Amicus Curiae Brief — Montana v. Environmental Protection Agency

MOTION FILED

Aug 2 4 1998 No. 97-1929

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

STATE OF MONTANA; LAKE COUNTY,

MONTANA; CITY OF RONAN, MONTANA,

a municipal corporation; TOWN OF Hot SPRINGS,

MONTANA, a municipal corporation,

m Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

an agency of the United States; CAROL M. BROWNER,

Administrator of the United States Environmental Pro-

tection Agency; CONFEDERATED SALISH and KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND BRIEF OF NATIONAL WATER RESOURCES

ASSOCIATION, FLATHEAD JOINT BOARD OF

CONTROL OF THE FLATHEAD, MISSION AND JOCKO

VALLEY IRRIGATION DISTRICTS, ROSS MIDDLEMIST,

WILLIAM SLACK, AND GLEN MURPHY

IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

JON METROPOULOS

Counsel of Record

GOUGH, SHANAHAN, JOHNSON,

& WATERMAN

P.O. Box 1715

Helena, MT 59624-1715

(406) 442-8560

WiLson - Eres PrRinTINnG Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1929

STATE OF MONTANA; LAKE COUNTY,

MoNnrTANA; CITY OF RONAN, MONTANA,

a municipal corporation; TOWN OF Hort 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 Pro-

tection Agency; CONFEDERATED SALISH and KOOTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

The National Water Resources Association (““NWRA”),

the Flathead Joint Board of Control of the Flathead,

Mission, and Jocko Valley Irrigation Districts (“Dis-

tricts”), Ross Middlemist, William Slack, and Glenn

Murphy respectfully move this Court, pursuant to Rule 37

S.Ct. R., for leave to file an Amicus Curiae brief in sup-

port of Petitioner’s Petition for Writ of Certiorari.

The named individuals and the Districts participated

in this matter below as amici. They attempted to par-

1 Mr. Wayne Maughan, who participated below, does not request

leave to participate here because he has sold his property and moved

away from the Flathead reservation.

ticipate as parties, moving the district court for leave to

intervene, which it denied. State of Montana vy. U.S.

Environmental Protection Agency, 941 F.Supp. 945, 954-

55 (D. Mont. 1996). The individuals own land in fee

within the exterior boundaries of the Flathead Reserva-

tion in Montana, where they live with their families. They

are not members of the Confederated Salish and Kootenai

Tribes (“Tribes”), but they and their families consume

and use water, just as tribal members do.

Their interest in this litigation lies in the fact that their

health and welfare, no less than tribal members’ is af-

fected by the quality of water on the reservation and their

use of water is affected by the water quality standards

applicable to the reservation. If the Tribes have the

authority to set these standards, the individuals, as non-

members, will have no right to participate in the political

process that leads to these standards. In addition, the

precedential effect of the lower court’s decision will un-

doubtedly affect other jurisdictional issues, such as whether

the Tribes have authority over wetlands and water rights.

Each of the individuals own both wetlands and water

rights.

Congress authorized the Districts to be formed and

operated on the reservation under the laws of Montana.

It authorized them to embrace within their boundaries

and authorities all fee-owned irrigable lands, including

trust allotments once the fee patent has issued. As own-

ers of irrigable land, each of the individual amici is a

constituent of one of the three Districts. Under Montana |

law, the Districts’ authority includes, inter alia, the power

to construct and maintain dams and reservoirs and other

diversions for irrigation works *, appropriate water, acquire

2 The Court found diversions of water, even for nonconsumptive

uses, could be limited because of their impact on water quality

standards in PUD No. 1 v. Washington Department of Ecology,

511 U.S. 700 (1994).

lites

land, water rights, and water works, enter contracts with

the United States, apportion and distribute irrigation

water among irrigators, and operate the irrigation project

which serves them. See Ch. 85, Title 7, Part 19, Mon-

tana Code Annotated (1997). The Flathead Joint Board

of Control serves as a central operating authority for these

Districts and, like the Districts, is a governmental entity

under Montana law. § 85-7-1905, MCA.

As local governmental entities of the State the Districts

are concerned to prevent the disruption of the direct

political relationship, and accountability, between their

constituents, the Districts, and the State by the intrusion

into this relationship of the Tribal governments’ authority.

NWRA is a not-for-profit federation of water resource

organizations in sixteen (16) of the seventeen (17) recla-

mation states. Its membership includes rural water dis-

tricts, municipal water entities, and other local govern-

ments. Many of these members are Publicly Owned

Treatment Works (“POTWs”), which receive wastewater

from indirect dischargers, treat it, and then discharge it

into navigable waters. Consequently, they must meet

applicable water quality standards to receive the certifica-

tion required under § 401 of the CWA. Some of its

members are commercial water supply companies and

legal and financial institutions concerned with permitting

and financing water supply and treatment facilities.

Among its members are municipal water supply and waste

water treatment agencies, POTWs, and rural water dis-

tricts located on Indian reservations throughout the West.

NWRA serves its membership by advocating for laws,

regulations and policies which promote the efficient use of

water in the West. The development of policies and proj-

ects to meet future needs requires a degree of certainty

about regulatory regimes so that meaningful planning, in

terms of legal and financial support for developments as

well as engineering, can take place.

Aside from any particular resolution to this controversy,

NWRA is strongly interested in having the issue of

whether tribes have sovereign authority to set standards

for nonmember activity on fee land resolved so that its

members can plan accordingly in terms of the political

regime they will have to work within, the level of stand-

ards they will have to meet, and the capital input that will

be necessary, should they decide to proceed with further

development.

These organizations and individuals, and their counsel,

are familiar with the Indian law issues presented by this

case and the legal principles that control them. The

Districts have appeared before this Court in past actions

seeking a writ of certiorari and in submitting an amicus

curiae brief in Strate v. A-] Contractors, USS. :

117 S.Ct. 1404 (1997).

These amici have endeavored in the accompanying brief

to assist the Court in evaluating the importance of the

issue presented for review by presenting facts and argu-

ments, or perspectives on arguments, not presented by the

Petitioners.

Counsel for the State of Montana, City of Ronan, and

Town of Hot Springs consented to this filing, as has the

Solicitor General. Counsel for Respondent Tribes have

not consented to this filing.

Dated this 24th day of August, 1998.

Respectfully submitted,

JON METROPOULOS

Counsel of Record

GOUGH, SHANAHAN, JOHNSON,

& WATERMAN

P.O. Box 1715

Helena, MT 59624-1715

(406) 442-8560

ORGY TIE NICE ANNUALS Nn OR eam

TABLE OF CONTENTS

TALE OF DAFT OIE ices niosiiernncsseinnsenrarines ii

INTEREST OF AMICI CURIAE ........................-.----....--- 2

ne ana eeuaaemusdabepenianatiaede 2

Oe ee i ac deagnianiicaab edie 4

6

C. The National Water Resources Association..........

SUMMARY OF AMGUMEINE nese n csi cncncereoreseontenvscecossens 7

REASONS FOR GRANTING THE PETITION ............ 8

I. THE NINTH CIRCUIT’S DECISION PRE-

SENTS THE CLEAN LEGAL ISSUE

WHETHER A TRIBE’S INHERENT SOV-

EREIGNTY EXTENDS TO NONMEMBER

CONDUCT ON FEE LAND THAT DOES NOT

DIRECTLY AFFECT THE TRIBE’S ABILITY

TO GOVERN ITS INTERNAL MATTERS...... 8

II. THE NINTH CIRCUIT’S DECISION CON-

FLICTS WITH DECISIONS OF THIS COURT

AND IT CONFLICTS IN PRINCIPLE IF NOT

DIRECTLY WITH DECISIONS OF OTHER

A RID: scien cursensischinerach sesceseasbadie aeetontebnnanlaacaniald 10

Ill. THE SCOPE OF EPA’S RATIONALE AP-

PLIES NATIONWIDE AND IF ALLOWED

TO STAND WILL RESULT IN SIGNIFI-

CANT ABRIDGEMENT OF FUNDAMENTAL

RIGHTS OF NONMEMBERS TO PARTICI-

PATE IN THE GOVERNMENTS UNDER

WHICH THEY LIVE ....................... Zh Aiisssmsnseind 16

CO ins shlteistiaiinchctedaicctagdieiattcanicns ciate 18

a

ii

TABLE OF AUTHORITIES

CASES Page

Brendale v. Confederated Tribes and Bands of

Yakima Indian Nation, 492 U.S. 408, 109 S.Ct.

2994, 106 L.Ed.2d 343 (1989) .......... PLATES ERS passim

Confederated Salish and Kootenai Tribes v. Na-

men, 665 F.2d 951 (9th Cir. 1982) ...................... 4

FERC v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126,

OF 5 BF Bi: Bammer Ree Ritter 5

Lower Brule Sioux Tribe v. South Dakota, 104

iy Bi ygii Be Se. . 2 RaeCeeemneme 2, 12, 14, 15, 16

Lower Brule Sioux Tribe v. South Dakota, 917

WaT, BG CERT BD ok cnc eviceseeuccccusetsse: 2,12

Montana v. United States, 450 U.S. 544, 101 S.Ct.

2 Serko A EO} sf RR passim

Namen v. Confederated Salish and Kootenai

Tribes, 459 U.S. 977, 108 S.Ct. 314, 74 L.Ed.2d

291 (1982) (Rehnquist, C.J. dissent from denial

of certiorari) ...... OS Cae MINTS Pome I Ty SNE CTU 4

New York v. United States, 505 U.S. 144, 112 S.Ct.

BERS, EBS Ei TSG. ED CRIED ic nceksicee cece.

Oregon Department of Fish and Wildlife v. Kla-

math Indian Tribe, 473 U.S. 753, 105 S.Ct. 3420,

Be ete GR COD, ciicascetidateets cancion otic eens: 10

PUD No.1 v. Washington Department of Ecology,

511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716

a |

BFR REED REND lal MEN RUN! Fata yee. SR 5

Reich v. Mashantucket Sand & Gravel, 95 F.3d 174

¢ Bt Ree See mlanbrnanern nome elders SEAT SA ctu eatin ee 15

Seminole Tribe of Florida v. Florida, 517 U.S. 44,

116 S.Ct. 1114, 184 L.Ed.2d 252 (1996) ........... 11

South Dakota v. Bourland, 508 U.S. 679, 113 S.Ct.

2308, 124 L.Ed.2d G06 (19@8) —...2.0..c....eu.s.... passim

South Dakota v. Bourland, 949 F.2d 984 (8th Cir.

ORIG isssckscesenisnia socaskinendpeaicelthucnteesiceiaiiibisai ina ee tale 12

South Dakota v. Bourland, 39 F.8d 868 (8th Cir.

BIPOE sit cnccknccrtantantsianiagndidanbine hosp eee ee 12, 15

South Dakota v. Yankton Sioux Tribe, U.S.

, 118 S.Ct. 789, L.Ed.2d (1998) .. 15

|

iii

TABLE OF AUTHORITIES—Continued

Page

Strate v. A-1 Contractors, U.S. ——, 117 S.Ct.

L406, 187 £,.5:6.26 G61 (1007) «22... .cccccccccscccs.s. passim

Strate v. A-1 Contractors, 76 F.3d 930 (8th Cir.

Bowes See, 6, GN ik 15

United States v. Johnson, 481 U.S. 681, 107 S.Ct.

2068, 95 L.Ed.20 G48 (1987) ................................. 10

United States v. Lopez, 514 U.S. 549, 115 S.Ct.

1624, 181 L.Ed.2d 626 (1995) ................. GS, 11, 12, 13, 17

Yankton Sioux Tribe v. Southern Missouri Waste

Management District, 890 F.Supp. 878 (D.S.D.

RED. Sao ska besa tcacuinbéales dochgtarateua cots mesiuie cbmc clue aas ce 15, 16

STATUTES

Clean Water Act, 33 U.S.C. §§ 1251-1387 (1997) ..4, 8,13

General Allotment Act, 25 U.S.C. §§ 331, et seq.

PUI chctnsuihesiaiiaiccxcnscnncsiness keke eget abeece sabes: sa 2

Flathead Allotment Act of 1904, Act of April 23,

Feta Ue SU I akc 2

Act of May 29, 1908, 35 Stat. 448 ............................ 4

Act of May 10, 1926, 44 Stat. 453 _......... RIA AS NE 4

Ch. 85, Title 7, Part 19, Montana Code Annotated

CRINED Geiiccusvakuntiaeencias trcdiea nal cge os ia asrias tance 5

OTHER MATERIALS

Price, B. Leigh, Jr., “Tribal Programs Under the

Clean Water Act: Regulatory Design Consid-

erations,” Mineral Development on Indian

Lands, Paper No. 16 ...... EES EA a IEE DE OE 3

IN THE

Supreme Count of the United States

OCTOBER TERM, 1997

No. 97-1929

STATE OF MONTANA; LAKE Country,

MONTANA; CITY OF RONAN, MONTANA,

a municipal corporation; Town oF Hor SpRINGs,

MONTANA, a municipal corporation,

. Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

an agency of the United States; CAaRoL M. BROWNER,

Administrator of the United States Environmental Pro-

tection Agency; CONFEDERATED SALISH and KOoTENAI

TRIBES OF THE FLATHEAD RESERVATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF NATIONAL WATER RESOURCES

ASSOCIATION, FLATHEAD JOINT BOARD OF

CONTROL OF THE FLATHEAD, MISSION AND JOCKO

VALLEY IRRIGATION DISTRICTS, ROSS MIDDLEMIST,

WILLIAM SLACK, AND GLEN MURPHY

IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI 1

The National Water Resources Association (“NWRA”),

Flathead Joint Board of Control of the Flathead, Mission,

1 Counsel for the parties did not participate in drafting this

brief, and no one other than the amici curiae made a monetary

contribution to its preparation or submission.

2

and Jocko Valley Irrigation Districts (“Districts”), Ross

Middlemist, William Slack, and Glen Murphy, respect-

fully submit this brief amici curiae in support of the

Petition for writ of certiorari to the Ninth Circuit Court

of Appeals pursuant to S. Ct. R. 37.

INTERESTS OF AMICI CURIAE

A. The Individuals.

The individual amici own land in fee within the ex-

terior boundaries of the Flathead Reservation in Montana,

where they reside with their families. They are farmers

and ranchers. They are not members of the Confederated

Salish and Kootenai Tribes (“Tribes”), but they and

their families consume and use water, just as tribal mem-

bers do. Because they are not tribal members, they have

no right to participate in tribal government, either by

voting or holding office. (“Nonmember Indians and non-

Indians share the same relation to tribal government, in

that neither group can typically vote in tribal elections,

participate in the tribal jury system, nor can they hold

tribal office.” Lower Brule Sioux Tribe v. State of South

Dakota, 917 F. Supp. 1434, 1444 (D.S.D. 1996), citing

Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408, 445 (1989), affirmed, 104

F.3d 1017, 102-1024 (8th Cir. 1997). Nonmembers

own land on the Flathead reservation because their prede-

cessors homesteaded and purchased allotments there under

the authorization of Congress, which applied the policies

of the General Allotment Act (“Dawes Act”), 25 U.S.C.

§§ 331, et seq., to the reservation in the Flathead Allot-

ment Act of 1904 (“FAA”). Act of April 23, 1904, 33

Stat. 302.2, As a result, homesteaders and purchasers of

2The demographic consequences of Congress’ application of the

Dawes Act policies to the Flathead reservation are that nonmembers

constitute at least 75% of the reservation population of 21,259 as

found in the 1990 census. Nonmembers own almost 50% of the

reservation acreage.

3

allotments who fulfilled applicable requirements obtained

fee title and the full value of the land, without any rele-

vant conditions, for example, that their activities on the

land would be subject to a tribe’s governance. Montana

v. United States, 450 U.S. 544, 559, n.9 (1981) (“defies

reason” Congress would have intended tribes to retain

jurisdiction over nonmembers) ; Brendale, 492 U.S. at 437

(concurrence) (“inconceivable” Congress intended tribes

to retain jurisdiction over nonmembers).

Their interest arises, specifically, from the fact that the

decision below allows the Tribes’ government to under-

take “core governmental function{s],” Pet. 104a, affecting

them and their families—in this case setting the water

quality standards applicable to all waters on the reserva-

tion—even though, as a limited sovereign generally lack-

ing in powers over nonmembers the Tribes exclude them

from exercising fundamental rights of political participa-

tion.’ More generally, their interest arises from the fact

3 The importance of this “core governmental function” was recog-

nized by one of EPA’s attorneys in this litigation who wrote that

setting water quality standards is the foundation on which all other

water quality decisions rest and that this governmental action

entails political decisions affecting society at large: “[T]ribal gov-

ernments have been quick to realize the central importance of control

over the decision-making process—that is, the government with

power to set water quality standards for reservation streams con-

trols the future water quality of the reservation. Permitting,

inspecting, and the taking of civil or criminal action against

reservation polluters are necessary control functions, but the

overriding factor on which all other activities depend is the pre-

liminary decision as to what the water quality of reservation

waters should be. . . . For tribal governments .. . the over-

arching question has become one of whether the states or the

tribes should make those political decisions balancing economic

interests against interests of human health and public welfare

on the reservations.” Price, B. Leigh, Jr., “Tribal Programs

Under the Clean Water Act: Regulatory Design Considerations,”

Mineral Development on Indian Lands, Paper No. 16, at 16-8 (Em-

phasis added.)

-

that the rationale for this decision applies to other areas

of jurisdictional dispute both under the Clean Water Act

(“CWA”), 33 U.S.C. §$§ 1251-1387 (1997), (for ex-

ample the Tribes have an application pending for recogni-

tion of their sovereignty to regulate wetlands) and in

other realms of regulatry control, so that, based on this

precedent, they will be subject directly to the regulatory

control of the Tribes in other areas.*

B. The Districts.

In 1908, Congress amended the FAA, in furtherance

of the Dawes Act policies, (see Montana, 450 U.S. at

559, n.9), and authorized the construction of an irriga-

tion project to serve all the irrigable land on the reser-

vation, whether an allotment (which under the FAA

became alienable after a period in trust) or unallotted

homestead land. Act of May 29, 1908, 35 Stat. 448, at

section 15. In 1926, to further construction on this

Project, Congress authorized the formation and operation

of the Districts under State law in the Act of May 10,

1926, Ch. 277, 44 Stat. 453, 464. Congress authorized

the Districts to embrace within their boundaries and au-

thoriites all fee-owned irrigable lands, including trust al-

lotments once the fee patent has issued. As owners of

4The Court previously considered review of the Ninth Circuit

decision applying the legal concept at issue here on the Flathead

reservation and finding the Tribes retained jurisdiction to regu-

late nonmember conduct over land, the south half of Flathead Lake,

the circuit had found the Tribes own. Confederated Salish and

Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir. 1982), cert.

denied, 459 U.S. 977-981 (1982). (Rehnquist, C. J. and White, J.

dissenting, arguing: “The ‘ownership’ and ‘regulatory’ issues pre-

sent important questions having ramifications throughout the many

western states within the jurisdiction of the Court of Appeals for

the Ninth Circuit. I would grant certiorari to review that court’s

decision of both issues.’”’)

5

irrigable land, each of the individual amici is a constituent

of one of the three Districts.

Under Montana law, the Districts’ authority includes,

inter alia, the power to construct and maintain dams and

reservoirs and other diversions for irrigation works,° ap-

propriate water, acquire land, water rights, and water

works, enter contracts with the United States, apportion

and distribute irrigation water among irrigators, and op-

erate the irrigation project which serves them. See Ch.

85, Title 7, Part 19, Montana Code Annotated (1997).

The Flathead Joint Board of Control serves as a central

operating authority for these Districts and, like the Dis-

tricts, is a governmental entity under Montana law.

§ 85-7-1905, MCA.

As local governmental entities of the State which Con-

gress specifically authorized to operate under State law,

the Districts interest here is in preventing the disruption

of the direct political relationship, and accountability, be-

tween their constituents, the Districts, and the State by

the intrusion into this relationship of the Tribal govern-

ments’ authority. The extension of the Tribes’ authority

to cover water quality matters pertaining to fee lands not

only undermines the Districts’ authority and the Districts’

governmental relationship with the State but it also sub-

jects the great majority of the Districts’ constituents who

are not tribal members to an unaccountable government

in which neither they nor the Districts have any formal

right or role. See United States v. Lopez, 514 U.S. 549,

577 (1995), citing New York v. United States, 504 US.

144, 155-163 (1992) and FERC v. Mississippi, 456 U.S.

742, 787, (1982) (O’Connor, J., concurring in part and

5 The Court found diversions of water, even for nonconsumptive

uses, could be limited because of their impact on water quality

standards in PUD No. 1 v. Washington Department of Ecology, 511

U.S. 700 (1994).

6

dissenting in part). There, the Court noted “[t]he...

inability to hold either branch (state or federal) of the

government answerable to the citizens is more dangerous

even then devolving too much authority to the remote

central power.” Id. (Explanatory parenthetical added.)

This is precisely what occurs when a tribal government

controls nonmember activity on nontribal land.

C. The National Water Resources Association.

The National Water Resources Association (NWRA)

is a not-for-profit federation of water resource organiza-

tions in sixteen (16) of the seventeen (17) reclamation

states. Its membership includes rural water districts,

municipal water entities, and other local governments.

Many of these members are Publicly Owned Treatment

Works (“POTWs”), which receive wastewater from in-

direct dischargers, treat it, and then discharge it into

navigable waters. Consequently, they must meet appli-

cable water quality standards to receive the certification

required under § 401 of the CWA. Some of its members

are commercial water supply companies and legal and

financial institutions concerned with permitting and financ-

ing water supply and treatment facilities.

Among its members are municipal water supply and

waste water treatment agencies, POTWs, and rural water

districts located on Indian reservations throughout the

West. Also among its members are irrigation districts

located on Indian reservations in Washington, Oregon,

Montana, Wyoming, Nevada and Idaho.

NWRA works for policies that promote the conserva-

tion, enhancement, and efficient management and use of

water. NWRA advocates laws and regulations that bal-

ance the use of water and land resources to meet existing

and future needs of the people in their local circumstances

with the interests of preserving and enhancing a clean

environment. The development of such policies and proj-

7

ects to meet future needs requires a degree of certainty

about regulatory regimes so that meaningful planning, in-

terms of legal and financial support for developments as

well as engineering, can take place.

NWRA formally supports, by resolution, the continued

development of tribal water quality programs within their

sphere of jurisdiction. It does not support the extension

of tribal authority over nonmembers and their activities

on non-tribal land, primarily because nonmembers have

no right to participate in tribal governments. In view of

the critical importance of water and, particularly in the

West where water is scarce, the fundamental social issues

control of water use involves, NWRA strongly supports

governmental authority over water use that is accountable

to all citizens. Lacking political accountability to non-

members, Tribal sovereign authority to govern water use

by nonmembers will, in NWRA’s view, alienate nonmem-

bers and leave them disaffected from the entire process,

making it more difficult to develop and particularly to -

implement sound policies promoting wise use of water.

Aside from any particular resolution to this contro-

versy, NWRA is strongly interested in having the issue of

whether tribes have sovereign authority to set staridards

for nonmemiber activity on fee land resolved so that its

members can plan accordingly in terms of the political

regime they will have to work within, the level of stand-

ards they will have to meet, and the capital input that

will be necessary, should they decide to proceed with

further development.

SUMMARY OF ARGUMENT

The issue presented hete flows not from a discrétionary

act of EPA but from the result of its mandatory obliga-

tion to make a legal determination whether, under the

second Montana exception, the Tribes retain inherent

sovereign authority to set water quality standards for the

entire reservation. The Ninth Circuit’s affirmance of this

8

decision on a de novo review conflicts with applicable

principles established by the Court in Montana, 450 U.S.

544 (1981), Brendale, 492 U.S. 408 (1989), South

Dakota v. Bourland, 508 U.S. 679, (1993), and Strate v.

A-1 Contractors, U.S. , 117 S.Ct. 1404 (1997).

Moreover, this decision conflicts, in principle if not di-

rectly, with decisions of other circuits and lower courts

that have analyzed and applied the exception. Finally, the

Ninth Circuit’s decision to uphold EPA’s application of

the exception in this case will have broad and deep conse-

quences. Tribes throughout the country will be found to

possess inherent sovereign authority for a broad range of

“health and welfare” issues under EPA’s simplistic analy-

sis. On reservations where nonmembers reside, the exten-

sion of tribal authority in this manner will cut deeply into

the most fundamental rights and liberties of U.S. citizens.

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUITS DECISION PRESENTS

THE CLEAN LEGAL ISSUE WHETHER A TRIBE’S

INHERENT SOVEREIGNTY EXTENDS TO NON-

MEMBER CONDUCT ON FEE LAND THAT DOES

NOT DIRECTLY AFFECT THE TRIBE’S ABILITY

TO GOVERN ITS INTERNAL MATTERS.

1. The Tribes cast EPA’s decision as _ having

merely been just another discretionary decision in its

implementation of § 518, under which, incidentally, it

treats tribes as the “functional equivalent of states.” Tr.

Bf. 2. Consequently, the Tribes claim the State’s request

for review from this Court, backed by eleven (11) other

States, proceeds from a “fabricated argument that the

TAS decision is predicated upon EPA’s erroneous inter-

pretation of the doctrine of inherent Tribal sovereign

powers.” Jd. at 10. This downplaying of EPA’s decision

seriously misreads the records, including the Tribes’ own

submissions.

9

2. EPA’s rulemaking process and the preamble to the

final rules dealt extensively with how EPA would deter-

mine whether an applicant tribe possessed sovereign

power to carry out the program for which it sought TAS.

Pet. 92a-110a. The first document in the administrative

record for the TAS decision at issue here consists of

thirty-eight (38) pages from the Tribes’ application ex-

plaining the scope of their jurisdiction, particularly over

nonmembers. ARI, esp. 54-85. In their application, the

Tribes asserted:

“It is presently unquestioned that, unless expressly

divested by Congress, tribal governments have ‘police

powers’ to safeguard the health, safety, and cultural

and social welfare of tribal members by regulation

of activities and conduct, and to regulate the use of

lands on Federal Indian reservations by all persons

to promote the health, safety and welfare of the

tribes. These police powers of Tribes are grounded

in Tribal inherent sovereignty ....” ARI, 54.®

On this erroneous basis, the Tribes claimed, “{i]nherent

tribal sovereignty forms the basis for the territorial juris-

diction of an Indian tribe over its reservation... .” AR4,

37. In reviewing this claim and finding the Tribes possess

such sovereign power, EPA plainly understood that its

decision was whether or not the Tribes possessed such

inherent sovereign authority. EPA’s decision document

Stated: “The Agency is satisfied that the .. . Tribes . .

6 The Tribes filed a special addendum to their application on

July 13, 1993, one month after the Court’s decision in South

Dakota v. Bourland, 508 U.S. 679 (1993). Concerned that EPA

might view Bourland, which addressed tribal regulatory jurisdic-

tion over nonmembers on an opened reservation like the Flathead

reservation, as relevant and adverse to their assertion of sovereign

authority in this case, the Tribes argued the Bourland decision

“while potentially detrimental to Tribal regulatory authority based

solely on inherent sovereign authority ... bolsters Tribal authority

when, as in this case, Congress delegates authority under the CWA

to Tribes.” AR11. _

10

have adequate jurisdiction to set water quality standards

for waters within the exterior boundaries of the Reserva-

tion. ...” Pet. 60a.

In its decision upholding EPA’s decision, the Ninth

Circuit clearly understood its task was to determine the

legal question whether EPA had properly “delineated”

the second Montana exception and found the Tribes pos-

sess inherent sovereignty on that basis. Pet. 1la-12a. The

Circuit court’s de novo review and approval of EPA’s

legal determination of the Tribes’ jurisdiction on the basis

of that exception is squarely presented for review here.’

II. THE NINTH CIRCUIT’S DECISION CONFLICTS

WITH DECISIONS OF THIS COURT AND IT CON-

FLICTS IN PRINCIPLE IF NOT DIRECTLY WITH

DECISIONS OF OTHER CIRCUITS.

1. “[A]bsent express authorization by federal statute

or treaty, tribal jurisdiction over the conduct of non-

members exists only in limited circumstances.” Strate,

117 S.Ct. at 1409.9 The Court has required that for a

7™The Ninth Circuit held no deference is due EPA’s ruling on

this legal issue (Pet. lla). “[T]he scope of inherent tribal author-

ity is a question of law for which EPA is entitled to no deference.

... EPA’s delineation of the scope of that standard .. . has nothing

to do with its own expertise or with any need to fill interstitial gaps

in the statute. ...” Review of this ruling has not been sought here.

8In United States v. Johnson, 481 U.S. 681, 685 (1987), the

Court granted certiorari to review the “reformulation” of one of

its doctrines by the Ninth Circuit Court of Appeals and to resolve

a conflict among the circuits, including a “conflict[{] in principle.”

Id. at 685, n.4. The Court also granted certiorari to the Ninth

Circuit in Oregon Department of Fish annd Wildlife v. Klamath

Indian Tribe, 473 U.S. 753, 764 (1985), to resolve an apparent

“conflict in principle” with the Eighth Circuit.

8 That there is no federal statute or treaty basis for the Tribes’

authority here was not questioned by EPA or the lower courts.

By rule, EPA determined the statute did not delegate authority to

Tribes. Pet. 1lla. Neither the Tribes nor EPA argued any treaty

provision supplies the source of the Tribes’ claimed sovereignty.

11

Tribe to possess retained inherent sovereign authority over

such nonmember conduct “in limited circumstances” it

must demonstrate that the conduct directly, adversely af-

fects the tribe’s ability to govern itself. Id. at 1416. The

Court explained the scope of such self government by

specifying four areas the nonmember conduct must ad-

versely affect to trigger a Tribe’s imherent sovereignty:

its power to punish tribal offenders, determine tribal mem-

bership, regulate domestic relations among members, and

prescribe rules of inheritance for members. 7d.

The Ninth Circuit’s decision ignores these limitations.

It approved EPA’s decision that, after only a “minimal

showing” that water is present on the reservation and

tribal members use water, it may “presume,” Pet. 105a-

106a, the tribe has jurisdiction to set quality standards

because nonmember conduct may affect tribal members

(not the Tribe itself). Yet neither EPA nor the Tribes

demonstrated how matters of water quality impact the

Tribes’ powers of self-government to punish tribal offend-

ers, determine tribal membership, regulate domestic rela-

tions among members, or prescribe rules of inheritance.

2. Moreover, the Court has clearly stated that the

broad police power io regulate water quality is beyond

the scope of tribal power over nonmembers it enumerated

in Strate. See Brendale, 492 U.S. at 429, and n.11 (tribes

do not have police power); United States v. Lopez, 514

U.S. 549, 566-68, (1995) (police power reserved by

Constitution to States.); 7d. at 552 (“constitutionally man-

dated division of authority ‘was adopted by the Framers

to ensure protection of our fundamental liberties.’”) (Ci-

tation omitted.) This is a fundamental barrier to finding

tribal jurisdiction in this case, Respondents’ desire for

which cannot “take precedence over the Constitution.”

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 168,

(1996) (dissent of Stevens, J.) As the Court heid in

Lopez in a different context, “[t]o uphold the Govern-

ment’s contentions here, would [be] to pile inference upon

12

inference in a manner that would bid fair to convert

(tribal) authority under (their retained inherent sover-

eignty) to a general police power of the sort retained by

the States.” Lopez, 514 U.S. at 567. (Parentheticals

added. )

3. But, even assuming Tribes could possess such police

power, in justifying its decision, Pet. 12a, the Ninth Cir-

cuit also ignored the fact that the Court has found against

tribal jurisdiction over nonmembers in cases presenting

conceptually similar issues—i.e. whether a tribe has au-

thority over nonmember activity on fee land that has

mobile effects and whether “checkerboard jurisdiction” is

permissible. See Montana, 450 U.S. 566; Brendale, 492

U.S. at 430-431, and see South Dakota v. Bourland, 39

F.3d 868 (8th Cir. 1994). EPA linked the issues of

“mobile effects” and checkerboard jurisdiction in its final

rules and said they justified finding Tribal, not State, jur-

isdiction over nonmember land. Pet. 102a-103a.

Contrary to this, “in Montana, Brendale, and Bourland

the Court ‘authorized such ‘checkerboard’ jurisdiction by

mandating that neighboring tracts of land be subject to

different regulatory authorities on the basis of the type of

ownership, or the nature, of the land.” Lower Brule, 917

F. Supp. at 1448, quoting South Dakota v. Bourland, 949

F.2d 984, 996 (8th Cir. 1991), affirmed Lower Brule

Sioux Tribe v. State of South Dakota, 104 F.3d 1017,

1024 (8th Cir. 1997). For example, in Montana, the

Court rejected tribal jurisdiction over nonmember hunting

and fishing on and from fee land. The effects of such

activity, which impact water and migratory fish and game

populations, are clearly mobile. Yet this gave the Court

no pause because the place of the activities and the per-

sons conducting them are fixed, determinable facts. In

Bourland the Court also had no hesitation in holding the

Tribe’s jurisdiction had been abrogated, even though the

effects of nonmember hunting and fishing clearly cross

land ownership boundaries. Even in Brendale, the Court

13

held the Tribes at issue lacked jurisdiction to zone non-

member land in an open area even though the effects of

land use—industrial, commercial, residential—are not re-

stricted to that parcel of land. There are predictable,

migratory effects that come from particular land uses.

For example, the aestheic effect of a use of land is not

limited to that parecl. Nor are the effects of the various

discharges into the air or water or onto the land from

particular uses allowed by zoning laws limited to that

parcel. Thus, while the land at issue in Brendale was,

obviously, not mobile, the effects of the nonmember con-

duct on that land were.

4. Finally, EPA’s reliance on legislative findings un-

related to § 518 of the CWA, added 15 years after Con-

gress made the findings, as the foundation for its decision

only compounds its error of using after-the-fact documen-

tation !° to support its decision. See Lopez, 514 U.S. at

563. (“[I]mportation of previous findings” inappropirate

because they do not speak to the subject matter of the

provision they are used to justify. )

Without the use of these “findings” to establish, under

EPA’s reasoning, the presumption of tribal jurisdiction

over nonmember activity, EPA’s list of examples of non-

member pollution is insufficient, not least because EPA

excluded any person or entity from participating in the

administrative process save for the State of Montana,

other federal agencies, and other Indian tribes. More

10 See Petition at 9 and brief of eleven amici States at p. 4, n.2,

noting the chronology of EPA’s documentation of factual support

for its finding in this case and in other cases.

11 This administrative exclusion was circumvented, somewhat, by

means of sending comments to the State which then submitted them

unchanged to EPA. As a result, in the adminisrative record at

tab 20 there are many letters and a petition, signed by hundreds and

perhaps thousands of reservation residents, expressing opposition,

on fundamental constitutional grounds, to a finding that the Tribes

have jurisdiction over them. As a legal matter, however, this exclu-

14

specifically, this list of examples is unpersuasive because

EPA's reasoning fails to consider that the Tribes’ 4,000

members, as well as the 17,500 other people living on

the reservation, are now and have been since the passage

of the CWA in 1972 under the protection of and subject

to the standards and programs of that Act, just like the

rest of the United States. EPA’s decision depicts the

reservation as having no regulatory controls protecting

water quality, subjecting the Tribes and their members to

unrelieved and unconstrained water pollution. That is

inaccurate. The Tribes and their members are, in fact,

protected, as all United States residents are, by the na-

tionally applicable federal standards and, where applicable

—1i.e. nonmember fee land—state standards which meet or

exceed these minimums. EPA failed to explain how, given

these regulatory regimes, which Congress and the Mon-

tana legislature deem adequate to protect the citizenry,

the health and welfare of the Tribes could be imperilled.

5. The Ninth Circuit’s decision also conflicts in prin-

ciple, if not directly, with decisions of other Circuits and

lower courts that have applied the second Montana ex-

ception in similar circumstances, though not dealing spe-

cifically with TAS decisions of EPA. Contrary to the

Ninth Circuit, these courts recognized that the tribe as-

serting sovereign power must demonstrate, in the “neces-

sary particularized inquiry,” (Lower Brule, 104 F.3d at

1023), that the nonmember conduct at issue directly,

adversely affects the Tribe, not just tribal members.

Moreover, the requisite effect on the tribe, according to

these courts, unlike the Ninth Circuit, must be to powers

of self-government—the tribe’s political integrity, eco-

nomic security, or health and welfare, as the Court out-

lined initially in Montana. Finally, these Courts, unlike

the Ninth Circuit, recognized that these effects must af-

fect the tribe’s powers of self-government not “in general”

sion had the effect of preventing any person or entity other than

the State from obtaining judicial review of EPA’s decision.

x 15

but “in purely intramural matters.” See Lower Brule, 104

F.3d at 1022-1024 (finding tribe failed in its second

Montana showing after the “necessary particularized in-

quiry” to demonstrate nonmember hunting and fishing

of “migrating game populations,” even though “vexa-

tious,” presents a “direct threat to the welfare of the Tribe

as a whole,” and “ ‘checkerboard’ jurisdiction had been

authorized by the Supreme Court)"; State of South

Dakota v. Bourland, 39 F.3d 868, 869-870 (8th Cir.

1994), on remand from South Dakota y. Bourland, 508

U.S. 679, (1993) (rejecting claim of inherent sovereignty

based on direct effect from nonmember hunting and fish-

ing, including adverse effect on game populations, because

such effects “do not amount to a direct effect on the

political integrity, the economic security, or the health or

welfare of the Tribe as a whole... . .”); Yankton Sioux

Tribe v. Southern Missouri Waste Management District,

890 F. Supp. 878, 889 (D.S.D. 1995) (limited and some-

what contradictory evidence “regarding impact of the pro-

posed municipal solid waste landfill on the political in-

tegrity, economic security, or health and welfare of the

Tribe” fails to give rise to tribal sovereignty )!°; Reich v.

Mashantucket Sand & Gravel, 95 F.3d 174, 178-179 (2d

Cir. 1996) ( analyzing the second Montana exception in

determining whether OSHA applies to a tribal business

the Second Circuit rejects as “too grandiose a concept of

12 And see dissent of Beam, Circuit Judge, arguing, as the Ninth

Circuit held here, the second Montana exception provides for tribal

sovereignty when the nonmember conduct has any effect on the

Tribes’ members, the same reasons advanced in his dissent from the

Circuit’s decision in Strate v. A-1 Contractors, 76 F.3d 930 (8th

Cir. 1996), which this Court rejected in affirming the en banc circuit

decision. Strate, supra.

13 The Tribe did not appeal this ruling. Therefore, it was not at

issue in the Court’s reversal of the Eighth Circuit’s affirmance of

the district court that the Yankton Sioux reservation had not been

diminished. South Dakota v. Yankton Siour Tribe,

118 S.Ct. 789 (1998).

U.S. YE

16

tribal sovereignty” the argument that any activity that

involves tribal entities or people necessarily involves and

is subject to only the tribes’ sovereignty and casts the

issue raised by the second Montana exception as “not

whether the statute affects tribal self-governance in general

but rather whether it affects tribal self-governance in

purely intramural matters.”) (Emphasis in original.)

These courts have read and applied the Courts’ decision

more narrowly and precisely than the Ninth Circuit. The

principles of their decisions conflict with those of the

Ninth Circuit’s and this conflict warrants resolution by

the Court.

Ill. THE SCOPE OF EPA’S RATIONALE APPLIES

NATIONWIDE AND IF ALLOWED TO STAND

WILL RESULT IN SIGNIFICANT ABRIDGEMENT

OF FUNDAMENTAL RIGHTS OF NONMEMBERS

TO PARTICIPATE IN GOVERNMENTS UNDER

WHICH THEY LIVE.

The impact of the Ninth Circuit’s decision is nation-

wide, Pet. 135a-146a, and it penetrates into the delicate

balance between the state and federal sovereigns devised

in the Constitution. Hundreds of Tribes have applied for

the same treatment from EPA. Indeed, Tribes this Court

has ruled lack jurisdiction over nonmembers for regula-

tory programs very similar to the programs at issue here

as to the legal issues they raise concerning tribal jurisdic-

tion over nonmembers will be deemed to have such juris-

diction by EPA under the rationale it applied in this

case.'* The significant incursion on the values of Fed-

14 Compare TAS approvals for Confederated Tribes and Bands

of the Yakama Indian Nation, Pet. 145a,-with Brendale, 492 U.S.

408 (1989); and for Crow Tribe, Pet. 140a, with Montana, 450

U.S. 544 (1981); Also Compare TAS approval for Yankton Sioux

Tribe, Pet. 14la, with Yankton Sioux Tribe v. State of South

Dakota, 890 F. Supp. 878, 888 (D.S.D. 1995); and TAS approval

for Lower Brule Tribe, Pet. 14la, with Lower Brule Sioux Tribe

v. State of South Dakota, 104 F.3d 1017, 1022-24 (8th Cir. 1997).

17

eralism and the fundamental liberties it secures, Lopez,

514 U.S. 549, 552, is confirmed by both the assertions

of the Tribes and the approval of EPA. The Tribes ex-

plicitly grounded their assertion of such authority on their

claim to possess “police powers,” ( ARI, 54), giving them

“territorial jurisdiction,” (AR4, 37), throughout reserva-

tion land. Approving this claim, EPA explicitly grounded

its decision on the basis that Tribes retain such “core gov-

ernmental functions” “to protect public health and safety.”

(Pet. 104a.) This ranges far beyond the powers of self-

government the Court has found tribes retained upon

incorporation into the United States. Strate, 117 S.Ct. at

1416. Tribes’ sovereignty may fit comfortably within the

constitutional framework when limited to their members.

But when it is extended to embrace police powers, which

the Constitution reserved to states. and to nonmembers,

whose fundamental rights and liberties are not secured

when they are properly within a tribe’s jurisdiction, it

raises significant questions regarding the place of sovereign

tribes within our federal structure.

Finally, the depth of the mischief wrought by the Ninth

Circuit’s decision, cannot be overstated in regard to the

rights of individuals who are not tribal members but who

lawfully reside and own land within an Indian reserva-

tion. Should the Ninth Circuit’s decision pass unreviewed,

their disenfranchisement from the government which en-

acts water quality standards applicable to the water they

use would be replicated throughout the United States.

See Pet. 135a-146a. As noted by EPA, setting water

quality standards is a “core governmental function.” Such

functions, in our system, are properly taken by a govern-

ment accountable to the people subject to its decisions.

If Tribes have sovereign authority over nonmembers for

such “core governmental functions” such accountability,

and the values it preserves, will be lost.

18

Such unaccountable government is reason, and has been

since the incubation of this Nation in the toils of unrep-

resentative government, for grave concern.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

JON METROPOULOS

Counsel of Record

GOUGH, SHANAHAN, JOHNSON,

& WATERMAN

P.O. Box 1715

Helena, MT 59624-1715

(406) 442-8560