Key Points

  • The Tenth Circuit denied the Pawnee Nation's petition for review and upheld the EPA's May 2025 approval of Oklahoma's request to administer 26 state environmental programs in Indian country.
  • The majority held that Section 10211(a) of SAFETEA unambiguously remains in force and did not expire in 2009, so the presumption against permanence, which it treated as an ambiguity-resolving canon, did not apply.
  • The majority held that Section 10211(a)'s 'shall approve' command bars the EPA from attaching conditions, such as the January 2025 State-Tribal Engagement Condition, to its approval.
  • The court held that the EPA could rely on its earlier approvals of the programs for the rest of the state rather than making new compliance determinations, and that the Indian law canon did not apply because the text is unambiguous.
  • Judge Tymkovich concurred separately to say the presumption against permanence applies only to single-year appropriations acts; Judge Federico dissented, arguing a tribal-sovereignty clear statement rule required a remand on the conditions question.

A federal appeals court on Oct. 16 upheld the Environmental Protection Agency's decision to let Oklahoma run 26 state environmental programs in Indian country, rejecting the Pawnee Nation of Oklahoma's argument that the 2005 law behind the arrangement expired in 2009.

The U.S. Court of Appeals for the Tenth Circuit denied the tribe's petition for review in a 2-1 decision. Circuit Judge Tymkovich wrote for the majority, joined by Circuit Judge Bacharach, and also filed a separate concurrence. Circuit Judge Federico dissented and would have sent the case back to the EPA.

The ruling keeps in place the agency's May 2025 approval, which makes Oklahoma the primary regulator under those programs in Indian country, where the EPA ordinarily keeps that role for itself. The majority also held that the EPA has no power to attach conditions to that approval. As a result, the agency cannot require Oklahoma to notify and confer with affected tribes before acting, as a January 2025 version of the approval had required.

The dispute centers on Section 10211(a) of a 2005 highway funding law known as SAFETEA. Tymkovich wrote that the provision came to be known as the "Midnight Rider," because it was added last minute and without discussion. It directs the EPA, once it has approved an Oklahoma program for the rest of the state, to approve the state to run that program in Indian country "without any further demonstration of authority by the State."

The provision went unused for 15 years. That changed after the Supreme Court's 2020 decision in McGirt v. Oklahoma, which, as Tymkovich put it, "expanded the scope of Indian country to encompass almost the entirety of eastern Oklahoma." Several weeks later, Oklahoma asked the EPA to extend 26 programs it already ran under six federal statutes, including the Clean Air Act and the Clean Water Act.

The EPA approved the request on Oct. 1, 2020. After 16 tribes, including the Pawnee Nation, asked the agency to revisit that decision, the EPA under a new administration concluded that three weeks of consultation for 38 tribes "was inadequate to allow meaningful engagement regarding impacts of the State's request on tribes." In January 2025, after more than three years of further consultation, it approved the request again, this time with a "State-Tribal Engagement Condition" requiring the state to give affected tribes written notice of its final agency actions and invite them to confer.

In April 2025, after another change in administrations, the EPA told the tribes it had erred in reading the law to allow conditions. On May 12, 2025, it reissued the approval without the condition, and the Pawnee Nation petitioned the Tenth Circuit.

The tribe's lead argument was that Section 10211 lapsed on Sept. 30, 2009, along with SAFETEA's time-limited spending provisions. It invoked the presumption against permanence, a rule some courts apply to hold that a substantive provision in an appropriations bill lasts only for the fiscal year the bill covers.

The majority held that the presumption comes into play only when a statute is ambiguous, and that this one is not. "Section 10211 contains no sunset provision, nor does it say anything about the duration of its application," Tymkovich wrote. He added that "statutes seldom say anything about their duration, and we usually only find a duly enacted provision of Congress is expired when it says so." The court also pointed to express sunset language elsewhere in SAFETEA and to the EPA's consistent treatment of the provision as active.

On conditions, the majority read the statute's command that the agency "shall approve" a qualifying request as leaving no room for additions. "Congress's command that the EPA 'shall approve' a valid request does not authorize the agency to shrink that approval by attaching a condition to it," Tymkovich wrote. The court also rejected the tribe's argument that the EPA had to re-examine each program's compliance before extending it, holding that the agency's earlier approvals for the rest of the state were enough.

The tribe had also relied on the Indian law canon, the principle that ambiguous statutes are construed in tribes' favor. The majority held that the canon, like the presumption against permanence, does not apply to unambiguous text. It wrote that the dissent "creates its own overarching clear statement rule by relying on precedents that involved variations of the canon that have no application here."

In his concurrence, Tymkovich wrote that the presumption against permanence would not apply even if the text were ambiguous, because SAFETEA was a multi-year authorization act rather than a single-year appropriations bill. Applying the canon, he wrote, would require the court "to reach back over twenty years to impose a post-hoc clarity tax on Congress."

Federico's dissent focused on the conditions question. He agreed that the rider "is a clear statement by Congress to generally subvert tribal sovereignty to that of the State of Oklahoma." But he wrote that the law is silent on whether the EPA may attach tribe-protective conditions, and that this silence triggers the Indian canons, which he described as several rules rather than one.

"This court should not so readily acquiesce to the total displacement of the tribes as the first sovereigns of their land absent a clear statement from Congress to the contrary," Federico wrote. He added that congressional silence "where tribal sovereignty and state sovereignty collide, means the rider should not be construed to turn the EPA into a rubber stamp."

Lawyers for the Pawnee Nation included Michael S. Freeman of Earthjustice. The EPA was represented by Cameron Hinojos of the Justice Department's Environment and Natural Resources Division.

The majority noted that the EPA retains its ordinary authority to oversee the state programs, and that if the agency revoked Oklahoma's authority to run a program in the rest of the state, it could deny a request to extend that program in Indian country.