Amicus Curiae Brief — First National Bank of Milaca v. Benjamin

QO Or

Nos. 04-229 and 04-228 i 17 2004 |

In The OFFICE OF THE CLERK |

Supreme Court of the United States

¢

MILLE LACS COUNTY, MINNESOTA,

Petitioner,

Vv.

MELANIE BENJAMIN, et al.,

Respondents.

¢

FIRST NATIONAL BANK OF MILACA,

Petitioner,

V.

MELANIE BENJAMIN, et al.,

Respondents.

-

¥

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

BRIEF OF STATE OF MINNESOTA AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

¢

&

MIKE HATCH

Attorney General of Minnesota

KENNETH B. PETERSON

Deputy Attorney General

Counsel of Record

445 Minnesota Street, Suite 1800

St. Paul, Minnesota 55101

(651) 296-2731

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COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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STATEMENT OF AMICUS INTEREST AND SUMMARY

Se Ea eesihiassinccictnibedisiniiiesiniiaseasiluianssizaeansssdscanees

REASONS FOR GRANTING THE PETITION............ 3

I.

II.

The Notice and Comment Process For

‘Treatment As A State’ -— Under Which The

Mille Lacs Band Has Sought EPA Approval To

Apply Tribal Environmental Laws To All

Persons Within The Disputed Reservation — Is

Not An Appropriate Forum For Resolving

Complex Reservation Boundary Disputes ........

The Unresolved Boundary Dispute Affects

Minnesota’s Ability To Obtain State Program

Authorization From EPA And, Thus, To Fully

Implement Its Environmental Laws Consis-

tently Within The Disputed Area................000...

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TABLE OF AUTHORITIES |

Page

CASES

Arizona Public Service Co. v. E.PA., 211 F.3d 1280

(D.C. Cir. 2000), cert. denied by Michigan v. :

BEng SBE AR. Be GO aD vse taininansinnentinndvcrneaminaniotense 5

State of Montana v. E.PA., 941 F. Supp. 945 (D.

Mont. 1996), aff’d, 137 F.3d 1135 (9th Cir.), cert.

I, Be ee ee i itieksakoscadiaontdateacctan imines 7

State of Washington, Dept. of Ecology v. E.P.A., 752

ee Re a, Se airiai cared en cineitn nanan 10

Wisconsin v. E.PA., 266 F.3d 741 (7th Cir. 2001),

cart. Gamied,, 133 B.A. BOET (BOGE) ncccsesiericnscsesssosesscveconess 8

CONSTITUTIONAL PROVISIONS

Tr ee A FOE Fi ae Bi ics va nn cdichahccinnnteambaciietbedaceoenns 3

STATUTES

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28 U.S.C. § 2201 (2000)........... slic niocadyiecediesnereteeaedanaaanenendittin 3

A as © Ee re SE can cicaisases i anna 3

Be UA. © Bre Fee eis cia anniaccscscisnienssvenasnicaaaiens 4

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SB CEG, © Gre iieitiarincseeniahiesedees 10

GB LBA. B FO i iershinvtna stein edieianiiain 3

43 U.B.C.. § TODA) COD vccescevasiscssccsivnresecssentncoersnae 5

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TABLE OF AUTHORITIES — Continued

Page

Minn. Stat. chs. 1140-1167 (2O0Z)............cccccscssrssescsssssccsseees 9

Minn. Stat. § 626.90, subd. 7 (2002)... eeeeeeeeeeeee 11

RULES AND REGULATIONS

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Geis 0 BD CO dawivscncccciinsccscccesscsnsesscss Tiasianenouiuhs 4

a ocd nsinasnsbnedebensbaachannebianieabiis 5

40 C.ER. § 142.13 (2003)... ee ee 5

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Ne ee ocd adiabhtansinhan incenssabebhinaaananeh 5

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iv

TABLE OF AUTHORITIES -— Continued

Page

53 Fed. Reg. 37,396, 37,399-37,400 (1988) ............ccceeeeeeeee 4

56 Fed. Reg. 64,876, 64,877-64,882 (1991) oo... eee eee 4

58 Fed. Reg. 67,966, 67,978 (1993) ...............ssscccccssscssecsenees 9

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59 Fed. Reg. 64,339, 64,340 (1994) ..................ccccsessesecesenees 6

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-MISCELLANEOUS

Memorandum from Dougherty, Cynthia C., Permits

Division, to EPA Water Management Division

Directors, Guidance on EPA’s NPDES and

Sludge Management Permit Procedures on Fed-

eral Indian Reservations 1 n.1 (Nov. 16, 1993)............... 9

STATEMENT OF AMICUS INTEREST

AND SUMMARY OF ARGUMENT

Minnesota has a strong interest in seeing that the

dispute over the boundaries of the Mille Lacs Indian

Reservation is judicially resolved. Therefore, it urges the

Court to grant certiorari and reverse the decision of the

Eighth Circuit Court of Appeals.

Minnesota agrees with Petitioners, Mille Lacs County

(County) and First National Bank (Bank), that the Mille

Lacs Indian Reservation consists of approximately 4,000

acres of trust land (land held in trust by the federal

government for the Mille Lacs Band or its members). The

Mille Lacs Band, with the agreement of the United States

Department of Interior, asserts that the reservation

includes the approximately 61,000 acres that composed

the original reservation established by the 1855 Treaty

between the United States and the Chippewa.

The dispute over the Mille Lacs reservation bounda-

ries has unhappily pitted the State and its subdivision

Mille Lacs County, against the Mille Lacs Band of Ojibwe

for the last fifteen years. In the Lake Mille Lacs area, it

has prompted consternation in newspaper editorials and

intense disagreements between friends and neighbors. Co.

Pet. App. 17la, 188a and 201la. Only the federal courts

have the ability to end the quarreling among neighbors

and determine whether the boundaries of the reservation,

as set out in the 1855 treaty, continue to exist or not. In

addition to ending contention between Band members and

non-Band members living in the area, the State, for its

own interest, would like the reservation bouadaries issue

resolved. The disagreement affects the State’s ability to

implement its responsibilities under state and federal law

in the disputed reservation area.

The State’s inability to fully implement its laws

because of the boundary dispute can be seen in two exam-

ples resulting from the management of environmental

laws by the U.S. Environmental Protection Agency

(“EPA”). The first is the “treatment as a state” process,

while the second is the “state program authorization”

process.

Under the treatment as a state provisions of the

federal Water Pollution Control Act and the Safe Drinking

Water Act, the Mille Lacs Band has asked the EPA for

authority to apply tribal environmental laws in the dis-

puted reservation area in lieu of EPA applying federal law.

Although the State opposed the Band’s application because

of its reservation boundary aspects, the fact is that the

treatment as a state administrative process of comment

and an on-the-record review of EPA’s decision does not

allow for adequate presentation of the complex, historical

evidence involved in reservation boundary disputes.

Likewise under the parallel state program authoriza-

tion process, where a state asks EPA for approval to apply

state environmental laws in lieu of EPA applying federal

environmental laws, the State has been reluctant to apply

for state program approval in the disputed Mille Lacs

Reservation area. As with the treatment as a state proc-

ess, the administrative program approval process is not

designed to allow for a full presentation of the complex

evidence necessary to analyze and interpret Indian trea-

ties and Congressional enactments.

The Mille Lacs Reservation boundary dispute is an

issue in both administrative processes, but evades adequate

adjudication. The proper forum for such adjudication is the

federal courts. By granting certiorari, this Court can

consider the arguments of the parties and then determine

whether a controversy exists within the meaning of Article

III, § 2 of the U.S. Constitution and 28 U.S.C. § 2201, and

if so, return the case to the District Court for a trial on the

merits.

For these reasons, the State of Minnesota files this

brief in support of the Petition by the County and the

Bank.

&

v

REASONS FOR GRANTING THE PETITION

I. The Notice and Comment Process For ‘Treat-

ment As A State’ - Under Which The Mille Lacs

Band Has Sought EPA Approval To Apply Tribal

Environmental Laws To All Persons Within The

Disputed Reservation - Is Not An Appropriate

Forum For Resolving Complex Reservation

Boundary Disputes.

Under the Water Pollution Control Act, the Safe

Drinking Water Act, and the Clean Air Act, Indian tribes

can apply to EPA for ‘treatment as a state’ to enforce tribal

environmental laws in lieu of EPA applying federal envi-

ronmental laws. See 33 U.S.C. §1377(e) (2000) (Water

Pollution Control Act); 42 U.S.C. § 300h-1(e) (2000) (Safe

Drinking Water Act); and 42 U.S.C. § 7601(d) (2000)

(Clean Air Act). Under these statutes and their imple-

menting regulations, like a state, a tribe can apply to

establish water quality standards, issue and enforce

National Pollutant Discharge System (NPDES) permits,

issue and enforce permits to dredge and fill in public

waters, regulate underground injection control systems,

regulate management of sewage sludge, control non-point

source pollution, enforce drinking water standards, and

regulate various air quality sources. See 40 C.F.R. § 181.8

(2003) (water quality standards); 40 C.FR. §§ 123.31-.32

(2003) (NPDES permits); 40 C.F.R. §§ 233.60-.61 (2003)

(dredge and fill permits); 40 C.F.R. §§ 145.52-.53 (2003)

(regulate septic systems); 40 C.F.R. §§ 501.22-.23 (2003)

(regulate the management of sewage sludge); 40 C.FR.

§ 130.6(d) and § 130.15 (2003) (control non-point source

pollution); 40C.F.R. §§ 142.72 (2003) (enforce drinking

water standards); and 40 C.F.R. §§ 49.6-.7 (2003) (operate

Clean Air Act programs).

To grant treatment as a state, EPA must find that the

tribe has both jurisdiction over the geographic area for

which it is applying as well as authority to enforce its laws

over all persons within the area for which the tribe is

applying for program authorization.’

' The Water Pollution Control Act requires a showing that the

functions to be exercised by the tribe pertain to management and

protection of water resources that 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 an Indian reservation.” 33

U.S.C. § 1377(e)(2) (2000). The Safe Drinking Water Act requires a

showing that “the functions to be exercised by the Indian tribe are

within the area of the Tribal Government’s jurisdiction.” 42 U.S.C.

§ 300j-11(b)(1) (2000). EPA has interpreted these two statutes to require

a showing of tribal jurisdiction over both the geographic area and the

persons within the area for which the tribe is applying for treatment as

a state. See, e.g., 56 Fed. Reg. 64,876, 64,877-64,882 (1991) (interpret-

ing the Clean Water Act requirements) and 53 Fed. Reg. 37,396, 37,399-

37,400 (1988) (interpreting the Safe Drinking Water Act requirements.)

The Clean Air Act requires a showing that “the functions to be exercised

by the Indian tribe pertain to the management and protection of air

(Continued on following page)

5

Upon receipt of a tribe’s application, EPA notifies the

state and the public of the tribe’s application and provides

30 to 45 days, depending on the particular EPA program,

to comment on the jurisdictional aspects of the tribe’s

application, including any claim that the area for which

the tribe is applying is not within the boundaries of the

tribe’s reservation.’ See, 40 C.F R. § 131.8(c) (2003) (estab-

lishment of water quality standards); 40 C.FR. § 123.61(a)

(2003) (NPDES permits); 40 C.F.R. § 233.15(e) (2003) (dredge

ar» fill permits); 40 C.F.R. § 501.31 (sewage sludge man-

agement); 40 C.F.R. § 145.31 (2004) (regulation of septic

system systems); 40 C.F.R. § 142.13 (2003) (enforcement of

drinking water standards); 40 C.F.R. § 130.15 (2003) (non-

point source management); and 40 C.F.R. § 49.9 (2003) (air

quality programs).

When EPA makes a jurisdictional determination on a

tribe’s application for one EPA program, it will ordinarily

resources within the exterior boundaries of the reservation or other

areas within the tribe’s jurisdiction.” 42 U.S.C. § 7601(d)(2)(B) (2000).

Although a tribe must show geographic jurisdiction, one court has held

that the Clean Air Act constitutes an express delegation of authority by

Congress to Indian tribes to regulate air resources within an Indian

reservation. See Arizona Public Service Co. v. E.PA., 211 F.3d 1280

(D.C. Cir. 2000), cert. denied by Michigan v. E.PA., 121 S.Ct. 1600

(2001).

* For applications submitted before 1994, EPA had a separate

prequalification process for treatment as a state. Tribes that obtained

treatment as a state approval then applied for specific program

approval. In 1994, EPA merged the treatment as a state determination

into the program approval process so that a tribe now only submits one

application. EPA also changed its terminology from treatment as a state

to treatment of a tribe “in a manner similar to that in which it treats a

State.” See 59 Fed. Reg. 64,339 (1994). EPA recognized, however, that

since the statutes use the term treatment as a state, use of that term

may need to continue.

6

make the same determination for all other programs. See

59 Fed. Reg. 64,339, 64,340 (1994). With respect to the

boundaries of a tribe’s reservation, EPA has made it clear

that once it decides a reservation boundary in one program

application, it will not alter its position in a subsequent

program application, unless there is significant new

factual or legal information. Jd.

- Because of EPA’s position on reservation boundary

determinations, the first application of the Mille Lacs

Band under the treatment as a state process was impor-

tant to the State. The Mille Lacs Band first applied for

treatment as a state in 1989 for the Underground Injection

Control Program, involving regulation of septic tanks used

to store sewage and some types of industrial waste. See 40

C.F.R. §§ 145.52-.53 (2003). The Band applied to regulate

septic systems in the entire 1855 Treaty reservation area

and asserted in its application that it had authority to

regulate all persons, both Band members and non-

members, within the disputed reservation area. The

Minnesota Pollution Control Agency (““MPCA”) opposed the

Band’s application, arguing in comments submitted to EPA

that the boundaries of the 1855 reservation no longer

existed.

In 1996, EPA approved the Band’s application for

treatment as a state for the Underground Injection Con-

trol Program. EPA found that the Mille Lacs Indian

Reservation included the 60,000 acre reservation estab-

lished under the 1855 Treaty. In response, the MPCA

submitted additional comments to EPA, as did Mille Lacs

County, Isle Harbor Township, and the City of Waukon (all

located within the disputed reservation), and requested

that EPA reconsider its decision. In 1998, in lieu of further

proceedings, the MPCA, the Band, and EPA entered into a

7

Memorandum of Understanding (MOU), allowing EPA to

continue to operate the federal program in the disputed

area, with advice from both MPCA and the Band. The

MOU is, however, only a temporary solution since it can be

terminated on 30 days notice.

The reservation boundary dispute continues to be a

real issue because of another Band application for treat-

ment as a state in 1992, this time for the Non-Point Source

Management Program under the Water Pollution Control

Act. In that application, the Band again asserted that the

reservation boundary was the 1855 Treaty boundary and

that it had jurisdiction over all Band and non-Band

members within this area. The MPCA again opposed the

Band’s application commenting to EPA that the bounda-

ries of the original Mille Lacs Reservation no longer

existed. EPA has not yet made a decision on the Band’s

application.

When reservation boundaries are in dispute, as they

are with respect to the Mille Lacs Reservation, an admin-

istrative forum such as the treatment as a state process

with a 30-day comment period is ill-suited to deciding

issues as complex as the boundaries of an Indian reserva-

tion. Determining reservation boundaries involves inter-

pretation of Indian treaties, federal statutes, and a broad

range of historical documents, as well as extensive discov-

ery and use of expert witnesses. These are tools not

available to the parties in a 30-day comment period. In

addition, any review of EPA’s decision would likely be an

on-the-record review, without the opportunity to further

develop the issue on appeal. See State of: Montana uv.

E.P.A., 941 F. Supp. 945, 956 (D. Mont. 1996), aff’d, 137

F.3d 1135 (9th Cir.), cert. denied, 119 S.Ct. 275 (1998)

(district court noted that review was on the record to

8

determine whether EPA’s decision to grant treatment as a

state to the tribe was arbitrary, capricious, or an abuse of

discretion or otherwise not in accordance with law);

Wisconsin v. E.PA., 266 F.3d 741, 750 (7th Cir. 2001), cert.

denied, 122 S.Ct. 2347 (2002) (holding that EPA’s grant of

treatment as a state to the tribe was not arbitrary, unrea-

sonable or contrary to law). Allowing the Mille Lacs

boundary dispute to be resolved in federal court would

permit this controversy to be decided in a forum capable of

addressing the complexity of the issue.

Il. The Unresolved Boundary Dispute Affects

Minnesota’s Ability To Obtain State Program

Authorization From EPA And, Thus, To Fully

Implement Its Environmental Laws Consis-

tently Within The Disputed Area.

EPA’s position on the Mille Lacs reservation boundary

impacts the State’s ability to receive state program au-

thorization from EPA to operate state environmental

programs in lieu of EPA enforcing federal environmental

laws in Minnesota. State program authorization would

allow Minnesota to consistently apply its environmental

laws within the State.

Under most federal environmental statutes, a state

can apply to EPA for approval of its state program to

operate in lieu of EPA implementing federal environ-

mental laws in the state. See, e.g., 40 C.F.R. § 123 (2003)

(state program application requirements for the NPDES

permit program under the Water Pollution Control Act). To

receive approval, a state must show that it has authority

to regulate under each program applied for, and that its

environmental laws are at least as stringent as federal

laws. See, e.g. 40 C.FR. § 123.21, § 123.23, and § 125

me et es en cS One ce mn

: OL ALOE LLL, LLL AL

9

(2003) (NPDES permit program). Minnesota has an

extensive set of environmental laws regulating air, land,

and water within the state that are administered by

MPCA. See Minn. Stat. chs. 114C-116I (2002) and Minn. R.

chs. 7000-7190 (2003). Showing that Minnesota’s laws are

as stringent as federal environmental laws is rarely a

problem since Minnesota’s environmental laws are often

more stringent than federal laws. If EPA approves the

state program, the state can apply its own environmental

laws in lieu of EPA applying federal laws. Minnesota has

received federal delegation for most programs under the

major environmental statutes. This allows Minnesota to

assure consistent enforcement of similar environmental

protection standards throughout the state.

With respect to Indian reservations, EPA has taken

the position that it will not grant program approval for a

state to apply its laws on Indian reservations unless the

state can show that it has jurisdiction over the entire

reservation. See, e.g., 58 Fed. Reg. 67,966, 67,978 (1993)

(commenting on the final rule for the NPDES permit

program, water quality certification program, and the

sewage sludge management program); see also Memoran-

dum from Dougherty, Cynthia C., Permits Division, to EPA

Water Management Division Directors, Guidance on EPA’s

NPDES and Sludge Management Permit Procedures on

Federal Indian Reservations 1 n.1 (Nov. 16, 1993) (where

EPA states that although its regulations contemplate that

a state may be able to demonstrate authority on Indian

reservations, “the threshold for such a demonstration is

very high, and, absent explicit Congressional authoriza-

tion, it is unlikely that EPA would authorize a State to do

so.”). EPA considers the Mille Lacs Reservation to be the

60,000 acre 1855 Treaty reservation, relying on a 1991

opinion of the U.S. Department of the Interior’s Office of

the Field Solicitor. Co. Pet. App. 185a.

10

As a result of EPA’s position on when it will authorize

a state program to operate on an Indian reservation, the

question of the size of the Mille Lacs Reservation becomes

a critical issue. It is one which the MPCA must address

each time it applies to EPA for new program authorization.

In order to show that the State has jurisdiction, the MPCA

has to prove to EPA that the Mille Lacs Reservation does

not include most of the area within the original 1855

Treaty. MPCA’s burden is made more difficult by having to

prove disputed reservation boundaries within the con-

straints of a program application and by the fact that

EPA’s decision on the reservation boundaries would likely

be subject to an on-the-record review. See 42 U.S.C.

§ 6976(b) (2000) (providing for review of EPA’s decision to

deny state program authorization in the court of appeals

in accordance with the federal Administrative Procedures

Act, 5 U.S.C. pts. 701-706); see also State of Washington,

Dept. of Ecology v. E.PA., 752 F.2d 1465 (9th Cir. 1985)

(reviewing EPA’s decision to deny the State of Washing-

ton’s application for hazardous waste program authoriza-

tion to cover both Indians and non-Indians within Indian

reservations in Washington).

Like the treatment as a state process, the state

program approval process is not designed to allow for an

adequate presentation of the complex, historical evidence

intrinsic to an analysis and review of a number of Indian

treaties, agreements, and Congressional enactments. Only

a federal court can provide a forum adequate to decide a

reservation boundary dispute.

Because of the inadequacy of the administrative

process to resolve the reservation boundary dispute, the

MPCA has reluctantly deferred applying for state program

authorization within the disputed Mille Lacs reservation.

11

Instead, it has included language in its program applica-

tions to EPA preserving the State’s position on reservation

boundaries.*

As a consequence of the continuing boundary dispute

and the difficulty of resolving it, non-Band members living

within the disputed area may be subject to inspections by

both EPA for compliance with federal environmental law

and by the MPCA for compliance with state environmental

law. See Co. Pet. App. 185a. Allowing the reservation

boundary dispute to be heard and decided in federal court

will provide an appropriate forum to resolve this issue.

-@

* For example, in the Underground Storage Tank Program

application to EPA in 2000, MPCA included the following language:

“This disagreement over the boundary of the Mille Lacs Indian Reser-

vation is not, however, well suited for resolution in an administrative

forum, which does not allow for adequate presentation of the complex

historical evidence fundamental to an analysis and review of Indian

treaty disputes. Thus, the Minnesota Pollution Control Agency (MPCA)

will cooperate with EPA and allow EPA to continue to operate the

Federal Underground Storage [Tank] Program within the area that the

EPA describes as the Mille Lacs Indian Reservation, with the explicit

written understanding that the MPCA’s cooperation does not constitute

a concession that EPA’s position on the boundary is correct nor waiver

of the state’s right in the future to seek resolution of the boundary

dispute in an appropriate forum.” Also, when it granted law enforce-

ment authority to the Mille Lacs Band concurrent with that of the

state, the legislature expressly limited the statute so that it would not

affect any dispute regarding boundaries or other matters. Minn. Stat.

§ 626.90, subd. 7 (2002).

12

CONCLUSION

For the reasons stated, Minnesota respectfully re-

quests that the petition for writ of certiorari be granted.

Respectfully submitted,

MIKE HATCH

-Minnesota Attorney General

KENNETH B. PETERSON

Deputy Attorney General

Counsel of Record

445 Minnesota Street, Suite 1800

St. Paul, Minnesota 55101-2134

(651) 296-2731