Reg. 


Therefore, this issue is moot. See Motor & Equip. Mfrs.  Ass'n v.
Nichols, 142 F.3d 449, 458 (D.C. Cir. 1998) (finding  challenge to
EPA's waiver for state's program was moot  where actions complained of
were revised after lawsuit was 


filed). A dispute may be rendered moot where the com- plained of
conduct has been voluntarily discontinued if "(1)  there is no
reasonable expectation that the conduct will recur  and (2) 'interim
relief or events have completely and irrevoca- bly eradicated the
effects of the alleged violation.' " Id. at  459 (quoting County of
Los Angeles v. Davis, 440 U.S. 625,  631 (1979)). In this case, there
is no indication that EPA will  revert to its past proposal only to
receive direct comments  from "appropriate governmental units," and
all of the adverse  effects of the Agency's alleged illegal action
have been remed- ied by EPA's clarification.


E. Abrogation of Existing Agreements By Tribes Not to  Regulate Certain
Land


Petitioners argue that EPA's final rule abrogates preexist- ing
agreements by Native American nations not to regulate  certain
individual parties. Specifically, petitioner APS points  to its 1960
lease with the Navajo Nation that APS claims  prohibits the Nation
from regulating the operation of the  Four Corners Power Plant. See
Br. of Petitioner APS at 2.  APS further claims that the Secretary of
the Interior cove- nanted to protect APS from tribal regulation. See


Petitioners point to footnote 5 in the final rule which states,  in
response to industry comments that preexisting agree- ments may limit
the extent of a tribe's regulatory jurisdiction,  that "EPA believes
that the CAA generally would supersede  pre-existing treaties or
binding agreements that may limit the  scope of tribal authority over
reservations." Tribal Authority  Rule, 63 Fed. Reg. at 7256 n.5.
Petitioners ignore the  sentence following footnote 5, however, in
which EPA states  that it "will consider on a case-by-case basis
whether special  circumstances exist that would prevent a tribe from
imple- menting a CAA program over its reservation." Id. at 7256 
(emphasis added). EPA maintains in its brief that it has  made no
judgment on the scope and effect of the specific  agreements to which
petitioners refer, and that it will consid- er such questions as they
arise. As counsel for APS acknowl- edged at oral argument, it is quite
possible that the abroga- tion issue never will arise. For instance,


agrees that it will not regulate the Four Corners Plant, there  will be
no controversy in need of resolution.


There is still a concern, however. In EPA's preamble to a  proposed
federal implementation plan, promulgated after the  Tribal Authority
Rule, the Agency stated that,


[u]pon review of the circumstances surrounding the loca- tion and
operation of [the Four Corners Power Plant] on  the Navajo Indian
Reservation, EPA concluded that jur- isdiction under the Act over this
facility lies with EPA  and the Navajo Nation.


64 Fed. Reg. 48,731, 48,732 (1999); see also 64 Fed. Reg.  48,725,
48,726 (1999) (taking same position with respect to the  Navajo
Generating Station). EPA now acknowledges that, to  the extent these
preambles imply that the Agency has deter- mined that the indicated
plants are subject to regulation by  the Navajo Nation, these
statements were incorrect. See  Supp. Br. of Respondent at 4. In fact,
EPA has confirmed  this position by publishing an official notice in
the Federal  Register clearly indicating that it has not yet
determined  whether the Navajo Nation may regulate the indicated power
 plants under the Act. See id. at 4-5.


This issue, therefore, is not ripe for review before this  court. The
ripeness doctrine seeks to balance institutional  interests in
delaying review against litigants' interests in  promptly reviewing
allegedly unlawful government actions.  See Florida Power & Light Co.
v. EPA, 145 F.3d 1414, 1420- 21 (D.C. Cir. 1998). First a court must
ask if the disputed  issues are fit for judicial review. See Abbot
Labs. v. Gardner,  387 U.S. 136, 149 (1967). If the institutional
interests of the  agency or reviewing court favor postponing review,
then a  party must demonstrate "hardship" in order to show that the 
issue should nonetheless be made subject to judicial review.  See City
of Houston v. HUD, 24 F.3d 1421, 1431 (D.C. Cir.  1994).


The fitness inquiry asks if a case " 'presents a concrete  legal
dispute [and] no further factual development is essential  to clarify
the issues ... [and] there is no doubt whatever that 


the challenged [agency] practice has "crystallized" sufficiently  for
purposes of judicial review.' " Rio Grande Pipeline Co. v.  FERC, 178
F.3d 533, 540 (D.C. Cir. 1999) (quoting Payne  Enters., Inc. v. United
States, 837 F.2d 486, 492-93 (D.C. Cir.  1988)) (alterations in
original). Here, petitioners cannot sat- isfy this prong because EPA
has not issued any order relat- ing to the preexisting covenants
prohibiting regulation by  Native American nations. See Florida Power
& Light, 145  F.3d at 1421 (finding lack of fitness for review where
it was  unclear "whether, or on what grounds, EPA would even  apply"
the challenged rule to petitioners).


Additionally, petitioners cannot point to any hardship they  would
suffer from deferred judicial review. It is axiomatic  that mere
delay, absent other extenuating circumstances, in  adjudication of a
dispute cannot satisfy the hardship prong.  See Clean Air
Implementation Project v. EPA, 150 F.3d  1200, 1205-06 (D.C. Cir.
1998); Florida Power & Light, 145  F.3d at 1421 (burden of
participating in further proceedings  does not constitute a


Contrary to petitioners' argument, this case is not on all  fours with
Better Government Association v. Department of  State, 780 F.2d 86
(D.C. Cir. 1986). In Better Government,  petitioners challenged
Department of Justice regulations ap- plied by the Department of State
and the Department of the  Interior to evaluate fee waiver
applications for Freedom of  Information Act requests. The court found
that the claim  was ripe for review because the departments relied on
the  Department of Justice guidelines, and the government agreed  that
the regulations "govern[ ] and will continue to govern  its
decisions." Id. at 93. Here, EPA has made no decision  that will
govern its analysis of whether the preexisting agree- ments are
abrogated by its interpretation of the Act. Until  the Agency takes a
position on the enforceability of the  covenants not to regulate,
there is no concrete issue for this  court to consider.


F. Judicial Review of Tribal Permitting Programs


Under Title V of the Act, states must develop a comprehen- sive
permitting program applicable to major air pollution 


sources. See 42 U.S.C. s 7661a. Section 7661a enunciates  the
requirements for administering permitting programs, in- cluding
elements of judicial review. Pursuant to s 7661a,


[t]hese elements shall include ...


(6) Adequate, streamlined, and reasonable procedures  for ...
expeditious review of permit actions, ... includ- ing an opportunity
for judicial review in State court of  the final permit action....


(7) To ensure against unreasonable delay by the permit- ting authority,
adequate authority and procedures to  provide that a failure of such
permitting authority to act  on a permit application or permit renewal
application ...  shall be treated as a final permit action solely for
pur- poses of obtaining judicial review in State court of an  action
brought by any person referred to in paragraph  (6) to require that
action be taken by the permitting  authority on such application
without additional delay.


Id. s 7661a(b)(6), (7).


EPA initially proposed that tribes "will have to meet the  same
requirements" as states in providing an opportunity for  judicial
review of a final permit action. Proposed Tribal  Authority Rule, 59
Fed. Reg. at 43,972. EPA withdrew this  proposal in its final rule.
Instead, EPA required tribes to  meet all the requirements of s
7661a(b)(6) and (7) except that  review of a tribe's Title V
permitting program need not be  "judicial" or "in State court." See
Tribal Authority Rule, 63  Fed. Reg. at 7261. Petitioners present two
challenges to the  final rule on judicial review: (1) that EPA had no
authority to  exempt tribes from the Act's judicial review
requirements;  and (2) that interested parties received insufficient


EPA promulgated its final rule in response to comments  that expressed
concern over "waivers of tribal sovereign  immunity to judicial
review." Id. Some Native American  representatives observed that
requiring a waiver of sovereign  immunity for a tribe to administer a
Title V permit program  would operate as a disincentive to a tribe's
establishing such 


programs. Industry commenters also sought assurances that  nonmembers
of tribes would have access to tribal courts for  judicial review.


EPA identified two alternatives for ensuring that "some  form of
citizen recourse be available for applicants and other  persons
affected by permits issued under tribal Title V pro- grams." Id. One
option was for tribes to voluntarily waive  their sovereign immunity
in tribal courts. A second possibili- ty was for the Agency to
consider "alternative options ...  that would not require tribes to
waive their sovereign immu- nity to judicial review but, at the same
time, would provide  for an avenue for appeal of tribal government
action or  inaction to an independent review body and for injunctive-
type relief to which the Tribe would agree to be bound." Id.  at 7262.
EPA interpreted 42 U.S.C. s 7601(d) to "provide[ ]  EPA with the
discretion to balance the goals of ensuring  meaningful opportunities
for public participation under the  CAA and avoiding undue
interference with tribal sovereignty  when determining those
provisions for which it is appropriate  to treat tribes in the same


Section 7601(d) authorizes EPA to treat Native American  nations as
states for the purposes of the Act. However, if  EPA determines "that
the treatment of Indian tribes as  identical to states is
inappropriate or administratively infeasi- ble, the Administrator may
provide, by regulation, other  means by which the Administrator will
directly administer  such provisions so as to achieve the appropriate
purpose." 42  U.S.C. s 7601(d)(4). EPA relies on this statutory
provision  to justify the approach taken on judicial review.


Petitioners argue that EPA lacks authority to exempt  tribes from the
judicial review requirements, because  s 7601(d) does not affect the
operation of CAA provisions  "that define rights that must be afforded
to those affected by  a program in order [for either a tribe or a
state] to receive  EPA approval to administer a federally enforceable
pro- gram." Br. for Petitioners NAM at 42. We see no merit in  this
claim. EPA's interpretation is not clearly contradicted  by the
statute. In fact, s 7601(d)(4) allows the Agency the 


discretion to determine whether it is "inappropriate or admin-
istratively infeasible" to treat Indian tribes exactly the same  as
states in administering the Act. Petitioners offer no  support for
their assertions that the judicial review require- ments do not come
within the EPA's discretion under this  section. It is obvious, then,
that the Agency had a choice as  to whether to treat Indian tribes
identical to states with  regard to the judicial review elements of s
7661a(b). The  clear meaning of the statute does not foreclose the
Agency's  interpretation.


Nor is the Agency's interpretation unreasonable. EPA  understandably
was concerned that the effect of requiring  tribes to submit their
permitting disputes to state courts  would conflict with policies
supporting tribal sovereignty and  also discourage the institution of
tribal permitting programs.  The Agency's decision to allow tribes to
submit alternatives to  waiving sovereign immunity accomplishes a
reasonable bal- ancing of these interests. This is bolstered by EPA's
ex- pressed intention to ensure that any alternative to a waiver of 
sovereign immunity nonetheless provides an impartial forum  allowing
for "injunctive-type relief." Tribal Authority Rule,  63 Fed. Reg. at


Petitioners also argue that, assuming that EPA could ex- empt tribes
from judicial review requirements, s 7601(d)(4)  requires that EPA
provide an alternative means of ensuring  effective judicial review.
Petitioners suggest that EPA must  at least "provide for review by the
Regional Administrator of  all tribal permit decisions, and resolve
all federal or tribal  challenges to the tribe's actions." Br. for
Petitioners NAM at  44. To the extent that this argument merely
reiterates the  contention that EPA has no authority to alter tribes'
judicial  review responsibilities, nothing more need be said. To the 
extent that this argument challenges the alternative tribal  review
procedures to be approved by EPA in lieu of judicial  review in state
court, this issue is not ripe for review. EPA  has not yet approved
any alternative tribal judicial review  procedures. See Tribal
Authority Rule, 63 Fed. Reg. at 7262  ("EPA will develop guidance in
the future on acceptable  alternatives to judicial review."). As such,


sion "fit" for judicial review, nor have petitioners demonstrat- ed any
hardship from deferred review.


Petitioners advance a separate contention in support of  vacating the
rule: that interested parties did not receive  sufficient notice of
the substance of the final rule. The  Administrative Procedure Act
requires that an agency publish  notice of its proposed rulemaking
that includes "either the  terms or substance of the proposed rule or
a description of  the subjects and issues involved." 5 U.S.C. s
553(b)(3)  (1994). An agency satisfies this notice requirement if the 
final rule is a "logical outgrowth" of the proposed rule. See 
Aeronautical Radio, Inc. v. FCC, 928 F.2d 428, 445-46 (D.C.  Cir.
1991). In other words, we consider " 'whether ... [the  party], ex
ante, should have anticipated that such a require- ment might be
imposed' " in determining whether adequate  notice was given in a
notice of proposed rulemaking. Id. at  446 (quoting Small Refiner Lead
Phase-Down Task Force v.  EPA, 705 F.2d 506, 549 (D.C. Cir. 1983))


"In most cases, if the agency ... alters its course in  response to the
comments it receives, little purpose would be  served by a second
round of comment." American Water  Works Ass'n v. EPA, 40 F.3d 1266,
1274 (D.C. Cir. 1994).  Thus, the "logical outgrowth" test normally is
applied to  consider "whether a new round of notice and comment would 
provide the first opportunity for interested parties to offer 
comments that could persuade the agency to modify its rule."  Id.
(emphasis added). In this case, there was more than  enough notice for
interested parties to offer comments on  EPA's treatment of the
judicial review provisions of the Act  vis a vis Indian tribes. The
parties were not asked to "divine  the EPA's unspoken thoughts." Shell
Oil Co., 950 F.2d at  751. And the final rule was not wholly unrelated
or surpris- ingly distant from what EPA initially suggested. In first 
proposing that tribes would have to meet the "same require- ments" as
states, EPA effectively raised the question as to  whether this made
sense. EPA's proposal was not a "bureau- cratic game of hide and
seek," MCI Telecomm. Corp. v. FCC,  57 F.3d 1136, 1142 (D.C. Cir.
1995); the proposal raised a 


highly visible and controversial issue and elicited responses  from
both tribal and industry commenters. Furthermore,  any reasonable
party should have understood that EPA might  reach the opposite
conclusion after considering public com- ments. In short, it is fair
to say that the purpose of notice  and comment rulemaking has been
served, and that the  Agency's change of heart on this issue only
demonstrates the  value of the comments it received.


III. CONCLUSION


Consistent with the foregoing opinion, we deny the peti- tions for
review in part, and dismiss in part for want of  jurisdiction and for
lack of ripeness. Petitioners' motions for  vacatur and remand are
dismissed as moot.


Ginsburg, Circuit Judge, dissenting in part: With certain  exceptions,
of which more later, an Indian tribe lacks inherent  authority to
regulate the conduct of a nonmember on land he  owns within the
boundaries of the tribe's reservation. Lack- ing inherent authority, a
tribe may exercise regulatory au- thority over such non-Indian lands
only by express congres- sional delegation. The court today determines
that  s 301(d)(2)(B) of the Clean Air Act, 42 U.S.C. s 7601(d)(2)(B), 
expressly delegates to tribes--contingent upon approval by  the EPA
Administrator--authority to enforce the Clean Air  Act on nonmembers'
lands within a reservation. Finding no  such express delegation in s
301(d)(2)(B), I dissent from Part  II.A of the opinion for the


I. Background


In State of Montana v. United States, 450 U.S. 544 (1981),  the Crow
tribe had sought to regulate nonmembers' hunting  and fishing upon
lands owned in fee by the State of Montana  but lying within the
boundaries of the Crow reservation. The  Supreme Court, unanimous upon
this point, held that a tribe  generally lacks authority to regulate
the conduct of nonmem- bers upon lands owned in fee by nonmembers
("fee lands");  of the two exceptions the Court noted, the only one
arguably  relevant here is that "[a] tribe may ... retain inherent
power  to exercise civil authority over the conduct of non-Indians on 
fee lands within its reservation when that conduct threatens  or has
some direct effect on the political integrity, the eco- nomic
security, or the health or welfare of the tribe." Id. at  566. Absent
such a threat or effect, tribal regulation of fee  lands within a
reservation requires an "express congressional  delegation." Id. at


The two provisions of the Clean Air Act relevant to the  question of
tribal authority to enforce the Act on fee lands  were added by s 107
of the 1990 Amendments, Pub. L. No.  101-549, 104 Stat. 2399, 2464.
Section 301(d) of the Act, 42  U.S.C. s 7601(d), provides in relevant
part:


(1) Subject to the provisions of paragraph (2), the Ad- ministrator ...
is authorized to treat Indian tribes as  States under this chapter
...


(2) The Administrator shall promulgate regulations ...  specifying
those provisions of this chapter for which it is  appropriate to treat
Indian tribes as States. Such treat- ment shall be authorized only


(A) the Indian tribe has a governing body carrying out  substantial
governmental duties and powers;


(B) the functions to be exercised by the Indian tribe  pertain to the
management and protection of air re- sources within the exterior
boundaries of the reserva- tion or other areas within the tribe's
jurisdiction; and


(C) the Indian tribe is reasonably expected to be  capable, in the
judgment of the Administrator, of  carrying out the functions to be
exercised in a manner  consistent with the terms and purposes of this
chapter  and all applicable regulations. ...


Section 110(o) of the Act, 42 U.S.C. s 7410(o), provides in its 
entirety:


If an Indian tribe submits an implementation plan to the  Administrator
pursuant to section [301(d), above], the  plan shall be reviewed in
accordance with the provisions  for review set forth in this section
for State plans, except  as otherwise provided by regulation
promulgated pursu- ant to section [301(d)(2)]. When such plan becomes 
effective in accordance with the regulations promulgated  under
section [301(d)], the plan shall become applicable  to all areas
(except as expressly provided otherwise in  the plan) located within
the exterior boundaries of the  reservation, notwithstanding the
issuance of any patent  and including rights-of-way running through


The EPA's Tribal Authority Rule (TAR) allows a tribe  (subject to
approval by the Administrator of the EPA) to  enforce the Clean Air
Act on all land within the boundaries of  a reservation without having
to demonstrate its inherent  authority over all such land. Under the
clear rule of Mon- tana, however, a tribe lacks inherent sovereign
authority to  regulate fee lands (and rights of way, see Strate v. A-1
 Contractors, 520 U.S. 438, 456 (1997)) within a reservation 


except under the aforementioned exception announced in that  case.
Therefore, the TAR must be set aside as contrary to  law unless the
1990 Amendments expressly delegate to tribes  authority over fee lands
and rights of way within a reserva- tion. Upon that starting point for
analysis the parties, the  court, and I agree.


The EPA claims to find a delegation of authority in  s 301(d)(2)(B) of
the Clean Air Act. In evaluating this claim,  the court is to accord
no deference to the EPA's interpreta- tion of that section because
Montana requires an "express  congressional delegation" in order to
expand tribal authority.  In other words, the EPA cannot prevail
merely by demon- strating that its interpretation of s 301(d)(2)(B) is
reasonable;  the agency's interpretation must be correct if the TAR is
to  stand. Therefore, although we are reviewing an EPA rule- making,
on this issue the focal point for our inquiry is not the  EPA's
interpretation but the statute itself. Upon this metho- dological
point, too, all agree.


II. Analysis


With these agreed upon principles in mind, it seems to me  clear that
the 1990 Amendments do contain an express dele- gation of authority
over fee lands and rights of way--but not  in s 301(d), which governs
tribal enforcement of all Clean Air  Act programs specified by the
Administrator. Rather, the  delegation is in s 110(o), which governs
only tribal implemen- tation plans (TIPs). Because the specific
delegatory text in  s 110(o) is significant to my conclusion that s
301(d) is not a  delegation, I consider s 110(o) first.


A. Section 110(o) and the "Notwithstanding" Proviso


The petitioners' convoluted argument to the contrary not- withstanding,
s 110(o) is self-evidently an express congres- sional delegation of
authority to enforce TIPs on fee lands  and rights of way within a
reservation: "the [TIP] shall  become applicable to all areas ...
located within the exterior  boundaries of the reservation,
notwithstanding the issuance of  any patent and including
rights-of-way running through the  reservation." The same


feature in the only two cases in which the Supreme Court has  found an
express delegation of authority to tribes. In United  States v.
Mazurie, 419 U.S. 544 (1975), and in Rice v. Rehner,  463 U.S. 713
(1983), the Court found an express delegation of  authority over fee
lands within a reservation based upon two  statutory provisions: 18
U.S.C. s 1161, which authorizes the  tribes to enact ordinances
regulating liquor in "Indian coun- try"; and 18 U.S.C. s 1151, which
defines "Indian country" to  include "all land within the limits of
any Indian reservation  under the jurisdiction of the United States
Government,  notwithstanding the issuance of any patent, and,
including  rights-of-way running through the reservation." See Rice, 
463 U.S. at 715 & n.1 ("Congress has delegated authority ...  in
Indian country [as defined in] 18 U.S.C. s 1151"); see also  Brendale
v. Confederated Tribes & Bands of the Yakima  Indian Nation, 492 U.S.
408, 428 (1989) (citing 18 U.S.C.  ss 1151 and 1161 together as an
express congressional dele- gation of authority over fee lands).*


B. Section 301(d)


The express congressional delegation just identified in  s 110(o)
cannot by itself support the TAR, however: Because  the TAR allows a
tribe to enforce all applicable Clean Air Act  programs--rather than
just the TIP--on nonmember lands  within its reservation, the EPA must
demonstrate that 




__________

n * In a dictum, the Brendale Court noted as a second example of  an
express congressional delegation of authority ss 518(e), (h)(1) of 
the Clean Water Act, 33 U.S.C. ss 1377(e), (h)(1), the latter of 
which, significantly, contains the notwithstanding clause so glaringly
 absent from s 301(d). 492 U.S. at 428. In terms that otherwise  track
s 301(d) of the Clean Air Act, s 518(e) provides for condition- ally
treating a tribe as a state with regard to water resources  "within
the borders of an Indian reservation," defined in s 518(h)(1)  as "all
land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation." In spite of the Brendale dictum, the EPA has 
concluded s 518 is not an express congressional delegation of 
authority, see 56 Fed. Reg. 64,876, 64,880 (1991), but no court has 


s 301(d) likewise contains an express congressional delega- tion of
authority.


The EPA argues the following text distilled from s 301(d)  contains an
express delegation to tribes of authority to regu- late fee lands
within a reservation:


[T]he Administrator ... is authorized to treat Indian  tribes as
States.... Such treatment shall be authorized  only if ... the
functions to be exercised by the Indian  tribe pertain to the
management and protection of air  resources within the exterior
boundaries of the reserva- tion or other areas within the tribe's


42 U.S.C. s 7601(d)(1)-(d)(2)(B) (emphasis added). The gist  of the
agency's argument, which the court accepts, is that the  Congress
expressly delegated authority over all lands within  a reservation by
linking "within the exterior boundaries of the  reservation"
disjunctively to "other areas within the tribe's  jurisdiction." For
the following reasons, I do not agree.


As the petitioners emphasize, when one reads the relevant  sentence as
a whole--rather than focusing solely upon the  last phrase--one sees
that, rather than expressing a delega- tion of authority over fee
lands and rights-of-way within a  reservation, the sentence by its
terms merely lays down a  precondition to the Administrator's treating
a tribe as a state.  Even more certainly, there is no way to read the
phrase  deemed crucial by the court ("within the exterior boundaries 
of the reservation or other areas within the tribe's jurisdic- tion")
as an express delegation of authority.


One important indication that the Congress did not intend  this phrase
as an express delegation is that it used the Court- tested
"notwithstanding" proviso in s 110(o) but not in  s 301(d)(2)(B).
Sections 110(o) and 301(d)(2)(B) were enacted  at the same time, in
the same section of the same bill, so the  different phrasing should
not be thought just an artifact of  legislative haphazardry. I do not
believe that the Congress,  obviously aware that it could enlarge
tribal authority over  nonmember lands only through an express
delegation, would  include the formulaic "notwithstanding"


standard for such delegations--in the narrower of the two  sections,
and then use an obscure and never-before-attempted  formulation to
accomplish the same result in the broader of  the two sections.
Further, the court's interpretation of  s 301(d)(2)(B) renders the
"notwithstanding" proviso in  s 110(o) surplusage--a point the court
euphemistically ac- knowledges, Slip Op. at 23 ("a reinforcement of
tribes' ...  [s 301(d)(2)(B) authority] to implement TIPs in
reservation  land"). If s 301(d)(2)(B) is so clear as to constitute an
 express congressional delegation, it is difficult to believe that 
the Congress would "reinforce" this point in a narrower  provision
enacted at the same time as and expressly cross- referencing s


Finding an express congressional delegation in s 301(d) is  made even
more difficult, as the petitioners contend, by the  Congress's having
deleted a literal delegation to tribes that  was included in the
corresponding section of the bills by  which the 1990 Amendments were
first introduced in the  House and the Senate: "the Administrator ...
may delegate  to [ ] tribes primary responsibility for assuring air
quality and  enforcement of air pollution control." H.R. 2323, 101st




__________

n * The court suggests the Congress may well have intentionally 
avoided using the "notwithstanding" proviso in s 301(d) in response 
to the EPA's having interpreted s 518 of the Clean Water Act as  not
being a delegation. Slip Op. at 13. The EPA's interpretation  of the
CWA was not adopted, however, until December 1991, more  than a year
after enactment of the 1990 Amendments. See 56 Fed.  Reg. 64,876,
64,880. I am not willing blithely to "assume that  Congress was aware
of," much less responded to, the EPA's mere  proposal to adopt that
interpretation. When the 1990 Amendments  were enacted, the EPA's
unexplained proposal was still subject to  change in the light of
public comments, and even if finally adopted  would not receive
deference from a reviewing court charged with  determining whether the
Congress had made an express delegation  to tribes. In contrast, we
know for a certainty that the Congress  was aware of Brendale, in
which the Supreme Court instanced  CWA s 518(h)(1) as an express
congressional delegation: That case  had been decided in June 1989,
and is cited in the Senate Report on  an earlier version of the 1990
Amendments, see S. Rep. No.  101-228, at 79.


s 604, reprinted in 2 Legislative History of the Clean Air Act 
Amendments of 1990, at 4053, 4101 (1993) [hereinafter 1990  Leg.
Hist.]; S. 1630, 101st Cong. s 111, reprinted in 5 1990  Leg. Hist.
9050, 9145. The Senate passed S. 1630 with this  express delegation
intact; the House, however, did not act  upon H.R. 2323 but instead
passed H.R. 3030, in which the  delegation provision did not appear.
See 2 1990 Leg. Hist.  1809, 1972-73 (House passage of S. 1630,
amended in the  nature of a substitution of H.R. 3030). The House
version  prevailed in conference, see id. at 478-79, so the 1990
Amend- ments as finally enacted into law do not contain this literal 
delegation provision. The court is of course correct that the 
Congress need not use the word "delegate" in order to effect  an
express delegation, Slip Op. at 15; s 110(o) illustrates the  point.
That the Congress "specifically rejected language  favorable to
[EPA's] position," Slip Op. at 12, however, is  further evidence that
the legislature did not mean to enact a  delegation of authority.
Indeed, to believe that the Congress  meant s 301(d)(2)(B) to serve as
a delegation, after it had  included the "notwithstanding" proviso in
the narrower  s 110(o) and removed from s 301(d) a provision that
express- ly provided a delegation to tribes, would require one to 
believe the Congress was more interested in testing our  interpretive
acumen than in clearly expressing its will upon  the important issue


The court claims support for its contrary conclusion in the  Congress
having "moved from authorizing tribal regulation  over the areas
'within the tribal government's jurisdiction' ...  to a bifurcated
classification of all areas within 'the exterior  boundaries of the
reservation' and 'other areas within the  tribe's jurisdiction.' "
Slip Op. at 12. Putting aside the  question-begging interpolation of
"all" into the quoted pas- sage, I think the court misapprehends the
significance of the  phrase "within the exterior boundaries of the
reservation or  other areas within the tribe's jurisdiction." As
originally  introduced, H.R. 3030 referred only to air resources
"within  the exterior boundaries of the reservation." 2 1990 Leg. 


Hist. 3737, 3853. The House Committee on Energy and  Commerce without
comment added the phrase "or other  areas within the tribe's
jurisdiction," id. at 3021, 3069, and as  mentioned, the House version
later prevailed in conference.  The legislative record is silent about
why the Committee  added that phrase. The most straightforward
interpretation  of the addition is that the Committee wanted to ensure
that  the treatment of tribes as states extended beyond the reser-
vation to non-contiguous areas of tribal authority, such as  dependent
Indian communities. This seems far more likely  than that a House
committee, with no discussion, inserted the  phrase "or other areas
within the tribe's jurisdiction" in order  to turn a simple reference
to reservations into a delegation of  authority over non-Indian lands


Finally, I cannot agree with the court that we should find  an express
congressional delegation of authority in  s 301(d)(2)(B) in any part
because the contrary reading  "would result in a 'checkerboard'
pattern of regulation within  a reservation's boundaries that would be
inconsistent with the  purpose and provisions of the [Clean Air] Act."
Slip Op. at  11-12. First, it is not at all clear that a
"checkerboard"  pattern--really a matter of certain fee lands
remaining sub- ject to State (or federal) rather than tribal
authority, while  surrounding areas go tribal--would result: a tribe
remains  free to demonstrate its inherent authority over any activity
on  fee lands that "threatens or has some direct effect on ... the 
health or welfare of the tribe," Montana, 450 U.S. at 566.  Therefore,
if a tribe does find itself without authority over  certain fee lands
for want of an express delegation, that is  only because no activities
on those fee lands threaten or  directly affect the health or welfare


Second, tribal authority over less than all lands within the 
boundaries of a reservation is the logical result of the tribes' 
"diminished status as sovereigns," Montana, 450 U.S. at 565.  The
Montana rule on its face contemplates less than uniform  authority
within a reservation; unless an exception applies, 


the tribe cannot regulate a parcel owned by a nonmember  even though it
retains authority over the surrounding lands  owned by the tribe. See,
e.g., Brendale, 492 U.S. at 428  (White, J., for the Court in part and
dissenting in part), 443,  445 (Stevens, J., for the Court in part and
concurring in the  judgment in part) (each affirming non-uniform
zoning authori- ty). While the Congress could have chosen to sweep
away  such non-uniformity in s 301(d), as it did in s 110(o), the 
court's evident sense that the Congress should have done so  is no
basis for reading an express delegation into the statute  where the
Congress has not written one.*


III. Conclusion


In my view, s 301(d)(2)(B) is not an express delegation of  authority
for Indian tribes to regulate the conduct of non- members on fee lands
within the boundaries of a reservation.  A tribe may be able, of
course, to demonstrate its authority  over such fee lands under the
exception recognized in Mon- tana. Without making such a showing,
however, I do not  believe the tribe may regulate the conduct of
nonmembers on  fee lands and rights-of-way except as provided by s




__________

n * Seymour v. Superintendent of Washington State Penitentiary,  368
U.S. 351 (1962) and Moe v. Confederated Salish and Kootenai  Tribes of
Flathead Reservation, 425 U.S. 463 (1976), cited by the  court today,
certainly do not counsel reading an express delegation  into a statute
in order to avoid non-uniform tribal authority within a  reservation.
In Seymour, the Court held that "an impractical  pattern of
checkerboard jurisdiction was avoided by the plain  language of [18
U.S.C.] s 1151," namely, the "notwithstanding"  proviso. 368 U.S. at
358. And in Moe, the Court determined that  because the Congress had
"repudiated" but never formally repealed  s 6 of the General Allotment
Act, 25 U.S. s 349, the court would  read s 6 narrowly in order to
avoid creating an inconsistency with  later-enacted statutes. 425 U.S.
at 477-79. Thus, the Court was  merely "follow[ing] Congress' lead in
this area." Id. at 479. So,  too, where the Congress has expressly
delegated authority, as in  s 110(o), we should certainly give its
command full rein; but where  it has not, we should not undertake to


therefore respectfully dissent from Part II.A. of the opinion  for the
court.