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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1019

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0778%3A1. Public record. Not legal advice.