Amicus Curiae Brief — Montana v. Environmental Protection Agency

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5 FILED 23:

No. 97-1929 JUL 30 1998

IN THE OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED !sTAYRREME Court, us.

October Term, 1997

STATE OF MONTANA, et al.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, an agency of the United States,

et al.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATES OF ARIZONA,

CALIFORNIA, COLORADO, FLORIDA, IDAHO,

MICHIGAN, NEBRASKA, NEVADA, SOUTH DAKOTA,

UTAH, AND WISCONSIN, IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

THOMAS L. DOSCH*

JOHN S. GREENE

Assistant Attorneys General

*Counsel of Record

JAMES E. DOYLE

Attorney General

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-0770

Attorneys for Amici States

Grant Woods Jan Graham

Attorney General Attorney General

State of Arizona State of Utah

(602) 542-5025 (801) 538-9600

Daniel E. Lungren

Attorney General

State of California

(916) 323-7355

Gale A. Norton

Attorney General

State of Colorado

(303) 866-3052

Robert A. Butterworth

Attorney General

State of Florida

(850) 487-1963

Alan G. Lance

Attorney General

State of Idaho

(208) 334-2400

Frank J. Kelley

Attorney General

State of Michigan

(517) 373-1110

Don Stenberg

Attorney General

State of Nebraska

(402) 471-2682

Frankie Sue Del Papa

Attorney General

State of Nevada

(702) 687-4170

Mark W. Barnett

Attorney General

State of South Dakota

(605) 773-3215

TABLE OF CONTENTS

Page

es INTEREST OF THE AMICI

CAP oe we he eae et ee ae

II. REASONS FOR GRANTING THE

PSEA McG: Se oe a eee aa 11

A. THE COURT OF APPEALS’

DECISION NULLIFIES STRATE’S

LIMITATION ON THE SCOPE OF

TRIBAL SOVEREIGNTY OVER

NONMEMBERS. Oey Sane a 11

B. IN ASSESSING THE THREAT

NONMEMBER WATER POLLUTION

MIGHT PRESENT TO TRIBES,

EPA AND THE COURT OF

APPEALS ERRONEOUSLY IGNORE

THE REGULATION OF SUCH

CONDUCT UNDER EXISTING

STATE AND LOCAL LAWS. 16

TIGR I e ae aae te e ee eas 20

CASES CITED

Arkansas v. Oklahoma,

Wie Asie Pe GER OEE Gow ee eR es ee

Brendale v. Confederated Tribes and Bands

of Yakima Indian Nation,

492 U.S. 408 (1989) nee ee ea ee

Montana v. United States

450 U.S. 544 (1981) : > aes Ae.

Braces ee gee ete cari net es (27. 20; ae

Page

RULE

TATUTES

arr

ae)

(")

™m

on |

Clean Water Act

Section 402

Section 518 (e)

3 |

ZI. INTEREST OF THE AMICI

CURIAE

Amici curiae are states of the United

States, acting through their Attorneys

General, that have a strong interest in

the treatment of Indian tribes as states

(TAS) for purposes of implementing

provisions of the Clean Water Act with

respect to waters within the exterior

boundaries of reservations. Amici curiae

are among the states in which

approximately 210 tribes have applied for

TAS status. (Pet. 135a). In some of the

states, such as Wisconsin, EPA has already

granted TAS status to tribes; the

remainder expect the same will occur as a

matter of course when tribes residing

within their borders submit applications

to EPA.

The amici share with Montana a common

interest in ensuring that EPA’s approach

to conferring TAS status upon tribes is

faithful to the applicable principles of

Indian law established by this Court.

Despite the varying characteristics of

reservations, including such factors as

Size, treaty history, and demographics,

EPA essentially approves tribal

applications for state status on a pro

forma basis, without regard to a

reservation’s individual characteristics

and without regard to the existence of

state water quality regulations’ that

adequately protect health, welfare, and

the environment.

The experience in Wisconsin

exemplifies the severe problems posed by

the pro forma granting of tribal requests

for state status under the Clean Water

Act . Wisconsin has eleven Indian tribes

and bands, each of which has reservation

land within the state’s borders. The

reservations range in size from over

200,000 acres (Menominee) to 1,700 acres

(Sokaogon Chippewa Community) to tiny,

scattered parcels recently declared

reservations (Ho-Chunk Nation).* A map in

the appendix to this brief shows the

reservation lands in Wisconsin. (Am. 35a).

Four tribes in Wisconsin have sought

state status pursuant to section 518(e) of

the Clean Water Act, and all four received

approval by EPA based upon the assertion

that there was water on the reservation

that tribal members use--the only showing

required under EPA's generous test.

Wisconsin challenged each of the four TAS

designations in lawsuits in the state’s

‘For example, in 1986 the Secretary of

the Interior proclaimed as reservation

lands several parcels owned by the Ho-

Chunk Nation, including a 4 1/2-acre

parcel on the outskirts of Madison,

Wisconsin, and a 2-acre parcel in Jackson

County, Wisconsin. 51 Fed. Reg. 41,669,

41,670 (11/18/86); 52 Fed. Reg. 16,461

(5/5/87).

two federal district courts. None of the

cases has been decided on its merits.’

*During the litigation, two EPA

officials alleged that other agency staff

members had engaged in misconduct, namely

the falsification of key parts of the

administrative records. Ensuing discovery

revealed compelling evidence that EPA

staff had backdated the agency’s factual

findings in at least three of the four

cases, in an apparent effort to bolster

the records for appeal. One tribe

(Menominee) voluntarily withdrew its TAS

application after-the-fact, thereby

relinquishing its state status; in the

other two, EPA rescinded its decisions

granting state status (Lac du Flambeau and

Oneida). One of the original four TAS

determinations remains pending in district

court, awaiting decision on summary

judgment. State of Wisconsin Vv.

ce eee and Sokaogon Chippewa

Community, Case No. 96-C-90 (E.D. Wis.).

In addition, the Oneida Nation of

Wisconsin has appealed the dismissal of

the lawsuit challenging its receipt of

state status. State of Wisconsin v.

U.S.E.P.A. and Oneida Nation of Wisconsin,

Case No. 96-C-329 (E.D. Wis.), on appeal

to the Seventh Circuit Court of Appeals as

Case No. 98-2374.

Fallout from this episode also led to

the creation of an agency-wide workgroup

to review EPA’s process for making TAS

decisions (Am. 13a-25a). That effort also

produced EPA’s latest "Montana Test

Guidance" (Am. 26a-34a) which is o£

particular relevance because it shows

(continued...)

The historic reservation of one of

the four tribes previously accorded state

status, the Oneida Tribe of Indians of

Wisconsin, illustrates the serious

jurisdictional conflicts that TAS status

can engender. The reservation contains

approximately 65,000 acres, much of which

is urban and suburban in character. In

fact, over 4,000 acres of the historic

reservation lie within the city limits of

Green Bay and comprise approximately 15%

of the total land area of that ty ae

the time it applied for treatment-as-state

Status, the tribe or its members owned

only 13% of the property on this historic

reservation--leaving 87% owned by

nonmembers. Two towns established in 1908

and 1910 lie entirely within the

2(...continued)

EPA's continuing disregard for this

Court’s decision in Strate Vv. A-1

Contractors, ae eS eee ee Sy Oe Meee a PD

(1997) .

boundaries of the historic reservation; as

of 1990 the population of one of the towns

was approximately 82% non-Indian and the

population of the other was approximately

64% non-Indian.

Not surprisingly, numerous. public

facilities are located on the historic

reservation, including schools, roads,

parks and even the Green Bay airport. The

various local governments provide such

services on the reservation as fire

protection, law enforcement, emergency

response, public education and _ social

services, and also administer zoning and

other ordinances within the historic

reservation boundaries. Under EPA’s TAS

policy, many dischargers, including public

as well as private entities, would have to

obtain water quality certification from

the tribe as a condition of receiving a

discharge permit. This could affect

activities ranging from general real

estate development to road repairs, and

reaches discharges occurring off-

reservation, but upstream of the

reservation. See Arkansas v. Oklahoma, 503

U.S. 91, 105-06 (1992).

Notwithstanding the obvious "open"

nature of the reservation, under Brendale

analysis,’ in determining whether to grant

the Oneida Tribe’s application for state

status, EPA found irrelevant the urbanized

character of the reservation, the high

degree of nonmember land Ownership, and

the history of the reservation. Rather,

EPA considered only whether there was

water on the reservation used by tribal

members. (Am. 3a-12a). Nor does EPA

consider relevant the size of the

reservation area, treating large

reservations such as the Flathead Indian

‘See Brendale y. Confederated Tribes

and Bands of Yakima Indian Nation, 492

U.S. 408, 444-45 (1989) (Stevens, J.).

Reservation the same as very small ones,

which can sometimes comprise only a few

acres.‘ State status grants tribes

essentially a veto power over applications

for federal permits under the Act, because

certification by the tribe that’ the

proposed discharge would comply with the

tribe’s water quality standards is a

prerequisite for the granting of a permit.

(33 U.S.C. §§ 1341 and 1377). If the

decision of the court of appeals is

affirmed, and the rationale of its opinion

is followed in other cases, all residents

of Indian reservations--as well as

upstream dischargers--will be subject to

virtually automatic regulatory control by

*For example, EPA readily granted

state status under the Clean Water Act to

the Sokaogon Chippewa Community in

Wisconsin--whose reservation comprises

only 1,700 acres--notwithstanding EPA’s

avowed policy against "“checkerboarding"

jurisdiction.

the tribal government in the event the

tribe applies to EPA for TAS status.

Compounding the impacts of TAS

status, EPA has created a double standard

with respect to citizens’ rights to obtain

judicial review of permitting decisions.

EPA formally recognizes that the Clean

Water Act requires states to afford

adequate judicial review procedures for

State regulatory decisions. In fact, EPA

recently promulgated a rule specifying

that to operate an approved program under

section 402 (33 U.S.C. § 1342), a state

must provide for adequate judicial review

of permit decisions. 40 C.F.R. § 123.30

(1997).

While with one hand EPA acknowledged

the critical importance of judicial review

to the integrity of state-administered

programs, with the other it proceeded to

exempt tribes from the same requirement.

40 C.F.R. § 123.30 (1997). This leaves

nonmembers exposed to regulation by

tribes, with no right to representation or

participation in the tribal government and

no right to meaningful judicial review of

important regulatory decisions. The amici

states have a strong interest in

protecting the rights of their citizens,

as well as themselves, to meaningful

judicial review of regulatory decisions

affecting them by preventing unwarranted

extension of state status to tribes.

EPA’s TAS policies ignore the

sovereignty of the states to regulate

their own natural resources and citizens

in a uniform and consistent manner, as

well as the right of citizens to be

regulated by government in which they can

participate and which they can challenge

in court if necessary.

II. REASONS FOR GRANTING THE

PETITION

A. THE COURT OF APPEALS’

DECISION NULLIFIES STRATE’S

LIMITATION ON THE SCOPE OF

TRIBAL SOVEREIGNTY OVER

NONMEMBERS.

In its effort to promote the

assumption of regulatory power by tribes,

EPA has lost sight of the established

precepts of Indian law, as well as the

agency’s own pronouncements. In place of

careful, fact-intensive historical inquiry

into the status of a reservation, EPA has

concocted a simplistic, wooden formula

under which no tribe could ever fail to

receive state status under the Clean Water

Act. EPA'S approach to the issue of

inherent tribal regulatory authority is

wholly inconsistent with controlling

precedent of this Court, which mandates a

presumption against the existence of

inherent tribal regulatory authority over

nonmember activities. Montana v. United

States, 450 U.S. 544, 565 (1981).

Although Montana recognized an

exception for monmember conduct’ that

threatens tribal health or welfare, this

Court last term made clear that to qualify

for the exception conduct must threaten

"‘the right of reservation Indians to make

their own laws and be ruled by them.’"

Strate v. A-1 Contractors, U.S. . we

S. Ct. 1404, 1416 (1997), quoting Williams

vy. lee, 358 U.S. 217, 226” (i959) . The

Court found specifically that nonmember

conduct that endangers safety, but not

tribal self-governance, cannot give rise

te a finding of tribal regulatory

authority under the second Montana

exception because, "if Montana’s second

exception requires no more, the exception

would severely shrink the rule." Strate,

247. 3... C2. Be 2a

Although EPA purports to have based

its TAS policy upon the second Montana

exception, 56 Fed. Reg. 64,877-88 (1991),

the differences between them are

irreconcilable. EPA announced when it

adopted its rule that its policy would be

to apply "generalized finding[s]" as to

the importance of water quality to tribal

health and welfare to supplement’ the

treatment as state applications of all

tribes. 56 Fed. Reg. 64,878 (1991).

Under the 1991 policy, if a tribe were to

make a relatively simple showing

of facts that there are waters

within the reservation used by

cae see 6 ee RR whi... in

light of the facts presented by

the tribe and the generalized

Statutory and factual findings

regarding the importance of

reservation water quality ‘

presume that there has been an

adequate showing of tribal

jurisdiction .. . unless

fa State] demonstrates a lack of

jurisdiction on the part of the

Tribe.

i 14

S56 Fed. Reg. 64,879 (1991) (emphasis

added) .” The tribal showing EPA would

require under this policy is nominal, at

best. Any tribe that uses water from its

reservation will be deemed to have

regulatory jurisdiction. Contrary to

Brendale, the EPA test also erroneously

presumes the existence of tribal

regulatory authority even in "open"

reservation areas that have lost their

tribal character due to ae substantial

transfer of land ownership to nonmembers.

Two weeks after the Court of Appeals

issued its decision in this case, EPA

issued its "final guidance" on the

application of the second Montana

exception. (Am. 2la, 26a-34a). Contrary

to Strate, EPA nowhere requires a showing

"See also 56 Fed. Reg. at 64,881

(1991): "the Agency presumes that, in

general, Tribes are likely to possess the

_ authority to regulate activities affecting

water quality on the reservation."

that tribal authority is essential "[to

punish tribal offenders,] tto determine

tribal membership, to regulate domestic

relations among members, and to prescribe

rules of inheritance for members."

Strate, 117 S. Ct. at 1416 (quoting

Montana, 450 U.S. at 564).

EPA has done precisely what Strate

forbade by equating the controlled

discharge of pollutants, no matter how de

minimis, with impairment of tribal self-

governance. This approach not only

collides with Strate, but would have

produced opposite outcomes in South Dakota

v. Bourland, 508 U.S. 679 (1993), which

found a tribe could not regulate nonmember

hunting and fishing activities, as well as

in Brendale, which held a tribe could not

engage in zoning in an "open" reservation

area.

Under EPA policy, states like the

amici effectively have the burden of

proving the absence of tribal jurisdiction

in order to avoid the loss of authority

states would otherwise possess under the

Clean Water Act. Not only is this a

burden the law does not require states to

bear, but as formulated by EPA, the burden

is one no state can ever Carry.

B. IN ASSESSING THE THREAT

NONMEMBER WATER POLLUTION

MIGHT PRESENT TO TRIBES,

EPA AND THE COURT OF

APPEALS ERRONEOUSLY IGNORE

THE REGULATION OF SUCH

CONDUCT UNDER EXISTING

STATE AND LOCAL LAWS.

To support its generalized finding

that the possibility of any water

pollution rises to the level of a severe

threat to a tribe under Montana, EPA

erroneously presumes the absence of any

existing regulation and enforcement with

respect to waters within the exterior

boundaries of a reservation. In other

words, EPA measures the potential harm to

tribes from nonmember conduct, for

purposes of the Montana "second

exception," as if the nonmember conduct

were not constrained in any way by the

states or local governments. That is not

the manner in which this Court

contemplated applying the test and it does

not square with reality.

In Montana itself the Court looked at

the effect of existing state regulations

on the disputed resource. Montana, 450

U.S. at 566 n.16. The Court did likewise

in Brendale, analyzing the impacts upon

the tribe of land uses that would be

permissible under state and local law.

432 U.S. at 429-30 (White, J.). By

evaluating assertions of inherent

authority in a vacuum--by assuming that

there are no state water quality laws

protecting public health when the contrary

is true--EPA misapplies the Montana

"second exception," and stacks the deck

against the states, to justify approving

tribal applications. EPA’‘s approach

negates this Court’s requirement’ of

demonstrating "necessity" for Tripei

regulatory jurisdiction: "exercise of

tribal power beyond what is necessary to

protect tribal self-government... is

inconsistent with the dependent status of

the tribes, and so cannot survive without

express congressional delegation."

Montana, 450 U.S. at 564 (emphasis added).

For purposes of the Montana "second

exception," a threat must have some basis

in reality. It is wholly artificial and

unrealistic to ignore, as EPA does, that

discharges of pollutants are subject to

regulation and enforcement at both the

state and federal levels. The real threat

to a tribe is not from wholly unregulated

pollution, but rather from regulated

activities in light of the existing

regulations and enforcement by EPA and the

states. As is true for many states, EPA

has formally approved Wisconsin’s water

quality standards under 33 U.S.C. § 1313,

finding that the standards adequately

protect public health and welfare and the

environment. Yet in assessing the threat

posed to tribal interests EPA assumes that

despite the state’s regulatory system

there will be such serious degradation of

waters that tribal jurisdiction is

"necessary" and the Montana second

exception is satisfied. |

The agency cannot have it both ways.

EPA must acknowledge the existing reality

of the regulatory mechanisms in place and

properly determine who has regulatory

authority over the non-Indian lands within

a reservation, using the effect on tribal

self-governance as the benchmark.

CONCLUSION

EPA's indifference to the factors

this Court has established as relevant to

determining the presence of inherent

tribal authority has tainted its

implementation of section 518(e). Because

of the substantial impacts of EPA’s policy

on states, amici curiae respectfully urge

this Court to grant the petition for a

writ of certiorari.

Respectfully submitted,

JAMES E. DOYLE

Attoyney General

wa ; S's (2c ss

THOMAS L. DOSCH*

JOHN S. GREENE

Assistant Attorneys General

of Wisconsin

*Counsel of Record

Attorneys for Amici States

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-0770

July 1998

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO, IL 60604-3590

REPLY TO THE ATTENTION OF:

Ms. Deborah Doxtator

Tribal Chair

Oneida Tribe of Indians of Wisconsin |

P.O. Box 365 |

Oneida, Wisconsin 54155

Dear Ms. Doxtator:

It is my pleasure to inform you of my

decision to approve the application of the

Oneida Tribe of Indians of Wisconsin to

administer the water quality standards

program pursuant to the Clean Water Act.

Section 303.

The Oneida Tribe has satisfied all of the

requirements set forth at the Code of

Federal Regulations, Title 40, Part ‘bate &

"Requirements for Indian Tribes to be

treated as States for purposes of water

quality standards", including

demonstrating its authority over all water

resources on the reservation.

The Oneida Tribe’s water quality standards

will be approved under separate cover

pending review and concurrence by this

office and the United States Fish and

Wildlife Service.

If you have any questions or would like

additional information, please contact Ms.

Claudia Johnson-Schultz at (312) 886-6108.

Valdas V. Adamkus

Regional Administrator

cc: Mr. George Meyer,

Wisconsin DNR

Secretary,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO IL 60604-3590

REPLY TO THE ATTENTION OF:

MEMORANDUM

SUBJECT: Authority of the Oneida

Tribe of Indians to Regulate the

Quality of Reservation Waters

FROM: Marc M. Radell

Associate Regional Counsel

THROUGH: Gail C. Ginsberg

Regional Counsel

To: Valdas V. Adamkus

Regional Administrator

After reviewing the assertion by the

Oneida Tribe of Indians of Wisconsin (the

"Tribe") of the authority to regulate the

quality of Reservation waters and the

competing claim of jurisdiction raised by

the State of Wisconsin, the Office of

Regional Counsel believes that, under the

plan established by Congress in the Clean

Water Act, the Tribe has the authority to

regulate the quality of all water

resources within the exterior boundaries

of the Oneida Reservation. We therefore

recommend that, pursuant to 40 2 gt ae

131.8(c) (4), you determine that the Tribe

has adequately demonstrated that it meets

the jurisdictional requirements of 40

C.F.R. § 132.8 (ai ta).

Tribal Authority Under the Clean Water

Act. Section 518 of the Clean Water Act,

33 U.S.C. § 1377, sets forth Congress’

plan for regulation of water resources

within Indian reservations and embodies

the Congressional intent that tribes

regulate all water resources over which

they have authority within the exterior

boundaries of reservations. Specifically,

Section 518(e) authorizes U.S. EPA to

treat an Indian tribe "as a state" for the

management and protection of those

resources, including assumption of the

water quality standards program.

Tribes retain attributes of sovereignty

Over their members and territory to the

extent that such sovereignty has not been

withdrawn by federal statute or treaty.

Iowa Mutual Ins. Co. v. LaPlante, 480 U.S.

S £39C72.. Accordingly, U.S. EPA assumes

that tribes have the authority to regulate

the activities of their members that may

affect water quality and does not require

tribes to submit a showing regarding the

potential impacts of the activities of

tribal members on the quality of

reservation waters.

As explained at 56 Fed. Reg. 64,878

(1991), in evaluating whether a tribe has

authority to regulate a particular

activity on land owned by non-Indians

within a reservation, U.S. EPA examines

the tribe’s authority in light of evolving

case law as reflected in Montana v. United

States, 450 U.S. 544 (1981), and Brendale

v. Confederated Tribes and Bands of the

Yakima Nation, 492 U.S. 408 (1989). In

response to uncertainties in these

PT. II, 2 seeremer ecm certcnmenivernecninnsinone:

decisions regarding the standard of impact

on tribal health and welfare that the

activities of non-Indians within

reservations must have before a tribe can

regulate such activities, U.S. EPA applies

as an interim operating rule a formulation

of the standard that requires a showing

that the potential impacts of regulated

activities on the tribe are serious and

substantial. However, the Agency believes

that the activities regulated under the

various environmental statutes it

administers generally have serious and

substantial impacts on human health and

welfare. Furthermore, U.S. EPA has

already determined that

because of the mobile nature of

pollutants in surface waters and the

relatively small size of ... water

bodies on reservations, it would be

practically very difficult to

separate out the effects of water

quality impairment on non-Indian fee

lands within a reservation with those

on tribal portions. In other words,

any impairment that occurs on, Or as

a result of, activities on non-Indian

fee lands are (sic) very likely to

impair the water and critical habitat

quality of the tribal lands. This

also suggests that the serious and

substantial effects of water quality

impairment within the non-Indian

portions of a reservation are very

likely to affect the tribal interest

in water quality

Thus, a tribal submission meeting the

requirements of § 131.8 of this

regulation will need to make a

relatively simple showing of facts

that there are waters within the

reservation used by the Tribe or

tribal members .. . . 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

substantial effect on the health and

welfare of the Tribe. Once the Tribe

meets this additional burden, EPA

will, in light of the facts presented

by the tribe and the generalized

statutory and factual findings

regarding the importance of

reservation water quality discussed

above, presume that there has been an

adequate showing of tribal

jurisdiction of fee lands, unless an

appropriate governmental entity

(e.g., an adjacent Tribe or State)

demonstrates a lack of jurisdiction

of the part of the Tribe.

56 Fed. Reg. 64,878, 64,879 (1991).

The Oneida Application. On August 25,

1995, the Oneida Tribe submitted an

application to U.S. EPA for "treatment as

a state" for the Clean Water Act Section

303 water quality standards program and

Section 401 certification program. The

application includes a statement from

attorneys for the Tribe supporting the

Tribe’s authority to regulate water

quality on all waters within its

Reservation. [Attachment 1]. The Tribe

asserts that it has authority to regulate

water quality pursuant to the fTribe’s

Constitution and By-Laws.

The cover letter to the Tribe's

application and an October 24, 1995,

Support document [Attachments 1 and 2]

discuss the effects that activities of

non-Indians within the Reservation could

have on Tribal health and welfare. These

documents maintain that

Members of the Oneida nation make

extensive use of the Oneida

Reservation’s surface waters’ for

fishing, swimming, stock watering,

religious ceremonies, and indirectly

as a public water supply (through

groundwater recharge). In addition,

the land ownership of the Oneida

Nation is concentrated in the "Duck

Creek Corridor" and in other areas

adjacent to or containing Reservation

waterways. The Oneida Nation thus

bears a substantial amount of the

impact of surface water pollution on

the Reservation.

Letter from Deborah Doxtator to Valdas V.

Adamkus, October 23, 1995, pp. 4 and 5S.

Clearly, pollution of Reservation waters

from any activity would have a serious and

substantial impact on the health and

welfare of the Tribe and its members

within the meaning of U.S. EPA‘’s

jurisdictional analysis by exposing to

pollutants Tribal members using the waters

in any of the many ways described above.

The Tribal application and support

document also describe specific non-Indian

activities that threaten the quality of

Reservation waters, such as quarry

operations, large scale development,

pesticide run-off from a proposed golf-

course, and potential dumping by small

businesses of various chemicals into

waterways and onto the ground. Any such

activity subject to regulation under the

Clean Water Act could seriously and

substantially affect the quality of

Reservation waters and, consequently, the

health and welfare of the Tribe and its

members.

Wisconsin's Competing Claim of

Jurisdiction. On October 2, 1995, the

State of Wisconsin raised a competing

claim of jurisdiction regarding’ the

application [Attachment 3]. Citing the

Brendale decision in support of its

position, the State argues that the Tribe

lacks authority to regulate water quality

in the predominantly non-Indian, or

"open", areas of the Reservation. Such

areas may constitute almost 85 percent of

the Reservation and contain a significant

proportion of the Reservation’s surface

waters. Wisconsin also asserts that a

minority opinion in the Brendale case

requires that, before the Oneida Tribe can

exercise jurisdiction over non-Indian

activities, the Tribe must demonstrate

that existing State standards do not

adequately protect Tribal interests.

The Office of Regional Counsel does not

believe that either of the State’s

arguments demonstrate a lack of Tribal

jurisdiction over non-Indian activities

within the Reservation. In analyzing

jurisdictional issues in light of the

Montana and Brendale decisions, U.S. EPA

looks to the potential effects of non-

Indian activities on Tribal health and

welfare, not to the open or "closed"

(predominantly Indian) character of the

area. In the Brendale case, only two

justices found the open or closed nature

of the location of the non-Indian activity

dispositive of the jurisdictional issue.

The other justices applied the Montana

Ae tN SRG RB by andthe

test. The four justices who found that

the Yakima Indian Nation did not meet the

Montana test based their opinion on a

District Court finding that the non-Indian

activity at issue would have no direct

effect on the Tribe and would not threaten

the Tribe's political integrity, economic

security or health or welfare. The three

justices who found that the Yakima Indian

Nation did meet the Montana test based

their opinion on their own finding that

the non-Indian activity at issue would

have a direct effect on the Tribe’s

political integrity, economic security or

health or welfare. In this case, the

Oneida Tribe has demonstrated that the

relevant activities of non-Indians, even

in open areas of the Reservation, present

a serious and substantial threat to the

quality of Reservation waters and, thence,

to Tribal health and welfare.

Neither can we agree with the State of

Wisconsin that the dicta of a two-justice

opinion in Brendale establishes a

requirement that, before the Tribe can

regulate non-Indian activities within the

Reservation, the Oneida Tribe must

demonstrate that Wisconsin’s water quality

standards do not adequately protect Tribal

health and welfare. Even if such a test

did exist, the Oneida application

identifies at least two Tribal uses of

surface water, for religious ceremonies

and as indirect public drinking water

supply, not recognized by the State in its

water quality program. The Wisconsin

water quality standards likely do not

protect uses not considered in their

development.

Wisconsin Governor Tommy G. Thompson

appears to raise an additional objection

10a

to approval of the Oneida application by

letter of December 20, 1995 [Attachment

4). In that letter, he refers to the

Wisconsin Public Trust Doctrine as

requiring the State to hold the waters of

the State in trust for all its citizens

and as giving rise to his’ State’s

commitment to water quality. The State

has presented a similar objection to

program applications submitted to U.S. EPA

by other Tribes, i.e., that because the

State holds titles to the beds of

navigable waters within the Reservation

pursuant to the federal common law "equal

footing" doctrine, the State has the duty

and authority to regulate water quality

within the Reservation pursuant to the

Wisconsin common law "public trust*

doctrine.

The equal footing doctrine provides that

lands underlying navigable waters in

territory acquired by the United States

are held in trust for future states and

that title to the submerged lands vests

automatically in a state upon its

admission to the Union. Shively v.

Bowlby, 152 U.S. 2 (1894). Pursuant to

this doctrine, the State gained ownership

of lake beds within its borders when it

achieved statehood in 1848. Wisconsin v.

Baker, 658. 7.426 i323. 1327 7c. Gar.

1983) .? In addition, Wisconsin courts

have construed Article IX, Section 1 of

the Wisconsin Constitution, which provides

that the navigable waters leading into the

1 Neither the State nor the Tribe

specifically addresses whether, upon its

1848 admission to Union, the State assumed

title to the beds of waters within the

Oneida Reservation, created in 1838.

DIR A

lla

Mississippi and St. Lawrence Rivers shall

be common highways and "forever free", to

mean that the State holds the beds of

Wisconsin’s navigable waters in trust for

all of its citizens. State v. Bleck, 338

N.W.2d 492, 498 (Wis. 1983). State courts

have interpreted the public trust doctrine

as creating affirmative obligations on the

State to protect and preserve its waters

for fishing, hunting, recreation and

scenic beauty, including at least some

regulation of water quality. Wisconsin’s

Environmental Decade v. D.N.R., 271 N.W.2d

69 (Wis. 1978).

U.S. EPA need not conclusively answer the

questions of whether the State retains

title to the beds of navigable waters

within the Oneida Reservation and the

extent of any State jurisdiction arising

from such ownership. Even if the State

does hold title to water beds within the

Reservation, U.S. EPA could properly

conclude that the Tribe has adequate civil

regulatory authority over water resources

on the Reservation to establish water

quality standards under Section 303 of the

Clean Water Act. As discussed above, the

Oneida Tribe has regulatory authority over

all members of the Tribe and has

demonstrated authority over the activities

of non-members of non-Tribal lands within

the Reservation for the purposes of

establishing water quality standards.

This demonstration of authority over the

activities of non-members extends to

activities on any non-Tribal lands within

the Reservation, even water beds, because

any such activities that impair water

quality would likely have a serious and

substantial effect on the health and

welfare of the Tribe. Thus, the Tribe

possesses inherent authority over all

12a

persons on the Reservation who may engage

in activities that might affect the

quality of Reservation waters, regardless

of whether or not the State retains title

to the water beds.

Conclusion. Based upon the showing by the

Oneida Tribe that all the waters within

the Reservation are used by the Tribe and

the assertion by the Tribe that impairment

of such waters by the activities of non-

Indians would have a serious and

substantial effect on the health and

welfare of the Tribe, we determine that

the Tribe has made an adequate showing of

jurisdiction over non-Indian activities

within the Reservation for purposes of

water quality standards and certification

program authorizations. We also conclude

that no other governmental authority has

demonstrated a lack of jurisdiction on the

part of the Tribe.

We therefore recommend that, pursuant to

40 C.F.R. § 131.8(c) (4), you determine

that the Oneida Tribe has adequately

demonstrated that it meets the

jurisdictional requirements of 40 C.F.R. §

131.8(a) (3) for regulation of all water

resources within the Reservation under the

water quality standards and certification

programs.

Attachments

cc: Jo Lynn Traub

13a

- UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON, D.C. 20460

MEMORANDUM

SUBJECT: Adoption of the Recommendations

from the EPA Workgroup on Tribal

Eligibility Determinations

FROM: Robert Perciasepe

Assistant Administrator for the

National Indian Program

Jonathan Z. Cannon

General Counsel

TO: Assistant Administrators

Regional Administrators

In a memorandum dated July 9, 1997,

we established an Agency-wide workgroup to

review EPA’s process for making

determinations on tribal applications for

EPA-approved regulatory programs. That

memorandum noted that "it is vital that

the Agency have a clear, well-documented

process to assemble and review relevant

information, and decide on tribal program

applications, in order to assure that the

Agency makes sound decisions that can be

defended successfully." The Workgroup’s

charge was to review the Agency’s current

process for making such determinations and

develop recommendations, which might lead

to written guidance, for improving the

process to ensure reliably defensible

decisions.

The Workgroup submitted its

recommendations on December 23, 1997.

14a

Before making its final recommendations,

the Workgroup shared its preliminary

recommendations with the Tribal Caucus of

the Tribal Operations Committee (the TOC),

individual tribes, and EPA offices for

their review and comment. The Workgroup’s

final recommendations have been shared

with the EPA senior managers for the

Indian Program for their views.

We too have reviewed the

recommendations, and considered the

comments received regarding the

recommendations from within the Agency and

from tribes. By this memo, we accept in

full the recommendations made by the

Workgroup. Below we provide: eo

summary of the Workgroup process; and 2) a

description of the recommendations and a

discussion of how each recommendation will

be implemented.

When we initiated the review that led

to these recommendations, we asked that

Regions generally defer making final

determinations on tribal applications for

regulatory authority until the review was

completed. Now that the review is

completed, we request that the "Regions

resume decision-making on tribal

applications in accordance with the

recommendations and guidance adopted

today.

The Workgroup Process

The Workgroup, which was chaired by

Robert G. Dreher, Deputy General Counsel,

included representatives from all EPA

Regions, and a number of headquarters (HQ)

offices. The Workgroup developed a list

of five issues to be addressed “and

established issue subgroups to prepare

a Ca A Na ahh et Lar Ga ics a SN a i ll ii

eat le a Sek Ne Cn abe

15a

options papers on each issue. A list of

Workgroup and Subgroup members is attached

as Attachment A. The five issues

identified and addressed by the Workgroup

were: 1) the process for maintaining and

compiling administrative records for EPA

determinations on tribal eligibility to

run regulatory programs; 2) the

appropriate consultation and concurrence

role for HQ in these decisions; 3) the

application of the Montana test for

evaluating tribal authority over non-

Indians on fee lands within reservations;

4) opportunities for stakeholder

involvement on EPA decisions regarding

tribal applications for eligibility to

establish water quality standards under

the Clean Water Act; and 5) evaluation of

treatment in the same manner as state

(TAS) criteria for grants.’

The Workgroup arrived at preliminary

recommendations by the middle of October.

Workgroup members solicited comments on

the options and preliminary

recommendations from their respective

offices. Then, at the beginning of

November, the Workgroup solicited comments

on the options and preliminary

recommendations from the Tribal Caucus of

the TOC and from individual tribes. The

Workgroup also provided periodic updates

on its progress during the TOC’s monthly

conference calls.

*The Workgroup also identified one

longer-term issue - - the tribal role

under FIFRA - - that the Workgroup

recommends that Agency evaluate in the

future.

16a

The Workgroup considered comments

from the TOC, individual tribes, and EPA

offices. The Workgroup made _ several

changes to the preliminary recommendations

to address these comments. Finally, the

Workgroup provided its recommendations to

us, along with a discussion of the key

considerations, comments received, and

options evaluated for each issue.

Adoption and Implementation of the

Workgroup Recommendations

The primary considerations of the

Workgroup were to develop recommendations

that will: 1) improve the consistency and

legal defensibility of EPA decisions

regarding tribal programs; 2) avoid

burdensome procedural requirements that

may unnessarily delay decisions on tribal

applications; and 3) recognize the

importance to tribes and EPA’s Indian

Program of decisions involving tribal

sovereignty. The principal concerns

raised by the TOC, tribes, and Regions in

their comments on the preliminary

recommendations were that the Agency avoid

adopting procedures that will place undue

burdens and delays on EPA’s process for

making decisions on tribal applications.

The Workgroup considered and made several

changes to the preliminary recommendations

to address these concerns. We believe that

the recommendations adopted below achieve

the Workgroup’s goal of significantly

improving the defensibility of EPA’s

decisions without placing undue burdens on

the decision-making process for tribal

applications. To the extent the

recommendations place additional burdens

on the process, we believe they are

warranted in order to ensure that the

ae we a ee es SP

17a

Agency handles decisions pertaining to

tribal sovereignty with the utmost care.

Issue 1 - - Administrative Records:

Improving EPA’s process for maintaining

and compiling administrative records on

EPA decisions regarding tribal eligibility

to run regulatory programs.

Workgroup Recommendations: The

Assistant Administrator (AA) for Water (as

the AA for the National American Indian

Program) and the Office of General Counsel

(OGC) should jointly issue a memorandum

providing guidance and establishing

docketing procedures specific to the

compilation and maintenance of

administrative records for EPA

determinations on tribal applications for

eligibility to run regulatory programs

under all relevant EPA statutes. The

memorandum should also ask Regions to

establish a training program to ensure

that the guidance and procedures are

followed.

Adoption and Implementation: We

adopt this recommendation in full. The

final guidance is attached as Attachment

Issue 2 - - HQ Role: "What

concurrence/consultation role should HQ

play in EPA decisions regarding tribal

eligibility to run regulatory programs?

Workgroup Recommendation: HQ review

and concurrence should be required for all

nationally-significant matters. Decisions

on national significance should be guided

by semi-annual review and consultation

meetings between HQ offices (the American

Indian Environmental Office (AIEO), OGC,

18a

and the national program manager (NPM

offices) and Regions to discuss national

concerns/issues and to provide Regions the

opportunity to discuss potential upcoming

tribal actions/cases.’ In all cases,

regional-HQ consultation should begin as

early as possible, particularly prior toa

tribe’s application where regional staff

believe, based on early-involvement with

the tribe, that nationally-significant

issues may be raised by an application.

In addition, to help inform decisions on

national significance, Regions should be

asked to provide a brief memorandum to HQ

assessing the national significance of

each tribal application for a regulatory

program as applications come into the

Region. HQ should be ultimately

responsible for determining national

Significance.

The determination regarding national

significance should be made within 30 days

of EPA receipt of a tribal application.

On applications with nationally-

*The Workgroup recommended that there

be one meeting involving all Regions and

one Region-specific meeting each year. In

addition, the Workgroup recommended that

existing procedures (e.g., the National

Indian Workgroup) be used to improve

coordination. Although the scope of the

Workgroup’s analysis was limited to EPA

determinations on tribal eligibility

applications for regulatory programs, the

Workgroup noted that other pending or

possible future Agency actions affecting

environmental programs in Indian county

(e.g., PSD redesignations, site-specific

rulemaking under RCRA) can and should be

discussed in these semi-annual meetings.

19a

significant issues, an expectation should

be established that HQ will concur or

provide specific guidance to the Region

within 30 days after a Region’s tentative

decision has been provided to HQ, provided

there has been early involvement for HQ.

Regions should ensure that a tribe that

has applied for eligibility is kept

informed of the status of the decision-

making process. The process described

above should be reevaluated after 3 years.

AIEO, OGC and the relevant national

program office are the appropriate HQ

offices to be involved in the consultation

and concurrence process.

Finally, Regions should have periodic

"Round table" discussions with their

tribes. Regional Counsel attorneys should

have early consultation with tribal

attorneys to identify potential legal

issues pertaining to tribal eligibility

for regulatory programs.

Adoption and Implementation: We

adopt this recommendation in full.

Appropriate changes to the Agency’s

delegations manual will need to be made to

implement the HQ concurrence aspects of

this recommendation. Bob Perciasepe is

initiating appropriate delegations manual

changes for office of Water programs. We

have asked the Assistant Administrators

for the Office of Prevention, Pesticides,

and Toxic Substances and the Office of Air

and Radiation to initiate appropriate

changes to the delegations manual for

their programs. We ask that AIEO consult

with those offices and report to us on the

status of these delegations manual changes

in one month. We ask that regional and HQ

20a

offices implement all other aspects of the

recommendations outlined above.

We emphasize that the consultation

and concurrence process should operate as

efficiently as possible. It is essential

that HQ and Regions consult early in the

process, even before tribal applications

are submitted whenever possible. We will

reevaluate this process, with input from

Regions, NPMs, AIEO and tribes, after

three years.

Issue 3 - - Application of the Montana

test.

Issue 3a - - Should EPA prepare guidance

on applying the Montana impacts test

(regarding tribal authority over

nonmembers on fee lands within

reservations)?

Workgroup Recommendation: The AA for

Water, (as the AA for the National

American Indian Program) and OGC should

jointly issue general guidance to EPA

regional staff, and request that AIEO work

with OGC and the Regions to develop and

initiate a training program to supplement

the guidance. The training should be

conducted in Regions with nonmember fee

lands and should allow for discussion of

the application of the Montana test and

the development of decision documents.

Such training should be required for all

persons developing decision documents that

include an analysis under the Montana

test. For all other persons involved in

the Indian Program, the training should be

encouraged. Finally, Regions should be

ready to work with tribes that request

assistance in preparing applications

involving Montana test issues.

eT Ee eS

2la

Adoption and Implementation: We

adopt this recommendation in full. The

final guidance is attached as Attachment

C. We ask that AIEO work with OGC and the

Regions to develop a training program as

discussed above.

Issue 3b - - Generalized Findings. Should

EPA publish a set of generalized findings,

to supplement reservation-specific

findings, regarding the nature of the

pollutants and activities regulated under

the environmental statutes and the

importance of effective regulation under

those statutes?

Recommendation: the Agency should

issue in the Federal Register an

appropriate set of generalized findings

for all relevant programs regarding the

seriousness and mobility of pollutants and

the importance of environmental regulation

to tribal self-governance.

Adoption and Implementation: We

adopt this recommendation in full and ask

that AIEO and the relevant NPMs in the

Office of Water and the Office of

Prevention, Pesticides, and Toxic

Substances, in consultation with OGC and

the Regions, prepare in a timely manner

appropriate generalized findings

consistent with the Workgroup’s

recommendation.

Issue 4 - - Stakeholder Involvement: Who

are the appropriate entities to comment on

tribal water quality standards (WQS)

eligibility applications? Should

opportunity for comm=nt be provided on

supplemental application materials or

tentative determinations? This issue is

22a

limited to opportunity for comment on a

tribe’s assertion of jurisdiction.

Recommendation: The current process

for review of tribal eligibility to set

WQS provides “appropriate governmental

entities" (i.e., adjacent states, tribes,

and federal agencies) an opportunity to

comment on tribal assertions of

jurisdiction contained in the initial

application from a tribe. In addition,

under the current process, notice of

availability of a tribal application is

provided to other potential commenters,

specifying that any comments are to be

funneled through "appropriate governmental

entities." The Workgroup recommends that

EPA supplement this current process by

also providing: 1) supplemental

application materials to "appropriate

governmental entities," 2) a 30-day

opportunity for these governments’ to

comment on EPA’s proposed findings of fact

(under the Montana test) where a tribe

seeks program approval over nonmembers on

fee lands, and 3)

notice of availability of such proposed

findings of fact to other potential

commenters (with comments to go through

"appropriate governmental entities"). The

Agency should also ensure that applicant

tribes have an opportunity to review EPA’s

draft proposed findings of fact (under the

Montana test) before they are made

available to "appropriate governmental

entities." EPA should also provide tribes

an opportunity to respond to any comments

submitted by "appropriate governmental

entities."

In addition, EPA should ensure that

tribes are given an opportunity to comment

on any state application to EPA containing

2 i Sa AA AREA Ne NIE 0S

a Sete ane eee

23a

an assertion of jurisdiction over areas

that are in or adjacent to Indian country.

Adoption and Implementation: We

adopt this recommendation in full. EPA

decisions regarding tribal eligibility to

set WQS should proceed consistent with the

process detailed above. This expanded

process may be implemented without changes

to EPA regulations (see 40 C.F.R. §

131.8). + Nonetheless, the Office of

Science and Technology within the Office

of Water, in consultation with AIEO, the

Regions and OGC, should explore whether it

is advisable for the Agency to incorporate

this expanded process into regulation.

Issue 5 - - Eligibility requirements for

grants: Ensuring consistent and adequate

documentation regarding tribal eligibility

for grants (i.e., evaluation of "treatment

in the same manner as a state" (TAS)

criteria - federal recognition,

substantial duties, jurisdiction, and

capability).

Recommendation: EPA should prepare

guidance for EPA staff on the TAS

considerations unique to grants. The

guidance should address issues such as:

the jurisdictional component of grant

eligibility decisions; tribal authority

issues relating to CWA § 319(h) grants;

the "reservation" requirement under the

CWA; use of CWA § 106 funds for off-

reservation activities that relate to the

protection of waters within reservations;

the capability component of grant

eligibility decisions; procedures’ for

documenting eligibility determinations for

grants; and internal Agency concurrences

required for grant eligibility decisions.

The Agency should ensure that appropriate

24a

grant and program offices receive copies

of the guidance.

Adoption and Implementation: We

adopt this recommendation in full and ask

that AIEO and the Office of Administration

and Resources Management, in consultation

with OGC and the Regions, prepare in a

timely manner guidance consistent with the

Workgroup’s recommendation.

Conclusion

We would like to thank all the

members of the Workgroup for dedicating so

much of their time and energy to reviewing

the Agency’s process for making tribal

eligibility determinations and developing

the recommendations and the guidance for

improving this process. Also, we would

like to thank the Tribal Caucus of the TOC

for taking the time to review thoroughly

the draft recommendations and for

providing the Workgroup with detailed

comments. We believe that the recommended

changes in the Agency’s process, the

proposed training programs, and the new

guidance will improve the Agency's

decision-making process for tribal

applications for eligibility to run

regulatory programs.

If you have any questions regarding

this memorandum, please contact Robert

Dreher (202-260-8064) or have your staff

contact Tony Hanson (202-260-8106) or Jim

Havard (202-260-1003).

Attachments

cc: Senior Indian Managers

Associate General Counsels

sg ANTAL REL PD

25a

Regional Counsels

Tribal Eligibility Workgroup Members

National Indian Workgroup Members

EPA Indian Law Workgroup Members

26a

ATTACHMENT C

MONTANA- TEST GUIDANCE

Making Factual Determinations Under the

Montana Test: Tribal Civil Regulatory

Authority Over Nonmember Activities

on Fee Lands

NOTICE

The following guidance is intended

only for EPA managers and staff in

the analysis of tribal assertions of

civil regulatory jurisdiction over

nonmember activities on fee lands

within a tribe's reservation.

Specifically, the guidance is

intended to assist in the collection

and analysis of factual information