# Petition for Writ of Certiorari — Montana v. Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 921

## Text

yurt. U.S

In The OFFICE OF THE CLERK
Supreme Court of the United States

October Term, 1997
+

STATE OF MONTANA; LAKE COUNTY, MONTANA;
CITY OF RONAN, MONTANA, a municipal
corporation; TOWN OF HOT SPRINGS,
MONTANA, a municipal corporation,

Petitioners,
Vv.

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, an agency of the United States;
CAROL M. BROWNER, Administrator of the
United States Environmental Protection Agency;
CONFEDERATED SALISH and KOOTENAI TRIBES
OF THE FLATHEAD RESERVATION,

Respondents.
¢

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

¢
PETITION FOR WRIT OF CERTIORARI
%
Carter G. PHILLIPS JosepH P. MaAzurReEk
SipteY & AuSsTIN Attorney General

1722 Eye Street, N.W. Cray R. SmitH

Washington, DC 20006 Solicitor

(202) 736-8000 Harvey R. Harris*
Assistant Attorney General
Justice Building
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
(406) 444-2026

Counsel for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

971929 MAY 29 1996

QUESTION PRESENTED

Does an Indian tribe have inherent regulatory
authority over a State and its local governments with
respect to discharges into streams and other bodies of
water from fee-owned land within the exterior bound-
aries of the tribe’s reservation?

ii

PARTIES

In addition to the parties listed in the caption, several
irrigation districts organized under Montana law, along
with several individual farmers and ranchers,! had
sought to intervene at the district court level under Fed.
R. Civ. P. 24(a) and (b). The district court denied their
motion to intervene (Pet. at 41a), and the Court of
Appeals affirmed. Pet. at 15a.

! The irrigation districts are the Flathead Joint Board of
Control, the Mission Irrigation District, the Jocko Valley
Irrigation District, and the Flathead Irrigation District; and the
individual farmers and ranchers are Ross Middlemist, Wayne
Maughn, William Slack, and Glenn Murphy.

ili

TABLE OF CONTENTS

Page
MEWRMUIEY PUOMINE ED, ooo oovke eo osscckn co i
IN al a end ik oa ics CERES oka ii
PETITION FOR WRIT OF CERTIORARI............ 1
IRI ee ee 1
oe ceca SEN SEES TERRE Ts a aie tee Mens HC ECR ate a 1
STATUTES AND REGULATIONS INVOLVED ...... 1
SEEN RES TAOS ee iN AE RE SOND ee 2
I. STATUTORY AND REGULATORY BACK-
ARE EINE SIRY SEP EPa Ren anne one ea 4
A ge Ee a re ae 8
A. Administrative Proceedings................ 8
B. Judicial Review of EPA’s Decision.......... Y
REASONS FOR GRANTING THE PETITION....... 10

I. THE COURT OF APPEALS’ APPLICATION OF
THE SECOND MONTANA EXCEPTION CAN-
NOT BE RECONCILED WITH STRATE AND
PRESENTS AN IMPORTANT FEDERAL QUES-
TION CONCERNING THE SCOPE OF THAT
i nS ESRI S ES Gas ORY Ea eA SOD Pela ea 10

Il. THE COURT OF APPEALS’ DECISION HAS
BROAD SIGNIFICANCE NOT ONLY WITH
RESPECT TO FUTURE APPLICATION OF THE
ACT’S TAS PROVISION BUT ALSO IN OTHER
SITUATIONS WHERE THE SECOND MON-
TANA EXCEPTION IS RELIED UPON AS A
BASIS FOR THE EXERCISE OF INHERENT
TRIBAL AUTHORITY OVER NONMEMBERS .. 20

ca 8 SRR SRRED AGG SIPEG BS ete Ren IT aves seb eet ae 23

iv

TABLE OF AUTHORITIES

Page
CASES
Arkansas v. Oklahoma, 503 U.S. 91 (1991)............. 18
Blatchford v. Native Village of Noatak, 501 U.S. 775
Ba 2 5 PROM Es eae irae en Soar iy amare See Berar TRAIN re pg 19
Brendale v. Confederated Tribes and Bands of Yakima
Indian Nation, 492 U.S. 408 (1989)............. passim
Cherokee Nation v. Georgia, 30 U.S. 1 (1831).......... 18
Colville Confederated Tribes v. Walton, 647 F.2d 42
(9th Cir.), cert. denied, 454 U.S. 1092 (1981)........ 10
Confederated Salish and Kootenai Tribes v. United
seeten, 457 Pore GG: CS. Gay BS oe ccc cate kears 2
Duro v. Reina, 495 U.S. 676 (E990). vviccnviccwcsec suns 18
Fisher v. District Court, 424 U.S. 382 (1976).......... 15
Moe v. Confederated Salish and Kootenai Tribes, 425
Rink GUS, CRIN ck Obed eS Chaka eR Ld eh ss 3
Montana Catholic Missions v. Missoula County, 200
OTB Bae Cee as aie rae rib obs Hob be Pkeeek ee es 15

Montana v. United States, 450 U.S. 544 (1981) .... passim

Narragansett Indian Tribe v. Narragansett Electric

Co. We Toes Pee CEGE Ce, TGs ces censscvivedeass 17
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

CRS i hin vn ee eOe Eve sw ee RGRs 5d oe oe ee 19
New York v. United States, 505 U.S. 144 (1992)....... 19

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
GOED fs iva vad sb er er aenne leased eee cai ieee 18

Vv

TABLE OF AUTHORITIES - Continued

Page

PUD No. 1 v. Washington Department of Ecology, 511
RFs AMT AEOPON Kb A ed 98 be PRES SOe a 9
South Dakota v. Bourland, 508 U.S. 67° LEO sis@is 6% 14

Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997) .. passim
Thomas v. Gay, 169 U.S. 264 (RRO OOS Gre oe cen 15

Williams v. Lee, 358 U.S. 217 Lk oe TRAC ae CS IML ieee” 15

FEDERAL MATERIALS
Code of Federal Regulations
Ot A. BASE CRN sc ok ee ee 2.5

Federal Rules of Civil Procedure
PU SOG) ss 6 Sig Choa ea oe ee ee li

cp dR nce cg TERETE EPO POE cop mine ale trae etree. Fo ii

Session Laws

Act O8§ bier, 13; 3966, 12 Sik OR ee 2
Act of Ape. 23, 1906, 35 Stat. MO i 2
rub. 1. No. 1004, 300 Stat. 36:...-..0 a 4

Pub. L. No. 100-581, 102 Stat. 2940................. 4

vi

TABLE OF AUTHORITIES — Continued

Page
United States Code
RRs ZO Be WEN 6 SCRE Se bed ek enerele chee ee l
Wit. SS BB FF55-1SS7 FIG G rhs ee se iviaeeee
ROR, BS DB GRO n on. bs Se eicee datucneee eke ankeeean 20
ERR, Ge BS tk 6 Cala hha ee Peel Yee
TEE, SO DSCs ib ak evekeeuvds occa eceereas 18, 19
Tet. Se BD BSR TOE ss Sic advlidtclevessc ects meiemesss bee 18
Fee: SD Be SOROS ic ik aes heise Pei ee ek va eee 18
Fat. SS SIRI voce ake sale Wee ees ee eee 18
Bie. SS DS AS a io he ORR eee ee 9
BBR. SES TSBUAED, one viswonh CUCEIMG Bea eee 3
Fe SSB SORE s oo eave desk el yaaeaeeead cis Oheeckaeeeas 3
Fit. 3S SM GeAGe 5 ok eck bee Mieke cba cero 18
Fat. BO Bh Be ik ih ea iene hea eee y Rae 4
Set: DO BD TATE isda kee tadastenanks tan eaeee 2, 4
Fit. BS BRST aks CAS eee eee eee ees eo
Tit.. 42 SB DOES nivca ch cee eee eee cia eceeniewe 20
MONTANA MATERIALS
Montana Code Annotated

G6 75-5-+101 to -2ES2 (IGST hs sic vee acs cee ane 3
SD FOS LAG s « s Sun eX pda a's Wake ee a eer nen 17
GR FSS SOL WO: SEF oa asdinw sd werestweceuaviseerne 17

Vii

TABLE OF AUTHORITIES - Continued

Page
ee POI We SOO oie es see eee cea) oe 17
Oe rE NO oe a tae Nt rhea 18
§ CPOE 3 is Gea ieee ta Case E ok ee
OTHER AUTHORITIES
Final Rule, Amendments to the Water Quality Stan-
dards Regulation That Pertain to Standards on
Indian Reservations, 56 Fed. Reg. 64,876 (1991)....., 5
Final Rule, Indian Tribes; Eligibility for Program
Authorization, 59 Fed. Reg. 64,339 (Dec. 14, 1994) ..... 4
Proposed Rule, Amendments to the Water Quality
Standards Regulation That Pertain to Standards on
Indian Reservations, 54 Fed. Reg. 39,098 (Sept. 22,
POMEL AC SET ohio eras Rn cae Ee ae 5

EPA Treatment of Tribes in The Same Manner as
States/Program Approval Matrix (March 1998) .... 20

L. Scott Gould, The Consent Paradigm: Tribal Sover-
eignty at the Millennium, 96 Colum. L. Rev. 809
5 as CY RPO En Cit MCE RUA Rion Cn aioe nen pO EL 14

PETITION FOR WRIT OF CERTIORARI

Petitioners State of Montana; Lake County, Montana;
City of Ronan, Montana; and Town of Hot Springs, Mon-
tana, hereby petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at
137 F.3d 1135 (9th Cir. 1998) and is reproduced in the
Appendix commencing at Pet. la. The opinion of the
District Court is reported at 941 F. Supp. 945 (D. Mont.
1996) and is reproduced commencing at Pet. 16a. The
decision of respondent United States Environmental Pro-
tection Agency at issue herein is not reported and is
reproduced commencing at Pet. 50a.

®

JURISDICTION

The judgment of the court of appeals was entered on
March 3, 1998. This Court has jurisdiction pursuant to 28
U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The petition presents a question of federal common
law which arises in the context of the following statutory
and regulatory provisions:

1. Clean Water Act of 1972, as amended, 33
U.S.C. §§ 1251-1387 (1997); 33 U.S.C. §§ 1313,
1370, and 1377 are reproduced at Pet. 118a,
129a, and 130a.

2. Water Quality Standards: Requirements for
Indian Tribes to Administer a Water Quality
Standards Program, 40 C.F.R. § 131.8 (1997),
reproduced at Pet. 113a.

+

STATEMENT

While this case arises on the Flathead Indian Reser-
vation (“Reservation”) in Montana, it more generally calls
upon this Court to again address the consequences of the
legal and historical events which have shaped modern
Indian country. Congress created the Reservation when it
ratified the 1855 Treaty of Hellgate. Act of Mar. 13, 1859,
12 Stat. 975. As it had with many other Indian reserva-
tions, Congress later “authorized allotments in severalty
of Flathead Reservation land to members of the Tribes.”
Act of Apr. 23, 1904, 33 Stat. 302; see generally Confederated
Salish and Kootenai Tribes v. United States, 437 F.2d 458,
460-62 (Ct. Cl. 1971). After reservation lands had been
allotted to tribal members, Congress authorized nonmem-
bers to enter the Reservation and acquire fee title to land
under the “general provisions of the homesteed, mineral,
and town-site laws of the United States.” 33 Stat. 303.

As a result of these policies and other historical
trends, non-Indians now comprise over three-fourths of
the Reservation’s population. A.R., Vol. I, tab. 4 at 13-14;
see also 1990 Census of Population; General Population
Characteristics; Montana (Table 13). Similarly, of the 1.2

million acres of land within the Original Reservation,
slightly more than 530,000 acres are now held in fee by
persons who are not tribal members or by state and state
governmental entities, including Petitioners. A.R., Vol. I,
tab. 4 at 2; see also Moe v. Confederated Salish and Kootenai
Tribes, 425 U.S. 463, 466 (1976).

Petitioners conduct governmental activities within
the Flathead Indian Reservation that are subject to regula-
tion under the Clean Water Act of 1972, 33 U.S.C.
§§ 1251-1387 (1997), and its state law counterpart, the
Montana Water Quality Act. Mont. Code Ann. §§ 75-5-101
to -1122 (1997). The State of Montana operates a research
facility that discharges treated effluent into Flathead
Lake, while Lake County, Polson, and Ronan operate
municipal wastewater treatment plants that discharge
treated effluent into several other streams or bodies of
water within the Reservation. Pet. 19a-20a. Lawful opera-
tion of each facility requires issuance of a National Pollu-
tion Discharge Elimination System (“NPDES”) permit
under 33 U.S.C. § 1342, along with a similar permit under
Montana law. Mont. Code Ann. § 75-5-605(2). Prior to this
controversy respondent United States Environmental Pro-
tection Agency (“EPA”) did not require Petitioners to
secure an NPDES permit but instead deemed state-issued
permits as constituting compliance with the Act.

A condition precedent to issuance of a NPDES permit
is certification from the involved State that the proposed
discharge complies with the requirements of the Clean
Water Act and, if more stringent than federal standards,
the requirements of state law. 33 U.S.C. § 1341(a)(1). The
issue here is whether EPA properly determined that
respondent Confederated Salish and Kootenai Tribes have

inherent regulatory authority over Petitioners’ activities
related to the discharges and thus may be deemed a
“State,” thereby requiring certification by the Tribes.

I. STATUTORY AND REGULATORY BACKGROUND

In 1987 Congress amended the Clean Water Act to
allow Indian tribes to be “treated as a State” (“TAS”)? for
various purposes. Pub. L. No. 100-4, tit. V, § 506, 101 Stat.
76, amended Pub. L. No. 100-581, tit. II, § 207, 102 Stat.
2940, codified at 33 U.S.C. § 1377. That amendment, § 518
of the Act (33 U.S.C. § 1377) (Pet. 132a), provides in
relevant part:

The Administrator is authorized to treat an

Indian tribe as a State . . . to the degree neces-
sary to carry out the objectives of this section,
but only if -

(2) the functions to be exercised by the
Indian tribe pertain to the management and pro-
tection of water resources which are held by an
Indian tribe, held by the United States in trust
for Indians, held by a member of an Indian tribe
if such property interest is subject to a trust

2 EPA has discontinued the use of the terms “treated as a
State” or “treatment as a State” (Final Rule, Indian Tribes;
Eligibility for Program Authorization, 59 Fed. Reg. 64,339 (Dec. 14,
1994)), opting instead to use the term “treatment in the same
manner as a State.” Id. at 64,343 (amending 40 C.F.R. § 124.2).
The abbreviation “TAS” used in the text is inclusive of all of the
various labels used to describe instances in which tribes are
authorized under the Act to be deemed a State.

a lt Ae

ea ee ee en Se en ee ee

restriction on alienation, or otherwise within the
borders of an Indian reservation.

33 U.S.C. § 1377(e)(2). In December 1991, EPA issued final
regulations concerning the standards for determining
tribal requests for authority to promulgate water quality
standards pursuant to § 303 of the Act, 33 U.S.C. § 1313.
Final Rule, Amendments to the Water Quality Standards
Regulation That Pertain to Standards on Indian Reservations,
56 Fed. Reg. 64,876, 64,877-880 (1991), codified at 40 C.E.R.
§ 131.8 (1997) (“Final Rule”) (Pet. 92a, 113a). The Final
Rule contained a preamble addressing several of the
issues that had been raised with respect to the proposed
water quality standards rule (Proposed Rule, Amendments
to the Water Quality Standards Regulation That Pertain to
Standards on Indian Reservations, 54 Fed. Reg. 39,098 (Sept.
22, 1989)) including the question of how § 518 was to be
interpreted and applied consistent with federal common
law defining the inherent regulatory authority of Indian
tribes. Pet. 96a-106a.

EPA first rejected the argument that § 518 constituted
an express delegation of federal power to Indian tribes,
concluding that “Congress only manifested an intent to
authorize EPA to treat Indians as States over any activ-
ities within the scope of Tribal authority in light of the
relevant principles of Federal Indian law.” Pet. 111a. This
approach, EPA explained, “will best effectuate the overall
purposes of the [Act]”. Id. According to EPA the scope of
tribal authority for purposes of § 518 was to be deter-
mined by reference to federal common law principles,
most specifically those articulated in Montana v. United
States, 450 U.S. 544 (1981), and later decisions of this
Court addressing the same. Pet. 111a.

EPA then went on to formulate an “interim operating
rule” that recognizes inherent tribal authority over non-
members on fee lands in virtually all instances. Pet. 101.
The operating rule is based wholly on the EPA’s inter-
pretation of the second exception to Montana’s bedrock
“general rule that, absent a different Congressional direc-
tion, Indian tribes lack civil authority over the conduct of
nonmembers on non-Indian land within a reservation.”
Strate v. A-1 Contractors, 117 S. Ct. 1404, 1409 (1997)
(emphasis supplied). In articulating the second exception,
the Montana Court explained that

[a] tribe may also 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 economic security,
or the health or welfare of the tribe.

450 U.S. at 566. In explaining how it interpreted that
exception, EPA first noted that in Brendale v. Confederated
Tribes and Bands of Yakima Indian Nation, 492 U.S. 408
(1989), “several justices argued that for a tribe to have a
‘protectible interest’ in an activity [for purposes of the
second Montana exception], the activity’s effect should be
‘demonstrably serious.’ ” Pet. 100a. Accordingly, EPA
concluded that the “prudent” approach would be to
“require a showing that the potential impacts of regu-
lated activities on the tribe are serious and substantial.”
Id.

EPA’s ensuing application of its “serious and sub-
stantial” standard was premised on its conclusion that
“there are substantial factual and legal reasons tou assume
that Tribes ordinarily have the legal authority to regulate

;
:
3

water quality within a reservation.” Pet. 99a-100a
(emphasis supplied). As EPA then explained, there were
two such “reasons.” The first is that impacts to water
quality cannot be regulated efficiently along political
boundaries. Pet. 102a-103a. The second is that the Clean
Water Act itself constitutes a “legislative determination
that activities which affect surface water and critical
water quality habitat may have serious and substantial
impacts.” Pet. 102a.

In light of these “generalized findings,” EPA formu-
lated an operating rule which required applicant tribes to
make

a relatively simple showing of facts that there
are waters within the reservation used by the
Tribe or tribal members, (and thus that the Tribe
or tribal members could be subject to exposure
to pollutants present in, or introduced into,
those waters) and that the waters and critical
habitat are subject to protection under the Clean
Water Act. The Tribe must also explicitly assert
that impairment of such waters by the activities
of non-Indians, would have a serious and sub-
stantial effect on the health and welfare of the
Tribe.

Pet. 105a. In remarkable understatement, EPA explained
that “tribes will usually be able to meet the . . . operating
rule.” Pet. 101a. Once an applicant tribe has met this
minimal pleading requirement

EPA will, in light of the facts presented by the
tribe and the generalized statutory and factual
findings regarding the importance of reserva-
tion water quality . . . presume that there has
been an adequate showing of tribal jurisdiction

of fee lands, unless an appropriate govern-
mental entity (e.g., an adjacent Tribe or State)
demonstrates a lack of jurisdiction on the part of
the Tribe.

Pet. 106a (emphasis supplied). EPA did not explain what
showing is required to demonstrate a lack of tribal juris-
diction. The practical effect, however, of EPA’s operating
rule is to establish a presumption of inherent tribal regu-
latory authority over nonmember activity on non-Indian
lands. See Pet. at 8a.

Il. PROCEEDINGS BELOW
A. Administrative Proceedings

In April 1992 the Tribes applied for TAS status under
§ 303 of the Act (33 U.S.C. § 1313) with respect to all
surface waters within the Flathead Reservation. A.R., Vol.
I, tab 3. Petitioners filed comments in accordance with 40
C.F.R. § 131.8(c)(3). A.R., Vol. Il, tab 21. In those com-
ments Petitioners opposed TAS status to the extent it
would recognize the existence of the Tribes’ inherent
authority over their activities on fee lands. Id.5

In February 1995 EPA approved the Tribes’ applica-
tion to administer a water quality standards program
applicable to all lands and surface waters within the
Reservation. Pet. 50a, 62a-68a. As a consequence of EPA’s
decision, the Tribes were entitled to submit, and thereaf-
ter did submit successfully, their water quality standards

3 Petitioners have not contested the EPA decision insofar as
it accords the Tribes TAS status with respect to tribal, trust, and
member-owned lands within the Reservation.

to EPA for approval under § 303 of the Act, and are
entitled to exercise the certification authority granted
under § 401 of the Act, 33 U.S.C. § 1341. Pet. 50a; see
generally PUD No. 1 v. Washington Dep’t of Ecology, 511
U.S. 700, 704-08 (1994).

Applying its Final Rule’s analysis, EPA concluded
that the Tribes possess inherent authority over nonmem-
bers on fee lands throughout the Reservation for the
purposes of setting water quality standards. Pet. 68a. In
so holding, EPA declined to hold an evidentiary hearing
relative to the Tribes’ factual submissions. Pet. 63a-64a. In
support of its “generalized finding” that nonmember
activity can affect the Tribes’ interests, EPA also cited a
list of specific instances of alleged nonmember pollution
of reservation waters (Pet. 70a-91a) which had been
assembled after Petitioners had submitted their response.
A.R., Vol. II at tabs 25, 30, 31.

B. Judicial Review of EPA’s Decision

In May 1995, Petitioners sought judicial review of
EPA’s decision. Pet. 19a. The District Court issued its
opinion and judgment in March 1996 upholding EPA’s
determination that the Tribes possessed inherent author-
ity over nonconsenting nonmembers on fee lands. Pet.
l6a. The District Court largely adopted EPA’s Final Rule
analysis. On appeal, the Ninth Circuit affirmed. Pet. 1a.
In so doing it first rejected EPA’s suggestion that its
interpretation of federal Indian law was entitled to defer-
ence. Pet. at lla. Explaining that this Court’s decisions
had left “some confusion as to what the correct standard
should be” (Pet. at 10a), the Court of Appeals concluded

10

that “EPA has [not] committed any material mistakes of
law in its delineation of the scope of inherent tribal
authority” (Pet. 11a) and that its analysis “appear[ed] to
adumbrate the Supreme Court’s holding in Strate
... [which] reaffirms the validity of Montana” (Pet. 12a).

Turning to EPA’s application of the second Montana
exception, the Court of Appeals cited Colville Confederated
Tribes v. Walton, 647 F.2d 42, 52 (9th Cir.), cert. denied, 454
U.S. 1092 (1981), for two general propositions: (1) that
“threats to water rights may invoke inherent tribal
authority over non-Indians”; and (2) that water is a “uni-
tary resource” which cannot be regulated along political
boundaries. Pet. 12a. The court below distinguished
Strate on the ground that “the conduct of a user of a small
stretch of highway has no potential to affect the health
and welfare of a tribe in any way approaching the threat
inherent in impairment of the quality of the principal
water source.” Pet. 12a-13a.

a

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS’ APPLICATION OF THE
SECOND MONTANA EXCEPTION CANNOT BE
RECONCILED WITH STRATE AND PRESENTS AN
IMPORTANT FEDERAL QUESTION CONCERN-
ING THE SCOPE OF THAT EXCEPTION.

A.

In Strate this Court observed that, “[rjead in isola-
tion, the Montana rule’s second exception can be misper-
ceived.” 117 U.S. at 1416. The Court of Appeals’ decision,
like EPA’s decision that it affirms, exemplifies just such a

ss

11

misperception by transforming the second exception into
a virtually irrebuttable presumption in favor of tribal
authority where water quality regulation is involved.
This case thus presents the Court with an opportunity to
further clarify in an exceedingly important context the
proper application of the Montana rule and its second
exception.

The Court of Appeals’ errors are twofold. The first is
its view that, by reaffirming Montana's approach to deter-
mining the reach of inherent tribal authority over non-
members with respect to conduct on nontribal land, Strate
also sanctioned the proposition that the second exception
requires little more than a generalized, and plainly quite
subjective, “tribal interest” inquiry to rebut the presump-
tion against the existence of such authority. The second
lies in conducting that inquiry without reference to how
the involved tribal interests can otherwise be protected
from nonmember activities under extant state and federal
law. Central to this conclusion is a proper understanding
of this Court’s reasoning both in Strate and in Brendale.

Brendale presented the question whether the Confed-
erated Tribes and Bands of the Yakima Nation had the
authority to impose their zoning ordinance as to activities
on fee land owned by tribal nonmembers. One of the
involved parcels was in an area of the reservation (the
“closed area”) that was almost wholly tribally-owned and
that traditionally had been closed to non-Indian entry.
492 U.S. at 415. The other parcel was in an area of the
reservation (the “open area”) where, by virtue of allot-
ment-era policies, access was not restricted and over half
of the land was owned by tribal nonmembers. Id. at
415-16. A splintered Court upheld the Tribes’ power to

12

enforce their zoning ordinance with respect to the closed
area (id. at 444) but denied the Tribes’ power to do so
with respect to the open area. Id. at 432.

Justice White, writing for himself and three members
of the Court, flatly rejected the notion that every “direct
effect” on a protected tribal interest may form a basis for
the exercise of inherent tribal authority over nonmembers
under the second Montana exception. He explained that
the court of appeals had incorrectly “transformed this
indication that there may be other cases in which a tribe
has an interest in activities of nonmembers on fee land
into a rule describing every case in which a tribe has such
an interest” (id. at 429), and had otherwise improperly
“equated an Indian tribe’s retained sovereignty with a
local government’s police power, which is contrary to
Montana itself.” Id.; see also id. at n.11 (same).

Instead, “[t]he governing principle is that the tribe
has no authority itself, by way of tribal ordinance or
actions in the tribal courts, to regulate the use of fee
land” (id. at 430), and that

Montana suggests that in the special circum-
stance of checkerboard ownership of lands
within a reservation, the tribe has an interest
under federal law, defined in terms of the
impact of the challenged uses on the political
integrity, economic security, or the health or
welfare of the tribe. But . . . that interest does
not entitle the tribe to complain or obtain relief
against every use of fee land that has some
adverse effect on the tribe. The impact must be
demonstrably serious and must imperil the
political integrity, the economic security, or the
health and welfare of the tribe.

TRS en

13

Id. at 430-31. Justice White’s understanding of how the
second exception was to be applied was taken directly
from Montana itself. There, in holding that the tribe
lacked inherent authority to regulate nonmember hunting
and fishing on fee lands, the Court explained that

the complaint did not allege that the State has
abdicated or abused its responsibility for pro-
tecting and managing wildlife, has established
its season, bag or creel limits in such a way as to
impair the [tribe’s] treaty rights to fish or hunt,
or has imposed less stringent hunting and fish-
ing regulations within the reservation than in
other parts of the State.

Montana, 450 U.S. at 566 n.16. Justice White’s Brendale
opinion thus clarified what was already established in
Montana: that the second exception may serve as a basis
for direct tribal authority over nonconsenting nonmem-
bers in few situations; and that a tribe’s recourse nor-
mally lies in pursuing available state and federal
remedies to mitigate the alleged infringement on tribal
interests. Accordingly, the Tribe in Brendale should have
first presented its claim in proceedings before the local
government zoning board and, if adequate relief was not
forthcoming, then in a federal cause of action designed to
protect the interests defined by the exception. 492 U.S. at
430; see also id. at 460 (Blackmun, J., concurring in part &
dissenting in part) (criticizing Justice White’s “new-
fangled federal nuisance-type cause of action”).

Justice Stevens, joined by Justice O’Connor, focused

on the tribes’ original power to exclude nonmembers
from tribal territory - “a power unknown to any other
sovereignty in this Nation” (492 U.S. at 433) —- and drew a

14

distinction between the closed and open areas of the
reservation. With respect to the closed area, he reasoned
that

just as Congress could not possibly have
intended in enacting the Dawes Act that tribes
would maintain the power to exclude bona fide
purchasers of reservation land from that prop-
erty, it could not have intended that tribes
would lose control over the character of their
reservations upon the sale of a few, relatively
small, parcels of land.

Id. at 441. With respect to the open area, Justice Stevens
concurred with Justice White that “the tribe lacks author-
ity to regulate the use of [the] property,” explaining that
“so long as [it] is not used in a manner that is preempted
by federal law, the Tribe has no special claim for relief.”
Id. at 445.

Most critical here is the fact that in Brendale six mem-
bers of this Court agreed that state and federal remedies,
not direct tribal regulation predicated on inherent author-
ity, were to be utilized to protect tribal interests in reser-
vation areas where allotment-era or other acts operated to
eliminate the territorial exclusivity that is a necessary
condition to the effective exercise of terfitorial sovereign
power. Accord South Dakota v. Bourland, 508 U.S. 679
(1993); see generally L. Scott Gould, The Consent Paradigm:
Tribal Sovereignty at the Millennium, 96 Colum. L. Rev. 809,
894-902 (1996).

The principles embodied in Strate flow directly from
the Court’s earlier dialogue in Brendale. Strate’s primary
significance here lies in the Court’s unanimous reaffirma-
tion of Montana's presumption against tribal authority

a

15

over nonmembers (117 S. Ct. at 1409-10) and in its further
explication of the purpose and scope of the second excep-
tion. In discussing the second Montana exception, the
Court initially observed: “Undoubtedly, those who drive
carelessly on a public highway running through a reser-
vation endanger all in the vicinity, and surely jeopardize
the safety of tribal members|,] [b]ut if Montana’s second
exception requires no more, the exception would severely
shrink the rule.” Id. at 1415.

The Court then explained that the four cases* cited in
Montana in support of the second exception “indicate[d]
the character of the tribal interest the Court envisioned.”
117 S. Ct. at 1415. Each of those cases focused on “the
question whether a State’s (or Territory's) exercise of
authority would trench unduly on tribal self-govern-
ment.” Id. The second exception thus was intended as a
shield to be used where “needed to preserve ‘the right of
reservation Indians to make their own laws and be ruled
by them’ ” (id. at 1416 (quoting Williams, 358 U.S. at 220));
and not as a sword to project tribal coercive powers over
nonmembers whenever some “tribal interest” can be
identified.

Strate clarifies that the presumptive absence of inher-
ent tribal authority as to nonmember activity on nontribal
lands within a reservation is not rebutted under the sec-
ond Montana exception except when such authority is
essential to tribal self-governance; i.e., when application

4 Fisher v, District Court, 424 U.S. 382 (1976) (per curiam);
Williams v. Lee, 358 U.S. 217 (1959); Montana Catholic Missions v.
Missoula County, 200 U.S. 118 (1906); Thomas v. Gay, 169 U.S. 264
(1898).

16

of tribal law is essential to preserve a tribe’s inherent
power “[to punish tribal offenders], to determine tribal
membership, to regulate domestic relations among mem-
bers, and to prescribe rules of inheritance for members.”
Id. at 1416 (quoting Montana, 450 U.S. at 564). The Court’s
citation to infringement test in Williams v. Lee is accord-
ingly critical, because it stands for the principle that the
exercise of inherent tribal authority over nonmember fee
land activity is limited to situations where state law has
been preempted by virtue of interference with tribal self-
government. Absent preemption, the “optional use” of
tribal law is not essential to protecting the tribe’s ability
to govern itself or to order its internal affairs. 117 S. Ct. at
1416.

The Court of Appeals’ interpretation of Montana's
second exception “would severely shrink the [general]
rule” by inserting in its stead a standardless approach for
determining inherent tribal authority. Boiled down to its
essentials, the court’s conclusion that tribal authority
exists here is grounded in a determination that the pro-
tection of water quality is qualitatively different from and
more important to Indian tribes than highway safety
(Strate), land use (Brendale), or fish and wildlife regula-
tion (Montana). Clearly, the notion that “water is more
important than land” cannot serve as a meaningful nor-
mative standard. As this case reveals, such an approach is
constrained by little more than the decision-maker’s pol-
icy preferences. More important, however, is that the
failure of the Court of Appeals to consider extant state
and federal remedies cannot be reconciled with Strate.

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B.

There has been no reasoned claim in this case - and
certainly no finding by EPA or any court — that Montana’s
water quality laws have been preempted with respect to
nonmember activities on fee lands on the Reservation.
Nor could there be one. Just as Congress did not delegate
federal authority to tribes in adopting § 518, so too it did
not preempt state law in the 1987 amendments to the Act.
A different conclusion would be incompatible with 33
U.S.C. § 1370 (Pet. 130a), which specifically disclaims any
intent “[e]xcept as expressly provided” to “impair[] or in
any manner affect[] any right or jurisdiction of the States

with respect to the water . . . of such States.” See Pet. at
65a (“EPA[’s] regulations . . . do not construe the
CWA ... as preempting State regulation”); cf. Narragan-

sett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 922
(Ist Cir. 1996) (disapproving district court’s conclusion
that grant of TAS status to tribe evidenced Federal Gov-
ernment’s intent to establish “Indian country” or other-
wise preempt state law).

Questions of preemption aside, there is also no sup-
port in the record for an argument that Montana’s laws
are inadequate to protect the Tribes’ treaty rights or more
general interest in clean water. To the extent those inter-
ests may be affected, the State has the authority to protect
them by requiring Petitioners to comply with state-estab-
lished water quality standards (Mont. Code Ann.
§ 75-5-103(23) (defining “person” to include State or
political subdivision); id. §§ 75-5-301 to -317 (classifica-
tion of and standards for surface waters) and to secure
and comply with state-issued discharge permits (id.
§§ 75-5-401 to -405 (discharge permits). See also id.

18

§§ 75-5-601 to -641 (enforcement, appeals and penalties).
Finally, even assuming arguendo state law is preempted
or in some way inadequate, the Court of Appeals’ deci-
sion additionally fails to explain why direct federal pro-
mulgation of water quality standards (33 U.S.C.
§ 1313(c)(4) (Pet. 122a)), coupled with federal issuance of
discharge permits (33 U.S.C. § 1342(a); see generally
Arkansas v. Oklahoma, 503 U.S. 91, 103 (1991)) and, if
necessary, federal enforcement against Petitioners for any
standard or permit violation (33 U.S.C. § 1319(b), (e) and
(g)), would be inadequate to protect the Tribes’ interests.

sf

This case involves the first instance of a federal
appeals court’s recognizing the existence of inherent
tribal authority over the governmental activities of a State
or its political subdivisions. This absence of historical
precedent for the Ninth Circuit’s ruling is of obvious
significance in determining its correctness (see, e.g.,
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 197-206
(1978); Duro v. Reina, 495 U.S. 676, 690-93 (1990)), but it
additionally raises the question whether application of
tribal jurisdiction over the States through the second
Montana exception is permissible in any instance.

It is, as a threshold matter, extraordinary to conclude
that a sovereign State and its counties or towns are sub-
ject to the coercive powers of a tribe whose inherent
authority is unconstrained by the careful delineation of
federal and state powers in the Constitution. Indeed, to

so conclude would be to accept that tribes, as “domestic
dependent nations” (Cherokee Nation v. Georgia, 30 U.S. (5

19

Pet.) 1, 16 (1831)) (emphasis supplied) possess compara-
ble — indeed perhaps greater — powers with respect to the
States than their guardian the Federal Government itself.
Cf. Kiowa Tribe of Okla. v. Manufacturing Tech., Inc., No.
96-1037, 1998 WL 260001, at *6 (U.S. May 26, 1998)
(Stevens, J., dissenting) (“Why should an Indian tribe
enjoy broader immunity than the States, the Federal Gov-
ernment, and foreign nations?”) This proposition cannot
be squared with a constitutional plan under which the
Federal Government’s own powers derive from the States’
agreement to divest themselves of authority for purposes
of forming a national government. See, e.g., New York v.
Linited States, 505 U.S. 144, 155-66 (1992) (“[t]he Constitu-
tion has never been understood to confer upon Congress
the ability to require States to govern according to Con-
gress’ instruction”); cf. Blatchford v. Native Village of
Noatak, 501 U.S. 775, 781 (1991) (rejecting notion that “the
States had waived their [Eleventh Amendment] immunity
against Indian tribes when they adopted the Constitu-
tion”); Kiowa Tribe, 1998 WL 260001, at *3 (same).

These federalism concerns counsel that the exercise
of inherent tribal authority over the governmental activ-
ities of state and local governments can be justified, if at
all, only in quite exceptional circumstances. Cf. New Mex-
ico Vv. Mescalero Apache Tribe, 462 U.S. 324, 331-32 (1983)
(“in exceptional circumstances a State may assert jurisdic-
tion over the on-reservation activities of tribal mem-
bers”). Such circumstances are plainly absent here since

the Tribes’ interest with respect to water quality is pro-

tected under state amd federal law.

20

Il. THE COURT OF APPEALS’ DECISION HAS
BROAD SIGNIFICANCE NOT ONLY WITH
RESPECT TO FUTURE APPLICATION OF THE
ACT’S TAS PROVISION BUT ALSO IN OTHER
SITUATIONS WHERE THE SECOND MONTANA
EXCEPTION IS RELIED UPON AS A BASIS FOR
THE EXERCISE OF INHERENT TRIBAL
AUTHORITY OVER NONMEMBERS.

The numerical and geographic magnitude of the TAS
issue is illustrated by the fact that as of March 1998, over
210 tribes nationwide have received or are in the process
of seeking TAS status under the Act or the counterpart
TAS provision of the Safe Drinking Water Act, 42 U.S.C.
§ 300j-11. EPA Treatment of Tribes in The Same Manner as
States/Program Approval Matrix (March 1998) (Pet. 135a).5
Although the majority of the tribal submissions involve
grant requests under § 106 of the Act, 33 U.S.C. § 1256, to
assist in developing pollution control programs, the sheer
number of tribes currently in the planning stages reflect
the need to determine whether EPA’s application of the
second Montana exception is correct.

With respect to the specific parties to this proceeding,
moreover, it is clear that this decision will be viewed by
EPA as preclusive in all subsequent TAS applications by
the Tribes under other environmental programs involving
water. This point is demonstrated by the fact that, while

5 Petitioners’ counsel received a copy of this document
from the American Indian Environmental Office, U.S.
Environmental Protection Agency, 401 M Street SW, Washington
D.C., 20460. It is submitted for the Court’s consideration
pursuant to Sup. Ct. Rule 14.1.{i)(vi).

a

ve eer

21

EPA attempted to limit its decision to this specific situa-
tion (Pet. 50a, 60a), it had explained several months ear-
lier that

once [EPA] makes a jurisdictional determination
in response to a tribal application regarding any
EPA program, it will ordinarily make the same
determination for other programs unless the
subsequent application raises different legal
issues.

Final Rule, 59 Fed. Reg. at 64,340. In a similar manner, the
Ninth Circuit’s decision may also be viewed as the predi-
cate for independent tribal enforcement of their water
quality standards against Petitioners and others similarly
situated. See Pet. at 60a (noting that “the Tribes may, in an
independent action, enforce tribal water quality stan-
dards”). Affirmance of EPA’s TAS determination thus
may have far-reaching effects for both Petitioners and
other nonmembers on the Reservation.

It must be emphasized finally that the Court of
Appeals applied general principles of federal Indian law
to reach the holding below. Consequently, while this dis-
pute was precipitated by a TAS application under the
Clean Water Act, the analysis employed by the court is
not limited to that context. At a very minimum the stan-
dardless “tribal interest” approach sanctioned by the
Ninth Circuit will allow EPA easily to extend “gener-
alized findings” beyond the water context into any other
subject matter encompassed by a federal environmental
program. A more likely result, however, is that the court's

standardless approach will be employed more broadly in
the Ninth Circuit and perhaps other circuits to expand
the reach of inherent tribal authority far outside the

22

highly limited purpose assigned the second Montana
exception in Strate.

Timely guidance from this Court on an issue of criti-
cal importance to the formulation of tribal regulatory
programs is therefore warranted. It makes little sense to
await further case law development when the Court of
Appeals’ decision is so obviously suspect. No less impor-
tant, delaying resolution of the issue here does little
justice to EPA, to those Indian tribes that desire to estab-
lish regulatory programs, or to the public and private
parties who will be obligated to comply with the tribal
programs, if the jurisdictional basis of those programs is
removed a number of years later. Early and clear guid-
ance from this Court on this important question will
assist in preserving public and private resources.

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CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be granted.

JosepH P. MazuREK

Attorney General of Montana

Cray R. SMITH

Solicitor

Harvey R. Harris

Assistant Attorney General
Counsel of Record

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

CarTER G. PHILLIPS
SipteY & AUSTIN
1722 Eye Street, N.W.
Washington, DC 20006
; (202) 736-8270
May 1998

la

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF MONTANA; LAKE County,
Montana, a political subdivision
of the State of Montana; Crry oF
RONAN, MONTANA, a municipal

corporation; Town or Hor Sprinas,

MONTANA, a municipal
corporation,

Plaintiffs,
and

FLATHEAD Joint BOARD OF CONTROL,
Mission IRRIGATION District, JocKo
VALLEY IRRIGATION District,
FLATHEAD IRRIGATION District, local
governments; Ross Mipptemist,
WayNeé MAUGHAN, WILLIAM SLACK
and GLENN Murpny,

Plaintiffs-Intervenors-Appellants,
Vv.

Unrrep States ENVIRONMENTAL
Prorection AGENCY, an agency of
the United States; Caro. M.
Browner, Administrator of the
United States Environmental
Protection Agency; and the
CONFEDERATED SALISH and
KOOTENAI TRIBES,

Defendants-Appellees.

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No. 96-35505

D.C. No.
CV-95-00056-CCL

OPINION

2a

StaTE OF MONTANA; LAKE COUNTY,
Montana; City oF RONAN,
MONTANA, a municipal
corporation; Town or Hor
SprRINGs, MONTANA, a municipal
corporation,

Plaintiffs-Appellants,

No. 96-35508

V.

D.C. No.

Unrrep States ENVIRONMENTAL CV-95-00056-CCL

PROTECTION AGENCY, an agency of
the United States; Caror M.
BrowNner, Administrator of the
United States EPA; CONFEDERATED
SALISH and KoOoreNAI TRIBES OF
THE FLATHEAD RESERVATION,

Defendants-Appellees.

a

Appeals from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding

Argued and Submitted
September 8, 1997 — Seattle, Washington

Filed March 3, 1998

Before: Mary M. Schroeder and Robert R. Beezer, Circuit
Judges and William W Schwarzer,* District Judge.

Opinion by Judge Schroeder

* Honorable William W. Schwarzer, Senior United States
District Judge for the Northern District of California, sitting by
designation

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COUNSEL

Harley Harris, Assistant Attorney General, Helena, Montana,
for plaintiffs-appellants.

Kevin Washburn, Department of Justice, Washington, D.C.,
for the defendants-appellees.

Daniel Decker, Marion Yoder, and John Carter, Tribal Legal
Department, Confederated Salish and Kootenai Tribes of the
Flathead Nation, Pablo, Montana, for tribal-appellees.
Arthur Lazarus, Jr., Sonosky, Chambers, Sachse & Enderson,
Washington, D.C., amicus curiae for Assiniboine and Sioux
Tribes of Fort Peck Reservation, Montana.

Jon Metropoulos, Helena, Montana, for the plaintiffs-inter-
venors-appellants.

Jeanne S. Whiteing, Whiteing & Thompson, Boulder, Colo-
rado, amicus curiae for Blackfeet Tribe.

Sam W. Maynes, Maynes, Bradford, Shipps & Sheftel,
Durango, Colorado, amicus curiae for Southern Ute Indian
Tribe.

Hans Walker, Jr., Hobbs, Straus, Dean & Walker, Washington,
D.C., amicus curiae for Three Affiliated Tribes of Fort
Berthold Reservation, North Dakota.

Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank,
Montana, amicus curiae for Montana Association of Coun-
ties.

Thomas L. Dosch and John S. Greene, Assistant Attorneys
General for the State of Wisconsin as amici curiae for appel-
lants.

Jeffery R. Cutter, Lyon, Weigand & Gustafson, Yakima, Wash-
ington, amicus curiae for Yakima Reservation Irrigation Dis-
trict.

OPINION
SCHROEDER, Circuit Judge:

This case is a facial challenge to regulations the Environ-
mental Protection Agency (EPA) promulgated pursuant to

4a

§ 518(e) of the Clean Water Act, 33 U.S.C. § 1377 (Supp.1997).
That section authorizes EPA to permit Indian tribes “to be
treated as a state” (TAS) for purposes of promulgating water
quality standards (WQS) pursuant to § 303 of the Act. 33
U.S.C. § 1313 (1986). The plaintiffs-appellants, collectively
referred to as “Montana,” include state and municipal enti-
ties who own fee interests in land located within the bound-
aries of the Flathead Indian Reservation. The Reservation is
occupied by the Confederated Salish and Kootenai Tribes.
The Tribes, along with EPA officials, are the defendants-
appellees.

Montana filed this action attacking EPA’s decision to
grant TAS status to the Tribes to promulgate WQS that apply
to all sources of pollutant emissions within boundaries of the
Reservation, regardless of whether the sources are located on
land owned by members or non-members of the Tribe. Mon-
tana maintained that the regulations permit tribes to exercise
authority over non-members that is broader than the inher-
ent tribal powers recognized as necessary to self-governance.
See Brendale v. Confederated Tribes and Bands of the Yakima
Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343
(1989); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245,
67 L.Ed.2d 493 (1981).

In addition, Flathead Irrigation District and related enti-
ties (“the Intervenors”) have sought to intervene as of right
in the action although their uses of the land are not sources
of emissions regulated by the Clean Water Act.

The district court granted summary judgment to the
defendants, and denied intervention by the Intervenors
because they lacked any discernible interest in the subject
matter of the litigation as required by Rule 24 of the Federal
Rules of Civil Procedure. Montana and the Intervenors have
each filed a separate appeal. We affirm in both.

eS See ae

PES iP le Oe me neti h wet Wien soe oy

5a

BACKGROUND
The Clean Water Act
The Clean Water Act (CWA) prohibits discharges

from a point source of any pollutant into waters unless
the emission discharge complies with the Act’s require-
ments. See 33 U.S.C. § 1311(a). For most discharges, such
compliance is achieved by obtaining and adhering to the
terms of a National Pollutant Discharge Elimination Sys-
tem (NPDES) permit. See 33 U.S.C. § 1342. NPDES per-
mits are issued by EPA or, in those jurisdictions in which
EPA has authorized a state agency to administer the
NPDES program, by a state agency subject to EPA review.
See 33 U.S.C. § 1342(b).

Under the NPDES program, each state must adopt
WQS for its waters. See 33 U.S.C. § 1313. These standards
are subject to review and approval by EPA. See 33 U.S.C.
§ 1313(a)-(c). Once WQS have been adopted, EPA will
issue an NPDES permit only if the relevant state certifies
that any discharges under the proposed permit will be
consistent with its WQS. See 33 U.S.C. § 1341(a).

In 1987, Congress added § 518(e) to the CWA which
authorized EPA to permit tribes “to be treated as a state”
(TAS) for purposes of promulgating WQS. 33 U.S.C.
§ 1377(e). The relevant language of the provision is set
forth in the margin.!

! The Administrator is authorized to treat an Indian tribe as
a State for purposes ef subchapter II. . . to the degree necessary
to carry out the objectives to this section, but only if -

6a

EPA issued a final rule in 1991 implementing the
provision by setting forth the standards for processing
tribal requests for TAS status and concomitant authority
to institute WQS. See Environmental Protection Agency, 56
Fed.Reg. 64,876 (1991) (codified at 40 C.F.R. § 131.8(b)(3))
(hereinafter Final Rule). The Final Rule was promulgated
after notice and comment, during which Montana voiced
its objections to the rule as too broad. Conversely, some
tribal interests, represented in this case by amici briefs,
took the position that the authority was too narrow, and
that Congress had in effect delegated the power to the
tribes to promulgate WQS. EPA rejected both extremes
and promulgated the regulations here at issue:

1. The tribe must be federally recognized and
exercising governmental authority;

2. The tribe must have a governing body carry-
ing out “substantial governmental duties and
powers;”

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

(2) 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, held by
the United States 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:
and

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

ih iii sis Aehaseisn eli he

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3. The water quality standards program which
the tribe seeks to administer must “pertain to
the management and protection of water
resources,” which are “within the borders of an
Indian reservation;”

4. The Indian tribe is reasonably expected to be
capable of carrying out the functions of an effec-
tive water quality standards program in a man-
ner consistent with the terms and purposes of
the Clean Water Act and regulations.

40 C.F.R. 131.8(a).

The third requirement, with which we are principally
concerned, is intended to reflect the scope of a tribe’s
“inherent power,” a concept developed by the Supreme
Court to define when tribes may engage in nonconsen-
sual regulation of activities of non-members. See Montana,
450 U.S. at 565-66, 101 S.Ct. at 1258; United States v.
Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085-86, 55
L.Ed.2d 303 (1978).

To demonstrate authority over the activities of non-
members on non-Indian fee lands, EPA requires a tribe to
show that the regulated activities affect “the political
integrity, the economic security, or the health or welfare
of the tribe.” Final Rule, 56 Fed.Reg. at 64,877 (quoting
Montana, 450 U.S. at 566, 101 S.Ct. at 1258). The potential
impacts of regulated activities on the tribe must be
“serious and substantial.” Id. at 64,878.

EPA believes that tribes will normally be able to
demonstrate that the impacts of regulated activities are
serious and substantial due to “generalized findings” on
the relationship between water quality and human health
and welfare. See id. Nonetheless, under the Final Rule

8a

EPA will make a case-specific determination on the scope
of each tribal applicant’s authority. See id. Because EPA's
generalized findings will be incorporated into the anal-
ysis of tribal authority, the factual showing required
under § 131.8 is limited to the tribe’s assertion that (1)
there are waters within the reservation used by the tribe,
(2) the waters and critical habitat are subject to protection
under CWA, and (3) impairment of waters would have a
serious and substantial effect on the health and welfare of
the tribe. See id. at 64,879.

Once the tribe meets this initial burden, EPA will, in
light of the facts presented by the tribe and the gener-
alized statutory and factual findings regarding the impor-
tance of reservation water quality, presume that there has
been an adequate showing of tribal jurisdiction over fee
lands. See id. Unless the party objecting demonstrates the
tribe’s lack of jurisdiction, the EPA will determine there is
inherent authority. See id.

THE FLATHEAD RESERVATION
APPLICATION AND APPROVAL
FOR TAS STATUS

In 1992, the Tribes applied for TAS status with
respect to all surface waters within the Flathead Indian
Reservation. The Flathead Indian Reservation in Montana
is marked by at least two important characteristics that
have shaped this litigation. First, its dominant topical
feature is Flathead Lake, a large lake that, with its tribu-
taries, provides water for domestic, industrial, and agri-
cultural uses on the lands within the Reservation
boundaries. Second, the land within those boundaries
reflects a pattern of mixed ownership and control

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between tribal and non-tribal entities. These non-tribal
entities include the state, the county, and several munici-
palities that engage in regulated discharges on the Reser-
vation pursuant to existing NPDES permits.

In their application for TAS status, the Tribes identi-
fied several facilities on fee lands within the Reservation
that have the potential to impair water quality and bene-
ficial uses of tribal waters. These include feedlots, dairies,
mine tailings, auto wrecking yards and dumps, construc-
tion activities and landfills. Other actual or potential
point sources include wastewater treatment facilities,
commercial fish ponds and hatcheries, slaughterhouses,
hydroelectric facilities and wood processing plants.

Montana opposed granting the Tribes TAS status to
the extent such status would extend to reservation lands
and surface waters owned in fee by non-members of the
Tribes. The EPA director approved the Tribes’ application
after determining that the Tribes possessed inherent
authority over non-members on fee lands. Montana then
filed this action.

The Montana Appeal and the Scope of Inherent Authority

In general, absent express authorization by federal
statute or treaty, Indian tribes lack civil authority over the
conduct of non-members on non-Indian land within a
reservation. See Montana, 450 U.S. at 564, 101 S.Ct. at
1258. See also Strate v. A-1 Contractors, __. U.S. __, __.
117 S.Ct. 1404, 1409, 137 L.Ed.2d 661 (1997) (reaffirming).
The Court in Montana noted, however, that in certain
circumstances, even where Congress has not expressly
authorized it, Indian tribes retain inherent sovereign

10a

power to exercise civil jurisdiction over non-Indians on
fee lands. See Montana, 450 U.S. at 566, 101 S.Ct. at 1258.
The first exception to the general rule relates to non-
members who enter consensual relationships with the
tribe or its members. See id. at 565, 101 S.Ct. at 1258. The
second exception concerns conduct that “threatens or has
some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.” Id. at 556,
101 S.Ct. at 1258.

Although the Supreme Court has applied the Mon-
tana rule in subsequent cases, the Court’s 1989 fractured
decision in Brendale, 492 U.S. 408, 109 S.Ct. 2994, 106
L.Ed.2d 343, left some confusion as to what the correct
standard should be. Brendale involved the authority of
tribes to zone non-Indian fee land. Although the Justices
disagreed over how to apply Montana’s second exception
in that context, a majority of the Justices nonetheless
agreed that the Montana rule controlled. Id. Later, in
Strate, a unified court reaffirmed the vitality of Montana.
In Strate, which was after the district court decision in
this case, the Court stressed that there must be a nexus
between the regulated activity and tribal self-governance
in order for the second Montana exception to apply. See
Strate, at __, 117 S.Ct. at 1416.

Montana’s position in the district court and in this
court has been that EPA got the scope of inherent author-
ity wrong, and that the Tribes should be able to engage in
nonconsensual regulation of non-tribal entities only when
all state or federal remedies to alleviate threats to the
welfare of the tribe have been exhausted and have proved
fruitless. Their brief relies heavily upon the opinions of
Justices Stevens and White in Brendale to argue that the

lla

Brendale decision effectively repudiated the Montana stan-
dard. That standard, in appellants’ view, had erroneously
equated tribal sovereignty with local government police
power.

We agree with appellants insofar as they contend that
the scope of inherent tribal authority is a question of law
for which EPA is entitled to no deference. EPA’s decision
to adopt inherent tribal authority as the standard
intended by Congress may well be viewed in a deferen-
tial light because the statute’s language and legislative
history were not entirely clear. See Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
843-44, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984).
EPA’s delineation of the scope of that standard, however,
has nothing to do with its own expertise or with any need
to fill interstitial gaps in the statute committed to its
regulation. Therefore, EPA’s delineation of the scope of
tribal inherent authority is not entitled to deference.

We cannot agree with appellants, however, that EPA
has committed any material mistakes of law in its delin-
eation of the scope of inherent tribal authority. Rather, the
agency took a cautious view by incorporating both Justice
White’s and Justice Stevens’ admonitions in Brendale that,
to support the exercise of inherent authority, the potential
impact of regulated activities must be serious and sub-
stantial. See Final Rule, 56 Fed.Reg. at 64,878; Brendale, 492
U.S. at 431, 109 S.Ct. at 3008 (White, J.); id., 492 US. at
447, 109 S.Ct. at 3016 (Stevens, J.). Moreover, in Justices
Stevens’ and White’s opinions, upon which Montana
relies, there is no suggestion that inherent authority exists
only when no other government can act.

12a

Indeed the EPA decision appears to adumbrate the
Supreme Court’s holding in Strate, ___ U.S. __, 117 S.Ct.
1404, 137 L.Ed.2d 661, that the exercise of tribal jurisdic-
tion over non-tribal members engaged in traffic accident
litigation was not necessary to the self-governance of the
tribe. We therefore disagree with appellants that Brendale
overruled Montana. The Strate decision reaffirms the
vitality of Montana; Brendale did not repudiate it.

EPA’s decision, applying its standards in this case,
found that the activities of the non-members posed such
serious and substantial threats to Tribal health and wel-
fare that Tribal regulation was essential. We have previ-
ously recognized that threats to water rights may invoke
inherent tribal authority over non-Indians. “A tribe
retains the inherent power to exercise civil authority over
the conduct of non-Indians on fee lands within its reser-
vation when that conduct threatens or has some direct
effect on the health and welfare of the tribe. This includes
conduct that involves the tribe’s water rights.” Colville
Confederated Tribes v. Walton, 647 F.2d 42, 52 (1981) (inter-
nal citations omitted, emphasis added). Colville also sup-
ports EPA’s generalized finding that due to the mobile
nature of pollutants in surface water it would in practice
be very difficult to separate the effects of water quality
impairment on non-Indian fee land from impairment on
the tribal portions of the reservation: “A water system is
a unitary resource. The actions of one user have an imme-
diate and direct effect on other users.” Id.

In contrast, the tribes in Strate reserved no right to
exercise control over the federal right-of-way maintained
by the state. See Strate, at __,117-S-Ct. at 1414. Further-
more, the conduct of users of a small stretch of highway

13a

has no potential to affect the health and welfare of a tribe
in any way approaching the threat inherent in impair-
ment of the quality of the principal water source.

Our decision is also fully consistent with the only
other circuit opinion that has yet considered the issue of
tribal authority to set water quality standards. City of
Albuquerque v. Browner, 97 F.3d 415 (10th Cir.1996). In that
case, the tribe had promulgated WQS that were more
stringent than federal standards. The city contended that
the tribal standards could not be more stringent than
federal standards. The court rejected the contention,
observing that the authority to establish such standards
“is in accord with powers inherent in Indian tribal sover-
eignty.” Id. at 423.

Accordingly, we affirm the district court’s decision
that EPA’s regulations pursuant to which the Tribe’s TAS
authority was granted are valid as reflecting appropriate
delineation and application of inherent Tribal regulatory
authority over non-consenting non-members.

THE INTERVENORS’ APPEAL

The Intervenors consist of the Flathead Joint Board of
Control, two irrigation districts, and four individual irri-
gators who own land in fee situated within the bound-
aries of the Reservation. None of the proposed
intervenors, however, holds an NPDES permit that may
potentially be modified due to any change in WQS
imposed by the Tribes.

To prevail on a motion to intervene as of right, the
intervenor must (1) make a timely motion, (2) claim a

l4a

“significantly protectable” interest in the property that is
the subject of the action, (3) demonstrate impairment of
its ability to protect that interest, and (4) prove that the
interest is inadequately represented by the parties to the
action. See Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th
Cir.1993).

The district court held that because the Intervenors
do not hold NPDES permits, the transfer of the right to
establish WQS from the state to the Tribes “will have no
immediate or any foreseeable, demonstrable effect upon
the proposed intervenors.” In their briefs to this court,
the Intervenors attempt to state a broader interest in the
enforcement process by suggesting that the imposition of
standards promulgated by the Tribes would violate their
civil rights by subjecting them to tribal jurisdiction. They
also argue that EPA approval of tribal WQS would
depress the value of their property.

Because the Intervenors hold no NPDES permits they
could not be subject to NPDES enforcement proceedings.
Moreover, TAS status does not confer enforcement
authority on the Tribes; it only enables the Tribes to set
the standards. Even if the Tribes applied for enforcement
authority, the NPDES permits would still be issued by
EPA and enforced in federal, not tribal, courts. Finally,
even assuming that EPA’s approval of the tribal WQS
program might affect property values, such a speculative
and purely economic interest does not create a protect-
able interest in litigation concerning a statute that regu-
lates environmental, not economic, interests. See Portland
Audubon Soc’y v. Hodel, 866 F.2d 302, 309 (9th Cir.1989) (an
adverse economic impact does not create a significant

15a

protectable interest in litigation under the National Envi-
ronmental Policy Act); see also Sierra Club, 995 F.2d at
1485-86 (city that holds permit under CWA has a protect-
able interest in CWA litigation that might affect a city’s
discharge from permitted operations).

CONCLUSION

The district court correctly entered summary judg-
ment in favor of the defendants on the underlying chal-
lenge to the grant of TAS status to the Tribes, and it also
correctly denied the Intervenors’ application to intervene
as of right. Its judgment is AFFIRMED.

16a

STATE OF MONTANA; Lake County, Montana, a
political subdivision of the State of Montana; City of
Ronan, Montana, a municipality of the State of
Montana; and Town of Hot Springs, Montana, a
municipal corporation, Plaintiffs,

v.

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, an agency of the United States; Carol
Browner, Administrator of the United States
Environmental Protection Agency; and the
Confederated Salish and Kootenai Tribes, Defendants.

No. CV 95-56-M-CCL.

United States District Court,
D. Montana,
Missoula Division.

March 27, 1996.
Joseph P. Mazurek, Attorney General for State of
Montana, Harley R. Harris, Clay R. Smith, Office of the
Montana Attorney General, Helena, MT, for Plaintiffs.

Sherry S. Matteucci, U.S. Attorney, District of Mon-
tana, Office of the U.S. Attorney, Billings, MT, Deanne L.
Sandholm, Office of the U.S. Attorney, Helena, MT, David
A. Carson, U.S. Department of Justice, Environmental
Enforcement, Denver, CO, Lauren N. Soll, U.S. Depart-
ment of Justice, Environment & Natural Resources, Wash-
ington, DC, for Defendant Environmental Protection
Agency and Defendant Carol M. Browner.

Daniel F. Decker, Confederated Salish & Kootenai
Tribes, Legal Department, Pablo, MT, for The Confeder-
ated Salish and Kootenai Tribes of the Flathead Nation.

Jon Metropoulos, Doney, Crowley, Bloomquist &
Metropoulos, P.C., Helena, MT, for Flathead Joint Board

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17a

of Control, Mission Irrigation District, Jocko Valley Irriga-
tion District, Flathead Irrigation District, Ross Middle-
mist, Wayne W. Maughan, William Slack, Glenn Murphy.

OPINION AND ORDER
LOVELL, District Judge.

Before the court is a motion to intervene filed by the
Flathead Joint Board of Control, the Mission Irrigation
District, the Jocko Valley Irrigation District, the Flathead
Irrigation District, Ross Middlemist, Wayne Maughan,
William Slack, and Glenn Murphy. The Defendants
oppose the motion, but Plaintiff consents to the interven-
tion. Also before the court are cross motions for summary

judgment.

1. Background.

In July, 1993, the Confederated Salish and Kootenai
Tribes (the “Tribes”) submitted a completed application
for treatment-as-state (“TAS”) status under section 303,
33 U.S.C. § 1313, of the Clean Water Act (“CWA”), 33
U.S.C. §§ 1251-1387 (1987 & 1995 Cum.Supp.), with
respect to all surface waters within the Flathead Indian
Reservation (the “Reservation”). The Environmental Pro-
tection Agency (“EPA”) notified the State of Montana
(“Montana”) of the Tribes’ application pursuant to 40
C.F.R. § 131.8(c)(2). Montana timely filed its comments
regarding the application in accordance with 40 C.F.R.
§ 131.8(c)(3). Montana opposed the EPA granting the
Tribes TAS status on the ground that the Tribes do not
possess inherent civil regulatory authority over lands

18a

owned by nonmembers. Montana also contested factual
assertions made by the Tribes in its application and
requested an evidentiary hearing through which Montana
could contest the Tribes’ factual allegations. Because only
Montana was considered an “appropriate governmental
entity” entitled to make comments on the Tribes applica-
tion, see 56 Fed.Reg. 64876, 64884 (December 12, 1991), the
local government Plaintiffs and the proposed intervenors
submitted their comments through Montana. All public
comments were considered by the EPA before reaching its
decision. See Decision Document, p. 7, AR # 27.

On February 27, 1995, the Director of EPA Region
VIII approved the Tribes’ application to establish water
quality standards for surface waters within the Reserva-
tion under section 303 of the CWA. The EPA found that
Montana did not rebut the presumption created by the
Tribes’ showing that pollution of surface waters travers-
ing or appurtenant to nonmember land would have
serious and substantial impact on the Tribes’ health and
welfare. On March 28, 1995, the Tribes adopted water
quality standards for all surface waters on the Reserva-
tion.! The Tribe has submitted those standards to the EPA
for approval in accordance with section 303(c) of the
CWA.

' The court notes that, according to the EPA Regional
Administrator, the water quality standards actually adopted by
the Tribes are “virtually identical” to the water quality
standards set by Montana. See Letter of William P. Yellowtail to
Senator Conrad Burns, Exhibit 2, Reply Brief in Support of
Motion to Intervene.

19a

2. Pleadings.

Plaintiffs filed their first amended complaint for
declaratory and injunctive relief on June 8, 1995. Plaintiffs
invoke the court’s jurisdiction pursuant to the Adminis-
trative Procedures Act, 5 U.S.C. § 702.

(a) Plaintiffs’ complaint.

Montana holds a permit that allows discharges into
Flathead Lake from the State’s Yellow Bay research facil-
ity. Montana’s permit was issued by the State under the
Montana Pollutant Discharge Elimination System
(“MPDES”). Mont.Code Ann. § 75-5-605(2) (1994);
Mont.Admin.R. 16.20.1300-.1347. Montana believes that
because the EPA has decided to grant the Tribes treat-
ment-as-state (TAS) status, the State will now be required
to seek an additional permit from the EPA under its
National Pollutant Discharge Elimination System
(“NPDES”) program. See 33 U.S.C. § 1342.

Lake County owns a wastewater treatment facility on
the Reservation, which makes discharges into Post Creek.
Lake County already holds an NPDES permit issued by
the EPA.

The City of Ronan owns a wastewater treatment facil-
ity on the Reservation, which makes discharges into
Crow Creek. Ronan holds an MPDES permit issued by
the State of Montana. Ronan alleges that EPA is now
requiring it to obtain an NPDES permit.

The Town of Hot Springs owns a wastewater treat-
ment facility within the Reservation, which makes dis-
charges into Hot Springs Creek. Hot Springs holds an

20a

MPDES permit issued by the State of Montana. Hot
Springs alleges that EPA is now requiring it to obtain an
NPDES permit.

Plaintiffs’ First Claim for Relief asserts that the EPA’s
final decision is based upon an erroneous application of
legal principles relating to the Tribes’ inherent regulatory
authority and that the interested parties were not granted
an evidentiary hearing attacking the facts upon which the
agency decision was based. Furthermore, Plaintiffs state
that the final decision improperly subjects them to the
civil regulatory authority of the Tribes and infringes on
Montana’s authority under section 401 of the CWA.?
Montana concludes that the EPA’s decision to grant TAS
status to the Tribes has or will in the future result in the
State of Montana being deprived of its authority as a state
under section 401 of the CWA.

Plaintiffs’ Second Claim for Relief asserts that the
Tribes are without authority to rely on the agency action
for the purpose of regulating Plaintiffs’ activities on the
Reservation.

The Plaintiffs request a declaratory judgment that
determines that the agency action granting TAS to the

2 Under section 401, 33 U.S.C. § 1341, the relevant state
must certify to the EPA that a proposed NPDES permit will be in
compliance with state’s water quality standards. Of course,
because the Tribes have been granted TAS status, Montana is no
longer the certifying authority for purposes of section 401.
However, whether Montana or the Tribes certifies compliance,
in either instance the EPA retains final decision-making
authority over the issuance of NPDES permits.

iti ici seta G tie

2la

Tribes pursuant to section 518(e) of the CWA was unlaw-
ful and that the Tribes are without authority to rely upon
the agency action.

(b) EPA’s Answer to Plaintiffs’ Complaint.

EPA concedes that Yellow Bay’s compliance with the
CWA is conditioned upon Yellow Bay’s application for a
NPDES permit if Yellow Bay discharges pollutants from a
point source into waters of the United States on the
Flathead Reservation. EPA questions who historically
considered Yellow Bay to be in compliance with the CWA.
Likewise, EPA questions who historically considered
Ronan’s wastewater treatment facility to be in compliance
with the Clean Water Act. EPA also admits that Ronan’s
compliance with the CWA is conditioned upon Ronan’s
application for and receipt of a federal NPDES permit if
Ronan discharges pollutants from a point source into
waters of the United States on the Flathead Reservation.
EPA poses a similar question and states a similar admis-
sion as to the Town of Hot Springs.

EPA also avers that federal administrative remedies
are available to any discharger who is required to obtain
a permit from EPA pursuant to section 402 of the CWA.
See 40 C.F.R. § 122-124 (1995). EPA admits that such a
permit may include effluent limitations necessary to meet
the water quality standards adopted by the Tribes. How-
ever, EPA asserts that it and not the Tribes will retain

3 The Tribes’ Answer to Plaintiffs’ Complaint avers that the
Yellow Bay Wastewater Treatment Facility made an application
for an NPDES permit on June 19, 1995.

22a

NPDES permitting authority on the Reservation,* and
that it and not Montana has always held CWA regulatory
jurisdiction over the waters of the United States on the
Flathead Indian Reservation. The EPA also asserts that
the court lacks jurisdiction over Plaintiffs’ claims, that the
complaint states claims for which relief cannot be
granted, that Plaintiffs lack standing, that Plaintiffs’
claims are not ripe for review and are not justiciable.

(c) Tribes’ Answer to Plaintiffs’ Complaint.

The Tribes admit they have waived their sovereign
immunity for purposes of accepting service of Plaintiffs’
First Amended Complaint. The Tribes assert that Plain-
tiffs’ claims are not within the zone of interests meant to
be protected by the Clean Water Act and that Plaintiffs’
interest has not been or will not be injured or adversely
affected by agency action within the meaning of 5 U.S.C.
§ 704. The Tribes assert that there is no actual controversy
upon which this court may declare the rights and legal
relations, and therefore Plaintiffs’ claims are not justicia-
ble. The Tribes assert that Montana has failed to timely
challenge the 1991 regulations upon which EPA’s decision
is based; the Tribes assert that Montana’s claim is stale
since Montana commented on the regulations and/or
actively participated in the formulation of those regula-
tions by the EPA. Finally, the Tribes assert that the Plain-
tiffs have failed to allege facts sufficient to establish a

+ See EPA’s Memorandum in Opposition to JBC’s Motion to
Intervene, at p. 8.

23a

valid facial challenge to the regulations and policy com-
plained of in Plaintiffs’ complaint.

(d) Proposed Plaintiff-Intervenors’ proposed com-
plaint.

The JBC and the Irrigation Districts provide water for
over one hundred thousand acres of irrigated land,° and
the water is delivered from the federal Flathead Irrigation
and Power Project. Approximately 2,000 farmers and
ranchers own this land. Proposed Intervenors bring their
complaint pursuant to the APA, 5 U.S.C. § 702. Intervenor
Irrigation Districts assert inter alia that they have been
granted the power by the Montana Legislature to appro-
priate water, acquire water rights, acquire reservoirs 2nd
dams, and acquire the land for such works. Mont.Code
Ann. § 85-7-1904 (1995). The Irrigation Districts also
assert that they hold the power to regulate, supervise,
apportion and control water distribution. Mont.Code
Ann. § 85-7-1922 (1995).

The JBC and the Irrigation Districts have filed
numerous lawsuits involving the irrigation system on-+he
Reservation. They have filed water rights claims in the
Montana Water Court pursuant to the Montana Water
Use Act, Mont.Code Ann. § 85-2-101, et seq. (1995). They
have, with Intervenors Middlemist and Maughan, filed

5 The Flathead Indian Reservation encompasses some 1.2
million acres, and contains approximately 4,000 natural stream
miles. In addition, approximately 1300 miles of irrigation canals
and laterals exist under the authority of the Flathead Agency
irrigation Division/Flathead Irrigation Project, Bureau of
Indian Affairs, United States Department of the Interior.

24a

suit against the Tribes to contest tribal Ordinance 87A,
the Aquatic Lands Conservation Ordinance (“ALCO”).
Middlemist, et al. v. Pablo, et al., CV No. 95-68-M-CCL;
Middlemist, et al. v. Pablo, et al., No. 95-343- CV (Tribal
Court). Without explanation, proposed Plaintiff-Inter-
venors suggest that this court’s decision in this case may
have stare decisis or res judicata effect on the ongoing
litigation in Middlemist v. Pablo.

Proposed Plaintiff-Intervenors Wayne Maughan, Ross
Middlemist, William Slack and Glenn Murphy are irriga-
tors and members of the JBC and the Irrigation Districts.
They commonly undertake typical irrigation activities in
the course of farming and ranching.

Proposed Plaintiff-Intervenors complain that they
received no individual notice of the Tribes’ application
for TAS status because the EPA has specifically excluded
individuals and local governments from the TAS notice
and comment process. See 40 C.F.R. § 131.8(c)(2) (1995); 56
Fed.Reg. at 64884. The EPA notifies, and requests the
comments of, only the relevant federal agencies and state
and tribal governments. However, the EPA does place an
announcement in appropriate newspapers, directing
interested parties to submit their comments to the appro-
priate state government. Id. In this case, all public com-
ments submitted through the State of Montana were
considered by the EPA.

Proposed Plaintiff-Intervenors assert that the Tribes
have previously attempted to recover from the United
States certain water rights, hunting and fishing rights,
rights to land, and exclusive use and occupation of the
reservation. See Act of March 13, 1924, 43 Stat. 21; Act of

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25a

July 30, 1946, 60 Stat. 715; Act of August 13, 1946, 60 Stat.
1049, Indian Claims Commission Act. Proposed Plaintiff-
Intervenors theorize that the Tribes should now be pre-
cluded from making additional claims to sovereign
authority over nonmember activity on fee land, having
foregone such additional claims at earlier opportunities.

Proposed Plaintiff-Intervenors express concern that
the Tribes might assert authority over either civil or crim-
inal violations of the CWA. Proposed Plaintiff-Inter-
venors assert that they cannot receive a fair trial in a
tribal court, which trial would, among other things, vio-
late their right to be tried by a jury of their peers. Pro-
posed Plaintiff-Intervenors object to the fact that the
Tribes will not permit them to vote, hold office, sit on a
jury, or act as tribal judges.

Proposed Plaintiff-Intervenors’ First Claim for Relief
asserts that the agency action is not in accordance with
the law and has aggrieved them within the meaning of 5
U.S.C. § 702. The Second Claim for Relief asserts that the
agency action was unlawful because it denied Murphy
the opportunity to be heard. The Third Claim for Relief
asserts that the agency action was unlawful because it
presumed that the Tribes have civil regulatory jurisdic-
tion over Murphy. The Fourth Claim for Relief asserts
that the agency action violates the supremacy clause of
the United States Constitution in that Congress has previ-
ously divested the Tribes of civil regulatory jurisdiction,
and EPA cannot now contradict that divestment. The
Fifth Claim for Relief asserts that the agency action is
unlawful because it divests them of their federal constitu-
tional right to full and equal participation in the govern-
ment under which they must live.

26a

3. Applicable Statutes and Regulations.

The EPA administers the Clean Water Act (“CWA”),
33 U.S.C. §§ 1251-1387 (1987 & 1995 Cum.Supp.). The
CWA was enacted in order to restore and maintain the
quality of the Nation’s waters, see 33 U.S.C. § 1251(a), and
it prohibits the discharge from a point source® of any
pollutant into the waters of the United States unless that
discharge complies with the CWA. 33 U.S.C. § 1311{(a).
The CWA was amended in 1987 by the Water Quality Act
of 1987 (“WQA”), P.L. 100-4, 101 Stat. 7. The WQA added
a new provision, section 518, which allows the EPA to

treat Indian tribes as states for certain purposes of the
Act. 33 U.S.C. § 1377(e).

There are two major permit programs in the CWA.
Section 402 of the CWA provides the framework for a
permitting system for pollution dischargers, known as
the National Pollutant Discharge Elimination System
(“NPDES”). See 33 U.S.C. § 1342. Section 404 of the CWA
provides the framework for an Army Corps of Engineers
permitting system for discharges of dredged or fill mate-
rial into the waters of the United States. See 33 U.S.C.
§ 1344.

The permit programs are based upon water quality
standards that are set by the states pursuant to section
301(b)(1)(C) of the CWA, 33 U.S.C. § 1311(b)(1)(C). The

6“[A]ny discernible, confined and discrete
conveyance . . . from which pollutants are or may be
discharged.” 33 U.S.C. § 1362(14). “[A]gricultural stormwater
discharges and return flows from irrigation” are excluded from
the definition of “point source.” Id.

MTL ee EET Re TS Ne pene.

27a

CWA requires each state to adopt water quality standards
for its intrastate and interstate waters. 33 U.S.C.
§ 1313(a)-(c). The EPA must approve the water quality
standards set by states. 33 U.S.C. § 1313(c)(1), (3). When
the EPA is the permitting authority, states have the
opportunity to certify whether a discharge under a pro-
posed permit will be consistent with its water quality
standards. 33 U.S.C. § 1341. If the state concludes that its
water quality standards will not be achieved, then the
permit cannot issue unless it is modified to comply with
the standards. Id.

Irrigation is not an activity regulated by the CWA,
which specifically excludes “agricultural stormwater dis-
charges and return flows from irrigated agriculture” from
point source regulation. 33 U.S.C. § 1362(14). The CWA
does not regulate the extraction or allocation of ground-
water or surface water, or any other water quantity right.
33 U.S.C. § 1251(g). Instead, the CWA regulates pollutants
added to surface water from point sources. See 40 C.F.R.
§ 122.1(b).

Under section 518(e) of the WQA, the EPA is autho-
rized to treat an Indian tribe in the same manner as a
state for certain purposes, including the development of
water quality standards. 33 U.S.C. § 1377(e); 40 C.FR.
§§ 131.3-131.8 (1995). Section 518 provides that:

The Administrator is authorized to treat an
Indian tribe as a State for purposes of title II and
sections 104, 106, 303, 305, 308, 309, 314, 319,
401, 402, and 404 of this Act [33 U.S.C.S. §§ 1281
et seq., 1254, 1256, 1313, 1315, 1318, 1319, 1324,
1329, 1341, 1342, 1344] to the degree necessary

28a

to carry out the objectives of this section, but
only if - a

(1) the Indian tribe has a governing body car-
rying out substantial governmental duties and
powers;

(2) 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, held by the United States 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; and

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

Such treatment as a State may include the direct
provision of funds reserved under subsection (c)
to the governing bodies of Indian tribes, and the
determination of priorities by Indian tribes,
where not determined by the Administrator in
cooperation with the Director of the Indian
Health Service. The Administrator, in coopera-
tion with the Director of the Indian Health Ser-
vice, is authorized to make grants under title II
of the Act in an amount not to exceed 100 per-
cent of the cost of a project. Not later than 18
months after the date of the enactment of this
section, the Administrator shall, in consultation
with Indian tribes, promulgate final regulations
which specify how Indian tribes shall be treated
as States for purposes of this Act. The Adminis-
trator shall, in promulgating such regulations,
consult affected States sharing common water

29a

bodies and provide a mechanism for the resolu-
tion of any unreasonable consequences that may
arise as a result of differing water quality stan-
dards that may be set by States and Indian tribes
located on common bodies of water. Such mech-
anism shall provide for explicit consideration of
relevant factors including, but not limited to, the
effects of differing water quality permit require-
ments on upstream and downstream dis-
chargers, economic impacts, and present and
historical uses and quality of the waters subject
to such standards. Such mechanism should pro-
vide for the avoidance of such unreasonable
consequences in a manner consistent with the
objective of this Act.

* * *

(h)(1) “Federal Indian reservation” means all
land within the limits of any Indian reservation
under the jurisdiction of the United States Gov-
ernment, notwithstanding the issuance of any
patent, and including rights-of-way running
through the reservation; and

(2) “Indian tribe” means any Indian tribe,
band, group, or community recognized by the
Secretary of the Interior and exercising govern-
mental authority over a Federal Indian reserva-
tion.

33 U.S.C. § 1377(e), (h) (1987 & Cum.Supp.1995)
(emphasis added). The court has reviewed the amicus
curiae brief submitted by the Assiniboine and Sioux
Tribes of the Fort Peck Reservation, Montana, whose
application to EPA for TAS status is now pending.
Amicus counsel asserts, based upon the statutory lan-
guage emphasized above, that section 518 provides tribes

30a

with federally-delegated tribal jurisdiction over non-
Indians. Their reading emphasizes the fact that in section
518(h) Congress expressly included all lands of the Reser-
vation within its definition of the Reservation, “notwith-
standing the issuance of any patent,” and in section
518(e) Congress expressly specified that the Tribes should
manage and protect water resources that are (1) held by
an Indian tribe, (2) held by the United States in trust for
Indians, (3) held by a member of an Indian tribe if such
property interest is subject to a trust restriction on aliena-
tion, or (4) otherwise within the borders of an Indian
reservation. It appears that the legislative history is
ambiguous, although only arguably so since the legisla-
tive history relates mainly to concern regarding whether
section 518(e) pertains to water quantity rights of non-
Indians, which of course it does not.

Congress may delegate such jurisdiction to Indian
tribes. See United States v. Mazurie, 419 U.S. 544, 557, 95
S.Ct. 710, 717-18, 42 L.Ed.2d 706 (1975) (affirming federal
conviction for violation of tribal liquor ordinance on basis
of a federal delegation to the Wind River Tribe of right to
regulate liquor trade on reservation). Indeed, the statu-
tory language seems to indicate plainly that Congress did
intend to delegate such authority to tribes if the three
criteria listed in section 518(e) were met. In fact, in the
Brendale decision, Justice White, writing for the Court,
cited this very statute as an example of an explicit delega-
tion of Congressional authority to Indian tribes. See Bren-
dale v. Confederated Tribes and Bands of the Yakima Nation,
492 U.S. 408, 428, 109 S.Ct. 2994, 3006-07, 106 L.Ed.2d 343
(1989) (White, J.). This interpretation of sections 518(e)

(
and (h)(1) comports with common-sense, for it seems

3la

highly unlikely that Congress contemplated granting to
tribes the authority to set water quality standards for
only those segments of streams traversing or appurtenant
to Indian lands, while at the same time state water quality
standards would remain in effect on the reservation for
those same streams where the stream segments traverse
or bound non-Indian land. However, 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. See 56
Fed.Reg. 64,876, 64,879-80 (1991).

The application regulations are found at 40 C.F.R.
§ 131.8, adopted by the EPA on December 12, 1991. 56
Fed.Reg. 64895 (Dec. 12, 1991), as amended at 59 Fed.Reg.
64344 (Dec. 14, 1994). § 131.8(a) provides that:

The Regional Administrator . . . may accept and
approve a tribal application for purposes of
administering a water quality standards pro-
gram if the Tribe meets the following criteria:

(1) The Indian Tribe is recognized by the Secre-
tary of the Interior...,

(2) The Indian Tribe has a governing body car-
rying out substantial governmental duties and
powers,

(3) The water quality standards program to be
administered by the Indian Tribe pertains to the
management and protection of water resources
which are within the borders of the Indian reser-
vation and held by the Indian Tribe, within the
borders of the Indian reservation and held by
the United States in trust for Indians, within the
borders of the Indian reservation and held by a

32a ,

member of the Indian Tribe if such property
interest is subject to a trust restriction on aliena-
tion, or otherwise within the borders of the
Indian reservation, and

(4) The Indian Tribe is reasonably expected to
be capable, in the Regional Administrator’s
judgment, of carrying out the functions of an
effective water quality standards program in a
manner consistent with the terms and purposes
of the Act and applicable regulations.

40 C.F.R. § 131.8(a) (1995).

In the preamble to EPA’s Final Rule regarding the
procedures by which an Indian tribe may qualify for TAS,
the EPA analyzes inherent tribal authority over reserva-
tion lands owned in fee by nonmember. 56 Fed.Reg.
64876. Specifically, the EPA analyzes Montana v. United
States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981),
and Brendale v. Confederated Tribes and Bands of the Yakima
Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343
(1989). The EPA adopted an interim operating rule, to be
applied on a case-by-case basis, to determine whether an
Indian tribe has authority over reservation lands owned
in fee by nonmembers. 56 Fed.Reg. at 64878-79.

The EPA’s operating rule is based on the second
Montana exception allowing for tribal authority over non-
member lands: “a tribe may also 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 integ-
rity, the economic security, or the health or welfare of the
tribe.” Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258. The
EPA’s operating rule requires a tribe to show that the

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‘a leg eis EN IE EOL le POST TL AE oe)

tha Si DRG RE VELA SE ale BP EGR

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33a

“potential impacts of regulated activities on the tribe are
serious and substantial.” 56 Fed.Reg. at 64878. In other
words, the EPA does not require a tribe to wait until a
point source discharger located on non-Indian lands is
actually polluting tribal waters before the tribe can apply
for TAS status; instead, a tribe can simply show that there
is a potential for such pollution in the future and were
such pollution to occur it would have serious and sub-
stantial impacts upon the tribe.

In determining the scope of inherent tribal authority
for purposes of section 518(e), the EPA considered the
Supreme Court's decision in Brendale v. Confederated Tribes
and Bands of the Yakima Nation, 492 U.S. 408, 109 S.Ct.
2994, 106 L.Ed.2d 343 (1989) (4:2:3 split, deciding that
county should have exclusive zoning authority over non-
Indian property in predominantly fee area but tribe
should have exclusive zoning authority over non-Indian
property in predominantly tribal area). The EPA deter-
mined that the primary significance of Brendale is that its
result is consistent with the exceptions stated in Montana:

Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over
non-Indians on their reservations, even on non-
Indian fee lands. A tribe may regulate . . . the
activities of non-members who enter consensual
relationships with the tribe or its members,
through commercial dealings, contracts, leases,
or other arrangements. . . . A tribe may also
retain inherent power to exercise civil authority
over the conduct of non-Indians on fee lands

within its reservation when that conduct

ee ee Ne ne Te

34a

threatens or has some direct effect on the politi-
cal integrity, the economic security, or the health
or welfare of the tribe.

Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258 (citations
omitted). The EPA interpreted Brendale as finding no
tribal jurisdiction where the proposed activities “would
not threaten the Tribe’s . . . health or welfare.” Brendale,
492 U.S. at 432 (White, J., writing for the Court). EPA
concluded that the best policy is to determine tribal
authority over nonmember fee lands on a case-by-case
basis, by examining potential threats against water qual-
ity as they relate to a particular Tribe’s health or welfare.
EPA noted that in Brendale the issue was zoning, whereas
in water quality management it is easier to establish
effects on tribal health and welfare. Id. at 64879.” There-
fore, the EPA decided to require a showing from each
tribal applicant “that the potential impacts of regulated
activities on the tribe are serious and substantial.” 56
Fed.Reg. at 64878.

In that 1991 rule, however, the EPA reserved to itself
the opportunity to take into account environmental stat-
utes and legislative findings regarding the seriousness of
water pollution. Jd. In making a factual finding of impact
of a water-related activity on a particular tribe, the EPA

7 This is so because zoning impacts are normally discrete
and localized, whereas water pollution creates environmental
health risks that may affect many people miles from the source.
When tribal members use surface water, or take fish or animal
resources that use the surface water, pollution from non-Indian
lands within the reservation could have a grave impact upon
tribal health and environmental interests.

35a

also relies on its special expertise and practical experi-
ence in the areas of water management and the impact of
clean water on critical habitat. Id. The EPA notes that
pollutants in surface waters are mobile by nature, and it
is impractical to try to separate water quality impairment
of tribal waters from impairments of non-Indian waters.
Id. “EPA believes that a ‘checkerboard’ system of regula-
tion, whereby the Tribe and State split up regulation of
surface water quality on the reservation, would ignore
the difficulties of assuring compliance with water quality
standards when two different sovereign entities are estab-
lishing standards for the same small stream segments.”
Id. In light of the importance of water quality manage-
ment in protecting public health and safety, and in light
of the mobile nature of water pollution, the EPA made a
generalized finding that there is a relationship between
water quality and tribal health and welfare.

The 1991 rule further determines that in order to
meet the requisites of § 131.8, a tribe need only assert that
there are waters in the reservation used by the tribe or
tribal members, the waters are subject to protection under
the CWA, and impairment of those waters by the activ-
ities of non-Indians would have a serious and substantial
effect on the health and welfare of the Tribe. Id. at 64879.
At that point, according to the EPA, a tribe has made an
adequate showing of tribal jurisdiction over fee lands,
and it is up to the competing governmental entity to
demonstrate the tribe’s lack of jurisdiction. Id. Presuma-
bly, the competing governmental entity would need to
prove that impairment of tribal waters by the activities of
non-Indians would not have a serious and substantial
effect on the health and welfare of a tribe.

Fe en a ee

36a

4. Legal Standards on Motion to Intervene.

(a) Intervention as of Right.

The four-part test for intervention as of right under
Rule 24(a) is as follows:

(1) The motion must be timely; (2) the appli-
cant must claim a “significantly protect-
able” interest relating to the property or
transaction which is the subject of the
action; (3) the applicant must be so situated
that the disposition of the action may as a
practical matter impair or impede its ability
to protect that interest; and (4) the appli-
cant’s interest must be inadequately repre-
sented by the parties to the action.

Sierra Club v. Environmental Protection Agency, 995
F.2d 1478, 1481 (9th Cir.1993). The proposed intervenor
bears the burden of demonstrating that he is entitled to
intervene under Rule 24. Petrol Stops Northwest v. Conti-
nental Oil Co., 647 F.2d 1005, 1010 n. 5 (9th Cir.), cert.
denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 639 (1981).

(b) Permissive Intervention.

A court may exercise its discretion to grant permis-
sive intervention when (1) the motion is timely, Rule
24(b); (2) the movant’s claim or defense and the main
action have a question of law or fact in common, Rule
24(b)(2); and (3) movant has an independent ground of
jurisdiction to support permissive intervention. See
Greene v. United States, 996 F.2d 973, 978 (9th Cir.1993); see
also 3B Moore’s Federal Practice, § 24.18. If proposed
intervenors make these three showings, a court may then

37a

utilize its discretion to determine the most fair and most
efficient method of handling the case.

5. Discussion of Motion to Intervene.

The EPA Decision Document notes that tribal regula-
tory jurisdiction over non-members is not being deter-
mined for all purposes, but merely for the purpose of
setting water quality standards for the Reservation under
40 C.F.R. § 131.8(a)(3). The EPA intends to continue issu-
ing federal permits under section 402 of the CWA
(NPDES), which the EPA will then enforce in federal
court.

The Defendants contend that the proposed Plaintiff-
Intervenors have no “significantly protectable” interest in
this litigation. Proposed Plaintiff-Intervenors claim ten
separate interests: (1) ownership of real property within
the reservation; (2) ownership of water quantity rights
within the Reservation; (3) ownership of a water use
permit issued by the State of Montana and accompanying
right to operate a reservoir within the Reservation; (4)
attempted participation in the administrative process for
the challenged decision; (5) participation in other litiga-
tion allegedly relating to the subject matter of this case;
(6) interests in retaining constitutional rights; (7) interests
in real property; (8) interests in prior acts of Congress
interpreting tribal authority; (9) interest in maintaining
JBC and the Districts as local governments; (10) interests
in retaining the right to a trial by a jury of their peers for
CWA civil violations and the right to participate in the
administrative process by which the agency decision was
reached.

38a

However, the federal Defendants point out that the
proposed intervenors have no special interest in the sub-
ject matter of this particular litigation — water quality
standards of surface waters of the Flathead Indian Reser-
vation. Because the proposed intervenors’ sole interest
lies in irrigation, they have no “significantly protectable”
interest in this case. The federal Defendants inform the
court that none of the proposed intervenors holds an
NPDES permit which might potentially be modified due
to any change in water quality standards imposed by the
Tribes. Therefore, proposed intervenors are not in any
way directly affected by the transfer of water quality
standards authority from the State to the Tribes. Put
another way, the transfer of the right to establish water
quality standards from the State to the Tribes will have no
immediate or any foreseeable, demonstrable effect upon
the proposed intervenors.

In Sierra Club v. Environmental Protection Agency, 995
F.2d 1478, the Ninth Circuit concluded that the CWA
protects the interest of a person who discharges pollu-
tants pursuant to a NPDES permit, and held that an
NPDES permit holder could intervene in a case which
might result in stricter permit discharge limits. Here,
none of the proposed Intervenors possess an NPDES
permit or would in any demonstrable way be affected by
the setting of water quality standards by the Tribes. Nei-
ther do any of the proposed Intervenors engage in any
activity that is regulated by the CWA.® Proposed Inter-
venors’ reliance on their possession of a water use permit

* It is conceivable that one or more of the proposed
Intervenors could be engaging in regulated activity. See 40
C.F.R. § 122.23 (requiring NPDES permit for Concentrated

ee

39a

relating to allocation of reservoir water is of no effect
because it has no relationship to the CWA or the issues in
this case.

Proposed Intervenors also cite Mille Lacs Band of Chip-
pewa Indians v. Minnesota, 989 F.2d 994 (8th Cir.1993), to
support their intervention. However, that appellate panel
ruled that certain counties and individuals should have
been allowed to intervene in that litigation because their
land would be directly affected by the Mille Lacs Band’s
right to enter their properties for the purposes of hunting
and fishing. There is no such clear link in this case.

Proposed Intervenors assert that their interests are
significantly protectable, and that the defendants have
failed to adequately address their interests. Perhaps that
is so because their interests are so vaguely stated. For
example, proposed Intervenors assert that any expansion
of governmental power by the Tribes causes their prop-
erty values to drop; thus their purported property inter-
est is in keeping tribal government small.? This general

Animal Feeding Operations). See also Appendix B to Part 122,
defining Concentrated Animal Feeding Operations as having
more than 1,000 slaughter and feeder cattle, 700 mature dairy
cattle (milked or dry), 2,500 swine, 500 horses, 10,000 sheep or
lambs, etc., confined to a lot not having vegetative growth for at
least 45 days per year. However, because none of the proposed
Intervenors possesses an NPDES or asserts that he engages in
any regulated activity requiring an NPDES permit, the court
assumes that none of their farm and ranch operations meets the
criteria for a Coneentrated Animal Feeding Operation.

° Proposed Intervenors present the affidavit of Mr. Stelling,
a certified real estate agent/broker and owner of a real estate
firm in western Montana. Mr. Stelling concludes that “I am

40a

concept may be accurate, but the interest is vague and
attenuated, and there is no statute that entitles proposed
Intervenors to bring such a claim.

Similarly vague and confusing is proposed Inter-
venors interest in protecting their right to trial by jury of
their peers. This court cannot fathom what it is in this
case that relates to the right to trial by jury of one’s peers
or in what way this right would be violated.

Proposed Intervenors state that they are also (in
other litigation) challenging the Tribes’ right to require
them to obtain a permit from the Shoreline Protection
Office of the Natural Resources Department of the Tribes
pursuant to Tribal Ordinance 87A (the Aquatic Lands
Conservation Ordinance (“ALCO”)). See Middlemist v.
Pablo, CV 95-68-M-CCL. Proposed Intervenors make the
claim that the fact that they are litigating tribal jurisdic-
tion over non-member lands in Middlemist should entitle
them to intervene in this litigation. However, proposed
Intervenors do not have any apparent interest in permit-
ted discharges of pollutants regulated by the CWA. Fur-
thermore, the EPA’s finding of tribal jurisdiction over

convinced that until and unless the issue of tribal jurisdiction
over non-member property is resolved with a finding that they
do not have such authority, property values will continue to be
lower than comparable lands in other areas.” (Stelling Aff.,
Exhibit 8, Mem.Supp.Interv.) It is apparent that proposed
Intervenors believe that their land should have comparable
values to off-reservation land. Standing alone, this claim for loss
of property value tied to strength of tribal government does not
suffice to support intervention as of right, and the cases cited by
proposed Intervenors do not support the contention.

as

4la

surface waters appurtenant to non-member lands is lim-
ited to the statutes and regulations in issue in this case.

This court finds that the proposed Intervenors have
no significantly protectable interest in the outcome of this
litigation and therefore are not entitled to intervene as of
right.

As to permissive intervention, this court questions
whether proposed Intervenors have any independent
grounds of jurisdiction to support their permissive inter-
vention. See Greene v. United States, 996 F.2d 973, 978 (9th
Cir.1993) (requiring independent grounds of jurisdiction
to support permissive intervention). The Administrative
Procedures Act does not provide independent jurisdic-
tional basis; it only prescribes standards for reviewing
agency action once jurisdiction is otherwise established.
Staacke v. United States Secretary of Labor, 841 F.2d 278 (9th
Cir.1988). Proposed Intervenors have no statutory basis
for suit pursuant to the CWA. See Middlesex Cty. Sewerage
Auth. v. Sea Clammers, 453 U.S. 1, 15-18, 101 S.Ct. 2615,
2623-25, 69 L.Ed.2d 435 (concluding that Congress
intended that no private remedies be implied by the CWA
in addition to those expressly provided). However, even
if proposed intervenors could establish an independent
ground of jurisdiction, this court would not be inclined to
grant permissive intervention for the reason that such
intervention would be likely to unduly delay or compli-
cate the resolution of this case. Such an intervention
would not lead to the fairest and most efficient handling

of this case.

42a

6. Cross Motions for Summary Judgment.
(a) Legal Standard.

A party is entitled to summary judgment in its favor
if it can “show that there is no genuine issue as to any
material fact and . . . [it] is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is
particularly appropriate where, as here, review is on the
administrative record. Adams v. United States, 318 F.2d
861, 865 (9th Cir.1963); Denison v. Udall, 248 F.Supp. 942,
944 (D.Ariz.1965) (“there should be no de novo review by
this Court, but a determination that the final administra-
tive decision is or is not substantially supported by the
administrative record. Therefore, a summary judgment
pursuant to [Fed.R.Civ.P. 56] may be granted for either
party in response to their cross motions”). See also Florida
Fruit & Vegetable Ass'n v. Brock, 771 F.2d 1455, 1459 (11th
Cir.1985), cert. denied, 475 U.S. 1112, 106 S.Ct. 1524, 89
L.Ed.2d 921 (1986) (Summary judgment procedure is
“particularly appropriate” in record review cases) (quot-
ing 10A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d § 2733 (1983)).

(b) Discussion.

The focus of the cross motions for summary judg-
ment is whether the EPA properly interpreted Montana
and Brendale when it concluded that the Tribes could
meet the second Montana exception. The Plaintiffs assert
that the Montana test has given way to an open-closed
area analysis first enunciated in Brendale and repeated in
South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124

43a

L.Ed.2d 606 (1993). The parties are in agreement that this
court must subject EPA’s interpretation of case law to de
novo review. See Arizona Pub. Serv. Co. v. Aspaas, 69 F.3d
1026, 1031 (9th Cir.1995).

However, in reviewing the final EPA action, this
court may not make a de novo determination. Instead,
this court must determine whether the EPA’s action was
“arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law.” 5 U.S.C. § 706(2)(A). See
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,
91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Rybachek v.
Environmental Protection Agency, 904 F.2d 1276, 1284 (9th
Cir.1990). This court’s function is to ensure that the
agency considered all of the relevant factors and that its
decision contained no ‘clear error of judgment.’ ” Arizona
v. Thomas, 824 F.2d 745, 748 (9th Cir.1987) (citation omit-
ted). This court need not determine that the EPA’s con-
struction of the CWA is the only construction possible;
instead, this court must determine that EPA’s understand-
ing of this CWA provision is sufficiently rational as to
preclude this court from substituting its judgment for
that of EPA. Chemical Mfrs. Ass'n v. Natural Resources
Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107-08,
84 L.Ed.2d 90 (1985). Finally, “[a]n agency’s interpretation
of its own regulations is entitled to a high degree of
deference and will be upheld as long as it is not plainly
erroneous or inconsistent with the regulation.” Washing-
ton State Health Facilities v. DSHS, 879 F.2d 677, 681 (9th
Cir.1989) (citing United States v. Larionoff, 431 U.S. 864, 97
S.Ct. 2150, 53 L.Ed.2d 48 (1977)).

The Montana test has been previously applied with
regard to civil regulatory jurisdiction of the Tribes over

44a

nonmember lands on the Flathead Reservation. For exam-
ple, in Confederated Salish & Kootenai Tribes v. Namen, 665
F.2d 951, 964 (9th Cir.), cert. denied, 459 U.S. 977, 103 S.Ct.
314, 74 L.Ed.2d 291 (1982), a Ninth Circuit panel deter-
mined that the Tribes’ regulation of nonmember property
bordering Flathead Lake under a shoreline protection
ordinance was a permissible exercise of tribal authority
under second Montana exception because there was a

potentiality [sic] for serious impacts on the water quality
of the lake.

The EPA analyzed relevant case law, including Mon-
tana and Brendale, and determined that the Montana test is
still utilized by the United States Supreme Court in eval-
uating tribal regulatory jurisdiction over nonmember
lands. The EPA declined to interpret section 518(e) as a
direct grant of regulatory authority to tribes, although
there are some who do interpret section 518(e) in that
fashion.'° Instead, the EPA determined that it would
examine tribal authority on a case-by-case basis. In the
case of the Tribes, the EPA found sufficient facts to sup-
port the Tribes’ claim that pollution of the surface waters
traversing or appurtenant to non-member land would
have serious and substantial impact on the Tribes’ health
and welfare. Such fact finding by the EPA is entitled to
substantial deference. Arkansas v. Oklahoma, 503 U.S. 91,
112, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992); Central
Arizona Water Cons. Dist. v. Environmental Protection
Agency, 990 F.2d 1531, 1539-40 (9th Cir.), cert. denied, 510

10 See 56 Fed.Reg. 64879-80. See also Brief Amicus Curiae of
the Assiniboine and Sioux Tribes of the Fort Peck Reservation,
Montana.

ER Oe

45a

U.S. 828, 114 S.Ct. 94, 126 L.Ed.2d 61 (1993). Even if
alternative findings could be supported by the adminis-
trative record, the EPA’s factual findings should be
upheld if they are supported by the administrative
record. Arkansas v. Oklahoma, 503 U.S. at 112, 112 S.Ct. at
1060.

Nevertheless, Plaintiffs assert that the EPA’ reading
of Montana and Brendale leads to an erroneous legal deter-
mination that the Tribes possess inherent regulatory juris-
diction over nonmember lands within the Reservation.
Their reading of Brendale and Bourland,"' in particular,
leads them to the conclusion that inherent tribal jurisdic-
tion exists only when there is a vacuum of state or federal
remedies. However, both Brendale and Bourland support
the continuing validity of the Montana test, and in Bren-
dale the Supreme Court used the Montana test to deter-
mine that the tribe did have regulatory jurisdiction over
the the [sic] Brendale property. Three Justices in Brendale
supported the continued use of the Montana test. 492 U.S.

'! South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct. 2309, 124
L.Ed.2d 606 (1993). In Bourland, the Cheyenne River Sioux Tribe
sought to regulate hunting and fishing activities of non-Indians
on the Oahe Reservoir, a federal facility within the exterior
boundaries of their reservation. The opinion cites Montana’s
general rule that the opening of Indian lands causes a tribe to
lose its treaty-based right to regulate non-Indian activities.
However, Bourland also goes on to cite the Montana exception
allowing for regulation of activities that threaten or directly
impact the political integrity, economic security, or health and
welfare of the tribe. Finally, the Bourland opinion remanded the
case back to the circuit court for review of the district court's
findings regarding the impact of non-Indian activities on tribal
health and welfare.

46a

at 462, 109 S.Ct. at 3024 (Opinion of Blackmun, J.). Four
other Justices support the use of a modified Montana test
that would require the tribe to show that there would be
“demonstrably serious impacts” on the tribe. Id. at
428-32, 109 S.Ct. at 3006-09 (Opinion of White, J.).!? Only
two Justices advocated distinguishing between open and
closed areas. Id. at 440-44, 109 S.Ct. at 3013-15. (Opinion
of Stevens, ].).

The Supreme Court subsequently considered Brendale
in County of Yakima v. Confederated Tribes and Bands of the
Yakima Indian Nation, 502 U.S. 251, 266-67, 112 S.Ct. 683,
692-93, 116 L.Ed.2d 687 (1992), and stated that Justice
White’s opinion (requiring “demonstrably serious
impacts”) is consistent with the test enunciated in Mon-
tana. Because Justice White’s opinion in Brendale essen-
tially set a stricter standard for the Montana test, EPA
determined that it would apply that stricter standard to
any tribe applying for TAS status.

The EPA also made several generalized findings in its

regulations:

1. The CWA constitutes a congressional find-
ing that impacts to water quality give rise to
impacts to human health and welfare.

2. Water quality standards must take into con-
sideration public water supplies, propagation of
tish and wildlife, recreational purposes, and
agricultural, industrial and other purposes.

'2 It is noteworthy that Justice White cites TAS status under
the CWA as providing an example of an express Congressional
delegation of tribal regulatory authority over non-Indian lands.
Brendale, 492 U.S. at 428, 109 S.Ct. at 3006-07.

47a

3. Because of the mobile nature of pollutants, it
is impractical to regulate stream segments
according to the member/nonmember checker-
board.

EPA’s expertise and experience in making these
determinations is not to be treated lightly. Also, the EPA’s
environmental regulatory policy is to avoid administra-
tive complexity such as checkerboarding and fractionaliz-
ing of reservations into trust and fee lands. This
regulatory policy serves as a foundation for EPA’s Indian
policy, which calls for a lead role for tribal governments
in managing programs to protect the reservation environ-
ment and its populace. See EPA Policy for the Administra-
tion of Environmental Programs on Indian Reservations,
(Nov. 8, 1984). This court should defer to the EPA’s exper-
tise and experience when it reconciles its environmental
policy with its Indian policy. State of Wash., Dept. of Ecol-
ogy v. EPA, 752 F.2d 1465, 1469 (deferring to EPA’ recon-
ciliation of environmental policy and Indian policy in
finding that states lack authority to administer Resource
Conservation and Recovery Act on Indian reservation).

The EPA also made a specific finding as to the Tribes’
inherent jurisdiction over surface waters traversing or
appurtenant to nonmember lands within the Reservation.
The EPA affirmed that the Tribes require clean water for a
domestic water supply and to maintain fish, aquatic life
and other wildlife for both subsistence and cultural rea-
sons. Because the Tribes had explicitly asserted that
impairment of tribal waters by activities of non-members

would have a serious and substantial effect on the health
and welfare of the Tribes, and because that assertion
corresponded to the EPA’s generalized findings, the EPA

48a

found that the Tribes’ possess inherent authority to set
water quality standards for all surface waters within the
Reservation. The EPA also found that the State failed to
demonstrate that such authority was lacking. The EPA's
finding was also based upon numerous instances of regu-
lated activities occurring on nonmember lands that
caused serious and substantial impacts of the Tribes’
water resources, including discharges from an RV park
and campground, discharges from sewage treatment
plants, discharges from a town’s storm drains, leakage
from gasoline service stations, diesel fuel spills, and gas
tank overflows.

7. Conclusion.

On the basis of the foregoing description of the EPA’s
reasoning and findings, and after careful consideration of
the arguments of the parties and review of the adminis-
trative record, this court finds that the EPA’s final deci-
sion is supported by the administrative record, consistent
with EPA’s regulations, and not contrary to law, and
should be upheld. Accordingly,

IT IS HEREBY ORDERED:

1. Proposed Intervenor’s motion for leave to file
memorandum of supplemental authorities (Docket #30) is
GRANTED.

2. Defendant Tribes’ motion for summary judgment
(Docket #47) and Defendant EPA’s motion for summary
judgment (Docket #43) are GRANTED.

3. Plaintiffs’ motion for summary judgment (Docket
#45) is DENIED.

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—_—

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49a

4. Defendant Tribes’ motion to strike initial brief of

intervenor and motion for summary judgment (Docket
#47) is GRANTED.

5. Defendant Tribes’ motion for leave to file errata
to brief in support of Tribes’ motion for summary judg-
ment (Docket #53) is GRANTED.

6. Proposed Intervenors’ motion for leave to file
response brief to initial briefs (Docket #57) is DENIED.

7. Proposed Intervenors’ motion for leave to file
reply brief and initial brief nunc pro tunc (Docket #64) is
DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ complaint
is DISMISSED and all relief is denied.

The Clerk is directed forthwith to notify the parties
and the proposed Intervenors of entry of this order.

50a

(Logo) UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
REGION VIII
999 18th STREET — SUITE 500
DENVER, COLORADO 80202-2466

FEB 27 1995
Ret: SWM-WO
Michael Pablo, Chairman
Confederated Salish and Kootenai Tribal Council

P.O. Box 278
Pablo, MT 59855

Dear Chairman Pablo:

| am pleased to inform you that the Agency approves
the Contederated Salish and Kootenai Tribes’ (CSKT)
application to administer a Clean Water Act (CWA)
§ 303(c) water quality standards program. Our approval
is based on the Agency's determination that the Tribes
meet the criteria for program approval found at 40 CFR
131.8(a). Please note that the scope of our appr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1623%3A01. Public record. Not legal advice.