Appeals court upholds EPA approval of Oklahoma programs in Indian country
- Court rejects Pawnee Nation challenge to May 2025 EPA decision
- Court rules 2005 "Midnight Rider" provision did not expire
- Court says EPA cannot attach conditions to approval
Photo: Wikimedia Commons - Joe GratzDENVER, Oct 16 — A U.S. appeals court has upheld the Environmental Protection Agency's May 2025 decision approving Oklahoma's request to extend 26 state environmental regulatory programs to Indian country, denying a petition by the Pawnee Nation of Oklahoma.
The U.S. Court of Appeals for the Tenth Circuit ruled that Section 10211(a) of a 2005 transportation funding law, known as SAFETEA, did not expire in 2009, as the Pawnee Nation had argued. It also ruled that the law does not let the EPA impose conditions on its approval.
According to the opinion, the provision says that the EPA administrator "shall approve" Oklahoma to administer a state program in Indian country if the agency has found that the program meets applicable requirements and has approved it for areas outside Indian country. The opinion says Oklahoma tribal nations call the provision the "Midnight Rider."
"We conclude § 10211(a)’s plain meaning unambiguously indicates that the provision remains active and did not expire in 2009," Circuit Judge Tymkovich wrote for the court.
The court also rejected the tribe's argument that the EPA had to decide again, at the time of Oklahoma's request, whether each program complied with federal law.
Circuit Judge Federico dissented and would have sent the decision back to the EPA. "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.
Oklahoma made the request in 2020, after the Supreme Court's McGirt v. Oklahoma decision. According to the opinion, that decision expanded Indian country to cover almost all of eastern Oklahoma. The EPA approved the request on Oct 1, 2020, and proposed on Dec 22, 2021, to withdraw that decision and reconsider it.
On Jan 13, 2025, the EPA approved the request again, with a "State-Tribal Engagement Condition" that required Oklahoma to notify affected tribes and confer with them. On May 12, 2025, the agency issued a new approval without that condition.