# Amicus Curiae Brief — Wisconsin v. Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1121

## Text

. 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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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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iv

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) (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
oo

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1463%3A04. Public record. Not legal advice.