Amicus Curiae Brief — Wisconsin v. Environmental Protection Agency

. Supreme Court, U. 8,

F EILED

No. 01-1247 - 2 2002

F ’

tn The OFFICE OF THE CLERK

Supreme Court of the United States

+

STATE OF WISCONSIN,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

CHRISTINE WHITMAN, and

SOKAOGON CHIPPEWA COMMUNITY,

Respondents.

'

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

S

BRIEF AMICUS CURIAE OF THE

STATES OF IDAHO, ALASKA, FLORIDA,

KANSAS, NEVADA, NORTH DAKOTA,

SOUTH DAKOTA, TEXAS, UTAH, AND WYOMING

IN SUPPORT OF PETITIONER

¢

ALAN G. LANCE Cray R. SMITH

State of Idaho Counsel of Record

Attorney General Deputy Attorney General

Clive J. Strong Natural Resources Division

Deputy Attorney General P.O. Box 83720

Chief, Natural Boise, ID 83720-0010

Resources Division (208) 334-2400

(Additional Amici Curiae Appearances On Inside Cover)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

aii |

ADDITIONAL AMICI CURIAE APPEARANCES

Bruce M. BoTreLHo

Attorney General

State of Alaska

\ Rosert A. BUTTERWORTH

Attorney General

State of Florida

Caria J. STOVALL

Attorney General

State of Kansas

FRANKIE SUE Det Papa

Attorney General

State of Nevada

WayNE STENEHJEM

Attorney General

State of North Dakota

Mark BARNETT

Attorney General

State of South Dakota

JOHN CoRNYN

Attorney General

State of Texas

Mark L. SHURTLEFF

Attorney General

State of Utah

Hoke MacMILlLan

Attorney General

State of Wyoming

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE STATES........... 1

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pL oe ho) err errr rrr rT rer rr Petre ee 9

WHETHER A TRIBE POSSESSES INHERENT

AUTHORITY OVER “WATER RESOURCES”

BELONGING TO A STATE RAISES IMPORTANT

QUESTIONS OF STATE SOVEREIGNTY AND

INDIAN LAW, AND THIS COURT SHOULD

REMOVE ANY DOUBT OVER THE APPROPRI-

ATE ANALYSIS FOR RESOLVING THAT QUES-

BERT 5 cane dud conse bWaenh bee cheer abae Oc keen aa een

I. The Seventh Circuit’s Analysis Failed To

Address The Controlling Issue In This Matter:

Whether Wisconsin Water Quality Standards

Are Preempted From Application To Rice Lake

hE @HZREEAEaSA2SE SAREE RAARAEHEAEASEAASLA RABE ALERARASHSE CES

Il. The Seventh Circuit Ignored This Court’s

Repeated Holding That, In Determining

Whether Inherent Tribal Authority Exists So

As To Displace State Regulation, The Williams

Preemption Standard Must Be Applied ......

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TABLE OF AUTHORITIES

Page

Cases

Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C.

Cir. 2000), cert. denied, 532 U.S. 970 (2001) ......... 3

Atkinson Trading Post Co. v. Shirley, 532 U.S. 645

(2001)... . 2.00 s6na wake een 10, 13, 14, 15, 18

Backcountry Against Dumps v. EPA, 100 F.3d 147

(D.C. Cir, 1900)......5+49:cceen eee eee eens 3

Brendale v. Confederated Tribes and Bands of Yakima

Indian Nation, 492 U.S. 408 (1989).............. 10, 19

California v. Cabazon Band of Mission Indians, 480

U.S. 202 (1967) ......cstananaeneee eee eaene eee ees 19

City of Albuquerque v. Browner, 97 F.3d 415 (10th

Cir. 1996) .....46ss000cuene eee eee 4, 9, 17

Ex parte Young, 209 U.S. 123 (TRO). 0c sccscccccsesacs 18

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) ..... 1

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997)...... 1, 18

Idaho v. United States, 533 U.S. 262 (2002) ........ 18, 20

Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983)........ 5

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (2999) ...s. 23 ue an eewn eee eee ce eeewess 2

Montana v. United States, 450 U.S. 544 (1981) .... passim

Montana v. USEPA, 137 F.3d 1135 (9th Cir.), cert.

denied, 525 U.S. 921 CEPR)... ccnnsaccascccesicneess 4

Nevada v. Hicks, 533 U.S. 353 (2001).......0. 13, 15, 16

Raygor v. Regents, 122 S. Ct. 999 (2002)... .cscccceese 17

— = = = — —

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TABLE OF AUTHORITIES - Continued

Page

Strate v. A-1 Contractors, 520 U.S. 438 (1997)

DCCL ECsUG Lb beekaieeereweditégeeeecen® 13, 14, 15, 16

Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159 (2001)..........222seeereceeees 2

United States v. Mazurie, 419 U.S. 544 (1975)......... 10

United States Steel Corp. v. Train, 556 F.2d 822 (7th

TE Cee caw ascbeesessaccctcssesevecssendanse 16

Utah Div. of State Lands v. United States, 482 U.S.

CE SeS cobb eeu est caeessaeeeneeies onsesee dea 18

Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134 (1980) ................ 12, 16

Williams v. Lee, 358 U.S. 217 (1959)............... 14, 19

UniteD States CONSTITUTION

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Unrrep States Cope

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TABLE OF AUTHORITIES - Continued

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FEDERAL REGULATIONS

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WISCONSIN AUTHORITIES

Se ls Se A pb aea cba ceananesdenncdorsceneeesens 19

Pee Ss SP SE kd hon bh ashe keneeusnsevaedaduapene 19

Wis. Admin. Code §§ 102.01-102.14 ................. 19

Wis. Admin. Code §§ 115.01-115.06 ................. 19

1

BRIEF AMICUS CURIAE

The States of Idaho, et al., through their respective

Attorneys General pursuant to S. Ct. R. 37.4 respectfully

submit a brief amicus curiae in support of petitioner.

¢

INTERESTS OF AMICI CURIAE STATES

Environmental quality is a core sovereign concern for

all States. Implicit in this concern is preserving authority

to regulate conduct that may or does affect the environ-

ment. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237

(1907) (“[T]he state has an interest independent of and

behind the titles of its citizens, in all the earth and air

within its domain. It has the last word as to whether its

mountains shall be stripped of their forests and its inhab-

itants shall breathe pure air”). The States’ preeminent

place in environmental regulation has not been ignored

by Congress, which carefully structured much of its envi-

ronmental legislation to provide States with the oppor-

tunity to implement their laws not only independently of

that legislation but also in lieu of federal regulation. E.g.,

Federal Water Pollution Control Act (“Clean Water Act”

or “CWA”), 33 U.S.C. §§ 1251-1387; Safe Drinking Water

Act (“SDWA”), 42 U.S.C. §§ 300f-300j-26; Resource

Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§§ 6901-6992k; Clean Air Act (“CAA”), 42 U.S.C.

§§ 7401-7671q. This sovereign interest in controlling

environmental quality assumes even greater weight

where navigable streams or lakes are involved because of

the States’ ownership and trust interest deriving from

operation of the Equal Footing Doctrine. See Idaho v. Coeur

d'Alene Tribe, 521 U.S. 261, 283 (1997) (relief quieting title

in Indian tribe “[n]ot only would ... block all attempts by

[state] officials to exercise jurisdiction over a substantial

2

portion of land but also would divest the State of its

sovereign control over submerged lands, lands with a

unique status in law and infused with a public trust the

State itself is bound to respect”).

To be sure, the States’ interests are not beyond con-

gressional control. The Interstate Commerce Clause, U.S.

Const. art. I, § 8, cl. 3, encompasses federal regulation of

waters “navigable in fact or which could reasonably be so

made.” Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159, 172 (2001). This Court has held

further that “[aJlthough States have important interests in

regulating wildlife and natural resources within their

borders, this authority is shared with the Federal Govern-

ment when the Federal Government exercises one of its

enumerated powers, such as treaty making.” Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204

(1999). The Clean Water Act makes special provision in

section 518, 33 U.S.C. § 1377, for Indian tribes to be

accorded “treatment as a State” (“TAS”) for specified

reservation “water resources,” and the court of appeals

reasoned below that “[bJecause the state does not con-

tend that its ownership of the beds would preclude the

federal government from regulating the waters within the

reservation, it cannot now complain about the federal

government’s allowing tribes to do so.” Pet. 9a-10a.

That statement by the Seventh Circuit lies at the heart

of the questions presented and the amici States’ concerns.

The issue here is not whether Congress can regulate water

quality standards on Rice Lake. It is instead whether,

given the unchallenged construction by the Environmen-

tal Protection Agency (“EPA”) that section 518 does not

contain a delegation of federal power, respondent

3

Sokaogon Chippewa Community (“Band”) can so regu-

late as a matter of retained inherent authority under

principles described in Montana v. United States, 450 U.S.

544 (1981). See 56 Fed. Reg. 64,876, 64,880 (1991) (Pet.

104a-105a).1 In upholding the agency action, the court of

appeals credited the EPA’s application of the second Mon-

tana “exception” to the general principle that tribes lack

inherent authority over nonmembers or their property.

The court’s determination, like the underlying agency

decision, betrayed a fundamental misunderstanding of

Montana principles, which limit the exception’s appli-

cability to situations where state law impermissibly inter-

feres with tribal self-governance and thereby is

preempted.

The Seventh Circuit’s acceptance of the analytical

approach used by the EPA to grant the Band’s request for

1 Petitioner describes the nature of the 1991 TAS

regulations in detail. Pet. 5-8. It nonetheless warrants mention

that the SDWA and CAA also contain TAS provisions. 42 U.S.C.

§§ 300h-1(e), 300j-11(b)(1) (SDWA); 42 U.S.C. § 7601(d)(1)(A)

(CAA); see also Backcountry Against Dumps v. EPA, 100 F.3d 147

(D.C. Cir. 1996) (rejecting EPA’s construction of RCRA as

authorizing TAS status for tribes). The EPA has interpreted the

TAS provision in the SDWA identically with that in the CWA -

i.e., as conditioning TAS status on the existence of inherent

authority over the regulated activity (59 Fed. Reg. 64,339 (1994))

- while it has construed the CAA provision as a delegation of

federal authority (63 Fed. Reg. 7254 (1998)). See Arizona Pub.

Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) (deferring to

EPA’s construction of the CAA’s TAS provision as delegation),

cert. denied, 532 U.S. 970 (2001). Neither petitioner nor the amici

States dispute in this matter Congress’ power to regulate water

quality in commercially navigable waters or to permit tribal

regulation of water quality standards in lieu of EPA control

where inherent tribal authority exists over the affected water

resource.

3

TAS status has significance far beyond the water-quality-

standards application here. As of March 1998 - four years

ago — the EPA had granted TAS or program approval

status for more than 130 tribes across the country with

respect to CWA-related activities. Treatment of Tribes in the

Same Manner as States/Program Approval Matrix (Mar.

1998) <http://www.epa.gov/indian/matrix.htm> (last

visited Apr. 6, 2002). Because the EPA is proceeding

aggressively to implement section 518, its erroneous

understanding of substantive Indian law principles will

compromise a significant and growing number of TAS

determinations. The time has come for this Court to inter-

vene, correct the agency’s mistake, and avoid misfocused

litigation over TAS decision-making and potential inter-

ference with fundamental state sovereign interests. See

Montana v. USEPA, 137 F.3d 1135 (9th Cir.), cert. denied,

525 U.S. 921 (1998); City of Albuquerque v. Browner, 97 F.3d

415 (10th Cir. 1996).

STATEMENT

I. The Secretary of the Interior is authorized under

section 5 of the Indian Reorganization Act, 25 U.S.C.

§ 465, to acquire in trust land “for the purpose of provid-

ing land for Indians” and under section 7, id. § 467, to

“proclaim new Indian reservations on [such] lands.” In

1939 the Assistant Secretary exercised this authority to

declare approximately 1,438 acres in Forest County, Wis-

consin, a reservation for the Band. Pet. 19a, 108a. The

reservation, commonly known as the Mole Lake Reserva-

tion (e.g., Pet. 50a, 58a, 71a), has been increased to 1,850

acres through acquisition of additional trust lands. Pet.

50a, 110a. These acquisitions did not include the bed and

em

5

banks of Rice Lake, a water body almost entirely sur-

rounded by the acquired lands. See Pet. 120a. The Lake is

navigable, with approximately one-third of its water sup-

plied by Swamp Creek whose headwaters arise off reser-

vation but which also flows downstream from the

reservation after leaving the Lake. Pet. 51a, 120a.

In August 1994, the Band sought TAS status from the

EPA for the purpose of promulgating water quality stan-

dards under section 303 of the CWA, 33 U.S.C. § 1313,

with respect to all water resources within the reservation.

Pet. 57a; see 40 C.F.R. § 131.8 (2001) (Pet. 89a). The appli-

cation was granted in September 1995. Pet. 37a. The

responsible EPA regional administrator, in requesting

concurrence from higher agency officials with his recom-

mendation that the application be granted, described Rice

Lake as “prime habitat for the largest single stand of

inland emergent wild rice in the world.” Pet. 51a. He

further observed that “[wl]ild rice serves as the founda-

tion for the Band’s diet, as it has for centuries” and is

“critical to the Band’s economy, with a portion of it sold

to other Tribes and inter-Tribal organizations as seed.”

Id.; see Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Voigt, 700 F.2d 341, 351-58 (7th Cir. 1983) (dis-

cussing Chippewas’ treaty history and reservation of usu-

fructuary rights on ceded lands). While acknowledging

that “the relationship between wild rice and water qual-

ity is only beginning to be understood,” the regional

administrator stated that “it is clear from the disap-

pearance of wild rice over much of its range that wild rice

is sensitive to environmental changes.” Id. He reasoned

that “[t]he Band’s water quality standards provide a

mechanism for protecting this important resource.” Id.

There was nevertheless no finding either that the Lake’s

6

water quality was deteriorating or that the wild rice

stand was being diminished through on-reservation

“environmental changes.”

In concurring with the regional director’s recommen-

dation, the EPA’s Office of General Counsel noted the

Band’s obligation under section 518 to “demonstrate [its]

authority and capability” to regulate affected waters in

the reservation. Pet. 45a. That requirement was deemed

satisfied, since “the Band clearly has regulatory authority

over all members of the Band” and “[s]ince all of the

Reservation lands are trust lands, the Band will neces-

sarily possess authority over all persons on Reservation

lands who may be engaging in activities that may affect

the quality of those waters.” Id. The Office of General

Counsel additionally expressed its “ ‘doubt that, in the

case of a reservation such as this one, where all the lands

(except perhaps those within the navigable waters them-

selves) are Tribal trust lands, a court would even find the

need to examine the scope of Tribal authority over non-

members’ activities (since there are no non-Indian lands

owned in fee by non-members, only lands arguably

owned by the State).’” Pet. 45a-46a. Were such analysis

undertaken, however, “the Band could easily establish

jurisdiction by showing that the effect of the activities of

such non-members on the health and welfare of the Band

would be ‘serious and substantial.’ ” Pet. 46a. “In particu-

lar,” the concurrence stated, “Rice Lake, the largest water

body, is a prime source of wild rice which serves as a

significant diet and econumic resource for the Band.” Pet.

46a-47a.

The Office of General Counsel, like regional officials,

dismissed the significance of Wisconsin’s claimed title to

the bed and banks of Rice Lake. “[E]ven if the State did

correo pe SSE IE AESOP PEE Oa eR TN a See Se nie OT

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7

retain title to the beds of the Mole Lake Reservation, EPA

could ... properly conclude that the Band has adequate

civil regulatory authority over the water resources on the

Reservation to establish water quality standards under

Section 303 of the CWA.” Pet. 44a. Wisconsin’s title to the

Lake’s submerged land, in short, was deemed irrelevant

to resolving the scope of the Band’s inherent authority.

See also Pet. 58a (analysis by Office of Regional Counsel

stating that “[t]he statutory scheme of the Clean Water

Act does not link ownership of lake beds with regulation

of water quality” and that “the Act contemplates geo-

graphic location of the water resources [on a reservation]

as the determinative factor”).

II. Petitioner unsuccessfully sought judicial review

of the EPA’s action granting the Band’s application for

TAS status to administer its water quality standards pro-

gram. Pet. la, 15a. The district court quoted extensively

from the regional administrator’s and the Office of Gen-

eral Counsel’s recommendation memoranda and, despite

indicating some doubt over the correctness of the

agency’s construction of section 518(e)(2) in its 1991

rulemaking, deferred to that interpretation because “both

the statute and legislative history are ambiguous” and

“{t]he EPA’s construction is reasonable and permissible.”

Pet. 32a. The court of appeals’ substantive reasoning dif-

fered significantly from the district court’s and was

divided into three components, the last two of which are

germane to the questions presented.

The Seventh Circuit first rejected the contention that

the Band lacked inherent authority over the Rice Lake

“water resource” because of petitioner’s “ownership of

the underlying lake beds” pursuant to the Equal Footing

Doctrine. Pet. 7a. Like the EPA, the court deemed it

8

unnecessary to resolve the ownership issue on the merits,

since it found “pertinent . . . a number of legal principles

all of which support the EPA’s determination that a

state’s title to a lake bed does not in itself exempt the

waters from all outside regulation.” Pet. 9a. Even as to

such waters, it reasoned, Congress has regulatory power

where navigability exists for Interstate Commerce Clause

purposes. Id. The court additionally relied on Congress’

authority under the Indian Commerce Clause and sug-

_ gested, but did not hold, that “in the absence of tribal

' TAS status, the EPA and not [petitioner] might well be the

proper authority to administer the Clean Water Act pro-

grams for the reservation, because state laws may usually

be applied to Indians on their reservations only if Con-

gress so expressly provides.” Id. It concluded this aspect

of the opinion with the statement that because petitioner

did “not contend that its ownership of the beds would

preclude the federal government from regulating the

waters within the reservation, it cannot now complain

about the federal government allowing the tribes to do

so.” Pet. 9a-10a.

The Seventh Circuit next rejected what it charac-

terized as petitioner’s argument that “the Band did not

make the required showing of authority over those activ-

ities potentially affected by its imposition of water qual-

ity standards.” Pet. 10a. The “activities” referred to were

petitioner’s purportedly “planned construction of a huge

zinc-copper sulfide mine on the Wolf River, upstream

from Rice Lake” and off reservation. Pet. 5a.2 The “extra-

territorial effect” postulated by the court derived from

2 As petitioner points out, the court of appeals’ statement in

this regard was wrong on several counts — i.e., petitioner is not

seeking to construct the involved mine, and the proposed

facility is not on the Wolf River which is downstream from the

9

section 518(e)’s direction to the EPA to establish a “mech-

anism” for resolving “any unreasonable consequences

that may arise as a result of differing water quality stan-

dards that may be set by States and Indian tribes located

on common bodies of water” and the attendant possi-

bility that more stringent tribal standards could affect off-

reservation, upstream water use. Pet. 12a-13a; see City of

Albuquerque, 97 F.3d at 423-24. That possibility did not

negate the Band’s claim of inherent power in the Seventh

Circuit’s view because “this authority is not defeated

even if it exerts some regulatory force on off-reservation

activities” and because “[w]Jhether the tribe or the state

ultimately ‘wins’ in the dispute, it is the EPA, not the

tribe or the state, that has the ultimate authority to decide

whether or not to issue a permit.” Pet. 13a.

¢

ARGUMENT

WHETHER A TRIBE POSSESSES INHERENT AUTHOR-

ITY OVER “WATER RESOURCES” BELONGING TO A

STATE RAISES IMPORTANT QUESTIONS OF STATE

SOVEREIGNTY AND INDIAN LAW, AND THIS COURT

SHOULD REMOVE ANY DOUBT OVER THE APPRO-

PRIATE ANALYSIS FOR RESOLVING THAT QUESTION.

I. The Seventh Circuit’s Analysis Failed To Address

The Controlling Issue In This Matter: Whether Wis-

consin Water Quality Standards Are Preempted

From Application To Rice Lake.

Section 518(e)(2) of the CWA is the focus of this

controversy. One of several requirements conditioning

reservation. Pet. 10 n.4. There is also no factual support in the

administrative record for the implication that the mine’s

development would prejudice Rice Lake’s water quality.

10

EPA’s authority to treat an Indian tribe as State for section

303 purposes, it demands a showing that “the functions

to be exercised by the Indian tribe pertain to the manage-

ment and protection of water resources which are held by

an Indian tribe, held by the United States in trust for

Indians, held by a member of an Indian tribe if such

property interest is subject to a trust restriction on aliena-

tion, or otherwise within the borders of an Indian reser-

vation[.]” 33 U.S.C. § 1377(e)(2). The EPA, as discussed

above, construed section 518(e)(2) in the 1991 TAS regula-

tions as not constituting a delegation of federal authority

but, instead, as requiring a tribe to establish under Indian

law principles that it possesses inherent authority to reg-

ulate the involved water resources. See 56 Fed. Reg. at

64,880.53 The agency further construed the provision to

3 In so determining, the EPA also discussed what it

characterized as “the contrary conclusion” adopted by four

members of this Court in Brendale v. Confederated Tribes and

Bands of Yakima Indian Nation, 492 U.S. 408 (1989) (opinion of

White, J.). Justice White stated with respect to the issue there,

which involved application of a tribal zoning ordinance to

nonmember-owned lands, that “[t]here is no contention .. . that

Congress has delegated to the Yakima Nation the power to zone

fee lands of nonmembers of the Tribe. Cf. 18 U.S.C. §§ 1151, 1161

(1982 ed., Supp. V); 33 U.S.C. § 1377(e) and (h)(1) (1982 ed.,

Supp. V).” Id. at 428. The EPA’s assumption that the reference to

the several statutes was intended to identify examples of

delegation of federal power is problematic since, as this Court

recently explained, “[s]Jection 1151 simply does not address an

Indian tribe’s inherent or retained sovereignty over

nonmembers on non-Indian fee land.” Atkinson Trading Post Co.

v. Shirley, 532 U.S. 645, 653 n.5 (2001). The Court did

characterize § 1161 as a delegation of federal authority in United

States v. Mazurie, 419 U.S. 544, 577 (1975), but it is hazardous to

assert that the “cf.” reference to section 518(e)(2) and the

definition of “Federal reservation” in section 518(h)(2) was

| |

11

authorize TAS status over any water resource within a

reservation as to which the required showing of inherent

power and the other statutory preconditions was made.

Id. at 64,881-82. This latter construction was premised on

reading “the phrase ‘or otherwise within...’ as a

separate category of water resources and also as a mod-

ifier of the preceding three categories of water resources,

thus limiting the Tribe to acquiring treatment as a State

status for the four specified categories of water resources

within the borders of the reservation.” Id. at 64,881.

Each construction is critical here. While the impor-

tance of the first is plain, the expansive interpretation of

section 518(e)(2) as encompassing reservation water

resources in addition to those held by or for a tribe or a

tribal member leads directly to the problem at hand, since

both the EPA and the court of appeals held those

resources to include navigable water bodies whose sub-

merged lands are owned by a State under the Equal

Footing Doctrine. The Seventh Circuit, like the EPA,

assumed that because the Band’s proposed water quality

standards only regulate persons who “discharge” into

Rice Lake, those persons constituted the class against

which the scope of its authority must be measured. Pet.

2a-3a, 45a-46a. Given the fact that the only likely dis-

chargers into the Lake are tribal members, the court thus

did not direct a Montana-based analysis to their conduct,

intended to signal the “conclusion” that those provisions

exemplify a delegation of federal power. In context, the

reference is viewed more properly as merely suggesting the

possibility that section 518(e)(2) might be claimed by a litigant to

constitute a delegation - a claim or “contention” that had not

been raised concerning the tribal zoning ordinance.

12

focusing instead on whether Montana limits tribal author-

ity to adopt water quality standards which may have an

indirect impact on discharges outside the reservation and

ultimately concluding that this “extraterritorial effect”

was “beyond the scope of Montana, which concerned only

tribal authority over non-member activities on reserva-

tion fee lands.” Pet. 11a.

The court of appeals’ analysis ignored that, as a legal

and practical matter, what is being regulated is Rice Lake

and that, in so regulating, the Band attempts to displace

state regulation with its own. An Indian tribe neverthe-

less cannot “preempt” state law by exercise of its inherent

authority; only federal law can accomplish that end

through the Supremacy Clause, U.S. Const. art. VI, cl. 2.

See Washington v. Confederated Tribes of Colville Indian Res-

ervation, 447 U.S. 134, 156 (1980). By necessary implica-

tion, therefore, the TAS determination can stand only if

Wisconsin water quality standards are foreclosed from

application to Rice Lake by federal common law princi-

ples - an issue the Seventh Circuit skirted. This Court

should clarify the centrality of the preemption inquiry in

section 518 TAS determinations.

II. The Seventh Circuit Ignored This Court’s Repeated

Holding That, In Determining Whether Inherent

Tribal Authority Exists So As To Displace State

Regulation, The Williams Preemption Standard

Must Be Applied.

Petitioner has challenged not only the EPA’s applica-

tion of the second Montana exception but also the Band’s

authority to regulate state-owned waters as a categorical

matter. These challenges, while embodied in separate

\

EE IIE

13

questions presented, raise interrelated issues of state sov-

ereignty and Indian law that are controlled by the three

most recent decisions of this Court concerning the scope

of inherent tribal authority: Strate v. A-1 Contractors, 520

U.S. 438 (1997), Atkinson Trading, and Nevada v. Hicks, 533

U.S. 353 (2001).

A. Strate was the first case in which this Court

reached the merits of a claim that a tribal court lacked

civil adjudicatory authority over a nonmember involved

in an on-reservation accident with another nonmember.

In deciding the issue, the Court characterized Montana as

“describ[ing] a general rule that, absent congressional

direction, Indian tribes lack civil authority over the con-

duct of nonmembers on non-Indian land within a reser-

vation, subject to two exceptions.” 520 U.S. at 446. It then

rejected the contention that the second of those excep-

tions — whether the involved conduct “threatens or has

some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe” (Montana,

450 U.S. at 566) - permitted exercise of tribal court juris-

diction because on-reservation careless driving “surely

jeopardize[s] the safety of tribal! members” (Strate, 520

U.S. at 458):

Read in isolation, the Montana rule’s second

exception can be misperceived. Key to its proper

application, however, is the Court’s preface:

“Indian tribes retain their inherent power [to

punish tribal offenders], to determine tribal

membership, to regulate domestic relations

among members, and to regulate rules of inheri-

tance for members. . . . But [a tribe’s inherent

power does not reach] beyond what is necessary

to protect tribal self-government or to control

internal relations.” . . . Neither regulatory nor

adjudicatory authority over the state highway

14

accident at issue is needed to preserve “the right

of reservation Indians to make their own laws

and be ruled by them.”

Id. at 459 (citations omitted). Strate thus established that,

despite the second exception’s reference not only to a

tribe’s “political integrity” but also to its “economic secu-

rity[] or health or welfare,” the “[k]ey” to resolving

questions over the exception’s breadth lies in the preemp-

tion standard articulated in Williams v. Lee, 358 U.S. 217,

220 (1959). That standard, as explained in Strate, asks

whether application of state law as the rule of decision in

a controversy would impermissibly infringe on tribal self-

government rights.

This Court revisited the second exception in Atkinson

Trading, where a nonmember trading post owner chal-

lenged a tribal hotel occupancy tax imposed on its guests.

After concluding that Montana’s core presumption

against the existence of inherent tribal authority existed,

the Court shifted the burden to tribal officials to show the

presence of one or both of the exceptions. As to the

second, it rejected the argument that the provision of

tribal government services, employment of tribal mem-

bers, benefiting from reservation-attracted tourism, or the

fact that the trading post was surrounded by tribal lands

provided an appropriate basis for the exception’s appli-

cability. This Court reasoned that “unless the drain of the

nonmember’s conduct upon tribal services and resources

is so severe that it actually ‘imperil[s]’ the political integ-

rity of the Indian tribe” (532 U.S. at 657 n.12), the excep-

tion would be unavailable and observed that, “[w]hatever

effect petitioner’s operation of the Cameron Trading Post

might have upon surrounding Navajo land, it does not

15

endanger the Navajo Nation’s political integrity” (id. at

659).

Hicks followed the Strate-Atkinson Trading pattern of

proscribing the nonconsensual reach of inherent tribal

authority beyond that necessary to protect tribal self-

government or to preserve internal relations. Although

the issue there dealt with the assertion of tribal court

jurisdiction over state game wardens, this Court reasoned

that since inherent tribal adjudicatory power cannot

exceed tribal legislative authority and since the tribe’s

legislative reach under Montana standards did not encom-

pass regulating on-reservation service of process in con-

nection with off-reservation criminal offenses, the tribal

court lacked jurisdiction. 533 U.S. at 357-58.

One aspect of the ensuing analysis of tribal legisla-

tive authority stands out for present purposes: The Hicks

Court held the Montana-derived presumptive absence of

tribal jurisdiction unrebutted because tribal regulation of

the state officers was not essential to protecting tribal

self-government or to controlling internal relations and,

in so holding, found it unnecessary to refer to the second

exception explicitly. It thus described Montana as stand-

ing for the broad principle that “[t]ribal assertion of

regulatory authority over nonmembers must be con-

nected to th[e] right of the Indians to make their own

laws and be governed by them.” 533 U.S. at 361. The

Court then applied the Williams interest-balancing stan-

dard to determine whether the game wardens had acted

beyond the federally permissible reach of state authority.

“State sovereignty,” it observed, “does not end at a reser-

vation’s border” (id.) notwithstanding the absence of “the

same degree of regulatory authority within a reservation”

(id. at 362) as possessed off reservation by a State. Such

16

sovereignty existed in the Hicks controversy because the

ability to serve process on reservation with respect to off-

reservation conduct “is necessary to ‘prevent [such areas]

from becoming an asylum for fugitives from justice’ ” and

because “[t]he State’s interest in execution of process is

considerable[.]” Id. at 364.

B. The Seventh Circuit referred to these cases in its

decision but did not address their significance other than

to state that the 1991 TAS regulations “track” Strate “by

noting [inherent] authority is generally proper because

‘water quality management serves the purpose of protect-

ing public health and safety, which is a core govern-

mental function, whose exercise is critical to self-

government.’ ” Pet. 10a-1la. The court’s isolated state-

ment, however, failed to recognize that under the Wil-

liams preemption standard “[t]he principle of tribal self-

government, grounded in notions of inherent sovereignty

and in congressional policies, seeks an accommodation

between the interests of the Tribes and the Federal Gov-

ernment, on the one hand, and those of the State, on the

other.” Colville, 447 U.S. at 156; accord Hicks, 533 U.S. at

362. No such interest balancing occurred below.

Undertaking what the Seventh Circuit should have

conducted - i.e., an inquiry into the pertinent federal,

state and tribal interests - is revealing. First, the most

telling manifestation of the federal interest under the

CWA is its “State authority,” or savings, provision in

section 510, 33 U.S.C. § 1370. Pet. 84a. As the Seventh

Circuit held twenty-five years ago, “[s]ection 510 pre-

serves in general terms the right of any state to impose

limitations and standards more stringent than those

adopted under the Act.” United States Steel Corp. v. Train,

556 F.2d 822, 830 n.5 (7th Cir. 1977). Indeed, the EPA has

A Allg 5s Cie Ne ewe

17

long deferred to Wisconsin water quality standards and

enforcement mechanisms outside Indian country -

implicit recognition that the State’s standards are no less

stringent than those adopted by the EPA under the CWA.

E.g., 46 Fed. Reg. 1021 (1981); 52 Fed. Reg. 3700 (1987); 65

Fed. Reg. 50,528 (2000); 66 Fed. Reg. 65,957 (2001). It also

warrants noting that, despite their eligibility for TAS

status, tribes neither are nor can be deemed a “State”

under section 510, a congressional determination indicat-

ing that the statute itself does not invest tribal water

quality standards with a preemptive effect. 33 U.S.C.

§§ 1362(3), 1377(e); see City of Albuquerque, 97 F.3d at 423.

This conclusion is paralleled by settled principles of stat-

utory construction:

When “Congress intends to alter the ‘usual con-

stitutional balance between the States and the

Federal Government,’ it must make its intention

to do so ‘unmistakably clear in the language of

the statute... .’” This principle applies when

Congress “intends to pre-empt the historic

powers of the States” or when it legislates in

“ “traditionally sensitive areas’” that “ ‘affec[t]

the federal balance. .. . ’” In such cases, the

clear statement principle reflects “an acknowl-

edgment that the States retain substantial sover-

eign powers under our constitutional scheme,

powers with which Congress does not readily

interfere.”

Raygor v. Regents, 122 S. Ct. 999, 1006 (2002) (citations

omitted). Here, Congress altered through the CWA the

“ ‘ysual constitutional balance between the States and the

Federal Government

section 510.

sn”

only to the extent provided under

18

Second, the state interest is compelling. This Court

reiterated only last Term that “[d]ue to the public impor-

tance of navigable waterways, ownership of the land

underlying such waters is ‘strongly identified with the

sovereign power of government.’ ” Idaho v. United States,

533 U.S. 262, 273 (2002). In a prior related decision, the

Court rejected the contention that a distinction could be

drawn between state officials and the State itself for

purposes of relief under Ex parte Young, 209 U.S. 123

(1908), given the admittedly “immediate effect on [state]

jurisdictional control over important public lands” under-

lying a navigable lake. Coeur d'Alene Tribe, 521 U.S. at 282.

In short, “[b]ecause title to such land was important to

the sovereign’s ability to control navigation, fishing, and

other commercial activity on rivers and lakes, ownership

of this land was conside.ed an essential attribute of sov-

ereignty.” Utah Div. of State Lands v. United States, 482 U.S.

193, 195 (1987). There simply can be no legitimate dispute

over the importance to petitioner’s sovereignty of the

ability to determine and enforce water quality standards

on navigable waters within its boundaries — particularly

where, as here, those waters are interconnected with

streams or other water bodies that admittedly fall under-

neath its regulatory aegis.

Last, tribal self-government interests are minimal.

Not only does the administrative record contain no evi-

dence that Wisconsin water quality standards are inade-

quate to protect any usufructuary-or other rights that

tribal members may have with respect to resources in or

on Rice Lake, but the second Montana exception also “is

triggered by nonmember conduct that threatens the Indian

tribe.” Atkinson Trading, 532 U.S. at 657 n.12. Nothing

precludes the Band, in other words, from regulating its

. ee, caaeamamae

19

own members, and its failure to engage in such regula-

tion cannot be employed to justify application of the

second exception. To the extent the Band may be con-

cerned about off-reservation mining or other impacts on

the Lake by nonmembers, it has recourse to state admin-

istrative and judicial procedures to avoid prejudice to any

claimed “protectible interest.” E.g., Wis. Stat. §§ 281.15,

281.31; Wis. Admin. Code §§ 102.01-102.14, 115.01-115.06;

see Brendale, 492 U.S. at 430-31 (opinion of White, J.). This

Court accordingly has never suggested that off-reserva-

tion nonmember conduct may serve as a predicate for

invoking the second exception with respect to on-reserva-

tion regulation.

A Williams-based accommodation of federal, state

and tribal interests thus cuts against finding the existence

of the Band’s regulatory authority over Rice Lake water

quality where petitioner’s ownership of the Lake’s bed

and banks is assumed. Indeed, the strength of the state

interest and the absence of meaningful, countervailing

federal or tribal interests support the categorical rule

advanced by petitioner. Cf. California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 215 n.17 (1987) (state and

tribal interests need not be rebalanced in each case where

state taxation of tribal members is involved, since “the

- federal tradition of Indian immunity from state taxation

is very strong and that the state interest in taxation is

correspondingly weak”). Regardless of whether it reaches

the merits of the preemption issue here, however, the

Court should take this opportunity to explain the proper

A

analytical structure for making TAS determinations.’

4 The amici States recognize that the EPA and the Seventh

Circuit assumed, but did not determine formally, petitioner’s

20

Absent such guidance, lower courts will continue to mis-

apply Montana standards and, therefore, section 518 of

the CWA.

CONCLUSION

The petition for writ of certiorari should be granted.

May 2002

Respectfully submitted,

ALAN G. LANCE

Attorney General

State of Idaho

Cray R. SmitH

Deputy Attorney General

Counsel of Record

700 W. Jefferson

PO Box 83720

Boise, ID 83720-0010

(208) 334-2400

ownership of Rice Lake’s submerged lands. While this issue

thus may be appropriate for resolution in remand proceedings,

the amici are constrained to observe that, in light of the

reservation’s administrative creation almost a century after

Wisconsin statehood, pursuant to legislative authority enacted

in 1934, and the exclusion of the Lake from the description of the

lands acquired for the reservation, no plausible basis exists to

negate such ownership. See, e.g., Idaho, 533 U.S. at 280 n.9.