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Riverton hospital moves to enter EPA tribal boundary dispute

By Ben Neary, Associated Press

Riverton Memorial Hospital maintains that a recent medical malpractice case filed against it in tribal court on the Wind River Indian Reservation underscores the problems the U.S. Environmental Protection Agency created in its recent decision that the city of Riverton and surrounding lands remain legally Indian Country.

Tribal spokesmen, however, say the tribal court has handled claims against the hospital for years and question why it would raise jurisdictional questions now.

The EPA’s 2013 decision that Riverton and more than 1 million acres of surrounding land remain part of the Wind River Indian Reservation came in response to a joint application from the Northern Arapaho and Eastern Shoshone tribes to treat their joint Wind River Indian Reservation essentially as a separate state for purposes of administering the federal Clean Air Act.

The hospital on Wednesday asked the 10th Circuit Court of Appeals to allow it to file a friend-of-the-court brief. The hospital wants to join the state of Wyoming, the City of Riverton, Fremont County and others in fighting the EPA ruling.

Wyoming Gov. Matt Mead maintains Congress extinguished the land’s reservation status 100 years ago when it opened the area to settlement by non-Indians.

In protesting the EPA decision, Mead and other Wyoming officials have said that a court ruling establishing Riverton remains legally on the reservation would affect provision of state services, including law enforcement protection, to non-Indian residents there.

In the malpractice case pending in tribal court, Riverton lawyer John Vincent represents Cody Armajo, a Northern Arapaho woman. The lawsuit alleges she was taken to the hospital in February 2013 complaining of an injury to her eye but that a doctor there examined her and found nothing much wrong.

The lawsuit states that Armajo was ultimately transported to jail in Lander and jail personnel took her to another hospital when she continued to complain of pain. Doctors there determined she had been shot in the eye and a bullet lodged in her head.

The Riverton hospital’s request to dismiss Armajo’s case is pending in tribal court. The hospital’s arguments filed with the federal court this week state that tribal court is a quagmire where rules and the law are ill-defined.

“This is the impact of the EPA’s decision: a non-Indian business has been hailed into tribal court,” the hospital’s lawyers wrote to the appeals court. “The expansion of the tribes’ jurisdiction over an entire city has already begun to have negative consequences on the city’s businesses.”

Patrick J. Murphy, a Casper lawyer representing the hospital, didn’t immediately return a telephone call to his office on Thursday seeking comment.

Vincent, a former mayor of Riverton, said Thursday that the tribal court had handled medical malpractice claims against the hospital before the EPA ruling. “I don’t know all of a sudden why this case would stir the controversy up,” he said.

The appeals court gave other parties including the tribes until June 8 to file a response to the hospital’s request to enter the case. Mark Howell, spokesman for the Northern Arapaho Tribe, said Thursday the tribe would oppose the hospital’s request.

Richard Brannan, a member of the Northern Arapaho Tribal Council, issued a statement Thursday saying the Riverton Hospital receives millions of dollars in funding through the Indian Health Service each year for treatment of tribal members.

“This is not the first time that they’ve had to manage claims for medical negligence in tribal court,” Brannan said. He said the Council is confident the hospital will have a fair opportunity to present all its defenses.

Ronald Oldman, a spokesman for the tribe, issued a statement saying the tribe is actively monitoring Armajo’s case.

“A tribal member was walking down the street in Riverton. She was shot at random by an unknown gunman, and taken to the Riverton hospital with a bullet hole in her head,” Oldman said. “Hospital staff failed to notice the gunshot wound and discharged her.”

Leaps and boundaries for Wyoming tribes

State battles Wind River tribes over expanded reservation and greater stake in energy management.

By Joshua Zaffos, High Country News

Riverton, Wyoming, looks like an All-American boomtown, fronted along a busy strip of hotels and fast food joints with steady traffic from industry trucks and pickups. But the Northern Arapaho and Eastern Shoshone tribes are arguing that Riverton is part of the Wind River Indian Reservation – and the Environmental Protection Agency agrees. That determination, now before the courts, could allow tribes to have greater involvement in energy development rules and also strike a significant win for tribes after centuries of losing ground.

A 1905 Congressional act opened nearly 1 million acres of Wind River reservation lands in central Wyoming for non-Indian homesteaders, miners and new towns. Later acts restored much of that area as part of the reservation, but 171,000 acres, including Riverton, were never officially returned to the tribes. Despite the developments, the Northern Arapaho and Eastern Shoshone, who share the reservation, say the lands have always remained under tribal ownership.

The matter boiled over in 2008 after the Wind River tribes applied to the EPA for “treatment as a state” designation under the Clean Air Act, which would allow them to implement and manage air-quality programs on their shared reservation. In a region heavily reliant on the production from thousands of oil and gas wells, the additional oversight – and a change in jurisdiction – poses some uncertainty for the industry.

The EPA approved the tribes’ request in late 2013 and, as part of the proceedings, reviewed the reservation’s boundaries. After studying historical records, the EPA announced that the disputed lands are still part of the Wind River reservation.

“It’s a big deal for the Wind River tribes and for Wyoming because jurisdiction is what sovereign governments are all about,” says Debra Donahue, professor at University of Wyoming College of Law. “It’s important for the tribes just as an affirmation that the lands are still within the reservation and they are the primary sovereigns within that territory.”

The state of Wyoming, the Wyoming Farm Bureau, and Devon Energy, one of the largest oil and gas companies in the country, all sued EPA over the outcome and asked the Tenth Circuit Appeals Court to review the decision. This month, ten other states filed an amicus brief, asking the court to fully review EPA’s boundary determination, and questioning why the agency was wading into Indian law and boundary disputes.

Wyoming Gov. Matt Mead, R, has said the EPA’s determination sets a “dangerous precedent” for administrative agency intervention in tribal boundary and state sovereignty issues. Mead has also battled the EPA – and complained of other dangerous precedents – over President Obama’s proposed stricter rules and carbon controls for coal-fired power plants, and in defense of the state’s own plan to reduce power-plant haze and improve air quality in national parks and wilderness areas, which is more lax than federal plans. Wyoming won backing from the courts on the latter issue last September, allowing coal plants to avoid installing new pollution controls.

If the appeals court upholds the EPA’s boundary designations, the state can still tax local citizens and businesses in the Riverton area. According to the Equality State Policy Center, non-Indian people would be minimally impacted, although some new tax advantages could benefit businesses. Enrolled tribal members in the extended area, however, would be under tribal jurisdiction in criminal or legal cases, and the Bureau of Indian Affairs and tribal courts would have more authority.

Under the Wind River tribe-as-state application, the tribes aren’t seeking all-out regulatory authority, but they would gain the right to monitor local air quality and to comment on regional projects that could impact environmental health. The state would maintain regulatory control over the oil and gas industry, and it’s doubtful the decision would affect energy development. Along with the rest of Wyoming, the Wind River tribes rely heavily on oil and gas for government revenues, but some homes on the reservation have hazardous drinking water, possibly linked to industry activity, and the EPA has even ordered some residents to ventilate homes when bathing or running taps.

Many observers expect the appeals court to overturn the EPA’s decision. Donahue says courts are typically reluctant to find in favor of tribes in such boundary disputes.

But one detail in the case could prove essential for the tribes’ argument: The century-old law behind the dispute didn’t set a single sum payment for the territory, like many other Indian Country purchases, but instead allowed for settlers to buy ceded lands one parcel at a time. “The U.S. Supreme Court has said that distinction is significant,” Donahue says, since it’s been interpreted to mean Congress wasn’t reducing the reservation boundary while the tribes retained an interest in the area. If the appeals court or the Supreme Court upholds that view, tribes with similar circumstances could pick up the strategy.

The Climate Guide To Governors

Thinkprogress.org

By Tiffany Germain, Guest Contributor and Ryan Koronowski on July 1, 2014

Climate denial runs rampant in the halls of Congress, with over 58 percent of congressional Republicans refusing to accept the reality of basic climate science. A new analysis from the CAP Action War Room reveals that half of America’s Republican governors agree with the anti-science caucus of Congress.

Click image to view detailed information on each state.

EPA Administrator Gina McCarthy has made it clear through countless meetings with governors and state figures that the only way the new Clean Air Act regulations targeting carbon pollution will work is if the nation’s governors are on board.

Indeed, much of the progress that has already been made to address climate change and begin the switch from fossil fuels to clean energy started in the states. California has been busily implementing its cap-and-trade law, doubly approved by voters in 2010. It’s been going so well that recent auctions have sold out of permits, and its governor, Jerry Brown, is implementing the rest of the law fairly smoothly. California is so far ahead of the rest of the country that when Congress passed the Clean Air Act, it granted special authority to the Golden State so it could adopt even stronger fuel efficiency standards.

RGGI (pronounced “Reggie”) is the cap-and-trade program adopted by nine states in the northeast. Though it stalled at first, a simple correction last year lowered the cap and its last two auctions have been quite successful. This means that as those states seek to comply with the Clean Air Act regulations on power plant carbon pollution once they are finalized, it will be that much easier because their economies have already started to build in a cost of emitting carbon dioxide through RGGI. Most of their governors have taken additional steps to invest in energy efficiency and renewable power sources, but one of them, Maine Governor Paul LePage has denied the reality of climate change and stood in the way of clean energy development. Chris Christie actually pulled his state out of RGGI, and has rejected recent suggestions that rejoining the pact would be the easiest way for businesses to comply with the Clean Air Act carbon rule.

Governors who deny the science behind climate change can do significant damage to our nation’s environmental and public health protections. LePage has claimed that “scientists are divided on the subject,” when in actuality, less than 0.2 percent of published researchers reject global warming. During LePage’s tenure, he has argued that Maine could potentially benefit from the effects of climate change, vetoed legislation that would help the state prepare for extreme weather, and has attempted to dramatically reduce the states renewable energy standards to benefit large corporations. He also tried to sneak through a proposal that would exempt the state from certain anti-smog regulations, undoing protections that have been in place for almost 25 years. These views are wildly unpopular among his constituents –- a 2013 poll found that 85 percent of residents believe climate change is happening and 75 percent believe it’s the government’s responsibility to take action.

Meanwhile, Governor Rick Perry (R-Texas) has reiterated time and again that he’s “not afraid” to call himself a climate change denier. Yet his home state has suffered more climate-fueled disasters than any other, with an astounding 58 climate-fueled disaster declarations since just 2011. The ongoing severe and widespread drought has directly impacted the agriculture industry, which is one of the largest in Texas. 2011 was the driest year in state history, causing a record $7.62 billion in agricultural losses.

When asked if he believes in climate change, Florida Governor Rick Scott (R) replied “No.” “I have not been convinced.” Yet Florida is one of the first states that will feel the very severe impacts of climate change, as sea-level rise and severe storms threaten to wipe away popular tourist destinations along the coast. In fact, Rolling Stone reported that the Organization for Economic Cooperation and Development has listed Miami as the number-one most vulnerable city worldwide in terms of property damage, with more than $416 billion in assets at risk to storm-related flooding and sea-level rise.

Fossil fuel interests have been funneling millions to Republican governors who are willing to block regulations that could potentially hurt their bottom line. In total, the fifteen governors who have denied climate change have taken $15,013,754 in campaign contributions from oil and gas over the course of their careers, with a large majority of that going to Gov. Perry. Republican governors who haven’t denied climate change have taken only $3,019,123. In contrast, all Democratic governors have taken a total of $1,403,940. That means that over 77 percent of all oil and gas contributions are being funneled to governors who are outspoken about their disbelief in climate science. On average, climate deniers have taken $1,072,397, while the remainder of governors have only taken an average of $126,373.

While the oil and gas industry is able to reap the benefits, local communities and taxpayers are suffering the dire long-term consequences. Combined, the states who are represented by climate deniers have suffered from 167 climate-fueled extreme weather events that required a presidential disaster declaration in 2011 and 2012. This has cost the federal government, and therefore taxpayers, almost $17 billion in cleanup costs.

Now, more than ever, governors will play a critical role in combating the impacts of climate change. While Congress has refused to move forward on any climate action plan, even voting 109 times last year alone to undermine environmental protections, some governors have pushed forward on their own. “Governors see the impacts of climate change first hand, and have a real understanding of the costs related to health, infrastructure, and their state’s economy,” said Ted Strickland, President of the Center for American Progress Action Fund and former governor of Ohio.

“If the U.S. is serious about being a leader in addressing climate change and taking advantage of the economic opportunity in clean energy and energy efficiency, it is going to be because states and governors lead the way. The only way the Clean Power Plan is successful is with governors getting on board, as many already have.”

Still, many governors will not be guiding their states to lower greenhouse gas emissions because they aren’t convinced carbon pollution is a bad thing, while actively discouraging strong renewable energy industries in their states.