Amicus Curiae Brief — Montana v. Environmental Protection Agency

MOTION FILED \

UL 29 1998 No. 97-1929

In The

Supreme Court of the United States

October Term, 1997

6

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.

3

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

*

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND BRIEF OF MONTANA ASSOCIATION

OF COUNTIES (MACO) IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

*

THANE P. JOHNSON

Counsel of Record

WERNER, EpsTeEIN & JOHNSON, Pp.I.l.c.

14 E. Main, P.O. Box 428

Cut Bank, MT 59427-0428

(406) 873-2277

Counsel for Montana Association

of Counties — Amicus Curiae

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

OR CALL COLLECT (402) 342-2831

MI ici 22a sme engin HOOT 8c HANA A Ye STARE 8 TE tote ate Gi 2 waive s tha oan e i ir ttl

QUESTION PRESENTED

WHETHER THE TRIBE POSSESSES THE INHERENT

SOVEREIGN AUTHORITY TO REGULATE FEE PROP-

ERTY OWNED BY NONMEMBERS UNDER THE CLEAN

WATER ACT?

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF BY MONTANA ASSOCIATION OF

COUNTIES (MACO) IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Comes now the Montana Association of Counties

(hereinafter MACO) and respectfully moves this Court

for leave to file an Amicus Curiae brief in support of

Petitioner’s Petition for Writ of Certiorari.1 MACO makes

the aforementioned Motion pursuant to Rule 37 of the

United States Supreme Court Rules.

MACO represents all of the Counties of Montana.

Montana has seven federally recognized Reservations

within its boundaries. At least 20 of the 56 Counties in

Montana either border a Reservation or have property

lying within a Reservation.

Lake County currently holds a membership in

MACO. Approximately three-fourths of Lake County

consists of the Salish Kootenai Reservation. The Reserva-

tion also lies in parts of Missoula, Flathead and Sanders

Counties. All of these Counties hold a membership in

MACO.

The issue presented in this case directly impacts

twenty of the member Counties of MACO. The issue of

' The Environmental Protection Agency has consented to

the filing of this brief. The Confederated Salish Kootenai Tribes

have-not consented to the filing of this brief necessitating a

motion pursuant to Rule 37 of the Supreme Court Rules.

Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, its members,

or its counsel made a monetary contribution to the preparation

and submission of this brief.

water regulation effects the services provided by these

member Counties, their property and the citizens of the

member Counties.

MACO is familiar with issues in Indian Law. MACO

recently sponsored an Amicus Curiae Brief in the case

South Dakota v. Yankton Sioux Tribe, ___ U.S.___, 118 S.Ct.

1381 (1998). MACO sponsored an Amicus Curiae Brief in

the case at hand before the Ninth Circuit Court of

Appeals.

Because this case directly effects the member coun-

ties of MACO, and because of MACO’s familiarity with

the principles of Indian law, MACO believes it can pro-

vide a fresh outlook and argument that will assist this

Court in its decision.

Counsel for MACO has contacted counsel for the

United States Environmental Protection Agency, the

United States Attorney, Sherry Scheel Matteucci, and she

has not consented to MACO’s filing of this brief.

Counsel for MACO also contacted counsel for the

Confederated Salish and Kootenai Tribes. The Confeder-

ated Salish and Kootenai Tribes declined their consent.

Dated this 29th day of June, 1998.

THANE P. JOHNSON

WERNER, EpsteEIN & JOHNSON

14 E. Main, P.O. Box 428

Cut Bank, MT 59427

Counsel for MACO — Amicus

PRA 2 wo

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI MONTANA ASSOCIA-

ees CO CAPR eee oo 6 poe hn eee kaa ieee ]

SEAT ENEINE GW. Pea CASE io csc Sika CHEN es l

SUMMARY OF THE ARGUMENT.................. 1

I. THIS COURT SHOULD ISSUE A WRIT OF CER-

TIORARI WHEN THE NINTH CIRCUIT ERRED

IN FINDING AN INDIAN TRIBE POSSESSES

THE INHERENT SOVEREIGN AUTHORITY TO

REGULATE STATE OR LOCAL GOVERNMENTS

PING? FREER CTOs Swidic vx ta cde Saeewehis eee 3

A. THE NINTH CIRCUIT ERRED WHEN IT

CIRCUMVENTED THE GENERAL RULE IN

MONTANA WITH THE SECOND EXCEP-

RI 5 56 5955S OER RUN EE ES eek eer 4

B. UNLESS REVIEWED TRIBAL REGULATION

UNDER THE CWA LEAVES LOCAL GOV-

ERNMENTS AND THEIR CITIZENS IN

UR ARIES Bs 2A he Nc tra ba Re ee eee 8

Il. THE SOVEREIGN IMMUNITY OF STATE AND

LOCAL GOVERNMENTS GENERATE

UNWORKABLE RESULTS REQUIRING REVIEW

il

TABLE OF AUTHORITIES

Page

CASES

Brendale v. Confederated Tribes and Bands of the

Yakima Nation, 492 U.S. 408 (1989) ............... 4, 6

Cabazon Band of Mission Indians v. Wilson, 124 F.3d

Bue EP GE ROE Bs oa kted canoe cae es 17

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

Cir. 1996); 865 F.Supp. 733 (D.N.M. 1993)

Or CSR EOE Re ie emer ety Soe y 9, 1h ke, 2% TD

Comm’! Carrier Corp. v. Indian River County, 371

So.2e8 SGD Ce: 290 a sche eveciischas Mie ee 17

Concerned Residents for Envirn. v. Southview Farm,

34 E30 326 Cone Ue. WO ok ei ee ieee 14

Conservation Council of North Carolina v. Costanzo,

398 Fouonp. 63 (E.G. Fb viccdccvearei divas 13

In re Bethlehem Steel Corp., 58 Op. Of EPA General

COURS Sar SEF e Yn o' Ol eee EG eee ee ae rh he

Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir.

APOE x00 60k cde dK awsathone een 13

Montana v. Gilham, 127 F.3d 897 (9th Cir. 1997)...... 17

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

Montana v. United States Environmental Protection

Agency, 137 F.3d 1135 (9th Cir. 1998).......... passim

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .... 16

South Dakota v. Bourland, 508 U.S. 679 (1993).......5, 6

Strate v. A-1 Contractors, 117 S.Ct. 1404 (1997)... 4, 5, 6

a

iii

TABLE OF AUTHORITIES - Continued

Talton v. Mayes, 163 U.S. 376 (1096) 260. cc eseececces: 16

Toombs County v. O'Neal, 330 S.E.2d 95 (Ga. 1985) .... 17

United States v. Lambert, 915 F.Supp. 797

REN ON, WU RUIE bc aioe bn bea oo We eRe AE TUES Re 14

United States v. Texas Pipe Line Co., 611 F.2d 345

Re Gt er he sc cee veh fr evens wee neh reels 13

United States Steel Corp. v. Train, 556 F.2d 822 (7th

Ce ER i cia a kw ea ene See ae BAEK REC ee 11

Prins of Lee: Son TES. 2s Chee ioc skies evi o eben een 5

FEDERAL MATERIALS

BO CBR. B TZE Aaa) CIO G vk hha evs Vagina eee’ 12

ee Se Oe AONE COPPER i vcn ceordie dene eeennaes 1]

Se Gee Se SS SIP EE PA Re vane cce ene eekb beam hwecesns y

ee ee cab ean 9

SCP. SS GOR CE AERO OE wo 5005 calneeiowen wen 10

Oe ASk eee COREE 4 aN craw oS AS ee aeenas 10

WO Co Fee. Sark Cee) oN ba ev coe esawaweeteny ca 10

OG Fed, Bae. G4, B76, SIP LISS Ess ois es cee venien 11, 12

59 Fed. Reg. 64, 339 (Dec. 14, 1996)... icc ccece neces 4y

ca Mig bet tae Ek: RRR Ca rgetog amy emia mi rane eine 16

Wh ROBIE: POTN foe oo Sr ee 8

iV

TABLE OF AUTHORITIES — Continued

Page

Bake Be Bess B TERA) CROSS 6 Aeris ania eseuuwean 9

SEE. ee Rien RROREE Sar be ra ewavad bAd vece Garba 9

Tit. 33 U.S.C. §§ 1311(a)(b)(1)(C) (1988)........... Py

BEG: Se Shihan ERROR ED CAMOEE BRC eosheaN ec CeNR hades 10

Eke Do Bets A ERB CCNED CREE Ss va dvi es ce hedeweee os 12

ROb> ee SP Se ROOREIEAS COPPER S ous kcaveevewnexwer.s 11

a Ee. ae ek EL eo hac ds Who ei aa Se ORRREREN ES 14

ARs a Ra TR BEE eek OU wkhed He aR RAG ON be veRee a 9

Be. ae es AO Aad saee Cned Coa abv bugesen eer 9

COGis WEWONS Pics, DCN, OED bic b sc ee oN scwawusee vues 9

Water Quality Act of 1987, P.L. 100-4, 101 Stat. 7..... 9

MONTANA MATERIALS

Oy ee See Oe EOE. do WSaN eT ee Deda eee meee Nas 17

Montana Code Annotated

SFM LOPTEE wc acer en. ve een Vases RL eee 6

PRE DESE LONUE TE ib xce dhe hRos tan cern eae 7

OS Fa, CEROED bse aD Sakae TEL Kae WERE Eee 7

Montana Constitution of 1972, Art. II, Section 3

CDOT RE Rk wAS MOR CREE AEER SORE CET RURAL ate hat 7

Montana Constitution of 1972, Art. IX, Section 1

SBOP RE NES ce Cad PERCE ER DARA SE ME Ce Uk aR eG aa Eee Ou Lee 7

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

/ Duke Envtl. L. & Pol’y F. 367 (1997).............. 15

Reference Guide to Water Quality Standards for

Tribes, EPA 440/5-90-002, at 1 (January 1990).. 9, 10, 15

Tribal Governmental Regulation of Non-Indian

Polluters of Reservation Waters, 71 North

Dakota Law Review 433, 451, 463 (1995)........ S 32

INTEREST OF THE AMICI MONTANA

ASSOCIATION OF COUNTIES

The Montana Association of Counties (hereinafter

MACO) represents all fifty-six Counties in Montana

including Lake County. Twenty of these Counties either

border or have part of their territory lying within one of

the seven Reservations in Montana. The Ninth Circuit

decision directly impacts twenty of MACO’s members.

These twenty members provide a substantial majority of

the services to their citizens, both Tribal members and

nonmembers. Unless reviewed and overturned, Tribal

regulation will force these twenty members to allocate

sparse tax dollars in order to comply with Tribal water

quality standards. As a representative of these twenty

members, MACO has a duty to voice their interests and

concerns.

STATEMENT OF THE CASE

Amici curiae adopts the Statement of the Case set

forth in the Petition for a Writ of Certiorari.

SUMMARY OF THE ARGUMENT

This Court should grant a Writ of Certiorari when the

Ninth Circuit erred in finding the Tribe possesses the

inherent sovereign authority to regulate Montana, local

governments and their nonmember citizens under the

Clean Water Act (hereinafter CWA). The Ninth Circuit

impermissibly found the second exception of Montana v.

United States, 450 U.S. 544 (1981), circumvented the gen-

eral rule. The Ninth Circuit ignored this Court’s instruc-

tion requiring the second exception to trigger only when

the Tribal regulation of nonmembers bears a clear rela-

tionship to tribal self-government or its internal relations.

State regulation of nonmembers on fee land will prevent

any impact to the Tribe’s ability to govern its members

and trust land. State regulation will prevent nonmembers

from invading the internal relations of the Tribe.

As presently construed by the EPA, the CWA

empowers the Tribe to designate water uses for all waters

on the reservation, and to set Water Quality Standards

(hereinafter WQS) to achieve the designated uses. The

Tribe must certify any permit issued by the EPA, insuring

that it meets tribal WQS. Challengers to tribal use desig-

nations, WQS, or denials of certification must initiate

actions in Tribal court using Tribal law.

Local governments provide the essential services to

the entire populace of the Reservation. These govern-

ments have a strong interest in regulating the services

they provide. Under the EPA’s approach, the local gov-

ernments will have no voice in the regulation of these

services.

Nonmembers are subject to laws and courts and a

legislative body they have no role in selecting or defin-

ing. Sovereign immunity and no constitutional rights in

Tribal court, make the EPA’s approach unsuitable for

nonmembers.

Finally, this Court should grant certiorari when the

principle of sovereign immunity causes unworkable

enforcement of the CWA. Both the Tribe and the State

WwW

possess sovereign immunity from suit in each other’s

court. The Tribe cannot enforce its regulations against

State and local governments in Tribal Court. State and

local governments cannot challenge a Tribal decision

under the CWA without foregoing their sovereign immu-

nity. Such hurdles require review by this Court.

I. THIS COURT SHOULD ISSUE A WRIT OF CER-

TIORARI WHEN THE NINTH CIRCUIT ERRED IN

FINDING AN INDIAN TRIBE POSSESSES THE

INHERENT SOVEREIGN AUTHORITY TO REGU-

LATE STATE OR LOCAL GOVERNMENTS AND

THEIR CITIZENS.

The Ninth Circuit Court of Appeals upheld a deter-

mination by the EPA permitting Indian Tribes to regulate

fee property owned by state and local governments and

their nonmember citizens. Montana v. United States Envi-

ronmental Protection Agency, 137 F.3d 1135 (9th Cir. 1998).

The EPA made this decision by giving lip service to the

Montana v. United States, supra, general rule. The EPA

permitted the second exception fueled by its generalized

findings to circumvent the general rule. A Tribe need

only assert the following three phrases:

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) impair-

ment of waters would have a serious and sub-

stantial effect on the health and welfare of the

tribe.

Id. at 1139. By saying these magic words, Tribes may

regulate all fee land owned by the State, local govern-

ments, and nonmembers within a reservation. With the

magic words, the Ninth Circuit subjected nonconsenting

State and local governments and their nonmember citi-

zens to regulation by a foreign nation utilizing their rules.

This Court should issue a Writ of Certiorari because the

Ninth Circuit erred in its interpretation of the Montana,

supra, test. Without any factual basis, the Ninth Circuit

permitted the second exception to Montana, supra, to com-

pletely circumvent the general rule.

This Court should also issue a Writ of Certiorari,

when the local governments and their nonmember citi-

zens must immediately face tribal regulation. If this

Court fails to issue a Writ, the governmental entities, the

service providers, must invest money and time in order

to comply with the new tribal regulations until this Court

finally decides the extent of the second exception of

Montana, supra.

A. THE NINTH CIRCUIT ERRED WHEN IT CIRCUM-

VENTED THE GENERAL RULE IN MONTANA

WITH THE SECOND EXCEPTION.

In Montana v. United States, supra, this Court found as

a general rule that the inherent sovereign powers of an

Indian Tribe do not extend to the activities of nonmem-

bers. Montana v. United States, supra, and Strate v. A-1

Contractors, 117 S.Ct. 1404, 1409 (1997). The general rule

means a tribe “has no authority- itself, by_way of tribal

ordinance or actions in the tribal courts, to regulate the

use of fee land.” Plurality of White, Rehnquist, Scalia and

Kennedy Brendale v. Confederated Tribes and Bands of the

Yakima Nation, 492 U.S. 408, 430 (1989). Of course, the

Montana court qualified the rule by stating:

[1] To be sure, Indian tribes retain inherent

sovereign power to exercise some forms of civil

jurisdiction over non-Indians on their reserva-

tions, even on non-Indian fee lands. A tribe may

regulate, through taxation, licensing, or other

means, the activities of nonmembers who enter

consensual relationships with the tribe of its

members, through commercial dealing, con-

tracts, leases, or other arrangements. Williams v.

Lee, 358 U.S. 217, 233 (1959). [2] 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 politi-

cal integrity, the economic security, or the health

or welfare of the tribe.

Montana, supra, at 565-566.

In construing the second exception, Strate, stated:

Key to its proper application, however, is the

Court's preface: “Indian tribes retain their inher-

ent power [to punish tribal offenders,] to deter-

mine tribal membership, to regulate domestic

relations among members, and to prescribe rules

of inheritance for members . . . But [a tribe’s

inherent power does not reach] beyond what is

necessary to protect tribal self-government or to

control internal relations.”

Strate, supra, at 1416 quoting Montana, supra, at 564. The

Tribal regulation over nonmembers must bear a clear

relationship to tribal self-government or its internal rela-

tions. Montana, supra, at 564-565.

In “reality”, Tribes lack any inherent sovereignty to

regulate nonmembers after Montana, supra. South Dakota

v. Bourland, 508 U.S. 679, 695 n. 15 (1993). In the event

nonmember activities on fee land threaten the political

integrity, economic security or health or welfare of the

Tribe, the Tribe must bring an action under federal law

and not in Tribal Court. Brendale, supra, 430-431. The

Supremacy clause requires the state and local govern-

ments to recognize and respect the Tribe’s interests and

regulate activities accordingly. Id. at 431.

Montana, Brendale, Bourland, and Strate, supra,

demand a narrow reading of the second exception limit-

ing its application to activities that seriously threaten

tribal self-governance, its own members, or the Tribe’s

internal relations. Under such a threat an aggrieved party

must bring the action under federal law outside of the

Tribal courts. The Ninth Circuit ignored the instructions

of this Court and refused to examine water regulation to

see if the State and local governments have allowed the

activities of nonmembers to threaten Tribal self gover-

nance or the internal relations of the Tribe.

If the Ninth Circuit had reviewed this case properly

the Court would have discovered that the State of Mon-

tana has traditionally regulated nonmember fee land

including water. Montana possesses an intricate regula-

tory system to protect the water quality of all waters

within the State of Montana. See Mont. Code Ann. Sec-

tion 75-5-101 (1997) et seq.2 The Montana Constitution

2 The Montana legislature stated:

It is the public policy of this state to: (1) conserve

water by protecting, maintaining, and improving the

quality and potability of water for public water

supplies, wildlife, fish and aquatic life, agriculture,

industry, recreation, and other beneficial uses; (2)

provide a comprehensive program for the prevention,

provides every citizen with “the right to a clean and

healthful environment.” Mont. Const. of 1972, Art. IL,

Section 3 (1972). The Montana Legislature has a constitu-

tional duty to prevent degradation of Montana’s natural

resources. Mont. Const. of 1972, Art. IX, Section 1 (1972).

State regulation of nonmember fee land does not

prevent Tribal regulation of trust land and of Tribal mem-

bers. The Tribe may freely pass laws to regulate all water

on trust land and on land owned by Tribal members.

State reguiation of nonmembers does not impermissi-

bly invade in the internal relations of the Tribe. The

Montana, supra, Court did not find state regulation to be

intrusive on the internal relations of the Tribe. State regu-

lation of water on nonmember fee land does not permeate

the internal relations of a Tribe any more than State

regulation of nonmember hunting and fishing.

Under State regulation, nonmember activities involv-

ing water use will not impact the Tribe’s self-governance

or their internal relations. Montana’s water quality regu-

lations provide severe civil and criminal penalties which

will insure compliance with Montana’s policy of non-

degradation.

abatement, and control of water pollution. Mont.

Code Ann. Section 75-5-101 (1997).

3 The Montana Department of Environmental Quality has

the authority to issue a penalty against a violator equal to $10,000

for each day of each violation with the maximum penalty not to

exceed $100,000. Mont. Code Ann Section 75-5-611(9) (1997). A

violation may also result in a criminal fine of /$25,000 per day of

violation and up to one year imprisonment for the first offense.

Mont. Code Ann Section 75-5-632 (1997).

The EPA and the Ninth Circuit erred in failing to

examine State water quality regulation in light of its

impact on Tribal self-governance or Tribal internal rela-

tions. Instead, the Ninth Circuit and the EPA examined

the issue in a state regulation vacuum. Without any anal-

ysis, the EPA declared and the Ninth Circuit affirmed that

nonmember activity threatens the health or welfare of the

Tribe. Such analysis ignores the reality of current State

regulation. Nonmember activity does not threaten the

self-governance or internal relations of the Tribe. State

regulation currently addresses all threatening activities

cited by Respondents. Because the State regulation of

nonmember fee land will prevent any impact to the Tribe,

the second exception to Montana, supra, does not apply.

The Tribe lacks the inherent sovereignty to regulate non-

member fee land.

The appropriate construction of the Montana, supra,

exception stands as the keystone to jurisdictional Indian

Law. The Ninth Circuit misapplied the second exception

to the circumvention of the general rule. This Court

should issue its Writ of Certiorari and reverse the Ninth

Circuit.

B. UNLESS REVIEWED TRIBAL REGULATION

UNDER THE CWA LEAVES LOCAL GOVERN-

MENTS AND THEIR CITIZENS IN UNCER-

TAINTY.

Congress passed the CWA to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters” by the reduction and eventual elimina-

tion of polluting discharges. 33 U.S.C. § 1251(a). CWA

a a a or ES

attempts to accomplish its goal by developing a partner-

ship between the federal government and the States. 33

U.S.C. Section 1251(b).

Congress amended the CWA in 1987 with the Water

Quality Act of 1987 (hereinafter WQA), P.L. 100-4, 101

Stat. 7. For the first time, the WQA permitted the treat-

ment of Indian Tribes in the same manner as states for

certain purposes. CWA Section 518, 33 U.S.C. Section

1377. 59 Fed. Reg. 64, 339 (Dec. 14, 1994). A Tribe that

meets the criteria in Section 518(e), 33 U.S.C. § 1377(e)

and 40 C.F.R. Section 131.8(a), may submit an application

to the EPA. 40 C.F.R. Section 131.8 (1992).

If the EPA recognizes a Tribe as a State, a Tribe can

submit its proposed water quality standards to EPA. City

of Albuquerque v. Browner, 97 F.3d 415, 419 n.4 (10th Cir.

1996). The Tribe must first inventory all of the surface

waters within the Reservation. Id. at 6. The Tribe then

assigns specific uses to the inventoried waters. Id. Next,

the Tribe selects the use classification in order to achieve

the Tribe’s ideals or desires for the inventoried waters.

Tribal Governmental Regulation of Non-Indian Polluters

of Reservation Waters, 71 North Dakota Law Review 433,

451 (1995). (Hereinafter N.D.L.Rev.) The CWA requires

that at a minimum, the Tribe protect “fishable/swim-

mable ” goals. 33 U.S.C. Section 1251(a)(2) (1989). See also

EPA WQA Guide.

The Tribe may adopt various use categories and sub-

categories that the Tribe deems appropriate to the reser-

vation so long as the use categories meet the minimum

requirements of the CWA and the purposes of the CWA.

EPA WQS Guide at 7. Uses may include typical items like

10

irrigation and public drinking water supplies, to the less

typical items like cultural and religious activities. Tribes

may adopt more stringent WQS than the fishable/swim-

mable goals, however, once adopted, the Tribe cannot

downgrade the uses unless the Tribe shows that attain-

ment is not feasible. 40 C.F.R. Section 131.10(y), (h) (1994).

After the Tribe designates its uses, the Tribe must

design quality criteria which are designed to protect and

attain the designated uses. Id. at Section 131.2. In theory,

if polluters comply with the criteria, then the water body

should achieve a water quality sufficient to achieve and

protect the designated use. 40 C.F.R. Section 131.11(a)

(1994).

The Tribe holds a public meeting under tribal law

and applicable federal regulations. 33 U.S.C. Section

1313(c)(1) (1988). “EPA urges Tribes to actively involve

Tribal members in the review process. Public hear-

ings ... are an effective means of involving Tribal mem-

bers in setting goals for their reservation waters...” EPA

WQS Guide at 13. The Tribe, however, should open the

meeting to all persons including non-Indians. 40 C.F.R.

Section 131.20(b) (1994).

EPA only reviews a Tribes designated uses and WQS

to insure that they are consistent with the CWA and EPA

regulations. EPA WQS Guide, supra, note 118 at 13. The

scientific analysis that formed the WQS must be adequate

and the designated uses and criteria must be compatible

throughout the water body. Id. at 15. 56 Fed. Reg. 64, 876

& 890 (1991). The CWA and the WQA permits states and

Tribes that meet Section 1377(e) standards to set stan-

dards that are more stringent than federal standards so as

|

;

’

1]

to force the development of technology. United States Steel

Corp. v. Train, 556 F.2d 822, 838 (7th Cir.1977).

EPA will respect a Tribe’s decision to adopt WQS

more stringent than an adjacent state’s WQS for the same

water body. See 56 Fed. Reg. 64, 876 & 886 (1991). If the

Tribe’s WQS pose a conflict with the state’s WQS, the EPA

will not force a Tribe to lower its WQS. Id. See also City of

Albuquerque v. Browner, supra, at 423-424. Unless there is a

showing of inconsistency with the CWA, neither the EPA

nor a state may second-guess a Tribe’s value judgment as

to the uses of reservation waters and the WQS to achieve

those uses. In re Bethlehem Steel Corp. 58 Op. of EPA

General Counsel 337, 338 (1977). 56 Fed. Reg. 64, 876 &

890 (1991). In fact, EPA does not require judicial review

for tribal certification because decisions are based on

tribal law and not federal law. 56 Fed. Reg. 64, 876 & 882

(1991).

Once the EPA has approved the tribal uses and WQS

as being consistent with the CWA, the EPA and the Army

Corp of Engineers may only issue permits to point source

dischargers of pollutants if they comply with applicable

tribal WQS. 33 U.S.C. Section 1341(a)(1) (1994),

1311(b)(1)(C) (1988). 40 C.F.R. Section 124.51(c) (1994).

The Tribe has three options when examining an applica-

tion: (1) the Tribe certifies that the proposed discharge

complies with tribal WQS; (2) the Tribe certifies that the

proposed discharge will comply with tribal WQS if the

permit incorporates additional conditions; (3) the Tribe

denies certification. 33 U.S.C. Section 1341(a)(1) (1988).

The EPA and or Army Corp of Engineers have no

power to override the Tribe’s determination denying or

12

conditioning certification. In re Bethlehem Steel Corp.,

supra. 56 Fed. Reg. 64, 876 & 890 (1991). If the Tribe denies

certification the federal agency may not issue the permit.

Id. The applicant can only challenge the Tribe’s denial in

tribal court subject to tribal law and their judicial review.

Id.

Any conditions placed by the Tribe on a permit

become federal permit conditions enforceable by EPA

under the CWA. 33 U.S.C. Section 1311(a), 1319(c), & (d)

(1988). 40 C.F.R. Section 122.41(a), (a)(2) (1994). CWA

violations carry civil penalties of $25,000 per day per

violation, criminal penalties of $25,000 per day per viola-

tion and or imprisonment for a period of one year, and

possible permit revocation or termination. Id. 40 C.F.R.

Section 122.41(a) (1994). One commentator has stated:

The mechanics of the certification process

encourage (if not require) the dissatisfied appli-

cant to sue the federal agency who incorporated

the tribe’s conditions in the federal permit,

rather than suing the tribe itself. Such litigation

will likely fail on general principles of judicial

deference to administrative agencies, but per-

haps more importantly from the tribe’s perspec-

tive, will not directly challenge the tribe’s

regulatory authority over the applicant, nor the

wisdom of the tribe’s WQS or its conditions.

71 N.D.L.Rev. 433, 463.

The CWA as defined by the Ninth Circuit’s ruling

throws local governments and nonmembers into an abyss

of uncertainty. The CWA permits Tribes to regulate all

waters within the reservation. Waters subject to Tribal

regulation include low lying areas periodically inundated

ee

Oe “

Oe. ea

alin Sia a at

13

by water. Conservation Council of North Carolina v. Cos-

tanzo, 398 F.Supp. 653, 673 (E.D.N.C. 1975). The Tribe may

regulate man-made ponds and marshes. See Leslie Salt Co.

v. United States, 896 F.2d 354, 359 (9th Cir. 1990). The CWA

also sanctions the regulation of unnamed tributaries that

only flow into a traditionally navigable stream during

heavy rainfalls. United States v. Texas Pipe Line Co., 611

F.2d 345, 347 (10th Cir. 1979).

Unlike the cited cases, the Tribe will designate the

wetlands, ponds, and small tributaries subject to regula-

tion. A nonmember can only challenge the designations

in Tribal Court subject to Tribal laws.

The Tribe will determine the use of all waters regard-

less of their location and prior use. Permissible uses may

include the protection of culture and religion and other

out of the ordinary uses. The Tribe will then set water

quality standards in order to meet the uses.

Local governments fear that Tribes may overregulate.

The local governments suspect that Tribes may set more

stringent WQS than the EPA requirements in order to

meet the Tribe’s designated uses. In City of Albuquerque,

supra, the Pueblo Tribe issued arsenic standards 1000

times more stringent than the federal Safe Drinking Water

Standard.

EPA will impose this stringent limit on the City

despite the fact that arsenic occurs naturally in

Albuquerque’s ground water at relatively high

levels and is not discharged to the water by

industrial polluters. If pure water is discharged

at the City’s outfall, it is possible that the arsenic

levels in water flowing through the Pueblo will

remain relatively high. I raise this issue of the

14

agency's apparent inconsistency because it is

one I find troubling.

City of Albuquerque v. Browner, supra.

The CWA permits Tribes to substantially regulate the

activities of nonmembers and local governments. The

Tribe may regulate a local government’s construction and

maintenance of roads, and the construction of bridges.

See 33 U.S.C. Section 1344. If the county’s bulldozer or

road grader causes soil or rock to enter a Tribally defined

marsh, then the Tribe may prohibit the construction or

maintenance. See United States v. Lambert, 915 F.Supp. 797,

802 n. 8 (S.D.W.Va. 1996). See also Id. at 801 n. 7. A Tribe

may regulate a private homeowner’s landscaping and

construction or regulate a farmer’s application of fertil-

izer or herbicides. See Concerned Residents for Envirn. v.

Southview Farm, 34 F.3d 114, 116 (2nd Cir. 1994). Under

the Ninth Circuit’s interpretation, the Tribe will regulate

all activities using Tribal law in Tribal Court.

Unless this Court reviews this case, the Tribal stan-

dards will force local governments to comply with the

WOS. Reality dictates that the local governments provide

the necessary services to all citizens, Tribal members and

nonmembers alike. These services include waste facilities

and public water works. Local governments build and

maintain roads including the construction of bridges over

the waters. These governments must also maintain a wel-

fare department, fund Courts, pay for a county attorney,

and several other services. High standards will drive

local governments to either increase taxation or reallocate

sparse tax dollars from essential services in order to

15

construct the infrastructure necessary to comply. If this

Court later reviews this issue and finds Tribes cannot

regulate nonmember fee land, then the local governments

will have diverted and wasted substantial tax dollars.

These governments hold a strong interest in regulat-

ing the services they provide or having a voice in their

regulation. After the Ninth Circuit’s decision, the local

governments will have no voice in the regulation of any

service that impacts Tribally defined water. Despite the

fact that Tribal members are citizens of the counties and

cities within the reservation and can vote in all elections,

nonmembers cannot participate in Tribal politics. The

Tribe has the power to cease the construction of bridges

and roads, and to close water plants, waste facilities and

industries. Despite this power, neither the local govern-

ments nor their nonmember citizens can vote to deter-

mine the Tribal decision-makers.

Local governments and nonmembers only have a

peripheral opportunity to participate. Nonmembers may

participate in a public hearing designed for Tribal mem-

bers under Tribal law. See EPA WQS Guide at 13. This

participation has no meaning. The Tribal decision makers

+ Albuquerque estimated that it would initially spend $248

million dollars and $26 million annually to comply with the

Isleta Pueblo arsenic WQS. The City estimated an additional

spending of $70-$100 million for the nitrogen WQS and $60

million to comply with the ammonia WQS. City of

Albuquerque’s Memorandum in Support of Motion for

Summary Judgment at 10-19. City of Albuquerque v. Browner, 865

F.Supp. 733 (D.N.M.1993). The City, the Tribe and the EPA have

entered an agreement which has delayed the city’s compliance.

7 Duke Envtl. L. & Pol’y F.367 (1997) at 13.

16

must only answer to their Tribal constituents. If Tribal

decision makers submit Tribal water quality standards

that eliminate an essential service, the Tribal leader need

not worry. The Tribal leader stands accountable only to

the members of the Tribe.

If the Tribe denies a nonmember their Constitutional

rights when reviewing a water matter in Tribal Court,

then the nonmember must pursue the denial in Tribal

Court under the Indian Civil Rights Act (hereinafter

ICRA). 25 U.S.C. Section 1301 et seq.> ICRA does not

provide a nonmember with the right to a jury of his or

her peers. Thus, in all Montana Reservations, a Tribal jury

consists of only tribal members. If a nonmember suffers

damages, a suit under ICRA may be valueless. The Tribe

possesses sovereign immunity. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 59 (1978).

Local governments and nonmembers with fee prop-

erty, nervously await this Court’s decision. The local gov-

ernments cannot afford to be patient. The decision of this

Court will determine the future financial allocations and

taxation of the local governments. Immediate review by

this Court will at least alleviate some of the uncertainty.

> See Talton v. Mayes, 163 U.S. 376, 384 (1896), finding Tribal

governments including Tribal Courts are not subject to the

United States Constitution. See also Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 61 (1978), holding the Indian Civil Rights

Act did not create a federal remedy in a addition to the habeas

corpus remedy.

icici

17

li. THE SOVEREIGN IMMUNITY OF STATE AND

LOCAL GOVERNMENTS GENERATE UNWORK-

ABLE RESULTS REQUIRING REVIEW.

In Montana v. Gilham, 127 F.3d 897 (9th Cir. 1997) the

Court found the principle of sovereign immunity pre-

vented an individual from suing a State in Tribal Court.

The Court stated, “It is consistent with the recognition of

sovereignty that both tribes and States are immune from

unconsented tort actions by individuals in each other’s

courts.” Id. at 904. The Ninth Circuit previously held that

absent an act of Congress, consent or waiver, a Tribe may

not sue a State in federal court. Cabazon Band of Mission

Indians v. Wilson, 124 F.3d 1050, 1057 (9th Cir. 1997). The

state’s sovereign immunity extends to its subdivisions

including County and in some cases City governments.

See Toombs County v. O'Neal, 330 S.E.2d 95, 96-97

(Ga.1985). See also Comm'l Carrier Corp. v. Indian River

County, 371 So.2d 1010, 1015 (Fla.1979). 57 Am Jur.2d

Section 6 (1988).

——

In this case, the CWA poses a serious problem to any

enforcement. Any conflict between a State and a Tribe

cannot be resolved without one of the two governments

foregoing its sovereign immunity. Gilham, supra, 900.

Under the Ninth Circuit’s ruling, the Tribe cannot

enforce its own regulations against the State, Lake

County, or cities and towns. The principle of sovereign

immunity prohibits the Tribe from enforcing its water

regulations in Tribal Court. Instead, the Tribe must seek

shelter under the enforcement wings of the EPA. Relying

upon the bureaucratic channels of the EPA diminishes the

Tribe’s ability to enforce its WQS. Every violation will

18

require subsequent bureaucratic interpretations before

the enforcement mechanism begins. The entire process

could lead to a bureaucratic nightmare.

A state or local government cannot challenge in

Tribal Court a Tribe’s WQS, use designation, or any other

decision made under the CWA without foregoing its sov-

ereign immunity. Each time the State or local government

considers a challenge to the Tribe, it must weigh the

challenge against waiving its sovereign immunity. Such a

dilemma strangles the State and local governments’ right

to participate and infringes upon the traditional notions

of Due Process.

Sovereign immunity creates confusion for all entities

involved in the Ninth Circuit’s decision. This Court

should grant Certiorari to resolve the unworkable result.

¢

CONCLUSION

This Court should grant a Writ of Certiorari when the

Ninth Circuit erred finding the Tribe possessed the inher-

ent sovereignty to regulate nonmember owned fee land

under the CWA. The construction of Montana, supra, and

its exceptions lies at the nucleus of modern Federal

Indian law. The Ninth Circuit ignored this Court’s

instructions and circumvented the general rule by failing

to read the second exception in the context of Tribal self-

government and the internal relations of a Tribe.

This Court should also review this case in light of the

serious impact Tribal water regulation will have on local

19

governments and their nonmember citizens. Local gov-

ernments provide the majority of the services. Unless

reviewed, Tribal regulation will force the allocation of

local tax dollars toward constructing the infrastructure to

comply with the CWA. Local governments fear over-

regulation from an entity where they have no voice.

Finally, the principle of sovereign immunity yields an

unworkable result under the CWA. The Tribe cannot

enforce its regulations against the State and local govern-

ments in Tribal Court. The State and local governments

cannot challenge a Tribal decision under the CWA with-

out foregoing their sovereign immunity. For these rea-

sons, this Court should grant a Writ of Certiorari.

Respectfully submitted,

THANE P. JOHNSON

WERNER, EpsTeIN & JOHNSON

14 E. Main, P.O. Box 428 @

Cut Bank, MT 59427

Counsel for MACO — Amicus