Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefJun 17, 2022

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No. 21-454

IN THE

Supreme Court of the United States

————

MICHAEL SACKETT & CHANTELL SACKETT,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF MENOMINEE INDIAN TRIBE OF

WISCONSIN AND 17 FEDERALLY

RECOGNIZED INDIAN TRIBES AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

————

STUART C. GILLESPIE

EARTHJUSTICE

633 17th St., Suite 1600

Denver, CO 80202

JILL E. GRANT

JILL GRANT &

ASSOCIATES, LLC

1319 F Street, NW

Washington DC 20004

JANETTE K. BRIMMER

Counsel of Record

EARTHJUSTICE

810 Third Ave., Suite 610

Seattle, WA 98104

(206) 504-3459

jbrimmer@earthjustice.org

Counsel for Amici Tribes

June 17, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTERESTS OF AMICI CURIAE ......................

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................

ARGUMENT ........................................................

I. Petitioners’ Narrow Interpretation Would

Harm Tribes’ Unique Interests and

Rights in the Nation’s Waters ..................

A. The Fond du Lac Band and the St.

Louis River...........................................

B. The Swinomish Indian Tribal Community and the Skagit River ..............

C. The Pueblo of Laguna and Its Reliance on Multiple Ephemeral and

Intermittent Waters Upstream of and

on Laguna Lands .................................

D. The Shoshone-Bannock Tribes and

the Waters of the Snake River Plain ..

E. The Tohono O’odham Nation, Pascua

Yaqui Tribe, and Ciénega Creek .........

II. Without Clean Water Act Protection,

Tribes Would Not Be Able To Prevent

Harms To Their and Neighboring

Waters .......................................................

A. Tribes Rely on Implementation of the

Clean Water Act to Protect Waters In

Which They Have An Interest ............

(i)

TABLE OF CONTENTS—Continued

Page

1. The Clean Water Act Provides

Tribes With Important Tools To

Protect Water Quality Uses and

Standards .......................................

2. The Clean Water Act Also

Provides Tribes With Tools To

Protect Treaty Rights And Other

Interests In Waters ........................

B. Treatment as a State Status For

Tribes Will Not Meaningfully Protect

Tribal Waters In the Face of A Narrow

Interpretation of Federal Clean Water

Act Jurisdiction .....................................

C. States Cannot Fill These Regulatory

Gaps .....................................................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: Pacific Northwest Region

Tribal Lands and Watersheds .......................

APPENDIX B: Southwest Region Tribal

Lands and Watersheds ..................................

APPENDIX C: Seneca Nation Tribal Lands

and Watersheds ..............................................

APPENDIX D: Midwest

Region

Tribal

Lands and Watersheds ..................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Arkansas v. Oklahoma,

503 U.S. 91 (1992) .....................................

Cappaert v. United States,

426 U.S. 128 (1976) ...................................

McClanahan v. State Tax Comm’n of Ariz.,

411 U.S. 164 (1973) ...................................

Menominee Indian Tribe of Wis. v.

Env’t Prot. Agency,

947 F.3d 1065 (7th Cir. 2020) ................... 17, 22

United States v. Adair,

723 F.2d 1394 (9th Cir. 1983) ...................

United States v. Washington,

853 F.3d 946 (9th Cir. 2017),

aff’d by equally divided court

138 S. Ct. 1832 (2018) ...............................

Washington v. Wash. State Com.

Passenger Fishing Vessel Ass’n,

443 U.S. 658 (1979) ...................................

Winters v. United States,

207 U.S. 564 (1908). ..................................

STATUTES AND REGULATIONS

18 U.S.C. § 1151 ...........................................

33 U.S.C. § 1251(a) ....................................... 3, 24

33 U.S.C. § 1251(a)(2)...................................

33 U.S.C. § 1313(c)(2)(A) ..............................

33 U.S.C. § 1341(a)(2)...................................

6, 7

TABLE OF AUTHORITIES—Continued

Page(s)

33 U.S.C. § 1342 ........................................... 16, 21

33 U.S.C. § 1342(a)(1) ....................................

33 U.S.C. § 1342(a)(2) ....................................

33 U.S.C. § 1342(b)(3) ....................................

33 U.S.C. § 1344 ................................................... 9

33 U.S.C. § 1344(a) ........................................

33 U.S.C. § 1369(b) ........................................

33 U.S.C. § 1377(e) .......................................

33 U.S.C. § 1377(e)(2) ...................................

54 U.S.C. § 302701 .......................................

54 U.S.C. § 306102(b)(5)(B)..........................

54 U.S.C. § 306108 .......................................

40 C.F.R. § 122.4(a) ......................................

40 C.F.R. § 122.4(d) ......................................

TREATIES AND AGREEMENTS

Agreement with the Seneca, Seneca-U.S.,

(“Treaty of the Big Tree”), Sept. 15, 1797, 7

Stat. 601 ........................................................

Treaty with Ojibwe and Ottawa, Mar. 28,

1836 ...............................................................

Treaty with the Chippewa, Chippewa-U.S.,

July 29, 1837, 7 Stat. 536 .............................

Treaty with the Chippewa, Chippewa-U.S.,

Oct. 4, 1842, 7 Stat. 591 ...............................

TABLE OF AUTHORITIES—Continued

Page(s)

Treaty with the Chippewa, Chippewa-U.S.,

Sept. 30, 1854, 10 Stat. 1109 .......................

Treaty with the Eastern Band Shoshoni

and Bannock (“Fort Bridger Treaty of

1868”) art. 4, July 3, 1868, 15 Stat. 673 ...... 16-17

Treaty with the Navaho, Navajo-U.S., June

1, 1868, 15 Stat. 667 .....................................

Treaty with the Senecas, Seneca-U.S., May

20, 1842, 7 Stat. 586 .....................................

Treaty with the Six Nations (“Treaty of

Canandaigua”), Nov. 11, 1794, 7 Stat. 44 ...

OTHER AUTHORITIES

Amendments to the Water Quality

Standards Regulation That Pertain to

Standards on Indian Reservations, 56

Fed. Reg. 64,876 (Dec. 12, 1991) ..............

EPA letter to Florida Dep’t of Environmental Protection, Jan. 31, 2022.....................

Indian Entities Recognized by and Eligible

To Receive Services From the United

States Bureau of Indian Affairs, 87 Fed.

Reg. 4636 (Jan. 28, 2022) .........................

Jim McElfish, State Protection of NonFederal Waters: Turbidity Continues, 52

Env’t L. Rep. (forthcoming Sept. 2022) ....

TABLE OF AUTHORITIES—Continued

Page(s)

Jim Morrison, An Ancient People With a

Modern Climate Plan, Wash. Post (Nov.

24, 2020), available at https://wapo.st/

3PgyhJa .....................................................

Letter from EPA to Fond du Lac Band

under 33 U.S.C. § 1341(a)(2) dated June

4, 2021, available at https://www.epa.

gov/sites/default/files/2021-06/documents/

fond-du-lac-polymet-section-401a2-letter20210604-2pp.pdf. (last visited June 10,

2022) ..........................................................

Letter from Nancy Woo, Assoc. Dir., Water

Div., U.S. Envtl. Prot. Agency, to Edwin

S. Townsley, Operations & Regul. Div.

Chief, S. Pac. Div., U.S. Army Corps of

Eng’rs, Environmental Consequences of

the Proposed Rosemont Copper Mine:

Significant Degradation to Waters of the

United States (Nov. 30, 2017) ..................

Resource and Programmatic Assessment for

the Navigable Waters Protection Rule,

U.S. Env’t Prot. Agency & Dep’t of the

Army (Jan. 23, 2020), available at https://

www.epa.gov/sites/default/files/2020-01/d

ocuments/rpa_-_nwpr_.pdf ........................

State Constraints: State-imposed Limitations on the Authority of Agencies to

Regulate Waters Beyond the Scope of the

Federal Clean Water Act, Env’t Law Inst.

(May 2013), available at https://www.eli.

org/sites/default/files/eli-pubs/d23-04.pdf.....

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Treatment of Indian Tribes in a Similar

Manner as States for Purposes of Section

303(d) of the Clean Water Act, 81 Fed.

Reg. 65,901 (Sept. 26, 2016) .....................

Tribes Approved for Treatment as a State

(TAS), Env’t Prot. Agency, https://www.

epa.gov/tribal/tribes-approved-treatment-s

tate-tas (last visited June 8, 2022) ........... 20, 21

INTERESTS OF AMICI CURIAE

The Amicus Parties to this brief are federally recognized Indian Tribes from across the United States

(the “Tribes”).1

In the Midwest, the Menominee Indian Tribe of

Wisconsin, the Bay Mills Tribal Community, and the

Bad River, Fond du Lac, and Grand Portage Bands of

Lake Superior Chippewa count thousands of lakes,

wetlands, streams, and the Great Lakes as an integral

part of their homes, critical to their cultural and

subsistence resources.2

In the Southwest, the Tohono O’odham Nation, the

Pascua Yaqui Tribe, the Navajo Nation, and the

Pueblo of Laguna rely on ephemeral and intermittent

streams and rivers with flows that rely on significant

storms to water their crops, sustain their homes, and

serve as cultural touchstones.

On the West Coast, the Swinomish Indian Tribal

Community, the Quinault Indian Nation, the Yurok

Tribe, the Confederated Tribes of Coos, Lower Umpqua,

and Siuslaw Indians, and the Puyallup Tribe of

Indians are people of the salmon, dependent upon

healthy rivers and tributary streams flowing from

the mountains to estuary wetlands at the coast for

their traditional foods, subsistence economies,

cultural resources, and lifeways.

The parties have consented to the filing of this brief. Under

Rule 37.6, amici state that no counsel for a party authored this

brief in whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amici or their counsel made a

monetary contribution to its preparation or submission.

Maps showing the locations of the Tribes’ reservations and

some rivers referenced in this brief are included in the Appendix.

In the eastern Plains, the Iowa Tribe of Oklahoma

has settled in eastern Oklahoma, having a woodland

heritage, but adopting plains ways over their history.

Their landscape is dotted with wetlands and small

streams, many intermittent, within the larger watershed of the Cimarron River.

In Idaho, the Fort Hall Reservation of the ShoshoneBannock Tribes includes the Fort Hall Bottoms, one

of the largest wetland waterfowl habitats and

premier waterfowl hunting locations in the western

U.S. Surface water in the Bottoms area is used by the

Tribes’ bison herd, which provides subsistence and has

cultural significance to the Shoshone-Bannock people.

In the eastern forests, the Seneca Nation and the

Rappahannock Tribe live alongside rivers and creeks,

including the river that bears the Rappahannock

name, and have depended upon these waters and

their tributaries and riparian areas for transportation,

sustenance, medicines, and spiritual needs throughout time.

For all of these Tribes, clean water and wetlands

and the habitat and resources they support are

crucial to their physical and cultural survival. See

Amendments to the Water Quality Standards Regulation That Pertain to Standards on Indian Reservations,

56 Fed. Reg. 64,876, 64, 878 (Dec. 12, 1991)

(Environmental Protection Agency’s Clean Water Act

tribal eligibility rule).

INTRODUCTION AND

SUMMARY OF ARGUMENT

As sovereign nations, the indigenous tribes of North

America rely on the Clean Water Act and have a

distinct perspective on the need to protect our nation’s

waters. Each of the amici Tribes has a unique

cultural, religious, and physical connection to water

that is integral to who that Tribe is and how the

Tribe’s people have lived their lives since time

immemorial. These waters already face threats that

would only be exacerbated by a narrowing of Clean

Water Act jurisdiction.

Tribes depend on the Clean Water Act and federal

implementation of its provisions to protect waters

within their reservation boundaries and on lands on

which they retain treaty rights. Excluding entire categories of waters from Clean Water Act protections—as

petitioners propose—would undercut tribes’ ability

to protect against cross-border pollution, including

destruction of upstream wetlands that protect tribal

waters, and harm treaty protections. Moreover, eliminating federal jurisdiction and permitting requirements

would strip away other federal protections like those

under the National Historic Preservation Act, a law

that is integral to the protection of important tribal

historic sites.

Tribes have always known what science fully

demonstrates: Waters of the United States, including

wetlands, are connected, and the Clean Water Act

must comprehensively cover waters to protect and

restore the chemical, physical, and biological integrity

of the nation’s waters, consistent with Congress’s

purpose and direction, 33 U.S.C. § 1251(a). Interpreting

the Act in line with Congress’s stated purpose also

avoids harming tribal rights, resources, and culture.

ARGUMENT

I. Petitioners’ Narrow Interpretation Would

Harm Tribes’ Unique Interests and Rights

in the Nation’s Waters.

Under petitioners’ interpretation of waters of the

United States, thousands of miles of streams and

wetlands—many critical to the Tribes—would lose

longstanding Clean Water Act protections. Petitioners

would confine the Act’s protections for wetlands to

a narrow subset of those waters: (1) wetlands with

a visible and continuous surface water connection to

a stream, ocean, river, or lake, and (2) only when

that stream, ocean, river, or lake is itself navigable

in either interstate commerce or as a navigable

intrastate link between waters that are navigable and

used in interstate commerce. See Petrs. Br. on the

Merits 23-25, 36, 42-43. Under that interpretation,

degradation or destruction of countless wetlands could

proceed unchecked. And if extended to upstream

headwaters and ephemeral water bodies, the damage

would be even greater. Tribes will deeply experience

those consequences, given their cultural connections

to, and dependence on, now-protected waters, as the

following examples demonstrate.

A. The Fond du Lac Band and the St. Louis

River.

The Fond du Lac Band of Lake Superior Chippewa

resides in what is now the State of Minnesota. The

Band has deep ties to the St. Louis River, which arises

in northern Minnesota wetland bogs and ultimately

flows along the northern and eastern bounds of the

Fond du Lac Reservation to Lake Superior. The Band

(along with other Lake Superior Chippewa Bands such

as Bad River and Grand Portage) retains treaty rights

to fish, hunt, and gather on lands throughout Minnesota

and Wisconsin that include countless headwater

streams, tributaries, and wetlands.

Wetlands make up over 50% of the Band’s reservation, which also contains 24 lakes and numerous

streams, some of which cross reservation boundaries.

The Band has developed federally approved water

quality standards to protect their waters and the fish

the Band rely on.

Waters on the Fond du Lac reservation, as well as

many other waters in which the Band has treaty

rights, support manoomin, or wild rice, an aquatic

plant from which the Band and other Midwestern

tribes have harvested for centuries. Manoomin is

central to many tribes’ sustenance, identities, and

economies. It is a required component of certain

annual ceremonial feasts. Manoomin is unique to the

Northern Great Lakes region; it grows nowhere else in

the world. This important plant is highly sensitive to

damage by flooding or washout if upstream wetlands

that help absorb flows are damaged or destroyed.

Manoomin is also adversely affected by pollution,

particularly sulfates released from mining activities.

Petitioners’ interpretation would put many waters,

including wetlands and headwater streams in the

Upper Midwest, at risk of losing the protection that

the Clean Water Act has provided for 50 years. Mines

throughout the Upper Midwest exemplify these risks

of that lost protection. The proposed location of the

NorthMet open-pit sulfide mine is in the headwater

bogs and wetlands that feed into the Partridge River,

the start of the St. Louis River. NorthMet would

excavate headwater bogs and wetlands to construct its

mine pit, while also burying additional wetlands

under stories-high piles of waste rock and tailings

generated by the mine. Cumulatively, the U.S. Army

Corps of Engineers calculated that NorthMet would

likely degrade or destroy a total of 7,694 acres of

wetlands in the headwaters of the Partridge and

ultimately St. Louis Rivers.3

The NorthMet mine, the type of mine that produces

acid mine drainage, will introduce mercury and

sulfates into the watershed. Mercury accumulates

and magnifies up the food chain, including in the fish

that the Band consumes. Sulfates released from

mining can devastate manoomin if present in even low

quantities. The disposal of waste rock will destroy

wetlands that now replenish and control flows in

headwater streams that in turn flow into the Partridge

River and that now filter other pollutants that would

otherwise reach the St. Louis River.

As required by the Clean Water Act, 33 U.S.C.

§ 1341(a)(2), the Environmental Protection Agency

notified the Band of the draft permits for the NorthMet

mine. The Band objected to the draft permits because

pollutants from the mine would violate the Band’s

downstream water quality standards for mercury and

specific conductance.4 As the Act requires, the Corps

For perspective, Seneca Lake in New York (the largest of the

Finger Lakes) is 3,550 acres, less than half the amount of

waterbody that will be degraded or destroyed by the NorthMet

Mine. Deep Creek Lake in Maryland is 3,900 acres, about half

the amount of waterbody that will be degraded or destroyed

by the NorthMet Mine. Raystown Lake in the Poconos of

Pennsylvania is 8,000 acres, only slightly larger than the amount

of waterbody that will be degraded or destroyed by the NorthMet

Mine.

Specific conductance is a measure of dissolved salts and other

inorganic chemicals, often a problem associated with discharges

held a hearing on the Band’s objections after EPA

confirmed that the NorthMet mine may affect the

Band’s downstream water quality standards.5 The

Act’s regulatory process allows the Band the ability to

ensure that its waters will be protected through

modification of permit conditions or the project if

conditions cannot protect the Tribe’s water quality

standards.

A narrow interpretation of the Clean Water Act that

forecloses this regulatory process could leave the Band

with no way to protect itself and its food sources from

violations of its water quality standards from mines

like NorthMet.

B. The Swinomish Indian Tribal Community

and the Skagit River.

The Swinomish Indian Tribal Community is located

on the southeastern side of Fidalgo Island in the

Salish Sea, in what is now Washington State. The

Swinomish are Coast Salish people who have resided

and fished in the region since time immemorial.

The Skagit River arises from small streams, many

intermittent, high in the Cascade Mountains in

Canada, and empties into the Salish Sea at Skagit

Bay just off the southern end of the Swinomish

Reservation. The Reservation is within the large

coastal estuary of the Skagit River.

from mining operations. Increased salinity from these pollutants

can be detrimental to many aquatic resources, including wild rice.

Letter from EPA to Fond du Lac Band under 33 U.S.C.

§ 1341(a)(2) dated June 4, 2021, available at https://www.epa.gov/

sites/default/files/2021-06/documents/fond-du-lac-polymet-section401a2-letter-20210604-2pp.pdf (last visited June 10, 2022).

Today the Skagit River is the second largest salmonproducing river on the West Coast and the only river

in the lower 48 states with all six species of wild Pacific

salmon. Salmon spawn in its upper reaches and along

its many smaller tributaries. Early in their lifecycle,

as fry (months old) and smolts (a few years old),

salmon rear in the Skagit River’s freshwater

tributaries and wetlands. Swinomish has studied and

identified sloughs and channels along the river that

provide critical habitat for juvenile salmon, even

though these waters run dry during low river flows.

As they make the transformation to becoming

saltwater adults, smolts seek the relative safety of the

river’s lower side streams and especially the estuary

wetlands that provide food and cover from predators.

As with many Pacific Coast tribes, Swinomish relies

on salmon for its cultural and physical existence.6 The

Swinomish people call themselves People of the

Salmon. In the 1855 Treaty of Point Elliott, a number

of tribes in the Pacific Northwest including Swinomish

retained the right to take fish in their usual and

accustomed fishing places, including the Skagit River.7

But degradation of the river and its side channels,

sloughs, and tributaries has greatly diminished its

salmon population, contributing to Chinook salmon

being listed as threatened under the Endangered

Species Act. In particular, the draining of estuary

wetland habitat lands for intensive agricultural use

See Jim Morrison, An Ancient People With a Modern Climate

Plan, Wash. Post (Nov. 24, 2020), available at https://wapo.st/

3PgyhJa.

This treaty right includes preventing a state from creating

conditions that eliminate fish. See, e.g., United States v.

Washington, 853 F.3d 946, 962-66 (9th Cir. 2017), aff’d by equally

divided court 138 S. Ct. 1832 (2018).

has altered the river delta, eliminating habitat

important to juvenile salmon and contributing significantly to the reductions of Chinook salmon. Swinomish

is actively engaged in restoring estuary habitat on its

reservation, but its ability to address the many threats

to salmon outside the reservation and throughout

the watershed is limited. The Tribe has sometimes

been forced to import salmon from Alaska to feed its

members and continue its cultural practices and

religious ceremonies.

The Tribe has used the Clean Water Act’s regulatory

structures, to address, in part, some of these threats

to the Skagit River. For example, public notice and

comment is required for permits the Corps issues for

structures that drain or affect wetlands within the

basin, see 33 U.S.C. § 1344. Through the permitting

process and requirements, the Tribe has previously

secured permit requirements that require restoration

of wetlands necessary for juvenile salmon development. Shrinking the scope of the Act such that fewer

wetland-damaging activities require Section 404 permits would leave more wetlands in the Skagit

unprotected and would eliminate one of the few

procedures by which Swinomish can engage with its

Trustees to protect and restore off reservation habitat

that is critical to salmon.

C. The Pueblo of Laguna and Its Reliance

on Multiple Ephemeral and Intermittent Waters Upstream of and on Laguna

Lands.

The Pueblo of Laguna is located in the K’awaika

homeland between the Sandia Mountains, Magdalena

Mountains, and Mt. Taylor, near where the Rio San

Jose meets the Rio Puerco in arid, west-central New

Mexico. Approximately 4,800 tribal members live

within the Pueblo’s boundaries, which includes

approximately 500,000 acres of tribal trust land in

Cibola, Valencia, Bernalillo, and Sandoval Counties.

In this arid region, clean water is essential to the

Pueblo and its members’ daily lives, spiritual beliefs,

and cultural and ceremonial practices. Members of

the Pueblo consume water directly from surface waters

and apply it topically as part of ceremonial practices.

They use surface waters for drinking, domestic supply,

recreation, irrigation, livestock, and maintaining

riparian habitat.

The Pueblo relies on a vast network of ephemeral

and intermittent streams connected to the Rio Puerco,

which is one of the largest tributaries to the middle Rio

Grande. The Rio Puerco drains 7,000 square miles

(only slightly smaller than the State of New Jersey),

contributing roughly 30,000 acre-feet of water to the

Rio Grande each year. Of the 1,416 stream miles

within the Pueblo’s boundaries and upon which the

Pueblo relies, 79% are ephemeral, 18% are intermittent, and only 3% are perennial.

Many of these waters are threatened by upstream

mining and other activities that could pollute or

destroy the Pueblo’s scarce waters in the absence of

the Clean Water Act. Existing and potential upstream

uranium mines and an upstream coal mine discharge

water into ephemeral streams that carry contamination downstream to Pueblo waters. The Pueblo

actively uses the tools and regulatory structure of the

Clean Water Act to protect its diminishing rivers and

streams from these discharges.

The Pueblo estimates that a narrow interpretation

of Waters of the United States could strip Clean Water

Act protections from 79 to 97% of its waters. That

would limit the Pueblo’s ability to ensure that

upstream dischargers comply with the Pueblo’s water

quality standards, resulting in harms to the Pueblo’s

waters, including waters used for drinking.

D. The Shoshone-Bannock Tribes and the

Waters of the Snake River Plain.

The Shoshone-Bannock Tribes are located in what is

now the state of Idaho. The Tribes’ traditional

homelands include the Snake River plain, which is

filled with examples of interconnected surface and

groundwater that are a critical part of ShoshoneBannock culture.

The Snake River plain and its surrounding waters

occur in a lava geology that is porous, conducting

snowmelt into streams and ultimately rivers, but

those streams do not all flow year round or are not

always visible on the surface. Along the northern

boundary three distinct river systems, the Lost River,

Little Lost River, and Birch Creek all wind their way

through montane river valleys until they ‘disappear’

or are ‘lost’ beneath the lava flows. The rivers and

creek waters re-emerge in cold, fresh-water springs

along the Snake River, including in the Thousand

Springs reach of the Snake, which had been one of the

most prolific spawning areas in the Snake River basin

for fall Chinook salmon, sturgeon, and steelhead.

The area is now one of the richest aquaculture regions

in the country because of the abundance of clear,

pathogen-free spring water, and hatcheries there grow

millions of pounds of fish for use in a variety of

applications, including conservation hatcheries for

steelhead and sturgeon.

One of these downstream spring-fed water-recharging areas, known as the Fort Hall Bottoms, is located

within the Shoshone-Bannock Tribes’ Fort Hall

Reservation. Groundwater from the “disappearing”

rivers and streams of the Snake River plain and

Portneuf River watershed rises up and forms several

large springs, creeks, and hundreds of smaller order

springheads. The springs and creeks have long been

important cultural sites for the Shoshone-Bannock.

The area is also one of the nation’s largest wetland

waterfowl habitats and is a premier waterfowl hunting location. The Shoshone-Bannock also use these

waters for the Tribes’ bison herd, which provides

subsistence and has cultural significance.

Old phosphate mines and processing facilities on

and upstream of the Fort Hall Reservation have

already contaminated tribal waters with phosphorous,

arsenic, sulfate, selenium, and radioactive constituents. The phosphate mines have engaged in what they

refer to as cross valley fill, the permanent dumping of

mine waste in a valley or drainage that typically

contains an intermittent or ephemeral stream. That

waste releases pollutants, contaminating downstream

waters through the ephemeral and intermittent

channels. The phosphate mines demonstrate the

long-term harms that come to downstream tribes

from poorly regulated, or unregulated, discharges of

pollutants and fill.

If upstream rivers and ephemeral and intermittent

streams are unprotected, then the Shoshone-Bannock

Tribes’ downstream resources will be jeopardized,

either by pollution that is not regulated or by

destruction of recharge of springs due to dredging and

filling in resource waters.

E. The Tohono O’odham Nation, Pascua

Yaqui Tribe, and Ciénega Creek.

The Tohono O’odham Nation and Pascua Yaqui

Tribe inhabited large areas of what is now the

southwestern United States and northern Mexico.

Their ancestors lived, hunted, and sought refuge in the

Santa Rita Mountains, which rise as “sky islands”

above the desert south of Tucson, Arizona.

The Santa Rita Mountains support a network of

ephemeral and intermittent streams, which are of

great importance to the O’odham and Yaqui people.

Their ancestors depended on these water sources to

survive in the harsh desert environment. To this

day, the Tribes continue to offer blessings and prayers

to these waters, including the seeps and springs

throughout the mountains, for sustaining human,

plant, and animal life.

A proposed mine in the Santa Rita Mountains shows

the adverse effects of stripping these waters of Clean

Water Act protection. The Rosemont Copper Company

proposes to construct a mile-wide by half-mile deep

open-pit copper mine, accompanied by towering waste

dumps, industrial processing facilities, and utility

corridors. Construction of the mine would fill 18 miles

of waters in Barrel Canyon and degrade hundreds of

additional acres of streams and wetlands in Davidson

Canyon and Ciénega Creek, both of which contain

some of the highest-quality stream and wetland

ecosystems in Arizona. Heavy-metal runoff would

further contaminate the water that reaches these

downstream waters, including Tucson’s drinking water

supply. The EPA concluded that these adverse

impacts would be substantial, unacceptable, and

contrary to goals of the Clean Water Act.8

If the Clean Water Act does not reach intermittent

and ephemeral streams that feed downstream waters,

such as those threatened by the Rosemont Mine, the

filling in of these upstream waters will adversely affect

downstream waters, including all who depend on them

for physical, spiritual, and religious needs.

II. Without Clean Water Act Protection,

Tribes Would Not Be Able To Prevent

Harms To Their and Neighboring Waters.

There are 574 federally recognized sovereign Indian

Tribes within the contiguous United States and Alaska.9

Tribes are sovereign entities within the United States,

as well as within the states. With only a few exceptions, tribes’ reservations and lands are downstream

of non-tribal lands and often share waterbodies with

neighboring states, creating multiple shared waters.

This creates significant cross-boundary pollution

issues: activities in waterbodies outside reservation

boundaries can threaten tribes’ waters both on reservation and in other areas in which they have treaty

rights, religious interests, or are working to restore

important species.

Letter from Nancy Woo, Assoc. Dir., Water Div., U.S. Envtl.

Prot. Agency, to Edwin S. Townsley, Operations & Regul. Div.

Chief, S. Pac. Div., U.S. Army Corps of Eng’rs, Environmental

Consequences of the Proposed Rosemont Copper Mine: Significant Degradation to Waters of the United States 34 (Nov. 30,

2017).

See Indian Entities Recognized by and Eligible To Receive

Services From the United States Bureau of Indian Affairs, 87

Fed. Reg. 4636 (Jan. 28, 2022).

The Clean Water Act’s protections for all waters,

including wetlands, is necessary to protect Tribes and

our nation’s waters alike. Protection of tribal waters,

water-dependent treaty rights, and important tribal

cultural resources depends on Clean Water Act jurisdiction and the regulatory protections and processes

that come with it. If that jurisdiction is narrowed,

neither tribes nor states will be able to prevent the

degradation of our nation’s waters.

A. Tribes Rely on Implementation of the

Clean Water Act to Protect Waters In

Which They Have An Interest.

Protection of waters important to tribes occurs

almost exclusively through application of the Clean

Water Act. Eliminating federal jurisdiction over a

wide array of wetlands and, possibly, streams would

deprive tribes of important tools for protecting their

water quality standards on reservation. It will also

impair tribes’ ability to enforce treaty rights and

protect sacred waters off reservation.

1. The Clean Water Act Provides Tribes

With Important Tools To Protect

Water Quality Uses and Standards.

Tribes rely on the Clean Water Act’s procedures to

protect their water quality standards and water quality

generally both on their reservations, and waters off

their reservations in which they have an interest.

Before a permit may issue, the Act requires a permitting authority (the federal government or authorized

state government) to provide public notice and opportunity for written comment and a hearing, and

specifically requires procedures to ensure that downstream governments, like the Tribes, can enforce their

own federally approved water quality standards. See

33 U.S.C. §§ 1342(a)(1), (2), and (b)(3), 1344(a), 1369(b).

Tribes rely on these procedures to ensure that

upstream pollution does not harm downstream reservation water quality standards and uses those standards

are meant to protect such as catching and eating fish.

Permits must ensure that activities authorized will

not cause or contribute to a violation of downstream

water quality standards. See Arkansas v. Oklahoma,

503 U.S. 91, 105 (1992); see also 40 C.F.R. § 122.4(a),

(d). Thus, if the State of Minnesota issues a Section

402 (33 U.S.C. § 1342) permit for the discharge of

pollution into a tributary of the St. Louis River, the

Fond du Lac Band has both a procedural mechanism

to enforce its federally approved water quality standards and a substantive guarantee that those standards

will not be exceeded because of the permitted activity.

2. The Clean Water Act Also Provides

Tribes With Tools To Protect Treaty

Rights And Other Interests In Waters.

Tribes also rely on the Act’s application to trigger

consultation requirements and procedures to protect

waters in which they have a treaty, cultural, or other

interest.

Federal jurisdiction provides protections for offreservation treaty rights to hunt, fish, and gather,

which often depend on clean water or waters that flow

freely.10 These treaties with the federal government

See, e.g., Treaty with the Chippewa, Chippewa-U.S., July 29,

1837, 7 Stat. 536, Treaty with the Chippewa, Chippewa-U.S., Oct.

4, 1842, 7 Stat. 591, Treaty with the Chippewa, Chippewa-U.S.,

Sept. 30, 1854, 10 Stat. 1109 (hunt, fish, and gather, for example

wild rice or cranberries); Treaty with Ojibwe and Ottawa, Mar.

28, 1836 (hunt, fish and gather); Treaty with the Eastern Band

Shoshoni and Bannock (“Fort Bridger Treaty of 1868”) art. 4, July

establish property rights that require federal protection. See Washington v. Wash. State Com. Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979). The federal

government thus has an obligation to consult with

tribes before acting in a way that may affect a tribe’s

rights, such as by granting a Clean Water Act permit

that would impair, degrade, or eliminate waters in

which a Tribe has treaty rights.

Additionally, tribes have strong cultural and historic ties to waters outside their reservations. The

National Historic Preservation Act (NHPA) recognizes the importance of indigenous historic sites such

as the Santa Rita Mountains and waters for the

Tohono O‘odham Nation and Pascua Yaqui Tribe, or

the Sixty Islands and surrounding forest and wetlands

of the Menominee River for the Menominee People.

The NHPA requires federal permitting agencies to

consult with affected tribes before approving actions

that may harm or otherwise negatively affect indigenous historic sites. See 54 U.S.C. § 306108; see also id.

§§ 302701, 306102(b)(5)(B). But importantly, these

obligations attach only to a federal permitting action;

if a water is unprotected by the Clean Water Act,

so too are tribes’ interests in those waters. See

Menominee Indian Tribe of Wis. v. Env’t Prot. Agency,

947 F.3d 1065, 1073-74 (7th Cir. 2020).

3, 1868, 15 Stat. 673 (Shoshone-Bannock rights to hunt, fish and

gather); Treaty with the Six Nations (“Treaty of Canandaigua”),

Nov. 11, 1794, 7 Stat. 44; Agreement with the Seneca, SenecaU.S., (“Treaty of the Big Tree”), Sept. 15, 1797, 7 Stat. 601, Treaty

with the Senecas, Seneca-U.S., May 20, 1842, 7 Stat. 586 (Seneca

Nation treaties upholding rights to hunt and fish); and Treaty

with the Navaho, Navajo-U.S., June 1, 1868, 15 Stat. 667 (Navajo

Nation treaty right to hunt).

Tribes also have federally reserved water rights that

protect quantities of water for their use, an especially

important right in the arid West. Winters v. United

States, 207 U.S. 564 (1908). These water rights apply

to all reservations and federal Indian water law does

not distinguish whether the waters to which these

rights attach are perennial, ephemeral, intermittent,

or connected to navigable waters. See Cappaert v.

United States, 426 U.S. 128, 138-39 (1976). Reserved

rights are not limited to waters within reservation

boundaries, especially when a tribe has off-reservation

treaty rights, United States v. Adair, 723 F.2d 1394,

1417-18 (9th Cir. 1983). Clean Water Act jurisdiction

and the regulatory processes that come with it are a

vital tool to ensuring harm does not come to the waters

in which a tribe has these reserved rights.

A number of examples demonstrate how Tribes

have used the Clean Water Act’s permit requirements

and processes to protect the rights described above.

The Swinomish Tribe, for example, has obtained

mitigation requirements for estuary wetland habitat

negatively affected by drainage for agriculture. The

Pascua Yaqui Tribe and Tohono O’odham Nation are

engaged in the permitting process to prevent adverse

effects from the Rosemont Mine to waters and sacred

sites in the Santa Rita Mountains. The Quinault

Indian Nation has raised objections to proposed

Section 404 permitting of a new salmon-blocking dam

in the upper watershed of the Chehalis River where

the Nation has treaty-protected fishing rights. The

Seneca Nation is meeting with the Corps and

neighboring New York State to discuss conditions to

an upstream permit to protect the Nation’s treaty

fishing rights and other tribal resources. These

Tribes’ actions to protect waters important to them

were possible only because the Clean Water Act

applied to the activities that have the potential to

harm the Tribes’ standards, treaty rights, and other

interests.

Under petitioners’ narrow interpretation of the

Clean Water Act, many wetlands and even streams

would no longer be covered by the Act’s provisions.

As a result, tribes would lose the accompanying

protections provided by Clean Water Act permitting

requirements connected with those waters.

B. Treatment as a State Status For Tribes

Will Not Meaningfully Protect Tribal

Waters In the Face of A Narrow

Interpretation of Federal Clean Water

Act Jurisdiction.

Tribes cannot redress the harms from petitioners’

narrow interpretation through the Clean Water Act’s

treatment-as-a-state (TAS) provision. The Clean

Water Act authorizes EPA to treat tribes in the same

manner as states for purposes of implementing the

Act, provided the tribes meet certain jurisdiction

and capability requirements. 33 U.S.C. § 1377(e). For

example, a tribe may apply for TAS to develop water

quality standards and, if approved, the tribe may

develop its own water quality standards and submit

them for federal approval. But TAS status, even if

obtained, cannot remedy a restrictive interpretation of

Clean Water Act jurisdiction that removes federal

protection from important waters.

First, EPA generally requires that waters subject

to TAS must be within or share a boundary with

reservations, meaning TAS status does not protect

off-reservation waters in which tribes have treaty

rights. Further, TAS authority extends only as far as

the Clean Water Act’s jurisdictional reach. EPA will

approve water quality standards only for waters of the

United States, so even if a tribe’s laws extend to a

broader scope of waters, it cannot invoke its TAS

authority to protect waters not deemed waters of the

United States.

Second, many tribes simply do not have the

resources to obtain, or fully carry out, TAS status.

Only 78 tribes have acquired TAS status for developing their own water quality standards and some of

these tribes have not yet obtained federal approval of

these standards.12 And, as explained, even when a

tribe has set its own water quality standards for

waters on its reservation, if those waters are

TAS authority extends over “water resources which are held

by an Indian tribe, held by the U. S. in trust for Indians, held by

a member of an Indian tribe if such property interest is subject to

a trust restriction on alienation, or otherwise within the borders

of an Indian reservation.” 33 U.S.C. § 1377(e)(2). Though the

language does not expressly limit TAS to reservations, and there

are other types of Indian country where tribes have jurisdiction,

see 18 U.S.C. § 1151, EPA has interpreted it in that limited way.

E.g., Treatment of Indian Tribes in a Similar Manner as States

for Purposes of Section 303(d) of the Clean Water Act, 81 Fed.

Reg. 65,901, 65,902 (Sept. 26, 2016).

Tribes Approved for Treatment as a State (TAS), Env’t Prot.

Agency, https://www.epa.gov/tribal/tribes-approved-treatment-statetas (last visited June 8, 2022). Of the Tribal amici, Bad River,

Fond du Lac, Grand Portage, Navajo, Laguna, Quinault, Seneca,

Shoshone-Bannock, Swinomish, the Confederated Tribes of Coos,

Lower Umpqua and Siuslaw, and Puyallup have TAS for water

quality standards. Of these, all but Seneca, Confederated Tribes

of Coos, Lower Umpqua and Siuslaw, and Shoshone-Bannock

have federally approved standards; these three Tribes are still in

the process of obtaining federal approval of standards, which

could take several more years.

downstream from waters that have been stripped of

Clean Water Act jurisdiction, they will face increased

risk of harm from upstream dredging and pollution.

Third, though a tribe may also obtain TAS authority

to issue permits under Sections 402 and 404 of the Act,

no tribes currently have approval to issue either type

of permit.13 This void stems largely from the significant structural and financial conditions EPA rightly

requires for developing and implementing permit

programs. Tribes instead rely on the federal government to carry out and enforce these permitting programs

and to protect tribal waters even within reservation

boundaries as well as on other tribal lands.

Narrowing the scope of the Clean Water Act will

leave many such waters unprotected. If, for example,

through the narrow interpretation of waters of the

U.S. advanced by petitioners a wild rice-supporting

wetland on Fond du Lac’s reservation or an ephemeral

stream within the Navajo Nation (where the vast

majority of streams are ephemeral or intermittent,

even reaches of the Little Colorado River) is stripped

of Clean Water Act jurisdiction and permit requirements, no other entity could step in and regulate

discharges of pollutants or dredge and fill activities in

those waters, leaving them unprotected.14

Id.

Although conceivably, to protect waters on a reservation a

tribe could engage in the process to secure TAS permitting status

or develop an entire code and regulatory structure of their own,

either option is unlikely given the fact that no tribes have to date

been able to develop and secure TAS for permitting.

C. States Cannot Fill These Regulatory

Gaps.

The risks and harms discussed above that would

result from a narrow interpretation of Waters of the

United States also cannot be addressed through state

regulation.

First, states lack jurisdiction to regulate waters

within reservation boundaries. 15 If the Clean Water

Act does not extend to those waters, and if tribes lack

the resources to enforce tribal permitting requirements, as many do, the waters will be completely

unprotected.

Second, states do not have the same obligations to

tribes as the federal government. The relationship

between tribes and the federal government imposes an

obligation on the United States to consult with tribes

where an action of the United States, like a Clean

Water Act permit, may harm tribal interests and

rights. States simply do not have the same consultation obligation. Although some states voluntarily

consult with tribes, the meaning of consultation and

the willingness of states to do so varies widely. Even

states that have statutory directives to consult apply

it inconsistently and that duty is a creature of

legislation, not a treaty or trust obligation. Similarly,

states have no obligation to consult with tribes under

the National Historic Preservation Act. Menominee

Indian Tribe of Wis., 947 F.3d at 1073-74. The

consultation obligation under the National Historic

Preservation Act applies only to federal actions. Id.

States lack jurisdiction to regulate within reservation

boundaries, absent express Congressional authorization. See

McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164 (1973).

Third, many states will not step in and regulate

pollution or degradation from dredging and filling in

waters upstream of tribes that are not waters of the

U.S. A significant number of states ban or erect

substantial barriers to regulating more stringently

than federal law provides.16 Currently, 24 out of the

50 states’ regulations are dependent upon the federal

definition of waters of the U.S., meaning that the

reach of the state is limited.17 Florida, one of the three

states with Section 404 permitting authority, has

refused to regulate any waterbody that does not meet

the very narrow jurisdictional test of the Navigable

Waters Protection Rule, even after the rule was

vacated.18 Many other states (for example Alaska) do

not have a state structure or laws for regulating the

dredging or filling of waters, relying entirely on the

federal laws.

In sum, the states cannot protect waters on which

tribes rely, in which they have treaty rights, or that

are culturally and historically important.

* * *

Congress directed that the Clean Water Act be

applied to restore and maintain the chemical,

See Resource and Programmatic Assessment for the

Navigable Waters Protection Rule, U.S. Env’t Prot. Agency &

Dep’t of the Army 45-46 (Jan. 23, 2020), available at https://

www.epa.gov/sites/default/files/2020-01/documents/rpa_-_nwpr_.p

df; State Constraints: State-imposed Limitations on the Authority

of Agencies to Regulate Waters Beyond the Scope of the Federal

Clean Water Act, Env’t Law Inst. (May 2013), available at

https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf.

Jim McElfish, State Protection of Non-Federal Waters:

Turbidity Continues, 52 Env’t L. Rep. (forthcoming Sept. 2022).

EPA letter to Florida Dep’t of Environmental Protection,

Jan. 31, 2022.

physical, and biological integrity of the nation’s

waters. 33 U.S.C. § 1251(a). Congress further

instructed that water quality be protected for public

water supplies; propagation of fish, shellfish, and

wildlife; use for recreation, agriculture, and industry;

and navigation. Id. §§ 1251(a)(2), 1313(c)(2)(A). To

fulfill the broad purpose and reach of the Act, the

proper jurisdictional test cannot exclude most wetlands

and potentially also intermittent and ephemeral streams.

Instead, it must acknowledge the connections between

waters and the consensus science that demonstrates

that those connections affect the chemical, physical,

and biological integrity of the nation’s waters.

Tribes will be especially harmed by a narrow interpretation that leaves waters of this nation unregulated

under federal law, thereby allowing significant sources

of pollution and degradation of water quality to

proceed unchecked both on and upstream of their

lands and triggering a diminution in tribal rights and

the legal processes available to protect those rights.

CONCLUSION

This Court should affirm.

Respectfully submitted,

JILL E. GRANT

JANETTE K. BRIMMER

JILL GRANT & ASSOCIATES, LLC

Counsel of Record

EARTHJUSTICE

1319 F Street, NW

810 Third Ave., Suite 610

Washington DC 20004

Seattle, WA 98104

Counsel for the Navajo Nation,

(206) 504-3459

Seneca Nation, and Shoshonejbrimmer@earthjustice.org

Bannock Tribes

STUART C. GILLESPIE

EARTHJUSTICE

633 17th St., Suite 1600

Denver, CO 80202

Counsel for Menominee

Indian Tribe of Wisconsin,

Bad River Band of Lake

Superior Chippewa, Bay

Mills Tribal Community,

Confederated Tribes of Coos,

Umpqua and Siuslaw

Indians, Fond du Lac Band of

Lake Superior Chippewa,

Grand Portage Band of Lake

Superior Chippewa, Iowa

Tribe of Oklahoma, Pascua

Yaqui Tribe, Pueblo of

Laguna, Puyallup Tribe,

Quinault Indian Nation,

Rappahannock Tribe,

Swinomish Indian Tribal

Community, Tohono O’odham

Nation, and Yurok Tribe

June 17, 2022

APPENDIX

APPENDIX A

Pacific Northwest Region

Tribal Lands and Watersheds

APPENDIX B

Southwest Region

Tribal Lands and Watersheds

APPENDIX C

Seneca Nation

Tribal Lands and Watersheds

APPENDIX D

Midwest Region

Tribal Lands and Watersheds

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.