Opposition Brief — Montana v. Environmental Protection Agency

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In the Supreme Court of the Gnited States

OCTOBER TERM 1997

ENVIRONMENTAL PROTECTION AGENCY, ET AL

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QUESTION PRESENTED

Whether the Environmental Protection Agency

(EPA) violated Section 1377(e) of the Clean Water Act

(CWA), 33 U.S.C. 1251 et seg., which requires EPA to

develop and implement “final regulations which specify

how Indian tribes shall be treated as States for pur-

poses of this chapter,” 33 U.S.C. 1377(e), by determin-

ing that the respondent Tribes should be authorized to

establish water quality standards for non-Indian fee

lands as well as Indian lands within the Flathead

Reservation, based on a determination that water

pollution from nonmember activities on non-Indian

lands would have serious and substantial impacts on the

health and welfare of the Tribes.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...ccccccreeses 2,4

Brendale v. Confederated Tribes and Bands of

the Yakima Indian Nation, 492 U.S. 408 (1989) ....... 4,9,

11, 12, 14, 16

California v. Cabazon Band of Mission Indians,

ABO U.S. 202 (1987) ..ccccccccccesssssccesscsccvssenscsesesesessssesesosescess 4

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

(10th Cir. 1996), cert. denied, 118 S. Ct. 410

EPA v. California, 426 U.S. 200 (1976) c..essesesseeerereees i

Lower Brule Sioux Tribe v. South Dakota, 104

F.3d 1017 (8th Cir.), cert. denied, 118

Se es. 5 pees aii sisi iegaanasiatieaiemninarnaite 16

Moe v. Conf derated Salish and Kootenai Tribes,

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Seymour Vv. Supe rintendent, 36% U.S. 351

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In the Supreme Court of the Gnited States

OCTOBER TERM 1997

No. 97-1929

STATE OF MONTANA, ET AL.. PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-15a)

is reported at 137 F.3d 1135. The opinion of the district

court (Pet. App. 16a-49a) is reported at 941 F. Supp.

945.

JURISDICTION

The judgment of the court of appeals was entered on

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

filed on May 29, 1998. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Congress has authorized the Environmental Pro-

tection Agency (EPA) to treat Indian Tribes in the

Py,

same manner as States for certain purposes of the

Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and has

directed EPA to promulgate regulations “which specify

how Indian Tribes shall be treated as States” for those

purposes. 33 U.S.C. 1377(e) (Pet. App. 182a-133a). Fol-

lowing notice and comment, the EPA promulgated

regulations that provide a mechanism for Tribes to re-

ceive “treatment as a State” (TAS) authority. See 40

C.F.R. 131.8 (Pet. App. 118a-117a). The Confederated

Salish and Kootenai Tribes of the Flathead Reservation

(CSK Tribes) applied for and received TAS authority

under those regulations. Pet. App. 50a-9la. Petition-

ers, the State of Montana and local governmental enti-

ties, brought this action in the United States District

Court for the District of Montana to obtain a declara-

tory judgment that EPA’s grant of TAS status to the

Tribes is unlawful. The district court rejected petition-

ers’ assertions that EPA’s decision is invalid as a mat-

ter of law, id. at 16a-49a, and the court of appeals af-

firmed, id. at la-1lda.

1. The CWA is a comprehensive statute designed

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters” through the

reduction and eventual elimination of the discharge of

pollutants into those waters. 33 U.S.C. 125l(a). To

achieve those goals, the CWA establishes a partnership

between the federal government and the States in

which the States have “primary responsibilities and

rights” to regulate water pollution. 33 U.S.C. 1251(b);

see 33 U.S.C. 1370; Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992). As we explain below, Congress has also

extended this partnership to Indian Tribes by pro-

viding, through Section 1377(e) of the CWA, that

Indian Tribes satisfying prescribed criteria are eligible

for treatment in the same manner as States for certain

purposes under the CWA. See 33 U.S.C. 1377(e).

a. As part of its regulatory program, the CWA

provides that each State must adopt water qualitv

standards for all waters within the State’s jurisdiction

and submit those standards to EPA for approval. 33

U.S.C. 1313(c). States must specify one or more des-

ignated “uses” of each waterway (e.g., public water

supply, recreation, fish propagation, or agriculture) and

must establish water quality criteria to protect those

uses. 33 U.S.C. 1318(¢)(2)(A). EPA reviews all new or

revised state water quality standards for consistency

with the requirements of the Act. 33 U.S.C. 1313(¢)(3).

If EPA determines that a state standard does not meet

minimum federal requirements, then EPA disapproves

the standard. The State may then adopt changes sug-

gested by EPA, or failing such action, EPA must itself

issue a water quality standard for the State. 33 U.S.C.

1313(¢)(3) and (4)(A).

In addition to water-quality based requirements, the

CWA also provides for technology-based requirements,

which take into account the capability of existing

pollution-control technologies to remove particular

pollutants from effluents. EPA or the State may estab-

lish effluent limitations, reflecting technology-based

requirements for discrete categories and classes of

point sources, that restrict the quantities, rates, and

concentrations of specified pollutants that may be

discharged into water from the point sources. See 33

U.S.C. 1311, 1342. ;

Both water quality-based and technology-based re-

quirements are implemented through a permit process,

known as the National Pollutant Discharge Elimination

System (NPDES). The Act prohibits “the discharge of

any pollutant” into the nation’s waters except as au-

thorized by an NPDES permit. 33 U.S.C. 1311, 1342;

see EPA v. California, 426 U.S. 200, 205 (1976). All

NPDES permits must include effluent limitations (7.e.,

restrictions on qualities, rates, and concentrations of

discharged pollutants) that require the permittee’s

adherence to technology-based standards ard, where

applicable, more stringent water quality-based limita-

tions designed to ensure that the receiving waters

attain and maintain state water quality standards. See

33 U.S.C. 1342(a)(1); 40 C.F.R. 122.4(d); Arkansas, 503

U.S. at 104-107.

b. Federal law generally prohibits States from

exercising regulatory authority on Indian lands unless

Congress has authorized such action. See California v.

Cabazon Band of Mission Indians, 480 U.S. 202, 216 &

n.18 (1987). As originally enacted, the CWA did not

specifically identify any non-federal governmental

entity that had authority te set standards for waters on

Indian lands within States. Congress amended the

CWA in 1987 to provide that EPA may treat qualifying

Indian Tribes in the same manner as States for the

purposes of, inter alia, setting water quality standards

for surface waters within the exterior boundaries of

their reservations. 33 U.S.C. 1377(e). See Water Qual-

ity Act of 1987, Pub. L. 100-4, Tit. V, § 506, 101 Stat. 76.

Section 1377(e) states that EPA is authorized to “treat

an Indian Tribe as a State” for the purposes of 33

U.S.C. 1313 if:

(1) the Indian tribe has a governing body carry-

ing out substantial governmental duties and pow-

ers;

(2) the functions to be exercised by the Indian

tribe pertain to the management and protection of

water resources which are held by an Indian Tribe,

held by the United States in trust for Indians, held

by a member of an Indian tribe if such property

interest is subject to a trust restriction on

alienation, or otherwise within the borders of any

Indian reservation; and

(3) the Indian tribe is reasonably expected to be

capable, in the Administrator’s judgment, of carry-

ing out the functions to be exercised in a manner

consistent with the terms and purposes of this

chapter and of all applicable regulations.

33 U.S.C. 1377(e). The term “Federal Indian reserva-

tion” is defined for those purposes to mean “all land

within the limits of any Indian reservation under the

jurisdiction of the United States Government, not-

withstanding the issuance of any patent, and including

rights-of-way running through the reservation.” 33

U.S.C. 1377(h)(1). Section 1377(e) directs EPA to

promulgate regulations “which specify how Indian

tribes shall be treated as States for purposes of this

chapter” and to provide a mechanism for resolving

disputes between States and Indian Tribes located on

common bodies of water. 33 U.S.C. 1377(e).

2. In accordance with Section 1377(e)’s directions,

EPA has promulgated regulations for the treatment of

Indian Tribes in the same manner as States. See 40

C.F.R. 131.8 (Pet. App. 113a-117a). EPA’s regulations

set out four criteria, embodying the statutory re-

quirements of Section 1377, that an applicant must

meet to receive TAS authority. See 40 C.F.R. 131.8(a)

(Pet. App. 113a-114a).

First, the applicant must be a federally recognized

Indian Tribe that exercises governmental authority

over a federal Indian reservation. 40 C.F.R. 131.8(a)

(1), 131.3(k) and (1); compare 33 U.S.C. 1377(e)(1) and

(h). Second, the Indian Tribe must have a governing

body that carries out “substantial governmental duties

and powers.” 40 C.F.R. 131.8(a)(2); compare 33 U.S.C.

1377(e)(1). Third, the water quality standards program

that the Indian Tribe seeks to administer must pertain

to the management and protection of water resources

that are on Indian lands or otherwise within the

borders of the Indian reservation. 40 C.F.R. 131.8(a)(3);

compare 33 U.S.C. 1377(e)(2). Fourth, the Indian Tribe

must reasonably be expected to be capable of carrying

out the functions of an effective water quality standards

program in a manner consistent with the terms and

purposes of the Clean Water Act and the relevant

regulations. 40 C.F.R. 131.8(a)(4); compare 33 U.S.C.

1377(e)(3).

EPA’s regulations also set out the procedural

requirements that Indian Tribes must follow to apply

for and obtain TAS authority. 40 C.F.R. 131.8(b) and

tailed application to the EPA Regional Administrator

demonstrating that the Tribe satisfies the prescribed

criteria for TAS status. 40 C.F.R. 131.8(b). The Re-

gional Administrator provides notice of a Tribe’s

application to all appropriate governmental entities and

allows 30 days for the submission of comments on the

Tribe’s assertion of authority. 40 C.F.R. 131.8(c)(2)

(iijand (c)(3). The Regional Administrator then deter-

mines, based on the Tribe’s application and public com-

ments, whether the Tribe “has adequately demon-

strated that it meets the requirements” for treatment

in the same manner as a State. 40 C.F.R. 131.8(c)(4).

EPA’s regulations do not specifically address when a

Tribe may exercise authority pertaining to water

resources that pass through or are adjacent to lands

owned by nonmembers in fee within the borders of an

Indian reservation. That issue arose, however, in com-

ments during the rulemaking. See 56 Fed. Reg. 64,876

(1991). See Pet. App. 97a. EPA observed in the pre-

amble to the final regulations, in response to those

comments, that the Supreme Court had recognized that

an Indian Tribe may have “inherent power to exercise

civil authority over the conduct of non-Indians on fee

lands within its reservation when that conduct

threatens or has some direct effect on the political

integrity, the economic security, or the health or

welfare of the tribe.” Pet. App. 98a, quoting Montana

v. United States, 450 U.S. 544, 566 (1981). EPA

therefore decided that, in implementing Section 1377(e),

it would examine the Tribe’s authority in light of the

evolving case law as reflected in Montana and Brendale

v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408 (1989). Pet. App. 98a.

EPA stated that “the ultimate decision regarding

Tribal authority must be made on a Tribe-by-Tribe

basis,” Pet. App. 99a, and the “extent of such tribal

authority depends on the effect of th[e] activity on the

tribe,” id. At 100a. EPA determined that, as a matter

of prudence and in light of uncertainty over the scope of

Indian authority over nonmembers, it would proceed

for the time being on the premise (which EPA termed

an “interim operating rule”) that the Tribe should be

required to show that the “potential impacts of

regulated activities on the tribe are serious and

substantial.” Jd. at 10la. But EPA also observed that

“the activities regulated under the various environ-

mental statutes generally have serious and substantial

impacts on human health and welfare.” Jhid. It ulti-

mately concluded that “[t]he determination as to

whether the required effect is present in a particular

case depends on the circumstances.” [hid.

3. The CSK Tribes applied to EPA for TAS au-

thority for the purpose of developing water quality

standards for all surface waters within the boundaries

of the Flathead Reservation in Montana. See Pet. App.

17a. Those waters supply domestic, industrial, recrea-

tional, and agricultural uses, and support fish and other

wildlife, on land within the Reservation. After seeking

comments from Montana and other appropriate govern-

mental entities, EPA issued a decision that approved

the CSK Tribes’ application and authorized the Tribes

to administer a water quality standards program for all

surface waters within the boundaries of the Reserva-

tion, id. at 50a-91la, including waters on or adjacent to

fee lands, id. at 62a-68a. EPA based its decision on

specific findings respecting the impact of water pollu-

tion on tribal health and welfare, including the impact

from non-member activities on fee lands within the

Reservation. See id. at 62a-68a, 70a-9la. EPA has

since approved the water quality standards submitted

by the Tribes, which are similar to those that the State

of Montana has set for waters within its jurisdiction.

Id. at 18a & n.1. In accordance with 33 U.S.C. 1341(a)

and the CSK Tribes’ TAS status, EPA will not issue an

NPDES permit for a point source discharge within the

Reservation if the CSK Tribes deny certification that

the discharge will comply with the Tribes’ water qual-

ity standards.

4. Petitioners filed a complaint under Section 10 of

the Administrative Procedure Act (APA), 5 U.S.C. 701

et seq., challenging EPA’s decision to grant the CSK

Tribes TAS status. Pet. App. 19a. Petitioners con-

tended that EPA erred as a matter of law in granting

the Tribes TAS status because the agency’s decision

rested on a mistaken understanding of this Court’s

cases describing the scope of a Tribe’s authority over

the activities of nonmembers who occupy fee lands

within the Reservation. Jd. at 20a. The district court

granted summary judgment to EPA and the Tribes,

finding that “EPA’s final decision is supported by the

administrative record, consistent with EPA’s regula-

tions, and not contrary to law, and should be upheld.’

Id. at 48a.

5. The court of appeals affirmed. Pet. App. la-l5a.

The court rejected what it described as petitioners’

“facial challenge” to EPA’s regualations. Petitioners

argued that “the regulations permit tribes to exercise

authority over non-members that is broader than the

inherent tribal powers recognized as necessary to self-

governance.” /d. at 3a, 4a. In particular, the court of

appeals explained, petitioners’ “position in the district

court and in this court has been that EPA got the scope

of inherent authority wrong, and that the Tribes should

be able to engage in nonconsensual regulation of non-

tribal entities only when all state or federal remedies to

alleviate threats to the welfare of the tribe have been

exhausted and have proved fruitless.” Jd. at 10a. The

court of appeals concluded that petitioners’ argument

rested on a misreading of this Court’s decisions in Mon

tana v. United States, supra, Brendale v. Confederated

Tribes and Bands of the Yakima Indian Nation, supra,

and Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997).

Pet. App. lla-13a. The court of appeals “affirm[ed] the

district court’s decision that EPA’s regulations pur-

suant to which the Tribe’s TAS authority was granted

are valid as reflecting appropriate delineation and ap

plication of inherent Tribal regulatory authority over

non-consenting non-members.” /d. at 13a.

ARGUMENT

The petition for a writ of certiorari should be denied

because (1) the petition seeks review of an issue that

was not briefed or decided below; (2) the court of

appeals correctly decided the issue that was before it;

and (3) the court of appeals’ decision does not conflict

with any decision of another court of appeals or other-

wise present an issue warranting this Court’s review.

1. The sole question presented in the petition for a

writ of certiorari is whether an Indian Tribe has

“inherent regulatory authority over a State and its local

governments with respect to discharges into streams

and other bodies of water from fee-owned land within

the exterior boundaries of the tribe’s reservation.” Pet.

i. The body of the petition, however, devotes less than

two pages to that question, see Pet. 18-19, and that

question does not fairly reflect the issue that petition-

ers appealed, the parties briefed, and the court of

appeals decided.

This case arose from EPA’s decision to grant the

CSK Tribes TAS status, in accordance with Section

377(e) of the CWA and EPA regulations implementing

that provision, for purposes of establishing water qual-

ity standards for water resources within the Tribes’

Reservation. See Pet. App. 17a-19a, 50a-9la.

Petitioners have not challenged EPA’s basic determi-

nation that, when considering whether Indian Tribes

should have TAS status for the purpose of setting

water quality standards for waters that flow through or

adjacent to fee lands within the Reservation, EPA will

use as its benchmark this Court’s decisions in Montana

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

cases, which describe the general principles defining

the scope of a Tribe’s authority in other settings to

regulate the activities of nonmembers on fee lands

within the Tribe’s reservation. See Montana, 450 U.S.

at 565-566; see also Strate v. A-1 Contractors, 117 S. Ct.

1404, 1409 (1997); Brendale v. Confederated Tribes and

Bands of the Yakima Indian Nation, 492 U.S. 408, 429-

430 (1989) (plurality opinion).

The Court’s decision in Montana recognizes that

Tribes as a general rule lack inherent authority to

regulate nonmembers, but that the rule is subject to

important exceptions. In particular, the Court stated:

A tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on

fee lands within its reservation when that conduct

threatens or has some direct effect on the political

integrity, the economic security, or the health or

welfare of the tribe.

450 U.S. at 566. EPA has concluded from that passage,

and its application in subsequent Supreme Court

decisions, that a Tribe may exercise inherent civil

regulatory authority over the activities of nonmembers

within a reservation if the direct effects of the activities

“on the political integrity, the economic security, or the

health or welfare of the tribe” are “serious and sub-

stantial.” Pet. App. 63a. Pursuant to its decision to

apply that same general approach in determining

whether and to what extent an Indian Tribe should be

treated as a State pursuant to the express statutory

authorization in 33 U.S.C. 1377(e), EPA concluded in

this case that the CSK Tribes should be permitted to

set water quality standards under the CWA that would

apply to waters that pass through or are adjacent to fee

lands within their Reservation. EPA specifically found,

based on detailed evidence in the administrative record,

that the water pollution from non-member activities on

those lands would have serious and substantial impacts

on the health and welfare of the Tribes. Pet. App. 70a-

9la.

Petitioners have not challenged EPA’s finding of

serious and substantial impacts,’ or argued that EPA’s

treatment of the CSK Tribes as a State with respect to

lands owned by nonmembers should have been

narrower in scope. Instead, they have consistently

contended—in the administrative proceedings (Pet.

App. 64a-65a), in the district court (7d. at 42a-43a), and

in the court of appeals (id. at 10a-lla)—that EPA has

misinterpreted Montana, Brendale, and related

decisions. Petitioners have specifically argued that “the

Brendale decision effectively repudiated the Montana

standard.” Pet. App. 10a-lla. See zd. at 42a. EPA, the

district court, and the court of appeals have all unani-

mously rejected that argument. See zd. at 10a-13a, 42a-

46a, 64a-65a.

Thus, the question petitioners present in this Court,

which suggests that the court of appeals granted the

CSK Tribes broad authority to regulate state and local

governmental activities, does not accurately depict the

quite different issue decided below. The court did not

frame the issue as whether the CSK Tribes were en-

titled to exercise “regulatory authority over a State and

its local governments.” Pet.i. Indeed, the courts below

understood that EPA has retained responsibility for

issuing NPDES permits, and EPA has not yet taken

| The State submitted no data to EPA to rebut the CSK Tribes’

showing of serious and substantial effects on tribal interests. Pet.

App. 63a-64a.

any action to enforce permitting requirements on non-

member fee lands. See Pet. App. 5a, 21a-22a.”

2.a. The court of appeals correctly decided the issue

that was before it. The CWA leaves no doubt that Con-

gress intended to authorize EPA to treat an eligible

Tribe in the same manner as a State with respect to

lands owned in fee by non-Indians within the Tribe’s

reservation. Thus, Section 1377(e)(2) provides that In-

dian Tribes may qualify for-treatment “as a State” for

certain CWA purposes, not only with respect to land

held by or on behalf of the Tribe or its members, but

also with respect to land that is “otherwise within the

borders of’ the Tribe’s “reservation.” 33 U.S.C. 1377(e)

(2).° Congress accordingly recognized, in enacting the

* The court of appeals had no occasion to address the per-

mitting issues because they are not ripe. In addition, the court of

appeals had no reason to address petitioners’ distinction between

governmental entities and other nonmembers because petitioners

did not raise it in their motion for summary judgment and they

therefore did not properly preserve that distinction for purposes of

appeal. See Federal Appellees’ C.A. Br. 42 n.20; see Pet. App. 9a

(stating that petitioners “opposed granting the Tribes TAS status

to the extent such status would extend to reservation lands and

surface waters owned in fee by non-members of the Tribe”).

> Moreover, Section 1377(h) defines the term “Federal Indian

reservation” to mean “all land within the limits of any Indian

reservation under the jurisdiction of the United States

Government, notwithstanding the issuance of any patent, and

including rights-of-way running through the reservation.” 33

U.S.C. 1877(h). This definition is essentially the same as the

description of a reservation in the definition of “Indian country” in

18 U.S.C. 1151, which the Court has consistently held, prior to the

enactment of Section 1377 in 1987, “include[s] lands held in fee by

non-Indians within reservation boundaries.” Solem v. Bartlett, 465

U.S. 463, 468 (1984); see, e.g., Seymour v. Superintendent, 368 U.S.

351, 358 (1962); United States v. Mazurie, 419 U.S. 544, 555 (1975):

Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463,

Water Quality Act of 1987, that a Tribe’s “management

and protection of water resources” (33 U.S.C. 1377(e)

(2)) could extend to waters that run through or adjacent

to fee lands within the reservation, and EPA reasona-

bly looked to this Court’s decisions for guidance on the

question of when it should authorize Tribes to exercise

authority affecting nonmember activities on fee lands.

Pet. App. 62a. The court of appeals sustained EPA’s

application of the principles of Montana and its prog-

eny, under which EPA has authorized a Tribe to ad-

minister a water quality standards program that in-

cludes the activities of nonmembers within the

Reservation if the direct effects of the activities “on the

political integrity, the economic security, or the health

or welfare of the tribe” are “serious and substantial.”

Id. at 62a-63a. Cf. Brendale, 492 U.S. at 431 (impacts

must be “demonstrably serious”) (plurality opinion).

b. Petitioners argue that, in accepting EPA’s

application of the Montana line of cases, the court of

appeals failed to give appropriate weight to this Court’s

decisions in Strate and Brendale. Pet. 10-16. There is

no merit to that argument. Those cases provide in-

structive guidance on how to apply Montana in

particular contexts involving inherent authority,

but—contrary to petitioners’s suggestion— they do not

alter Montana’s basic test for assessing whether a

Tribe may exercise authority over a nonmember on fee

lands, much less suggest that EPA’s administrative

decision applying the general! principles of Montana on

478-479 (1976). For that reason, the basic thrust of petitioners’

position—that EPA is essentially barred from treating a Tribe as a

State under the CWA with respect to reservation lands owned in

fee by non-Indians—cannot be squared with the well-understood

language Congress chose to use in authorizing EPA to confer

certain responsibilities on Tribes under Section 1377.

Weaslics Bias we

the record before it in implementing an Act of Congress

should be set aside under the APA’s deferential

standard of review. Indeed, Strate identified Montana

as the “pathmarking case concerning tribal civil

authority over nonmembers” and affirmed the Montana

test verbatim. 117 S. Ct. at 1409. Justice White’s

plurality opinion in Brendale also acknowledged the

Montana test, suggesting additionally that the Tribe

may exercise authority over nonmembers only if the

impact on the identified tribal interests is “demonstra-

bly serious.” Brendale, 492 U.S. at 431. In this case,

EPA found that the impacts are “serious and

substantial.” Pet. App. 70a-91a.

c. Petitioners also make a more specific argument

—that Strate and Brendale place an implicit limitation

on tribal authority over nonmembers based on the

availability of non-tribal remedies. According to

petitioners, those cases, coupled with a footnote in the

Montana decision (450 U.S. at 566_n.16), indicate that

Montana allows a Tribe to exercise authority over

nonmembers only if there is no state or federal remedy

available to protect the particular tribal interest at

issue. See Pet. 13-17. The court of appeals correctly

rejected that argument, which finds no support in

Montana, Brendale, or Strate. Pet. App. 10a-12a.

Montana addressed the question whether Indian

Tribes have inherent authority to regulate nonmember

fishing and hunting on fee lands within a reservation.

450 U.S. at 547. The Court determined that the Tribe

lacked that authority in the circumstances presented

because the Tribe failed to show that the nonmember

activity would harm the Tribe’s political or economic

security in the sense that the activities threatened the

“subsistence or welfare of the Tribe.” Jd. at 566. The

Court observed, in a footnote, that the Tribe also did

not allege that the State had misused its regulatory

authority to the detriment of the Tribe. Jd. at 566 n.16.*

Contrary to petitioners’ suggestion (Pet. 13), that

footnote merely indicates that the State’s failure to

manage nonmember activities may itself create a threat

to the Tribe’s political integrity, economic security, or

health or welfare that would warrant a Tribe’s taking

regulatory action. See Lower Brule Sioux Tribe v.

South Dakota, 104 F.3d 1017, 1023 (8th Cir.), cert.

denied, 118 S. Ct. 64 (1997). It does not by its terms or

by any reasonable implication indicate that “a tribe’s

recourse normally lies in pursuing available state and

federal remedies to mitigate the alleged infringement

on tribal interests” (Pet. 13).

Petitioners are also mistaken in suggesting that the

Court’s decision in Brendale modifies the Montana test

by adding the requirement that the adequacy of state

or federal remedies must be considered in determining

the scope of inherent tribal authority. See Pet. 11-13,

citing 492 U.S. at 429-430. Brendale, which involved a

dispute over a Tribe’s power to zone fee land owned by

nonmembers, produced three opinions, none of which

garnered a majority. See 492 U.S. at 414 (opinion of

White, J.); 7d. at 433 (opinion of Stevens, J.); 7d. at 448

(opinion of Blackmun, J.). The passages that petitioners

* Footnote 16 states:

Similarly, the complaint did not allege that the State has

abdicated or abused its responsibility for protecting and

managing wildlife, has established its season, bag, or creel

limits in such a way as to impair the [Tribe’s] treaty rights to

fish or hunt, or has imposed less stringent hunting and fishing

regulations within the reservation than in other parts of the

State.

450 U.S. at 566.

cite from Justice White’s plurality opinion (Pet. 12) and

from Justice Stevens’ opinion (Pet. 13-14) do not in any

way suggest that tribal authority turns on the absence

of federal or state remedies. See Pet. App. lla

(“Moreover, in Justice White’s and Stevens’ opinions,

upon which [petitioners] rel[y], there is no suggestion

that inherent authority exists only when no other

government can act.”).

Petitioners are additionally mistaken in suggesting

(Pet. 14-16) that Strate supports such a test. Strate held

that a tribal court lacked jurisdiction over a tort case

arising from a traffic accident between nonmembers on

a state highway. The Tribe had an interest in the

dispute because the accident occurred on the portion of

the highway built on a federally granted right-of-way

across Indian reservation land. 1178S. Ct. at 1415. The

Court concluded that the Montana test nevertheless

was not satisfied because tribal jurisdiction over an

accident involving only nonmembers was not “crucial to

the ‘political integrity, the economic security, or the

health or welfare of the [Tribe]’” and was not necessary

to protect tribal self-government. Jd. at 1416. The

Court noted that a state judicial forum was available to

resolve the dispute, zbid., but it did not suggest that the

absence of such a forum would be a precondition for

tribal jurisdiction.

In any event, the question here is not when inherent

tribal authority over nonmembers should be recognized

by a court in the absence of an Act of Congress.

Rather, the question is whether EPA reasonably

construed and applied an Act of Congress in the

circumstances of this case. The CWA does not set forth

any such rigid precondition to EPA’s treatment of a

Tribe in the same manner as a State, and EPA did not

act unreasonably in refraining from imposing one by

implication.

d. Petitioners also argue that the Tribes should not

be allowed to exercise authority over nonmembers

because Montana’s water quality laws have not “been

preempted with respect to nonmember activities on fee

lands on the Reservation.” Pet. 17. The question of

preemption, however, has no bearing on this case. This

case arises from an APA challenge to an agency’s action

in implementing a federal statute. In assigning EPA

the responsibility to determine when Tribes should

have TAS authority to establish reservation-wide

water quality standards, Congress recognized that a

system of “checkerboard” state and tribal water quality

standards could undermine the water quality of Indian

reservations. See 33 U.S.C. 1377(e); Pet. App. 102a-

103a. EPA reasonably looked to this Court’s prece-

dents respecting inherent tribal authority over

nonmembers in other settings in determining when

Tribes should be permitted, under the express

statutory authorization in Section 1377(e), to issue

water quality standards for CWA purposes that affect

waters that pass through or are adjacent to fee lands.

EPA then reasonably applied principles from those

precedents to decide, based on the administrative

record, whether the particular Tribe in this case should

be granted certain federal statutory TAS authority.

3. Not only is the court of appeals’ decision correct;

it also does not conflict with any decision of another

court of appeals. Indeed, it is fully consistent with the

only other appellate decision addressing an EPA au-

thorization of an Indian Tribe to establish water quality

standards. There, the Tenth Circuit upheld EPA’s ap-

proval of tribal water quality standards and held that

EPA had properly incorporated those standards into an

NPDES permit issued to the City’s waste treat-

ment facility, which discharged into the Rio Grande at a

point above the reservation. City of Albuquerque v.

Browner, 97 F.3d 415, 419, 425-426 (10th Cir. 1996),

cert. denied, 118 S. Ct. 410 (1997). The court concluded

that EPA’s authorization of the Tribe to establish

water quality standards for purposes of the CWA “is in

accord with powers inherent in Indian tribal sover-

eignty.” Id. at 423. See Pet. App. 13a (“Our decision is

fully consistent with the only other circuit opinion that

has yet considered the issue of tribal authority to set

water quality standards.”).

While failing to mention the City of Albuquerque

decision, petitioners appear to concede that the court of

appeals’ decision does not conflict with any decision of

another court. Pet. 18. They contend, however, that

this Court’s review is warranted because the case has

broad significance “with respect to future application of

the [CWA]’s TAS provision” and “in other situations

where the second Montana exception is relied upon as a

basis for the exercise of inherent tribal authority over

nonmembers.” Pet. 20. Those contentions, however, do

not provide a basis for this Court to exercise its

certiorari jurisdiction.

First, EPA has recognized that the question whether

a Tribe should be permitted to exercise TAS authority

in setting water quality standards must be made “on a

Tribe-by-Tribe basis” and depends on the particular

circumstances in each case. Pet. App. 99a-100a. As the

record in this case demonstrates, EPA conducts a

careful inquiry into the particular water resources and

land ownership patterns on each reservation. Jd. at

70a-91la. Petitioners have not challenged below, or even

addressed in their petition, EPA’s factual findings

respecting the Flathead Reservation. Hence, even if it

were this Court’s practice to provide guidance on a

technical regulatory issue that has generated no conflict

among the courts of appeals, this case would be a par-

ticularly poor vehicle for addressing EPA’s application

of the CWA’s TAS provisions.

Second, this case has limited precedential value out-

side of the specific regulatory context here. This case

does not involve the judicial articulation of standards

governing a Tribe’s own assertion of inherent tribal

authority over nonmembers on a reservation. Rather,

it arises under an Act of Congress that expressly pro-

vides for a Tribe to be treated as a State for specified

statutory purposes with respect to fee lands within the

borders of a State and assigns to a federal administra-

tive agency the responsibility to interpret and apply

the statutory provisions in the context of a complex

regulatory program. As we have explained, EPA has

looked to this Court’s precedents respecting inherent

tribal authority for guidance on how to carry out its

responsibilities under Section 1377(e). EPA has devel-

oped principles, by drawing on those cases, for the

specific purpose of determining how to implement the

congressional directive respecting tribal authority

under the CWA. Those principles articulated by EPA,

however, have no operative force outside of their

regulatory context. Furthermore, EPA has indicated

that its treatment of tribal authority issues arising from

TAS applications is not set in stone and that it will

continue to examine those applications in light of the

Supreme Court’s evolving case law. Pet. App. 100a.

Hence, there is no basis for concluding that this case

will have substantial impact in other unrelated situa-

tions involving Indian tribal authority.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

MARTIN W. MATZEN

EILEEN T. MCDONOUGH

Attorneys

AUGUST 1998

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.