Opposition Brief — Montana v. Environmental Protection Agency

No. 97-1929 JUN 26 19%

In The

Supreme Court of the United States

October Term, 1997

t

STATE OF MONTANA; LAKE COUNTY, MONTANA;

CITY OF RONAN, MONTANA, a municipal corporation;

TOWN OF HOT SPRINGS, MONTANA,

a municipal corporation,

Petitioners,

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

¢

BRIEF OF RESPONDENT TRIBES IN OPPOSITION

+

Daniet F. DecKER

JoHN B. CarTER

Counsel of Record

The Confederated Salish

and Kootenai Tribes

Tribal Legal Department

P.O. Box 278

Pablo, MT 59855

(406) 675-2700

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the Environmental Protection Agency properly pro-

mulgate and act upon federal regulations establishing

Agency procedures necessary to determine on a case-by-

case basis whether it should treat a Tribal government as

a state for purposes identified by Congress in Section

1377 of the Clean Water Act?

il

TABLE OF CONTENTS

Page

TABLE CO AUS EPRSS Sees 6k = one ce ween nsecvencevas iii

COPUNEL ANS DLA «oso 35 oh cc cspoepeae spec seuaes 1

FUP ESUI TIS co views cca vie ceases bee naneeeeeees 1

STATUTES AND REGULATIONS INVOLVED ...... 1

INTRON CT IAN ooo on chceaaens ch eee aeeeeroes 2

SIATEMENT OF THE CASE... «35 s.5656e Gee 3

ARGUMENTS a5 scsi Sel ebac bas Pewee bees 8

THE PETITION FAILS TO SATISFY ANY OF THE

ELEMENTS OF RULE 10 OF THE RULES OF THE

SUPREME COURT OF THE UNITED STATES.... 8

1. The Decision Here Does Not Conflict With Any

Federal or State Court Decision (Rule 10(a)).... 8

No

The EPA Decision Comports With Proper

Agency Procedures And Represents A Prudent

Analysis of Tribal Authority ................. 10

3. Petitioners Misrepresent The Plain Language

OF The Clean Woetee Act. so i2ce ee 15

4. This Case Does Not Involve A State Court

Decision On An Issue Of Federal Law (Rule

TORE. ie Re ae ee 17

5. There Is No Conflict With Relevant Decisions

Of This Cousct Giate 2leh 6666s eee ee 17

CONCLAISOOMG oso. v0 0 sek as eee eo eee 17

————— Es

ill

TABLE OF AUTHORITIES

Page

TABLE OF CASES:

Arkansas v. Oklahoma, 503 U.S. 91 (1992)......... passim

Baltimore Gas and Electric v. Natural Resource

prepemee Gouneh, 462 415. 87 (19835)... 6 obec eis ces S

Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408 (1989)... 3, 10, 11, 12, 14, 15

California Coastal Construction Commission v. Gran-

eae Se, GO Wee FE CEPOT) Picks escent ese 13

Chevron v. Natural Resource Defense Council, 467

a ee sso KS ik Sw Ee Oe < ee Dy Oe Site Bas hey a

City of Albuquerque v. Browner, 97 F.3d 415 (10th

Cir. 1996) cert. denied, 118 S.Ct. 410, 139

L. Ed. 2d 314, 65 U.S.L.W. 3194 (Nov. 10, 1997)

International Paper Co. v. Quellette, 479 U.S. 481

1 GRR S HESS Pacey pep REUIPap Ty eke te tr aiees eee Sear ER EL FGA 16

Milwaukee v. Illinois, 451 U.S. 304 (1980)........ 33,10

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

ce OME O er Gk WE A y's WH bo eens ly | Ie ie Bae 3 Same

Nance v. Environmental Protection Agency, 645 F.2d

701 (9th Cir. 1981) cert. denied, 454 U.S. 1081

PS ee SC EN CLA TKR GSS) oo ah RRMA CS Oe kS ah oss 4

Narragansett Indian Tribe v. Narragansett Electric

fag ee Ree EC UOG REE DMO ic eens ae seieecsees 9

State of Montana v. United States Environmental Pro-

tection Agency and Confederated Salish and

Kootenai Tribes, 137 F.3d 1135 (9th Cir. 1998) .. 1, 4, 9

iV

TABLE OF AUTHORITIES - Continued

Page

Strate v. A-1 Construction, 518 U.S. 1056, 117 S.Ct.

Cs Bk 1g Seer a nro pain rerier bar har, Gh 3, 13, 14

Washington Department of Ecology v. Environmental

Protection Agency, 752 F.2d 1465 (9th Cir. 1985) ..... 4

OTHER AUTHORITY:

Code of Federal Regulations

ee Ok Ae ee ee Ef Sapaeeary were gein ne pruning arr nae 1

United States Code

FAST re ee POE TERI oo aS Seka os Pina ee Fs

2 Ms ee RAAT vk cs crs veka hee eet in eee ens 1

Bo Matas I Ree Oe OE CE PET DS anh thin eeeeireers : age es

Be A SOE ak i oe Wee eT Dee aa 4,5, 6

SSAC 8 OE a a ee ee 6

BS AR SNES oes 2a a NEO e ae ee 7,48

De Sea RR ee OG) Sees oo es oe ee 7

SS GE PE A ERR RRS Aa wed ed Dae Oe wee bee 6

Be Rees A RES Ye Kd kT RNA RAT CL ER 16

Be Bae IEE 6 EE ae BAG ORE CO OER DASE passim

Be Ries We MEET a 6 os a Coe eda ower a ee ae

So 4) aN Be As tS «6k os Re REE 6, 14

Rules of Supreme Court

aie SEs fy ook een ie eee fhe ater pe Ney 8

RE BOE i ok ao ae aa NS SS ees 17

PORN RE oo ae Se a SR RSE oe ee ee ee 17

OPINIONS BELOW

The opinion of the Court of Appeals reported at 137

F.3d 1135 (9th Cir. 1998), is reproduced in the Petition at

Pet. la. The opinion of the District Court (Pet. 16a) is

reported at 941 F.Supp. 945 (D. Mont. 1996).

+

JURISDICTION

Judgment of the Court of Appeals was entered on

March 3, 1998. The petition for writ of certiorari was filed

on May 29, 1998. Jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTES AND REGULATIONS INVOLVED

This judicial review of the exercise of Agency statu-

tory discretion arises out of an Environmental Protection

Agency rulemaking and decisional process exclusively

within the parameters of the following statutes and regu-

lations:

1. Clean Water Act of 1972, as amended, 33 U.S.C.

§ 1251-1387 (1997), specifically § 1377, reproduced at Pet.

130a.

2. Water Quality Standards: Requirements for

Indian Tribes to Administer a Water Quality Program, 40

C.F.R. § 131.8 (1997), reproduced at Pet. 113a.

+

INTRODUCTION

If Congress had not enacted the Clean Water Act (33

U.S.C. § 1251 et seq., 1997), this case would not exist. In

1987 Congress amended the Clean Water Act to add

§ 1377, entitled “Indian tribes,” which authorizes the

Environmental Protection Agency (“EPA”) to treat Tribal

governments as the functional equivalent of states for

enumerated programs. Pet. 130a. Congress vested EPA

with broad statutory discretion to promulgate regulations

to implement the statute. 33 U.S.C. § 1377(e). EPA prop-

erly engaged in the rulemaking process (Pet. 92a) and in

accordance with those regulations determined that the

Confederated Salish and Kootenai Tribes (“Tribes”)

should be “treated as a state” under § 1377 for the pur-

pose of establishing surface water quality standards for

waters within the Flathead Indian Reservation. Pet. 50a.

EPA retained all permitting and enforcement authority

under the Act. Pet. 50a. Petitioners brought suit seeking

judicial review of these Agency actions under the Admin-

istrative Procedures Act, 5 U.S.C. § 701 et seq. (1997). In a

summary judgment proceeding, the trial court found that

“EPA’s final decision is supported by the administrative

record, consistent with EPA’s regulations, and not con-

trary to law, and should be upheld.” Pet. 48a. The appeals

court affirmed. Pet. 1a.

Petitioners seek to ignore this history and their active

participation in all aspects of it. They minimize the con-

trolling role of Congressional and federal agency actions

pertaining to the Clean Water Act, an act EPA is uniquely

qualified to implement. Instead they seek to place before

this Court a case of their own making, which, if success-

ful, would require the Court to ignore its prior decisions

on the scope of Tribal authority in Montana v. United

States, 450 U.S. 544 (1981), Brendale v. Confederated Tribes

and Bands of Yakima Indian Nation, 492 U.S. 408 (1989), and

Strate v. A-1 Construction, 518 U.S. 1056, 117 S.Ct. 1404

(1997), as well as controlling decisions addressing the

very EPA discretionary authority at issue in this case,

notably Arkansas v. Oklahoma, 503 U.S. 91 (1992), Mil-

waukee v. Illinois, 451 U.S. 304 (1980), and Chevron v.

Natural Resource Defense Council, 467 U.S. 837 (1984).

Petitioners are asking this Court to review a judicial

decision no court has made and a statute Congress did

not enact. This Court has previously declined a nearly

identical invitation involving the same statute, regula-

tions, and arguments in City of Albuquerque v. Browner, 97

F.3d 415 (10th Cir. 1996), cert. denied, 118 S.Ct. 410, 139

L. Ed. 2d 314, 65 U.S.L.W. 3194 (Nov. 10, 1997), a case

notably absent from the Petition. Certiorari should be

denied here also.

e—

STATEMENT OF THE CASE

Congress enacted the Clean Water Act, as amended,

“clearly to establish an all-encompassing program of

water pollution regulation. Every point source discharge

is prohibited unless covered by a permit, which directly

subjects the discharger to the administrative apparatus

established by Coffgress to achieve its goals.” Milwaukee,

451 U.S. at 318 (emphasis added).

The Clean Water Act (hereafter “Act”) originally only

allowed delegation of federal water pollution programs

to state governments that satisfied federal requirements.

In 1987 Congress amended the Act to include 33 U.S.C.

§ 1377, entitled “Indian tribes”. Pet. 130a. “That section

authorizes EPA to permit Indian tribes ‘to be treated as a

state’ (TAS) for purposes of promulgating water quality

standards” under Section 1313 of the Act. (33 U.S.C.

§ 1313 (1986)). State of Montana v. United States Environ-

mental Protection Agency and Confederated Salish and

Kootenai Tribes, 137 F.3d 1135, 1138 (9th Cir. 1998) (Pet.

4a); Albuquerque, 97 F.3d at 418.

Of central importance to this case, by enacting

§ 1377(e), Congress expressly granted the EPA Adminis-

trator extensive rule making authority for TAS purposes.

In so doing, “Congress has vested in the Administrator

broad discretion” to apply EPA’s expertise to establish

appropriate regulations to fulfill the federal policies of

the Act. Arkansas, 503 U.S. at 105.1 The federal policy

behind § 1377 is one of recognizing, under three specific

| EPA is the federal agency that is uniquely qualified to

administer and implement water quality programs under the

Act. Arkansas, 503 U.S. 91. (1992). Additionally, EPA is the

Agency with the “expertise and experience in reconciling”

questions of both Indian policy and environmental policy

gained through administration of federal environmental

statutes on [Indian reservations. Washington Department of

Ecology v. Environmental Protection Agency, 752 F.2d 1465 (9th

Cir. 1985). See also Nance v. Environmental Protection Agency, 645

F.2d 701 (9th Cir. 1981), cert. denied, 454 U.S. 1081 (1981). Since

Nance, EPA has gained nearly two decades of additional

expertise in the area.

ee ee eee Te

criteria contained therein,? the right of a tribe, inter alia,

to establish water quality standards for surface waters

within Reservation boundaries. Furthermore, when as in

this case, the agency decision involves scientific deter-

minations within an area of special expertise, “a review-

ing court must generally be at its most deferential.”

Baltimore Gas and Electric v. Natural Resource Defense Coun-

cil, 462 U.S. 87, 103 (1983).

The provisions of § 1377 define the extent of the

exercise of the “Agency’s statutory discretion.” Arkansas

at 105. The provisions of § 1377 (Pet. 130a), EPA’s imple-

menting regulations (Pet. 113a), and the Agency decision

to treat the Tribes as a state for the purpose of establish-

ing water quality standards under § 1313 of the Act (Pet.

50a) are the Congressionally-established “administrative

apparatus” the Milwaukee Court identified as defining the

proper limits of this litigation.

* The statutory criteria to be applied by EPA in determining

whether a tribe is to be treated as a state under the Act are:

(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 . . . 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 applicable regulations.

33 U.S.C. § 1377(e) (emphasis added).

The EPA decision at issue here (Pet. 50a) recognized

the Tribes as a state only for purposes of establishing

surface water quality standards under 33 U.S.C. § 1313

and issuance of water quality certifications under 33

U.S.C. § 1341 for “waters of the United States”? that occur

within the exterior boundaries of the Flathead Indian

Reservation.* As with state water quality standards in a

non-Reservation setting, the Tribal standards, promul-

gated in each instance with substantial guidance from the

EPA, “are part of the federal law of water pollution

control.” Arkansas at 110.

* The Congressional goal of the Act is to control, at the

source, pollution of “navigable waters of the United States.” 33

U.S.C. § 1251; 33 U.S.C. § 1362(7). The Act provides for various

Federal, Tribal and State programs to address surface water

pollution. The Act does not authorize any government to

engage in land use regulation. Nevertheless, Petitioners persist

throughout their brief in intimating that this is a case in which

EPA unlawfully sanctioned an exercise of Tribal regulatory

authority over land use. Neither Congress nor EPA did what

Petitioners allege.

* Congress authorized EPA to treat Tribes as states for all

surface waters within the borders of a Reservation. The

geographic scope of a Reservation is defined at § 1377(h)(1) as

“all land within the limits of any Indian reservation under the

jurisdiction of the United States Government, notwithstanding

the issuance of any patent, and including rights-of-way running

through the reservation.” Congress therefore, anticipated a

unitary set of Tribal water quality standards, regardless of land

ownership. Petitioners’ fee/trust distinction, the gravamen of

the Petition, flies in the face of plain language of the Act. Just as

Congress opened the Reservation to non-Indian land

acquisition (Pet. 2), here Congress authorized EPA to accept the

application of Tribal water quality standards to waters

traversing that same land.

ae

Contrary to Petitioners’ spectral vision of “coercive”

and “unrestrained” Tribal powers arising out of the EPA

decision (Pet. at 15, 18), the Tribes engage in no permit or

enforcement proceedings for any activity subject to the

Act. As with state water quality programs, EPA may, and

in fact does here, retain all permitting and enforcement

authority under the National Pollutant Discharge Elim-

ination System (“NPDES”) program (33 U.S.C. § 1342)

throughout the Reservation. Federal NPDES permits are

the permits at issue and Petitioners acknowledge they are

obligated to obtain them under the Act. Pet. 3. The Tribes

chose not to seek delegation of that TAS. Therefore, in

accordance with the clear authority under the Act (33

U.S.C. § 1342(b) and (c)), EPA retained permitting an

enforcement authority on the Reservation. The TAS

approval document at issue expressly put the Petitioners

on notice that “This approval does not provide any addi-

tional authorities (e.g. permitting, enforcement) beyond the

water quality standards and water quality certification

programs.” Pet. 50a (emphasis added). See also Pet.

21a-22a.

The practice of EPA applying state (here Tribal) water

quality standards to an EPA-issued NPDES discharge per-

mit comports with this Court’s analysis in Arkansas.

There, a downstream state challenged upstream dis-

charges under a ‘competing sovereigns’ jurisdictional

analysis. This Court found it “unwise to evaluate those

arguments in a case such as these [sic], which only

involve a federal permit.” Arkansas at 104. This case only

involves federal permits. The Tribes issue no permits

under the Act. There, as here, the exercise of judicial

restraint in the face of an Agency action that fulfills the

policy of the Act is proper.

©

ARGUMENT

THE PETITION FAILS TO SATISFY ANY OF THE ELE-

MENTS OF RULE 10 OF THE RULES OF THE

SUPREME COURT OF THE UNITED STATES

1. The Decision Here Does Not Conflict With Any

Federal or State Court Decision (Rule 10(a)).

As the Ninth Circuit noted, the decision in City of

Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert.

denied, 118 S.Ct. 410, 139 L.Ed.2d 314, 65 U.S.L.W. 3694

(Nov. 10, 1997), the only Circuit decision to address this

same set of questions, is entirely consistent with this case.

Pet. 13a. Pursuant to an EPA TAS grant, the Isleta Pueblo

established water quality standards that would require

the off-Reservation upstream City of Albuquerque to

expend significant resources to upgrade its sewage treat-

ment facility. This was necessary to attain Tribal stan-

dards on Pueblo waters. The City sued, arguing that

Tribal sovereign powers were insufficient to justify this

off-Reservation impact on a political subdivision of the

State.° Albuquerque at 421-423. The City unsuccessfully

5 Petitioners argue (Pet. 18-19) that the instant case is the

first instance of an appeals court confirmation of Tribal

authority over governmental activities of a state or its political

subdivisions. Albuquerque demonstrates otherwise, and in the

arguably more attenuated off-Reservation setting. Furthermore,

§ 1377(e) of the Act provides a mechanism to address such a

dispute, should it even occur. See Albuquerque at 427-428.

m- —

argued that EPA acted arbitrarily and capriciously in this

regulatory framework, that EPA erred in its analysis of

Tribal sovereign authority, and that the decision to grant

TAS was therefore improper.

The statute and EPA regulations at issue here are the

same as in Albuquerque. The TAS grant there, as here, rests

on EPA’s reliance upon those regulations. There, as here,

the “substantial statutory discretion” vested by Congress

in EPA to establish the regulatory framework for imple-

mentation of § 1377 was upheld by the circuit court under

the Court’s rationale in Arkansas and Chevron, confirming

the parameters of judicial review of Agency actions. Albu-

querque at 421-423; Montana v. EPA, Pet. 11a, 45a.

The Petitioners fail to even mention Albuquerque, the

only other circuit court decision on the subject. This is

particularly disturbing in light of the Ninth Circuit con-

clusion that the instant case “is fully consistent with the

only other circuit opinion that has yet considered the

issue of tribal authority to set water quality standards.”

Pet. 13a. Instead, Petitioners raise Narragansett Indian

Tribe v. Narragansett Electric Co., 89 F.3d 908 (1st Cir. 1996)

and allude to it as a conflict between the Circuits. The

Narragansett decision does not deal with Reservation land

but rather a question of applicability of local land use

regulation to a Tribal land base recently established by a

special Congressional Settlement Act that authorized con-

current state and Tribal jurisdiction on certain subjects.

Narragansett at 913, 915. The only mention of the Clean

Petitioners did not even attempt to exhaust that

Congressionally-established dispute resolution mechanism.

10

Water Act is a passing reference in the second to the last

sentence of the published opinion. Id. at 922. That deci-

sion does not involve a conflict over a TAS decision made

by EPA. Narragansett is simply inapposite. Petitioners

cannot demonstrate any conflict between the circuits, for

none exist.

2. The EPA Decision Comports With Proper

Agency Procedures And Represents A Prudent

Analysis of Tribal Authority.

The decision follows the rules on judicial review of

an Agency action outlined in Arkansas, Milwaukee, and

Chevron and therefore cannot be interpreted as having

departed from the usual course of judicial review of an

Agency action. Ignoring that altogether, Petitioners seek

to minimize the controlling nature of that precedent with

a fabricated argument that the TAS decision is predicated

upon EPA’s erroneous interpretation of the doctrine of

inherent Tribal sovereign powers found in Montana v.

United States, 450 U.S. 544 (1981) and the plurality opin-

ions in Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989). Petitioners

argue that because EPA allegedly erred in its legal anal-

ysis of Montana and Brendale, the regulations upon which

this TAS decision is based are unlawful.

Petitioners cannot escape the fact that the boundaries

of this case are defined by the rule that:

considerable weight should be accorded to an

executive department’s construction of a statu-

tory scheme it is entrusted to administer, and

the principle of deference to administrative

interpretations ‘has been consistently followed

11

by this Court whenever decision as to the mean-

ing or reach of a statute has involved reconciling

conflicting policies’

Chevron at 844 (footnote omitted) (quoting United States v.

Shimer, 367 U.S. 374, 382-383 (1961). During its public

rulemaking process EPA extensively evaluated the Mon-

tana standard: that even in the absence of Congressional

action, “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.”

Montana at 566. Pet. 96a-112a. EPA also analyzed the

several plurality opinions of Brendale, which upheld Mon-

tana, id. It then revised the rule to require a Tribe to

demonstrate not just “some” effect, as posited in Mon-

tana, but rather “serious and substantial impacts” (Pet.

101a) to tribal interests.© Rather than being arbitrary and

capricious, the Ninth Circuit found this to be a “prudent”

6 In spite of clear language to the contrary, Petitioners

argue that EPA has applied a per se rule (“a virtually irrebuttable

presumption” Pet. 11) that if a Tribe applies for TAS on any

aspect of the Act it will get it. Pet. 6. The regulations belie this.

For example, as the Final Rule states:

EPA rejects the suggestion of other commentators that

EPA make a conclusive statement regarding the

extent of Tribal jurisdiction over fee lands for all

Tribes and all waters or even a statement regarding

any particular reservation, except in the context of an

actual treatment as a State application.

Pet. 99a. This imminently rational Agency decision comports

with the regulatory direction of determining the applicability of

§ 1377 on a “case-by-case basis, based upon factual findings”.

Pet. 101a.

12

melding of the two decisions of this Court into an operat-

ing regulation. That EPA decision comports with this

Court’s rule that:

The court need not conclude that the agency

construction was the only one it permissibly

could have adopted to uphold the construction,

or even the reading the court would have

reached if the question initially had arisen in a

judicial proceeding.

Chevron at 843, note 11 (citations omitted).

Petitioners interpret Brendale to have constricted

severely the Montana test. They argue that after Brendale,

the remaining attributes of inherent tribal authority over

nonIndians within Reservations consists of the right to

punish tribal offenders, determine tribal membership, regu-

late domestic relations among tribal members, and to pre-

scribe rules of inheritance for tribal members. Pet. 15-16.

Petitioners’ reading of Montana and Brendale, a ver-

sion they argue EPA should have adopted by regulation,

is erroneous for two reasons. First, Petitioners’ interpreta-

tion of this Court’s rulings would uphold an exercise of

inherent Tribal authority over nonIndians only when it

has no effect on nonIndians. Second, it ignores the subject

matter of the cases, as well as the Montana standard.

Montana addressed competing state and tribal claims to

regulate Reservation hunting and fishing. Brendale

addressed a similar conflict over land use planning.”

7 As this Court has noted, land use planning “in essence

chooses particular uses for the land; environmental regulation, at

its core, does not mandate particular uses of the land but

I a ana eras

eee

13

Neither hunting nor zoning is squarely addressed in a

pervasive Congressional framework, let alone an Act of

Congress with a TAS provision such as § 1377. Here, on

the other hand, the Clean Water Act preempts the field of

water pollution control and Congress expressly recog-

nized a Tribal role for all surface waters within Reserva-

tion boundaries.

Petitioners also argue that Strate v. A-1 Contractors,

518 U.S. 1056, 117 S.Ct. 1404 (1997) further constricts the

Montana test, a proposition the opinion itself belies. As

with Montana and Brendale, the subject matter of Strate

did not involve a pervasive federal legislative framework

such as the Clean Water Act. Rather, “It ‘arose between

two non-Indians involved in [a] run-of-the-mill thigh-

way] accident’” on a Reservation road, a situation this

Court found “ ‘distinctly non-tribal in nature’ ”. 117 S.Ct.

at 1415. The Strate Court relied upon the continued val-

idity of the Montana test, not its demise.® It can hardly be

requires only that, however the land is used, damage to the

environment is kept within prescribed limits. Congress has

indicated its understanding of land use planning and

environmental regulations as distinct activities.” (Emphasis

added). California Coastal Construction Commission v. Granite

Rock Co., 480 U.S. 572, 587 (197) (upholding environmental

regulation even in absence of ability to engage in general land

use regulation, id. at 587-589).

® In fact Strate identifies Montana as the “pathmaking case

concerning tribal civil authority over nonmembers.” Id. at 1409.

The Court found that the Montana opinion confirmed that “even

where Congress has not expressly authorized it, tribal civil

jurisdiction may encompass nonmembers.” Id.

Strate found that Montana “described a general rule that

absent a different Congressional direction,” Tribal jurisdiction is

14

error for EPA to have followed the guidance that has been

subsequently affirmed by this Court.

Here, EPA engaged in a regulatory process to recon-

cile the Congressional policy of treating Tribes as states

for surface waters of the United States within the Reser-

vation (§ 1377(h)(1)) with Petitioners’ conflicting policy of

opposing Tribal jurisdiction over nonIndians, and

reached a prudent balance. That balance should not be

disturbed. When Congress vests an agency such as the

EPA with regulatory authority it “necessarily requires the

formulation of policy and the making of rules to fill any

gap left, implicitly or explicitly, by Congress.” Morton v.

Ruiz, 415 U.S. 199, 231 (1974). Congress directed EPA to

promulgate implementing regulations (§ 1377(e); Pet.

133a) and specifically required the Administrator to con-

sult with tribes and states. Petitioners concede they par-

ticipated, as Congress directed. Pet. 8. The voluminous

Administrative Record makes that clear. The preamble to

the Final Rule confirms this. Pet. 95a. The Administrative

Record is replete with Petitioner’s input into the regula-

tory process. While the Tribes perceive § 1377 to be clear

and concise on its face regarding tribal jurisdiction over

reservation water quality, EPA thought otherwise. There-

fore, pursuant to Congressional direction, EPA promul-

gated the contested regulations. “Such legislative

regulations are given controlling weight unless they are

limited. Id. at 1409-1410. § 1377 is that “Congressional

direction,” envisioned by this Court. The opinion of Justice

White in Brendale, 492 U.S. at 428, in which the Court refers to

§ 1377 as a delegation of federal authority to tribes, rather than

to states, highlights the clarity of the statute.

15

arbitrary, capricious, or manifestly contrary to the stat-

ute.” Chevron at 844 (citations omitted). Since EPA

applied a prudent Montana/Brendale analysis, as the lower

courts determined, the regulations are sound.

3. Petitioners Misrepresent The Plain Language Of

The Clean Water Act.

Having failed to demonstrate the existence of conflict

in judicial decisions, Petitioners attempt to create a com-

plex federal question demonstrating a compelling reason

for this Court to accept the case. They argue that no one

has, or can, demonstrate that Montana’s water quality

laws have been preempted on non-Indian fee Reservation

lands. They argue that Congress “did not preempt state

law in the 1987 (§ 1377) amendments to the Act.” Pet. 17.9

Petitioners argue that a different conclusion would be

° This theory ignores the plain reading of the Act —- that

absent express delegation to a state, EPA retains all program

authority for water quality purposes. 33 U.S.C. § 1342.

Petitioners cite to no delegation from EPA to Montana to operate

a state water quality program on the Flathead Indian

Reservation, for none exists. EPA stated that it “has never

formally approved state water quality standards within the

exterior boundaries of an Indian reservation because it prefers

cohesive administrative management to fragmented

administrative management” inherent in the checkerboard

system Petitioners advocate. Brief of the Federal Appellees to

the Ninth Circuit at p. 40, September 30, 1996. In fact, as the

Administrative Record, AR 4, Ex. 10 (Montana Administrative

Rules § 16, Water Quality Standards in force prior to this

conflict) demonstrates, prior to this case Montana expressly

disclaimed water quality standards authority on all

Reservations in its rules.

16

incompatible with 33 U.S.C. § 1370, “which specifically

disclaims any intent ‘[e]xcept as expressly provided’ to

‘impair [ ] or in any manner affect [ ] any right or jurisdic-

tion of the States.’ ” Pet. 17. The full text of § 1370 tells a

much different story.!°

Petitioners selectively delete critical statutory lan-

guage from § 1370. In relevant part, § 1370 actually reads

that “[e]xcept as expressly provided in this chapter, noth-

ing in this chapter shall. . . be construed as impairing or

in any manner affecting any right or jurisdiction of the

States with respect to the waters (including boundary

waters) of such states.” (emphasis added). Petitioners

simply deleted the emphasized language when present-

ing § 1370 to this Court. Pet. 129a. The TAS statute, § 1377

is in “this chapter”

identified in Montana and Strate. It expressly autttorizes

EPA to treat Tribes as states. No amount of selective

and is the “Congressional direction”

editing by Petitioners can change that Congressional vest-

ing of authority in EPA. The City of Albuquerque tried a

similar and unsuccessful argument under § 1370. Albu-

querque at 423. That argument failed there and should

here.

10 This Court has previously classified § 1370 as a “savings

clause” that merely protects state-law suits from preemption by

the Acts’ citizen-suit provisions. International Paper Co. v.

Quellette, 479 U.S. 481, 492 (1986); See also Arkansas v. Oklahoma,

at 99-100; City of Albuquerque v. Browner, 97 F.3d at 423.

17

4. This Case Does Not Involve A State Court Deci-

sion On An Issue Of Federal Law (Rule 10(b)).

This case does not involve any state court decision on

any federal question and therefore doesn’t fall within the

provisions of Rule 10(b). The Petition relies exclusively

on federal statute, regulation and caselaw.

5. There Is No Conflict With Relevant Decisions

Of This Court (Rule 10(c)).

The lower court decisions upheld important and

well-established principles of law defining the role of the

courts in a judicial review of an Agency action. As dis-

cussed above, the decisions comport, rather than conflict,

with the relevant decisions of this Court. Accordingly, the

Petitioners also fail to satisfy the third and final element

of Rule 10(c).

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Danie. F. DECKER

JOHN B. CARTER

Confederated Salish and

Kootenai Tribal Legal Department

P.O. Box 278

Pablo, MT 59855

(406) 675-2700

Attorneys for Confederated

Salish and Kootenai Tribes