Petition for Writ of Certiorari — Shoshone-Bannock Tribes v. United States

Simveme Court, U.S.

pees

001262 Ft 2 - 2001

No, -——

+ -... —

IN THE

Supreme Court of the WAnited States

SHOSHONE BANNOCK TRIBES,

Petitioners,

V,

UNITED STATES OF AMERICA

and FMC CORPORATION,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JEANETTE WOLFLEY

Counsel of Record

1752 North Elk Road

Pocatello, Idaho 83204

(208) 232-1922

February 2, 2001

A TTC en

WILSON-EPES PRINTING GO, INC. = (202) 789-0096 = WasHinaTon, D. C. 20001

)

-

QUESTIONS PRESENTED

Should the U.S, Bnrvironmental Protection Agency be

required to exercise its federal fiduciary obligations to

Indian tribes under the Resource Conservation and

Recovery Act to fully protect and preserve reservation

lands from hazardous waate pollution and contamination?

Should the U.S, Environmental Protection Agency's

decisions be subject to a heightened scrutiny of judicial

review where the federal actions directly impact trust

property and tribal interests?

(i)

il

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were the pet!loner

Shoshone-Bannock Tribes, and the respondents United States

of America and the FMC Corporation,

TABLE OF CONTENTS

Page

nn i ee) i

REN RR A SES PEO ii

I Vv

TIIITINIIITIIINIY ccnccdunisinicnctinsepeanenesatacisenustoainintohuanisenemnnetes l

EE TE Se aa Tee an Ren NS ee ]

Statutory And Regulatory Provisions Involved In The

EE EI M el oR ae ae I Re TOT 2

Ne 2

Reasons For Granting The Writ.................cccccscccsseeeseress 6

I. Certiorari Should Be Granted To Determine

Whether EPA Has Specific Fiduciary Duties

To Indian Tribes Under RCRA To Protect And

Preserve Reservation Lands From Hazardous

Waste Pollution And Contamination ................. 6

fl. The Ninth Circuit’s Unprecedented Creation

Of A Deferential Standard Of Review In A

Challenge To An Agency’s Action Based On

The Federal Tribal Trust Doctrine Conflicts

With Decisions Of This Court And The Well

Established Principles Of The Trust Doctrine ... 13

BSR ES ERAS Pe 19

(iii)

ais ia a |

iv

TABLE OF CONTENTS—Continued

Appendix Page

A. Order Denying Petition for Rehearing and

Ek RE ATT TTT la

B. Memorandum of the Ninth Circuit....................0008 2a

Vv

TABLE OF AUTHORITIES

Cases Page

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

CBUEE 5 Dentsssnnctnsinnibininianacinnisussniaimeniiiiiiii aad 7

FMC v. Shoshone-Bannock Tribes, 905 F.2d

1311 (9th Cir.), cert. denied, 499 U.S. 943

Fa cccccssciiniipieigeaiiinciaeieincibeetacdimaiaali adil m2

Joint Tribal Council of the Passamaquoddy Tribe

v. Morton, 528 F.2d 370 (1st Cir.1975)............. 12

Morton v. Mancari, 417 U.S. 535 (1974) ..........66.. 8

Morton v. Ruiz, 415 U.S. 199 (1974)................0080. 9,14

Seminole Nation v. United States, 316 U.S. 286

(FIND cntchioninidinissenncneesbiieitiaiiviitindasaisbenebindilidananteeiband passim

Udall v. Tallman, 380 U.S. 1 (1965)........:sscesceeeeee 17

United States v. Creek Nation, 295 U.S. 103

UIT isetcisnaribaiinesieliacmiieditatebaeaiaiatealens catncis ebeaiaceaaas 8, 10, 15

United States v. Kagama, 118 U.S. 375 (1886)..... 8

United States v. Mason, 412 U,S, 391 (1973)........ 8

United States v. Mitchell, 463 U.S. 206 (1983)..... 8,9

United States v. Payne, 264 U.S. 446 (1924)......... 11,15

United States ex rel. Santa Ana Indian Pueblo v.

University of New Mexico, 731 F.2d 703 (10th

Cir.), cert. denied, 469 U.S. 853 (1984) ............ 12

Volkswagen Werk Aktiengesellschaft v. F.M.C.,

FOE is ee Cr teintancintithditiaadidessnanincenasild 18

Ward v. Racehorse, 163 U.S. 504 (1896) .............. passim

Washington Dept. of Ecology v. EPA, 752 F.2d

SN PE A. RIOD Ditsaminiaiiicidanncpestbeniinastinaianasiinns 7

Wilderness Society v. Morton, 479 F.2d 842

(D.C. Cir.), cert. denied, 411 U.S. 917 (1973)... 18

Worcester v. Georgia, 31 U.S. (6 Pet.) 515

RFU F asissnsnanneoientencnaieasipdiiadabiasacadbimaacncncednioas 10

vi

TABLE OF AUTHORITIES—Continued

Constitution Page

U.S. Comstitution, Ast. Vi, Gl. 2 sccccccccsccesccccccccccssses 17

Statutes

Administrative Procedures Act, 5 U.S.C.

Soa) GE © FU cniinbitdanneceiesdietiiipsiavadenlinsaidntainbiiciniasseaiaanste 14

Indian Reorganization Act, 25 U.S.C. § 461 ef

BOG. cacsscreesessccecnncccssecnssennbncunsconsossussncessonseonenensense 2

Indian Self-Determination Act, 25 U.S.C. § 450

” 6B BBE. cercecceccreceecceccensnsnnsconssnnunenconsescccesonsnnsesenseee 10

Clean Water Act, 33 U.S.C. §§ 1251-1387............ 6

Safe Drinking Water Act, 42 U.S.C. § 300j-11 ..... 6

Comprehensive Environmental Response, Com-

pensation, And Liability Act, 42 U.S.C.

BE DET OF BOG. cecseccccscececsevescsnssscnsesonssscesnsevesacsees 6

Resource Conservation and Recovery Act, 42

UDA. GR GSGE OF BEB ccrrcccccccesecscccsccnenececescestensnes passim

Chea Alt ACs, G2 UDA. GB POPS ccsecssscsccesscssessenvses 6

Federal Register

D8 FOG, BRO. SIGS (PIS rccessnevctvescensscenseensssocnsmnesin 13

Other Authorities

Treaty of July 3, 1868, 15 Stat. 673 .............ccceceee 2

Davis, Administrative Surprises in the Ruiz Case,

TS WERCR, LTO. GES CID Tat pevcseresceccenssspennsnessscces 14

EPA Policy for the Administration of Environ-

mental Programs on Indian Reservations 3

CHOOT. GS, TID) censrserecssnesicenctenniscnitneesemastanntiontis 9

Restatement (Second) of Trusts § 176 (1959) ....... 12

Petition For A Writ Of Certiorari

The Petitioner Shoshone-Bannock Tribes respectfully

prays for a writ of certiorari to review the decision of the

United States Court of Appeals for the Ninth Circuit, entered

in the above-entitled proceeding on July 7, 2000.

Opinions Below

The opinion of the Court of Appeals for the Ninth Circuit

is an unreported opinion of the Ninth Circuit, and is reprinted

in the appendix hereto, App. 2a-6a. The order on the petition

for en banc rehearing of the Court of Appeals is also included

in the appendix, App. la.

The Order of the United States District Court for Idaho has

not been reported. It is reprinted in the appendix hereto, App.

7a-10a.

Jurisdiction

Invoking federal jurisdiction under 28 U.S.C. §§ 1331,

1361, 1362, and 42 U.S.C. §§ 6928(a), 699le, the United

States Environmental Protection Agency (EPA) brought this

enforcement action against the FMC Corporation in the

District of Idaho. Petitioner intervened into the action

opposing the consent decree. On July 13, 1999, the District

Court entered the lodged consent decree.

Petitioner appealed the entry of the consent decree. The

Ninth Circuit entered its decision on July 7, 2000. A timely

petition for en banc rehearing was denied by an order of the

Ninth Circuit entered on October 5, 2000.

On December 19, 2000, Justice O'Connor, Circuit Justice

for the Ninth Circuit, ordered that the time for filing of the

instant petition be extended to and including February 2,

2001.

The jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. § 1254(1).

2

Statutory And Regulatory

Provisions Involved In The Case

This case involves portions of the Solid Waste Disposal

Act, as amended by the Resource Conservation and Recovery

Act (RCRA) and the Hazardous and Solid Waste

Amendments, 42 U.S.C. §§ 6901 et seq., regarding hazardous

waste treatment, storage and disposal.

Statement Of The Case

In 1867, the Fort Hall Reservation (Reservation) was

designated by Executive Order for the Petitioner who

occupied the area for time immemorial. On July 3, 1868, the

Petitioner concluded the Second Treaty of Fort—Bridger,

which was ratified by the United States Senate on February

24, 1869. 15 Stat. 673. Article 4 of the Fort Bridger Treaty

reserved the Reservation as a “permanent home” for the

Petitioner. The present day Reservation is approximately a

half million acres. FMC v. Shoshone-Bannock Tribes, 905

F.2d 1311, 1312 (9th Cir.), cert. denied, 499 U.S. 943 (1991).

The overwhelming majority of the Reservation (96%) is

Tribal land or held by the United States for the benefit of the

Tribes or its individual members. /d. The remaining is held

in fee status. The current Reservation population is about

6,000 with the resident Tribal membership about 3,600. '

The Petitioner’s Reservation is home to the largest

elemental phosphorous plant in the world, the FMC

Corporation. FMC owns approximately 1100 acres on the

Reservation. FMC v. Shoshene-Bannock Tribes, supra, 905

' The Petitioners are a federally recognized Indian tribe organized

under Sections 16 and 17 of the Indian Reorganization Act of 1934, 25

U.S.C. § 461 et seq., and reside in southeastern Idaho. In 1936, the

Petitioner's general membership voted to adopt a Constitution and Bylaws

which is one of the organic documents of the Tribes. The Tribes also

have a federally chartered corporation which manages several businesses

of the Tribes throughout the Reservation.

3

F.2d at 1312. For 50 years, FMC has generated, stored,

buried, and stockpiled hazardous waste at its plant.

Numerous solid waste, air emissions and wastewater streams

are generated during the processing of the ore. FMC has

placed reactive and ignitable waste in the ponds and surface

impounds without deactivating the waste. These wastes are

considered ignitable hazardous wastes pursuant to RCRA

regulations. Certain ponds also store elevated airborne levels

of phosphine, a highly toxic gas. "i

The Petitioner, river systems, streams and groundwater

systems of the Reservation reside predominantly downstream

and downwind from the FMC plant that emits pollutants in

such large amounts that it is one of the largest polluters in the

United States.” Last year, the Agency for Toxic Substances

and Disease Control found that air emissions from the area

pose a “public health hazard.” Additionally, FMC’s facility

has contaminated the Reservation’s water and land, and has

caused it to be part of the Eastern Michaud Flats Superfund

site under the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq.

In 1998, this action was commenced by the EPA against

FMC for certain violations of the RCRA and regulations

promulgated regarding hazardous waste treatment, storage

and disposal at the FMC facility located on the Petitioner’s

treaty guaranteed homeland. As a result of the complaint, the

EPA and FMC negotiated a consent decree to resolve the

RCRA violations.

>The Reservation is designated as a non-attainment area for air

pollution based on the National Ambient Air Quality Standards (NAAQS)

for particulate matter (PM-10) air pollution emitted from the FMC plant

throughout the Reservation. FMC is the only major stationary source of

PM-10 in the Fort Hall non-attainment area. EPA has never issued a

federally enforceable air quality operation permit or no emission limits

have been mandated by the EPA.

4

The Petitioner, however, was not an official party to the

negotiations, the Tribal governing decisionmaking body was

never consulted by EPA, and the Petitioner was not a

Signatory to the consent decree. A few of the Tribal staff

attended some EPA meetings but no person with delegated

decisionmaking authority. The Petitioner filed public cum-

ments and intervened into the federal action to oppose entry

of the consent decree. The Petitioner argued that the consent

decree contains provisions and agreements that are contrary

to preservation of the federally guaranteed lands for the

Petitioner and in disregard of the best interests of the

Petitioner.

The gist of Petitioner’s opposition was that EPA did not

meet its trust obligations to the Tribes because it treated the

Tribes as the general -public and the treaty guaranteed

homelands as common real estate which departed from its

trust duties owed to Indian tribes when federal decisions

directly impact treaty reserved lands. The EPA never

specifically considered the environmental and health impacts

of the consent decree (proposed federal action) on the Tribes

as a separate concern and entity. The District Court granted

the entry of the consent decree. App. 10a. The District Court

rejected the Petitioner’s claims and held that EPA had met its

trust responsibility to the Tribes. The EPA adopted EPA’s

position that the local off-Reservation economics and public

interests outweighed the trust obligations. App. 9a.

In due course, the Petitioner took an appeal to the Ninth

Circuit from the final order of the District Court. The

Petitioner invoked the Ninth Circuit’s jurisdiction under 28

U.S.C. § 1291 to review “final decisions” of district courts.

The Petitioner claimed on appeal that the District Court

erred in balancing the Tribal interests against economic

interests and the general public. The Petitioner pointed out to

the panel that the EPA made basic assumptions about the

Tribes and Reservation environment based on general reports

5

for the general public, but undertook no independent

investigation, review, or study of health conditions of the

impacted population—the Tribes. EPA never took into

account in its decisionmaking process the impacts on the

Tribes as a separate entity from the surrounding community.

EPA at no time attempted to glean from the Petitioner health

care, diet, socioeconomic status, ecological and health risks

or determine cumulative impacts on the Tribal people who

have lived on Reservation ali their lives and have been

exposed to the hazardous waste air emissions, the dust from

the slag piles, and toxic phosphine and hydrogen cyanide

emissions from the waste ponds. In short, the Petitioner

maintained that the trust doctrine required EPA to meet its

procedural and substantive duties of protection to the Tribes,

to take a hard look, and assess the impacts on the Tribal

population and Reservation.

On review, the Ninth Circuit upheld the District Court

decision. The panel reviewed the District Court’s order based

on an abuse of discretion. App. 4a. The Ninth Circuit also

gave deference to the EPA and parties who negotiated the

consent decree. App. 4a.

The Ninth Circuit found that the EPA “does owe a general

trust responsibility to Indian tribes” but “RCRA is not aimed

specifically at protecting Indian tribes.” App. 4a. Thus, EPA

“does not have a specific trust duty to enforce RCRA on fee

lands within the Tribes’ reservation.” App. 4-5a. Based on

this reasoning, the panel summarily concluded, “the records

discloses a diligent assertion of RCRA claims by the

government, a fair and extensive consultation with the Tribes,

and reasonable settlement reached at arm’s length between

the government and FMC. The United States therefore

satisfied its general trust duty to the Tribes.” App. 5a.

The Petitioner timely filed a Petition for Rehearing En

Banc. On October 5, 2000, the Ninth Circuit denied the

petition for rehearing. App. la.

ne

6

Reasons For Granting The Writ

I

Certiorari Should Be Granted To Determine

Whether EPA Has Specific Fiduciary Duties To

Indian Tribes Under RCRA To Protect And

Preserve Reservation Lands From Hazardous

Waste Pollution And Contamination

The Ninth Circuit has fashioned for the EPA an

extraordinary exception to its established fiduciary duties to

Indian tribes. By upholding EPA’s decision to limit its trust

obligations to the Petitioner under RCRA, the Ninth Circuit

permits EPA to discharge its solemn trust obligations to tribes

by meeting the “general regulations and statutes not

specifically aimed at protecting Indian tribes.” App. 5a. This

ruling for the first time raises a significant issue of the

agency’s trust responsibility to Indian tribes under RCRA

when EPA is regulating hazardous waste generating facilities

and the continued operation of such facilities located on an

Indian reservation.

As it happens, EPA, on Indian reservations, is the primary

permitting, monitoring, compliance and enforcement agency.

Importantly, RCRA is the only major federal environmental

statute that fails to expressly delegate authority to Indian

tribes.’ The Petitioner is unaware of any Indian tribe in the

country that has a RCRA hazardous waste program. In this

instance, where Congress has not yet expressly acknowledged

Indian tribes’ regulatory authority under RCRA, the federal

trustee’s obligations to preserve and protect Indian lands, and

tribal interests is even more critical. See Washington Dept. of

> The Clean Air Act was amended in 1977 to authorize EPA to treat

tribes as states for the Act’s program. 42 U.S.C. § 7474 (1994); the Safe |

Drinking Water Act was amended in 1986, 42 U.S.C. § 300j-11 (1994);

the Comprehensive Environmental Response, Compensation, and

Liability Act was amended in 1986, 42 U.S.C. §§ 9601 ef seq.; and the

Clean Water Act was amended in 1988, 33 U.S.C. §§ 1251-1387 (1994).

7

Ecology v. EPA, 752 F.2d 1465, 1470 (9th Cir. 1985) (“the

United States in its role as primary guarantor of Indian

interests legitimately may decide that such tribal concerns can

best be addressed by maintaining federal control over Indian

lands’’).

Enacted in 1976, RCRA is perhaps the most pervasive

federal environmental statute that overlaps the Clean Water

Act, supra, the Clean Air Act, supra, and the Comprehensive

Environmental Response, Compensation, and Liability Act,

supra. The EPA is charged with the responsibility of

integrating RCRA with the other laws for the purpose of

administration, permitting, and enforcement on Indian lands.

However, according to the Ninth Circuit, the EPA only has to

comply with general regulations and law despite the

contamination occurring on Indian treaty reserved lands.

This limitation of trust duties owed to tribes, particularly

when EPA is the exclusive agency with authority to act, falls

far short of meeting the “most exacting fiduciary standards”

enunciated by this Court. See, Seminole Nation v. United

States, 316 U.S. 286, 297 (1942).

Over 170 years ago, Chief Justice Marshall in Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), first

articulated the federal-tribal trust doctrine and recognized that

the United States has a solemn trust obligation to Indian

people (Indian tribes were “domestic dependent nations”

whose relationship to the United States resembled “that of a

ward to his guardian”), Justice Marshall’s guardianship

theory was grounded in a general duty of the United States, as

the more powerful sovereign, to protect tribal lands and the

right of self-government within tribal territories. The source

of the federal government’s trust responsibility is established

by the provisions of treaties, agreements, statutes, and

“reinforced by the undisputed existence of a general trust

8

relationship between the United States and Indian people.”

United States v. Mitchell, 463 U.S. 206, 226 (1983).*

This trust responsibility requires the federal trustee to

protect Indians and their property. See e.g., United States v.

Kagama, 118 U.S. 375, 383-84 (1886); United States v. Creek

Nation, 295 U.S. 103, 110 (1935). Nearly four hundred

treaties between Indian tribes and the United States and an

entire title of the United States Code are premised on this

trust relationship. Morton v. Mancari, 417 U.S. 535, 552

(1974).

All three branches of the federal government have

recognized and enforced this trust responsibility. In Seminole

Nation, supra, 316 U.S. at 296-297, this Court declared the

federal trustee’s obligations are even greater than those of any

ordinary trustee. The Court described this relationship:

In carrying out its treaty obligations with the Indian

tribes the Government is something more than a mere

contracting party. Under humane and self imposed

policy which has found expression in many acts of

Congress (footnote omitted) and numerous decisions of

this Court, it has charged itself with moral obligations of

the highest responsibility and trust. Its conduct, as

disclosed in the acts of those who represent it in dealings

with the Indians, should therefore be judged by the most

exacting fiduciary standards. .

(emphasis added); accord, United States v. Mason, 412 U.S.

391, 398 (1973).

* Over a century ago, this Court held in Ward v. Racehorse, 163 U.S.

504, 509 (1896), that the goals of the United States in reserving the Fort

Hall Indian Reservation were “to protect . . . [the Tribes’] rights and to

preserve for . . . [them] a home where . . . [their] tribal relations might be

enjoyed under shelter of the authority of the United States.” This trust

relationship described in Ward v. Racehorse, was established in the Fort

Bridger Treaty of 1868 wherein the Tribes agreed under Article 4 “they

will make said reservation their permanent home... .”

9

The standards of fiduciary conduct imposed by the trust

doctrine apply to any federal government actions including all

executive agencies dealing with protected Indian interests and

the administration of federal programs. See Seminole Nation,

supra; Morton v. Ruiz, 415 U.S. 199, 236 (1974).

Significantly, EPA has for many years expressly recognized a

fiduciary duty toward Indian tribes. The 1984 EPA Statement

on Indian policy declares, “[iJn keeping with that [trust]

responsibility, the Agency will endeavor to protect the

environmental interests of Indian tribes when carrying out its

responsibilities that may affect the reservations. EPA Policy

for the Administration of Environmental Programs on Indian

Reservations 3 (Nov. 8, 1984). Thus, EPA’s Indian Policy

establishes a substantive obligation on the part of EPA to

fully protect Indian property rights—trust resources.

The Ninth Circuit’s decision is contrary to the trust

principles announced by this Court in United States v.

Mitchell, 463 U.S. 206 (1983).° In Mitchell, the Court

determined that even apart from statutory expression of a

trust, a fiduciary relationship arises whenever the executive

branch maintains extensive control over Indian property.

Thus, the Court’s opinion creates a trust obligation arising out

of circumstances rather than expressed intent. 463 U.S. at

226. In the RCRA situation on Indian reservations, the EPA

has control over virtually every stage of the RCRA process—

monitoring, permitting, inspections, enforcement and

compliance. All of these actions directly affect and have a

pervasive impact on Indian resources that, in effect, the EPA

should be deemed to have control. RCRA should be, as the

* In Mitchell I and II, the Quinault Tribe and Indian plaintiffs filed an

action in the Court of Claims for seeking money damages against the

United States for alleged mismanagement of forest resources on allotted

lands within the Reservation. This Court affirmed the Court of Claims

decision finding a breach of the United States duties on two independent

trust paradigms.

aii

10

Mitchell II! Court pointed out, be construed in light of the

federal government’s fiduciary duty to Indian nations. 463

U.S. at 225. Given the presumption under the Indian trust

doctrine jurisprudence that EPA is obligated to protect the

best interests of tribal people and tribal lands, the court’s

conclusion that EPA has no special duties to tribes in the

RCRA setting where hazardous waste has contaminated

Indian lands—is a striking result and raises serious problems.

The distinction between (i) lands reserved by treaties,

Executive Orders, or specific acts of Congress, and (ii) lands

located off reservation and considered common real estate is

critically important to the case at hand. Treaty reserved

lands, in this instant matter, were set aside for the Tribe’s

benefit and federal protection pursuant to action by Congress.

See, Ward v. Racehorse, supra. Indeed, the dominant tenet

which emerges from the early treaty and trust cases is that the

Indians best interests lie in preserving the tribe’s sovereign

nation status, resisting assimilation forces, and preserving

their homelands. See Worcester v. Georgia, 31 U.S. (6 Pet.)

515 (1832). Today, most fundamentally, the modern form of

the trust obligation is the federal government’s duty to protect

this separatism by protecting tribal lands, resources, and the

Indian way of life, and shielding Indian lands from

environmental threats. See United States v. Creek Nation,

supra, 295 U.S. at 110. This federal policy of preserving

tribal lands and tribal separatism is also represented in

Congressional principles of tribal self-determination. See

Indian Self Determination Act, 25 U.S.C. §§ 450 et seq.

The federal policy of preserving treaty reserved lands

mandates a-federal trustee to exercise its duties in a manner

that fulfills this purpose. The Ninth Circuit’s application of

RCRA’s “general regulations and statutes not aimed at

protecting Indian tribes” to treaty reserved lands cannot be

reconciled with the clear federal principles supporting the

preservation of reservation lands for tribal people. The

|

11

judicially created trust principles must be applied to

supplement the RCRA provisions for federal Indian lands.

Otherwise, the current result will imperil the use of

reservation lands and the future generations of tribal people.

Review by this Court of the Ninth Circuit’s ruling is thus

imperative.

This case also for the first time presents the question

whether the EPA may selectively exercise its responsibility to

Indian tribes when pollution or contamination is initially

released on fee lands located within the boundaries of an

Indian Reservation. The Ninth Circuit, based on no precedent,

held “the United States does not have a specific trust duty to

enforce RCRA on fee land within the Tribes’ reservation.”

App. Sa.

The Ninth Circuit’s creation of an exception for fee lands

located within the boundaries of a Reservation has effectively

severed the trust responsibility owed to tribes when the

occurrence arises on fee lands. This radical result allows

EPA the unilateral authority to constrain and limit its trust

obligations owed to tribes if the contamination or pollution

initially arises on fee lands. The conflict between established

law, the EPA’s own policies, and sound, rational environ-

mental management could not be more complete.

The Ninth Circuit’s interpretation of the limits of EPA’s

trust relationship and responsibilities to Indian tribes is indeed

a new invention, and conflicts with the protection and

preservation of Indian reservations by the United States. The

United States entered into treaties fixing firm reservation

boundaries in order to gain perpetual “peace” or “friendship”

with Indian tribes. This Court has recognized that the tribes

ceded their lands through treaties in the justifiable belief that

the land they retained would be held by them in perpetuity for

their undisturbed possession. United States v. Payne, supra,

264 U.S. at 448. Accordingly, the courts have recognized the

reservation land base as a protected beneficiary interest for

12

purposes of the trust doctrine, and the executive branch’s

fiduciary duty to protect the tribal land base and the tribes.

See Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 370, 379 (ist Cir. 1975); United States ex

rel. Santa Ana Indian Pueblo v. University of New Mexico,

731 F.2d 703, 706 (10th Cir.), cert. denied, 469 U.S. 853

(1984). Moreover, the duty to protect trust property has firm

grounding in private trust law. See Restatement (Second) of

Trusts § 176 (1959)(“The trustee is under a duty to the

beneficiary to use reasonable care and skill to preserve the

trust property”).

Under the decision below, however, if there is a parcel of

fee land located on a reservation that is polluting the

reservation land base, the EPA does not have any specific

fiduciary duties to enforce environmental laws to preserve the

tribe’s land base. Consequently, this affords EPA unbridled

ability to take enforcement actions without any obligation

under the trust doctrine to take appropriate steps to protect

and preserve the beneficiary interest tribal lands.

- Importantly, this decision below is contrary to this Court’s

ruling in Ward v. Racehorse, supra, that the United States has

a federal duty of protection of the Petitioner’s lands. In Ward

v. Racehorse, this Court declared that the goals of the United

States in setting aside the Fort Hall Reservation were to

“protect . . . [the Tribes’] rights and to preserve for. . . [them]

a home where .. . [their] tribal relations might be enjoyed

under shelter of the authority of the United States.” The trust

relationship and duty could not be clearer. The Ninth

Circuit’s unprecedented ruling, however, makes the Tribes’

land vulnerable to adverse EPA action taken both on and off

reservation boundaries which may significantly diminish the

usable Indian land base. Under the Ninth Circuit’s ruling, the

RCRA does not require the EPA to provide a degree of

protection sufficient to safeguard the tribal environment.

This exception conflicts with the intent of establishing the

\

13

Reservation and insuring the separatism envisioned in the

treaty process. Without Congressional authorization, the

EPA under the Ninth Circuit ruling is permitted to limit its

trust responsibility premised on land ownership lying within

treaty reserved lands.

The Ninth Circuit ruling is also irreconcilable with EPA’s

own definition of “Indian lands” for purposes of hazardous

waste regulation on Indian reservations. The EPA has

asserted that absent independent state authority to regulate

within reservation borders, EPA retains jurisdiction under

RCRA to regulate on “Indian lands.” 51 Fed. Reg. 3782,

3783. EPA defines “Indian lands” as being synonymous with

the phrase “Indian Country” that is to “mean all lands

(including fee lands) within Indian reservations, dependent

Indian communities, and Indian allotments to which Indians

hold title. Jd. Under the EPA’s Indian Policy, the EPA has

assumed its trust responsibilities to Indian tribes. The ruling

below is unfounded.

II.

The Ninth Circuit’s Unprecedented Creation Of

A Deferential Standard Of Review In A

Challenge To An Agency’s Action Based On The

Federal Tribal Trust Doctrine Conflicts With

Decisions Of This Court And The Well

Established Principles Of The Trust Doctrine.

Without any precedent, the Ninth Circuit has created a new

standard of judicial review in cases challenging the executive

branches fulfillment of its trust obligations to Indian tribes for

actions occurring and impacting treaty reserved and protected

lands. By characterizing and reviewing this case solely as an

environmental consent decree matter, rather than a challenge

and review of the federal agencies’ trust obligations owed to

an Indian tribe, the Ninth Circuit subjected the agency’s

14

action only to a judicial scrutiny commensurate with the

Administrative Procedures Act, 5 U.S.C. §§ 701-76 (1990).

App. 4a. According to the Ninth Circuit, the EPA’s actions

affecting Indian lands is entitled to a “deference” that pre-

sumes agency action to be valid. This standard of review has

never been applied in federal Indian trust doctrine cases that

affect tribal property and tribal interests. Such a drastic

enlargement of the presumption owed to federal agencies in

the Indian law context deserves this Court’s attention.

The Ninth Circuit’s creation and application of “defer-

ence” in Indian trust cases conflicts with this Court’s ruling in

Morton v. Ruiz, 415 U.S. 199, 232-38 (1974). In Ruiz, the

Court held that the principles of administrative law do not

solely control a court’s inquiry into the agency’s decision

where tribal interests are implicated. Jd. The Court imposed

trust standards on top of the standards of review required by

the Administrative Procedures Act. /d. at 236.

Ruiz, involved a dispute over the Secretary of the Interior’s

denial of general assistance benefits to certain Indians

because, as allegedly required by the Snyder Act, they did not

live ‘on or near’ an Indian reservation. /d. at 204-205. In

addition to holding that the Secretary of Interior had failed to

comply with the Administrative Procedure Act and with the

Bureau of Indian Affairs’ own regulations, the Court stated,

“the denial of benefits to these respondents under such

circumstances is inconsistent with ‘the distinctive obligation

of trust incumbent upon the Government in its dealings with

these dependent and sometimes exploited people.” /d. at 235-

37(quoting Seminole Nation v. United States, 316 U.S. 286,

296 (1942)).°

The conflict between Ruiz and this instant case could not

be more complete. The Court will not review alleged Indian

trust violations based on administrative law principles which

* For further discussion of the Ruiz case, see Davis, Administrative

Surprises in the Ruiz Case, 75 Mich. L. Rev. 823 (1975).

15

give deference to agency's decisionmaking. According to

Ruiz, the trust responsibility requires additional scrutiny with

no deference.

Second, the Ninth Circuit’s ruling that EPA’s actions

affecting Indian lands and tribes are given deference is

tantamount to it concluding that EPA has unreviewable

discretion. Moreover, this concept of “deferential” review is

contrary to the well established federal Tribal trust doctrine

principles, presented here, that involve matters of law

requiring independent judicial interpretation. Indeed, the

Ninth Circuit’s new standard of judicial review of agency

actions renders meaningless the established heightened

scrutiny of federal actions impacting trust property and tribal

interests required by the trust relationship. |

This Court has developed the fiduciary standard of conduct

owed to Indian tribes and has repeatedly recognized that the

federal executive agencies are to be “bound by every moral

and equitable consideration to discharge its trust with good

faith and fairness.” United States v. Payne, 264 U.S. 446,

448 (1924). Additionally, federal officials have “moral

obligations of the highest responsibility and trust for Indian

property and are subject to the most exacting fiduciary

standards.” Seminole Nation, supra, 316 U.S. at 296-97.

Accordingly, an Indian tribes should not be required to prove

to the trustee the particular measures which are necessary

because “[a] tribe is ‘entitled’ to rely on the United States, its

guardian, for needed protection of its interests.” Creek

Nation, supra, 295 U.S. at 110. Moreover, the courts owe

their own fiduciary of protection towards tribes—a duty

which, can be fulfilled only through rigorous judicial review

of other federal actions affecting tribal interests.

The EPA acted as legal trustee of Indian lands during the

consent decree negotiations, a role which included enhanced

duties beyond the normal environmental regulatory duties

performed by the agency. EPA was charged under its trust

16

responsibility throughout the negotiations to insure that it

protected the environmental interests of the Petitioner. As a

fiduciary to the Petitioner, the EPA actions are “subject to the

most exacting fiduciary standards.” Accordingly, fiduciaries

are not entitled to any sort of judicial deference when their

actions are called into question. Seminole Nation v. United

States, supra, 316 U.S. at 297.

The Ninth Circuit has fashioned a broad far reaching

precedent directly at odds with the principles of the common

law developed fiduciary standards which require the courts to

scrutinize the actions of the federal agencies. This decision is

likely to generate the application of the deferential standard to

agencies other than EPA and in other contexts involving _

Indian tribes. Moreover, Congress has not enacted a set of

statutory prescriptions to bridle or guide EPA’s actions for

environmental protection regarding tribal lands and resources

under a federal statute, and indeed could not as a practical

matter. Absent congressional guidance, the trust doctrine

principles serve a vital role in providing standards to protect

tribal interests against unfettered agency leeway. In this case,

the panel granted undue deference to EPA’s own inter-

pretation of its trust responsibility which substantially

diminishes the force of the trust doctrine as a judicial check to

agency action.

The Ninth Circuit seeks justification for its standard of

review by stating “deference to the consent decree is due

because a district court reviewing a consent decree signed by ~

the United States on behalf of the EPA ‘must refrain from

second-guessing the Executive Branch. Such deference is

appropriate given [t]hat so many affected parties, themselves

knowledgeable and represented by experienced lawyers, have

hammered our an agreement at arm’s length and advocate its

embodiment in a judicial decree.” (citation omitted). App.

4a. But the panel’s reliance on environmental discretion is

misplaced.

17 7

Questions of trust obligations owed to Indian tribes by

EPA are far removed from the more technical questions of

EPA’s expertise relating to an environmental.consent decree.’

In this instant case, the question is whether, in light of the

trust responsibilities that EPA expressly assumed, it

considered all reasonable alternatives and corrective actions,

and negotiated a consent decree that best protected the

Tribes’ interests which are based upon direct information and

knowledge of the Tribes’ health, safety and welfare, and

environment. In short, the Ninth Circuit was requested to

review EPA’s actions based on its trust obligations not based

on the scientific, technical provisions of the RCRA statute.

Furthermore, EPA has no special agency expertise in trust

responsibility and fiduciary obligations which would permit

the application of a deferential standard of review as applied

in the environmental context. Cf. Udall v. Tallman, 380 US.

1, 16-18, reh’g denied, 380 U.S. 989 (1965). This is not

purely an environmental consent decree case occurring on

private lands and involving the general public. This case

involves trust resources and a Tribal government that has a

special trust relationship with the United States and its

agencies.

The Petitioner is unaware of any prior instance in which a

court has reviewed and granted such deference to a federal

agency. Indeed, the Court has never applied such a

deferential standard to the Bureau of Indian Affairs’ actions

or decisions relating to implementation of federal laws and

regulations impacting tribal lands and people. Certainly, the

Bureau of Indian Affairs has more experience and expertise

” Indeed, the trust obligations are memorialized in part by the many

treaties negotiated with tribes, and the United States Constitution

expressly proclaims such treaties as the “supreme law of the Land.” U.S.

Const. Art. VI, cl. 2. This constitutional emphasis on the rank of treaties

in the federal system of laws certainly suggests a high prioritization of

native interests.

18

than the EPA in exercising its trust responsibility to Indian

tribes. The Ninth Circuit’s ruling relaxes the standard of

review for EPA’s actions when exercising its trust

responsibilities on Indian lands and impacting tribal people.

Consequently, the ruling permits EPA to exercise its trust

responsibility to Indian tribes in a manner different than any

other federal agency. Consideration of the matter by this

Court is essential to address the disparity in application of the

trust doctrine among federal agencies.

Finally, the federal government’s historical record of

protecting tribal rights is remarkably poor. The long pattern

of compromise of Indian interests, viewed in light of the

vulnerable position of many tribes, gives added justification

for enhanced judicial scrutiny. The Ninth Circuit’s deference

to EPA’s determinations relating to their trust responsibility

to Indian tribes might well legitimize and institutionalize a

disregard for tribal rights and treaty reserved lands. In

Wilderness Soc’y v. Morton, 479 F.2d 842, 865 (D.C. Cir.),

cert. denied, 411 U.S. 917 (1973), Judge Skelly Wright

stated:

[I]t is our firm belief that a line must be drawn between

according administrative interpretations deference and

the proposition that administrative agencies are entitled

to violate the law if they do it often enough. Not to draw

a line is to make a mockery of the judicial function... .

‘The deference owed to an expert tribunal cannot be

allowed to slip into judicial inertia.’

(quoting Volkswagen Werk Aktiengesellschaft v. F.M.C., 390

U.S. 261, 272 (1968)).

The Ninth Circuit has manufactured a new unprecedented

standard of review of deference for a federal agency in the

Indian law trust context. The Ninth Circuit has failed to

appreciate the significant impact this decision will have in the

area of federal Indian law. There is a compelling need for

this Court’s review.

19

Conclusion

For the foregoing reasons Petitioner respectfully requests

that this petition for writ of certiorari be granted.

Respectfully submitted,

JEANETTE WOLFLEY

Counsel of Record

1752 North Elk Road

Pocatello, Idaho 83204

(208) 232-1922

February 2, 2001