Opposition Brief — Wisconsin v. Environmental Protection Agency

| Supreme Court, US.

FiL#PD

if

ig MAY 3 2002

No. 01-1247 OFFICE OF THE CLURK

In the Supreme Court of the Gnited States

STATE OF WISCONSIN, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

FO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

GREER S. GOLDMAN

ANDREW C. MERGEN

JEFFREY R. KEOHANE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Sokaogon Chippewa Community of the

Mole Lake Band of Chippewa Indians may administer a

water quality standards program for surface waters

within its reservation pursuant to Section 1377(e) of the

Clean Water Act, 33 U.S.C. 1877(e), notwithstanding

Wisconsin’s claim that it holds title to the beds of some

of those waters under the Equal Footing Doctrine.

(1)

TABLE OF CONTENTS

Page

III siiaciiichisesnenipssnnsdennciinsnnnchanininiishnbciinsinasaiasnttnaninieseniontn 1

TTT iiss desnniipideainbiihahimbsantsnenniniediiinn 1

I chs cin cme neem enenteneatieinbindiinamnalinntenii 2

SEINE, sccishattlintcnitechseiiciieneiensishinsdamntnoneiaincueitiimantciniedeivemmbensieananennss 10

RE A ne ee ee 22

TABLE OF AUTHORITIES

Cases:

Alaska v. Native Village of Venetve Tribal Gov't,

Re Ses CD CED crccnivinisesienencsamnenatinniennneianeemenmnsniameneten 4

Arkansas v. Oklahoma, 503 U.S. 91 (1992) .........scsesseseeee 2,4,9

Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) .... 16

Brendale v. Confederated Tribes & Bands of the i‘

Yakima Indian Nation, 492 U.S. 408 (1989) ..........c0se00 7,18

California v. Cabazon Band of Mission Indians,

eT TIT TTIINUTD snieticiossnsaicensntnhannntiniiadinbnnbbinmiaianiieatniblahonneken 4

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

. 1996), cert. denied, 522 U.S. 965 (1997) .........s:sessesee 9, 11, 20

EPA v. California, 426 U.S. 200 (1976) ...........ssceccsseceseeees 3

Lower Brule Sioux Tribe v. South Dakota, 104 F.3d

1017 (8th Cir.), cert. denied, 522 U.S. 816 (1997) ............. 21

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

ee ele Ne CID ecsenenscsncnnienenessssemninantionnnnnntnemennnnannnannanasiine 11, 20

Montana v. United States, 450 U.S. 544 (1981) ........ 7, 17, 18,

19, 20, 21

Nevada v. Hicks, 533 U.S. 353 (2001) ............ccccerssssssereeeees 20

Strate v. A-1 Contractors, 520 U.S. 438 (1997) .............0. 19, 21

United States v. Holt State Bank, 270 U.S. 49

aad eld el aeadcinhaecitabbinchtn 15

United States v. Wheeler, 435 U.S. 313 (1978) .............00 15

Wisconsin v. Baker, 698 F.2d 1323 (7th Cir.), cert.

Gombed, 463 UB. IBOT (AGES) n.acccsercscssesserecencccsasescososcocsscess 18-19

(IID)

IV

ny

3

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seq. ........... ‘

Clean Water Act, 33 U.S.C. 1251 et Seq. .....scsccsssesesssesseeeseees

BD TREE, BIBI cissisnenccsiniteinnicnnitnncinaniininnsssitunannssnanniannviin

BD TEA, TID sietninittsseesesnnnninsnsicnasiincansnincinsninncianeniates

Be EE Tas BIE enicetsrensnictnncinccnsnnnenintininanninnnnsnnnsainnnnnnsmnnnias

Fh Ba ietieictintesiaseeistiesnineinasinnssniinisiininnnnsinniniane

33 U.S.C. 1313(c) iecaseeiainiipndiapaapiesnnanialeaiies ins

Te TEE, TD cecnnencicrnsitinerststienecessstetnsmntncusintiooeane

Be UE, CD wccircnenterieccnenccsniniinnesicsenintinninnnguananasiiien

SD TEBE, SEED eicicsccrscencisenitrstnnnisicsinnannnnenseniiantonee

SO CE, BI seicsnicinsitcninintaintitererimenitencaisonsanssiitaninisniomnn

SE TEAC, BIE) eiecerrccrnenteiinninsntnsinennsincinnnnsinssisisaimnnine

33 U.S.C. 1370 ”

33 U.S.C. 1377 5, 11, 16

eas IU seisccaeteciececlioumiactanaiceidenbinibeniashiiitbiaaaaaitia passim

BB TE EEAS, BED wteinecnercninrensesecnncinntinicnsimnscni me 6

33 U.S.C. 1377(e)(2) 6, 7, 15

33 U.S.C. 1377(e)(3) — 6

SD CE, TTI cicciictnnetescieninsninciensnsiensiceneiniionisinicaninninsimisi 6

BD TEES, GRID sceniictsccnnniernnitcnsniciinnsinnitenemninieiasinnnia 5

Water Quality Act of 1987, Pub. L. No. 100-4, § 506,

101 Stat. 76 an 4

TE BO witeninsinitiinsicennsintiiananiinianitetiainninnin

40 C.F.R.:

Section 122.4(d)

Section 131.3(k) - inippeinniaiaaniinnubiniant

ee BERD sccrnccstnnniininnnceesiiionnieasinianmsinnnaninmeninnamionsi

Section 131.8 ia

SEG TIRE TAG cnictnenecetcnscsenninnnntonneninninncentainienseoatinanmansannins

Section 131.8(a)(1)

Nor WWWwWWwWW RP WD DH DW OC

on

Section 131.8(a)(2) sshiseleleaaiialia banda

Section 131.8(a)(3)

Section 131.8(a)(4)

Section 131.8(b)

Section 131.8(c)

AAAI NOADNaInIinn >

Regulations—Continued: Page

Sons ER IS iii sve iinctsiitieiieee ee 6

OO SOR ID octsntcinistatiiencilcene es 6

I FR IGN witinicsaiesiindeidaislgtti on ae 6

Miscellaneous:

Oe FOR. Tne GARTER ID sicsicsiccctcctmencseacetclaeans 7

Jn the Supreme Court of the Gnited States

No. 01-1247

STATE OF WISCONSIN, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-14a)

is reported at 266 F.3d 741. The opinion of the district

court (Pet. App. 15a-34a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 21, 2001. A petition for rehearing was

denied on November 28, 2001 (Pet. App. 48a-49a). The

petition for a writ of certiorari was filed on February

25, 2002. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

2

STATEMENT

Congress has authorized the Environmental Pro-

tection Agency (EPA) to treat Indian Tribes in the

same manner as States for certain purposes of the

Clean Water Act (CWA), 33 U.S.C. 1251 et seq., and has

directed EPA to promulgate regulations “which specify

how Indian tribes shall be treated as States” for those

purposes. 33 U.S.C. 1377(e). See Pet. App. 86a-87a.

Following notice and comment, EPA promulgated

regulations that provide a mechanism for Tribes to

receive “treatment as a state” (TAS) status. See 40

C.F.R. 131.8 (Pet. App. 89a-92a). The Sokaogon Chip-

pewa Community of the Mole Lake Band of Chippewa

Indians (the Band) applied for and received TAS status

under those regulations. Jd. at 37a-38a. Petitioner, the

State of Wisconsin, brought this action in the United

States District Court for the Eastern District of

Wisconsin challenging EPA’s grant of TAS status to

the Band as unlawful. The district court rejected

petitioner’s assertions that EPA’s decision is invalid as

a matter of law, id. at 15a-34a, and the court of appeals

affirmed, id. at la-14a.

1. The CWA is a comprehensive statute designed

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters” through the

reduction and eventual elimination of the discharge of

pollutants into those waters. 33 U.S.C. 1251(a). To

achieve those goals, the CWA establishes a partnership

between the federal government and the States in

which the States have “primary responsibilities and

rights” to regulate water pollution. 33 U.S.C. 1251(b);

see 33 U.S.C. 1370; Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992). Congress has also extended that partner-

ship to Indian Tribes by providing, through Section

3

1377(e) of the CWA, that Indian Tribes satisfying

prescribed criteria are eligible for treatment in the

same manner as States for certain purposes under the

CWA. See 33 U.S.C. 1377(e).

As part of its regulatory program, the CWA provides

that each State must adopt water quality standards for

ail waters within the State’s jurisdiction and submit

those standards to EPA for approval. 33 U.S.C.

1313(c). States must specify one or more designated

“uses” of each waterway (e.g., public water supply, rec-

reation, fish propagation, or agriculture) and must

establish water quality criteria to protect those uses.

33 U.S.C. 1313(c)(2)(A). EPA reviews all new or

revised state water quality standards for consistency

with the requirements of the Act. 33 U.S.C. 1318(c)(3).

If EPA determines that a state standard does not meet

minimum federal requirements, then EPA disapproves

the standard. The State may then adopt changes

suggested by EPA, or failing such action, EPA must

itself issue a water quality standard for the State. 33

U.S.C. 1313(¢)(8) and (4)(A).’

1 In addition to water-quality-based requirements, the CWA

also provides for technology-based requirements, which take into

account the capability of existing pollution-control technologies to

remove particular pollutants from effluents. EPA or the State

may establish effluent limitations, reflecting technology-based

requirements for discrete categories and classes of point sources,

that restrict the quantities, rates, and concentrations of specified

pollutants that may be discharged into water from the point

sources. See 33 U.S.C. 1311, 1342. Both water quality-based and

technology-based requirements are implemented for point sources

through a permit process, known as the National Pollutant Dis-

charge Elimination System (NPDES). The Act prohibits “the

discharge of any pollutant” into the Nation’s waters except as

authorized by an NPDES permit. 33 U.S.C. 1311, 1342; see EPA

v. California, 426 U.S. 200, 205 (1976). All NPDES permits must

| |

4

Federal law generally prohibits States from exer-

cising regulatory authority within Indian reservations

unless Congress has authorized such action. See Cali-

fornia v. Cabazon Band of Mission Indians, 480 U.S.

202, 216 & n.18 (1987); see also Alaska v. Native Village

of Venetie Tribal Gov’t, 522 U.S. 520, 527 n.1 (1998)

(“Generally speaking, primary jurisdiction over land

that is Indian country rests with the Federal Govern-

ment and the Indian tribe inhabiting it, and not with

the States.”). As originally enacted, the CWA did not

specifically identify any non-federal governmental

entity that had authority to set standards for waters

within Indian reservations. Congress amended the

CWA in 1987 to provide that EPA may treat qualifying

Indian Tribes in the same manner as States for the pur-

poses of, inter alia, setting water quality standards for

surface waters within the exterior boundaries of their

reservations. 33 U.S.C. 1877(e); see Water Quality Act

of 1987, Pub. L. No. 100-4, § 506, 101 Stat. 76. Section

1377(e) states that EPA is authorized to “treat an

Indian tribe as a State” for the purposes of 33 U.S.C.

1318 if:

(1) the Indian tribe has a governing body carry-

ing out substantial governmental duties and

powers;

(2) the functions to be exercised by the Indian

tribe pertain to the management and protection of

water resources which are held by an Indian tribe,

include effluent limitations that require the permittee’s adherence

to technology-based standards and, where applicable, more

stringent water quality-based limitations designed to ensure that

the receiving waters attain and maintain state water quality

standards. See 33 U.S.C. 1342(a)(1); 40 C.F.R. 122.4(d); Arkansas,

503 U.S. at 104-107.

5

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

reservation; and

(3) the Indian tribe is reasonably expected to be

capable, in the Administrator’s judgment, of carry-

ing out the functions to be exercised in a manner

consistent with the term: and purposes of this

chapter and of all applicabl: regulations.

33 U.S.C. 1877(e). The term “Federal Indian reserva-

tion” is defined for those purposes to mean “all land

within the limits of any Indian reservation under the

jurisdiction of the United States government, notwith-

standing the issuance of any patent, and including

rights-of-way running through the reservation.” 33

U.S.C. 1877(h)(1); ef. 18 U.S.C. 1151(a). Section 1377(e)

directs EPA to promulgate regulations “which specify

how Indian tribes shall be treated as States for

purposes of this chapter” and to provide a mechanism

for resolving disputes between States and Indian

Tribes located on common bodies of water. 33 U.S.C.

13877(e).

2. In accordance with Section 1377(e)’s directions,

EPA has promulgated regulations for the treatment of

Indian Tribes in the same mannery as States. See 40

C.F.R. 181.8 (Pet. App. 89a-92a). EPA’s regulations set

out four criteria, embodying the statutory require-

ments of Section 1377, that an applicant must meet to

receive TAS status. See 40 C.F.R. 131.8(a); Pet. App.

89a. }

First, the applicant must be a federally recognized

Indian Tribe that exercises governmental authority

over a federal Indian reservation. 40 C.F.R. 131.8(a)(1),

6

131.3(k) and (1); see 33 U.S.C. 1877(e)(1) and (h). Second,

the Indian Tribe must have a governing body that

carries out “substantial governmental duties and

powers.” 40 C.F.R. 131.8(a)(2); see 33 U.S.C. 1877(e)(1).

Third, the water quality standards program that the

Indian Tribe seeks to administer must pertain to the

management and protection of water resources that are

within the borders of the Indian reservation. 40 C.F.R.

131.8(a)(3); see 33 U.S.C. 13877(e)(2). Fourth, the Indian

Tribe must reasonably be expected to be capable of

carrying out the functions of an effective water quality

standards program in a manner consistent with the

terms and purposes of the Clean Water Act and the

relevant regulations. 40 C.F.R. 131.8(a)(4); see 33

U.S.C. 1877(e)(8). \.

EPA’s regulations also set out the procedural re-

quirements that Indian Tribes must follow to apply for

and obtain TAS status. 40 C.F.R. 131.8(b) and (c); Pet.

App. 89a-92a. The Tribe must submit a detailed

application to the appropriate EPA Regional Adminis-

trator demonstrating that the Tribe satisfies the pre-

scribed criteria for TAS status. 40 C.F.R. 131.8(b).

The Regional Administrator provides notice of a Tribe’s

application to all appropriate governmental entities and

allows 30 days for the submission of comments on the

Tribe’s assertion of authority. 40 C.F.R. 131.8(c)(2)(ii)

and (c)(8). The Regional Administrator then deter-

mines, based on the Tribe’s application, comments re-

ceived, and other relevant information, whether the

Tribe “has adequately demonstrated that it meets the

requirements” for treatment in the same manner as a

State. 40 C.F.R. 131.8(¢)(4).

Section 1377(e)(2) allows Tribes to implement por-

tions of the CWA when “the functions to be exercised

by the Indian Tribe pertain to the management and

7

protection of water resources * * * within the borders

of an Indian reservation.” 33 U.S.C. 1377(e)(2). EPA

has made a judgment to look to this Court’s precedents

respecting inherent tribal authority for guidance on

how to implement the statutory TAS program and to

address non-Indian interests, including the interests of

non-Indians who own fee lands within a reservation.

EPA observed, in the preamble to its regulations, 56

Fed. Reg. 64,876 (1991), that an Indian Tribe may have

“inherent power to exercise civil authority over the

eonduct of non-Indians on fee lands within its

reservation when that conduct threatens or has some

direct effect on the political integrity, the economic

security, or the health or welfare of the tribe.” Pet.

App. 95a (quoting Montana v. United States, 450 U.S.

544, 566 (1981)). EPA therefore decided that, in

implementing Section 1377(e) in situations where non-

members would be affected, the agency would take

account of the Tribe’s authority in light of the evolving

case law as reflected in Montana and Brendale v.

Confederated Tribes & Bands of the Yakima Indian

Nation, 492 U.S. 408 (1989). Pet. App. 96a.

Rather than establishing a bright-line rule, EPA

stated that “the ultimate decision regarding Tribal

authority [over non-members] must be made on a

Tribe-by-Tribe basis,” Pet. App. 95a, and the “extent of

such tribal authority depends on the effect of th[e]

activity on the tribe,” id. at 96a. EPA determined that

it would proceed on the premise (which EPA termed an

“interim operating rule”) that the Tribe should be

required to show in all cases that the “potential impacts

of regulated activities on the tribe are serious and sub-

stantial.” Jd. at 97a. But EPA also observed that “the

activities regulated under the various environmental

statutes generally have serious and substantial impacts

8

on human health and welfare.” Jbid. It ultimately con-

cluded that “(t]he determination as to whether the

required effect is present in a particular case depends

on the circumstances.” Jbid.

3. The Band applied to EPA for TAS status for the

purpose of developing water quality standards for all

surface waters within the boundaries of the Mole Lake

Reservation (the Reservation) in northeastern Wis-

consin. Pet. App. 50a. Although a Tribe may also seek

authorization to administer an NPDES permit program

within its reservation, see note 1, swpra, the Band did

not request that additional authority. In accordance

with EPA’s regulations, petitioner was provided with

an opportunity to comment on the Band’s application.

Petitioner disputed the Band’s authority to set water

quality standards within the Reservation on the basis

of petitioner’s claim that it held title to the beds of the

lakes within the Reservation. Jd. at 69a. EPA con-

sidered the materials submitted by both the Band and |

petitioner. It determined that the waters in question

are within the Reservation, id. at 52a, and that the

Band has authority under EPA’s regulations to develop

water quality standards for all surface waters within

the Reservation’s boundaries, id. at 39a-47a, 52a-538a.

4, Petitioner filed suit under the Administrative

Procedure Act (APA), 5 U.S.C. 701 et seq., challenging

EPA’s decision to grant the Band TAS status to

establish water quality standards under the CWA. Pet.

App. 22a. Petitioner claimed that it held title to the

beds of navigable lakes within the Reservation under

the Equal Footing Doctrine and that the Band,

therefore, could not set water quality standards for

those waters. Jd. at 21a. The district court granted

summary judgment for EPA and the Band, concluding

that EPA’s decision is reasonable and consistent with

9

the CWA and EPA’s implementing regulations. Jd. at

32a.

5. A unanimous court of appeals panel affirmed. Pet.

App. la-14a. The court noted at the outset that two

factors are highly pertinent to the Tribe’s interest in

assuming responsibility for water quality standards

within the Reservation: “First, the Band is heavily

reliant on the availability of the water resources within

the reservation for food, fresh water, medicines, and

raw materials. * * * Second, all of the 1,850 acres

within the reservation are held in trust by the United

States for the tribe.” Jd. at 4a-5a.

Like the district court, the court of appeals rejected

petitioner’s argument that, because it claimed to hold

title to the beds of navigable lakes under the Equal

Footing Doctrine, the Band is not entitled to specify

water quality standards for those lakes. Pet. App. 7a-

10a. The court of appeals reasoned that, assuming

arguendo that petitioner does have title to the lake

beds, id. at 7a-8a, the Tribe’s issuance of water quality

standards for the lakes is consistent with petitioner’s

ewnership of the land beneath the water, id. at 8a-10a.

The court of appeals acknowledged that the Band’s

establishment of water quality standards for surface

waters within its Reservation could conceivably affect

activities outside of the Reservation. Pet. App. 10a.”

The court noted, however, that Congress had provided

for that possibility by directing EPA to create “a

2 Most significantly, NPDES permits issued to a discharger in

an upstream State may need to include limitations if necessary

to meet the applicable downstream water quality standards.

Arkansas v. Oklahoma, 503 U.S. at 107; see Wisconsin v. EPA,

No. 96-C-597 (E.D. Wis.-filed May 21, 1996); Pet. App. 11a (citing

City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert.

denied, 522 U.S. 965 (1997).

10

mechanism for the resolution of any unreasonable

consequences that may arise as a result of differing

water quality standards that may be set by States and

Indian tribes located on common bodies of water” (33

U.S.C. 1877(e)). Pet. App. 10-13a. The court noted

that, in any event, petitioner “exaggerates” the possi-

bility of such speculative conflicts. See id. at 13a. The

court of appeals concluded that EPA’s grant to the

Band of authority to issue water quality standards for

surface waters fully within the Reservation’s bounda-

ries is reasonable on the facts of this case and not

otherwise contrary to law. Id. at 14a.

ARGUMENT

The court of appeals correctly concluded that EPA

acted within its authority under 33 U.S.C. 1377(e) of the

Clean Water Act in authorizing the Mole Lake Band to

set water quality standards for surface waters wholly

within its reservation and wholly surrounded by tribal

lands. That fact-specific decision does not conflict with

any decision of this Court or any other court of appeals,

and it does not raise any issue of exceptional impor-

tance warranting this Court’s review.

1. This Court normaily does not review a court of

appeals’ decision affirming a federal agency’s applica-

tion of a federal statute to particular factual circum-

stances in the absence of a square conflict among the

courts of appeals on the meaning of the statute. Peti-

tioner does not contend that this case presents such a

conflict. To the contrary, the two other courts of

appeals that have considered EPA grants of TAS status

to Tribes to set water quality standards for their

reservations have similarly sustained EPA’s exercise of

its authority under Section 1377(e).

I]

In City of Albuquerque v. Browner, 97 F.3d 415, 419,

425-426 (1996), cert. denied, 522 U.S. 965 (1997), the

Tenth Circuit upheld EPA’s regulations and its ap-

proval of the Pueblo of Isleta’s water quality standards.

The court ruled that EPA had properly incorporated

those standards into an NPDES permit issued to the

City’s waste treatment facility, which discharged into

the Rio Grande at a point above the reservation. See

id. at 425-426. The court concluded that EPA’s authori-

zation of the Pueblo to establish water quality stan-

dards for purposes of the CWA “is in accord with

powers inherent in Indian tribal sovereignty.” Id.

at 423.

In Montana v. EPA, 137 F.3d 1135, cert. denied, 525

U.S. 921 (1998), the Ninth Circuit upheld EPA’s grant

of TAS status to the Confederated Salish and Kootenai

Tribes to establish water quality standards throughout

the Flathead Reservation. The court “affirm[ed] the

district court’s decision that EPA’s regulations pur-

suant to which the Tribe’s TAS authority was granted

are valid as reflecting appropriate delineation and

application of inherent Tribal regulatory authority over

non-consenting non-members.” Jd. at 1141.

The court of appeals’ decision in this case is con-

sistent with Albuquerque and Montana. Like the

Ninth and Tenth Circuits, the court of appeals con-

cluded that EPA acted within its authority and dis-

cretion by granting TAS status to a particular Indian

Tribe based on a “fact-specific” analysis of the factors

identified in Section 13877 of the CWA and EPA’s

implementing regulations. Pet. App. 14a. Because the

three courts of appeals that have addressed EPA’s

application of Section 1377(e) have spoken harmoni-

ously, there is no occasion for this Court to intercede.

, - |

12 :

As in Albuquerque and Montana, this Court should

deny the petition for writ of certiorari.

2. Petitioner asserts (Pet. 11-15) that, notwith-

standing the absence of a conflict among the courts of

appeals, the issues raised in this case are of exceptional

importance warranting this Court’s review. Petitioner

specifically contends (Pet. 14-15):

Unless EPA’s policy is corrected, large numbers of

nonmembers of [Indian tribes] in this country may

find, to their considerable surprise, that they have

become subject, either directly or indirectly, to the

authority of tribal governments in which they have

no rights to participate and which may provide

limited opportunity for fair review of adverse tribal

decisions. This is particularly true on reservations,

like some in Wisconsin, populated by large numbers

of nonmembers.

Petitioner further asserts (Pet. 15) that the instant case

provides “a good vehicle for addressing the limits of

tribal sovereignty over nontribal resources and per-

sons.” |

Petitioner is mistaken as to the practical effect of this

decision and its suitability as a “vehicle” for addressing

the issues that petitioner contends are “fundamentally

important” (Pet. 15). This case involves a fact-specific

3 Petitioner mistakenly suggests (Pet. 13) that in this case,

unlike Montana, the court of appeals deferred “to EPA’s legal

analysis of Indian law precedent.” Rather, the court of appeals

stated that EPA’s “regulations and subsequent decision” were

entitled to deference. Pet. App. 6a. The court of appeals did not

defer to EPA’s interpretation of case law, nor did the government

suggest that the court should do so. See Gov’t C.A. Br. 14 n8

(“EPA, of course, agrees with Wisconsin (Br. 15) that the Agency’s

interpretation of case law is reviewed by this Court de novo.”).

13

application of Section 1377(e) to one relatively small

Indian reservation. Moreover, as the court of appeals’

decision points out, the Mole Lake Reservation is

“unusual” in that “(nJone of the land within the reserva-

tion is controlled or owned in fee by non-members of

the tribe.” Pet. App. 4a-5a. Unlike Montana v. EPA,

in which the Court denied review, the issue of “ribal

regulation of nonmembers living within the boundaries

of an Indian reservation is wholly absent from this case.

Furthermore, it is currently unclear what, if any,

effects the Band’s water quality standards will have on

activities outside the Reservation. See id. at 13a

(“granting TAS status to tribes simply allows the tribes

some say regarding [water quality] standards and

permits”). Hence, this case is a particularly poor

vehicle for assessment by this Court of the effects of a

Tribe’s TAS status on non-Indians.‘

Petitioner’s suggestion (Pet. 12-13) that this decision

will inevitably lead to tribal regulation of waterways

throughout Wisconsin vastly exaggerates the impact of

this case. The Band’s reservation encompasses a mere

1850 acres, all of which are held by the United States in

trust for the Band. EPA granted TAS status based on

an individualized assessment of the Band’s circum-

stances, Pet. App. 37a-47a, in accordance with the

agency’s view that “the ultimate decision regarding

Tribal authority must be made on a Tribe-by-Tribe

basis,” id. at 95a. As the court of appeals correctly

4 Petitioner has filed a separate suit specifically challenging the

Band’s water quality standards, which would be more likely to

encounter such questions. See Wisconsin v. EPA, No. 96-C-597

(E.D. Wis. filed May 21, 1996). On June 17, 1999, the district court

administratively closed that case, subject to reopening within 90

days after the outcome of the appeal in this case. See id., Docket

Sheet Entry No. 26 (June 18, 1999).

14

observed (id. at 14a), EPA’s grant of TAS status to the

Mole Lake Band is justified by the Band’s substantial

reliance on the Reservation’s water resources and the

complete absence of “fee land within the reservation

owned by non-members of the tribe.” Because EPA’s

determination here was “fact specific,” the court of

appeals left for “another day” how far a tribe’s author-

ity might extend “on a different set of facts.” Jbid. The

court of appeals’ explicitly limited rationale and the re-

cord here therefore contradict petitioner’s claim (Pet.

12) that “[iJf the decision below is allowed to stand,

Wisconsin will lose much of [its] authority with respect

to hundreds of navigable waterways.”

3. The court of appeals correctly rejected peti-

tioner’s novel claim (Pet. 15-22) that tribal TAS status

pursuant to a federal statute regulating water quality is

incompatible with a State’s ownership of lands under-

lying navigable waters pursuant to the Equal Footing

Doctrine. Like EPA and the district court, the court of

appeals assumed, arguendo, that petitioner owns lands

underlying some of the surface waters within the

Reservation, but it nevertheless decided that such

5 Petitioner also overstates the national Significance of the TAS

program. Petitioner contends (Pet. 13) that “over 210 tribes

nation-wide have received TAS status under various provisions of

the Clean Water and Safe Drinking Water Acts” (emphasis added).

This case, however, involves TAS status to establish water quality

standards, and not TAS status for other programs. EPA informs

us that, out of a total of 49 applications for TAS authority to

establish water quality standards over the past decade, EPA has

approved 23. As noted above, those approvals have generated only

three court of appeals decisions since the issuance of EPA’s

regulations in 1991.

15

ownership would not affect the Tribe’s qualifications for

TAS status. Pet. App. 7a-10a.°

As the court of appeals recognized, petitioner’s re-

liance on its asserted title is misplaced because Con-

gress did not condition a Tribe’s entitlement to TAS

status on that criterion. Pet. App. 8a-10a. Congress,

which “has plenary authority to legislate for the Indian

tribes in all matters,” United States v. Wheeler, 435

U.S. 313, 319 (1978)), set out the relevant standards for

TAS status in Section 1877(e). It provided that Indian

Tribes may qualify for TAS status for certain CWA

purposes, not only with respect to water resources that

are held by or on behalf of the Tribe or its members,

but also with respect to water resources that are

“otherwise within the borders of [the] Indian reserva-

tion.” 33 U.S.C. 1377(e)(2). Congress, which indis-

putably has authority to empower the EPA to set

water quality standards for navigable waters without

regard to who owns the underlying submerged lands,

directed EPA to allow qualifying Indian Tribes to make

those determinations (within the parameters of the

federal statutory Clean Water Act program) for all

§ For the purposes of the Equal Footing Doctrine, navigable

waters are those that were navigable in fact at statehood. United

States v. Holt State Bank, 270 U.S. 49, 56 (1926). Navigable

streams or lakes are those on “which trade and travel are or may

be conducted in the customary modes of trade and travel on

water.” Ibid. Contrary to petitioner’s contention (Pet. 19), EPA

has not conceded that petitioner owns the beds of the navigable

waters of the Reservation. Pet. App. 44a, 52a. The determination

of navigability requires a fact-intensive inquiry for each water

body. There is no evidence in the record of this case, one way or

the other, on the questions of what water bodies were navigable in

fact at the time of Wisconsin’s statehood in 1848 and what property

interest petitioner has retained in the beds under those water

bodies.

16

waters within the exterior boundaries of their reser-

vations. As the court of appeals correctly observed,

“(because [petitioner] does not contend that its owner-

ship of the beds would preclude the federal government

from regulating the waters within the reservation, it

cannot now complain about the federal government

allowing tribes to do so.” Pet. App. 9a-10a.'

Congress’s direction that EPA may grant a qualify-

ing Tribe TAS status with respect to all waters within

the borders of a reservation is particularly appropriate

in this case, because the Reservation contains no lands

owned in fee by non-members of the Tribe. Rather, the

Reservation uplands indisputably consist entirely of

lands owned wholly by the United States in trust for

the Band, which has regulatory authority over all of its

members. Cf., e.g., Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001) (Navajo Nation does not have

inherent power to tax non-Indian on non-Indian fee

land on Reservation). EPA properly concluded, in light

of those facts, that the Band “necessarily possess[es]

authority over all persons on Reservation lands who

may be engaging in activities that may affect the

quality” of the Reservation’s waters. Pet. App. 45a.

Thus, EPA concluded that, even if the State holds title

to certain submerged lands, the Band’s authority is

nonetheless sufficient to “adequately regulate virtually

all activities which might affect the quality of Reser-

vation waters.” Jbid. Under those circumstances, the

7 Significantly, neither Section 1377 of the CWA nor its legis-

lative history mentions the Equal Footing Doctrine or submerged

lands. Furthermore, the court of appeals found that petitioner has

waived any claim that Rice Lake and other water bodies are

somehow not “within the borders” of the Reservation. Pet.

App. 7a.

17

court of appeals held that it was “reasonable for the

EPA to determine that ownership of the waterbeds did

not preclude federally approved regulation of the

quality of the water.” Jd. at 10a. Petitioner has made

no showing that those fact-specific findings are

erroneous.

Contrary to petitioner’s assertions (Pet. 19), the

court of appeals’ decision does not conflict with this

Court’s decision in Montana v. United States, 450 U.S.

544 (1981). Petitioner essentially argues that Montana

stands for the proposition that, if a State holds title to

submerged lands, then a Tribe may never exercise any

regulatory authority respecting the overlying waters.

But Montana contains no such holding. In that case,

this Court determined that the State owned the bed of .

the Big Horn River. See id. at 556-557. It nevertheless

did not find the State’s ownership dispositive of the

Tribe’s authority to regulate non-member fishing and

sport hunting in and on those waters. Compare id. at

550-551 n.1, with id. at 557-567. Petitioner’s under-

standing of Montana and its consequent assertion that

this case conflicts with Montana are accordingly wrong.

The Court stated in Montana that, as a general rule,

Tribes lack inherent authority to regulate the conduct

of non-members on non-Indian lands within reserva-

tions. 450 U.S. at 557-567. But the Court recognized

that the general rule is subject to important exceptions.

In particular, the Court stated:

A tribe may also retain inherent power to exercise

civil authority over the conduct of non-Indians on

fee lands within its reservation when that conduct

threatens or has some effect on the political integ-

rity, the economic security, or the health or welfare

of the tribe.

18

_ 450 U.S. at 566. See, e.g., Brendale, supra. EPA has

taken guidance from Montana in determining whether

a Tribe is entitled to TAS status under Section 1377(e)

of the CWA. It has elected to “evaluat[e] whether a

tribe has authority to regulate a particular activity on

land owned in fee by nonmembers but located within a

reservation” by reference to “the evolving case law as

reflected in Montana and Brendale.” Pet. App. 96a.

EPA conducted that evaluation in this case and found

that, because the Band depends on the water resources

at issue for its livelihood and cultural integrity, and

because the Band’s reservation contains no non-

member fee lands, granting the Band authority to

determine water quality standards for those waters is

consistent with Montana. Id at 45a-47a. Hence, EPA’s

grant of TAS status to the Band pursuant to Section

1377(e) is fully compatible with Montana.

As the court of appeals correctly recognized, the

Band’s entitlement to TAS status ultimately depends

on the authority that Congress made available to

Indian Tribes through Section 1377(e). Unlike Mon-

tana, this case does not arise out of a Tribe’s bare

assertion of inherent authority, but under the specific

provisions of the CWA, which establishes a complex

regulatory scheme and charges an expert agency with

responsibility to coordinate the activities of the federal

government, the States, and Indian Tribes. See 33

U.S.C. 1877(e). Section 1377(e) and EPA’s imple-

menting regulations allow eligible Tribes to play a role

with respect to all water resources within their reser-

vations and do not draw the distinction that petitioner

urges.®

8 Petitioner relied heavily below (Pet. App. 8a, 30a-31a) on the

court of appeals’ decision in Wisconsin v. Baker, 698 F.2d 1323,

19

4, Petitioner also contends (Pet. 22-25) that EPA has

misinterpreted this Court’s post-Montana precedents.

There is no merit to that contention. Petitioner pri-

marily asserts (Pet. 24) that this Court’s decision in

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

rowed the Montana exception such that EPA cannot

rely on the Band’s interest in the “health and safety” of

its members in granting TAS status. That is not so. In

Strate, this Court held that a Tribe’s inherent sover-

eignty did not extend so far as to create a tribal court

forum for a “commonplace state highway accident

claim.” 520 U.S. at 459. The Court did not, however,

narrow the Montana exception. To the contrary, Strate

identified Montana as the “pathmarking case con-

cerning tribal civil authority over nonmembers” and

reaffirmed the Montana test verbatim. Id. at 445; see

1335 (7th Cir.), cert. denied, 463 U.S. 1207 (1983), but the court

correctly recognized that the Baker decision is inapposite. The

court of appeals ruled in Baker that a Wisconsin Tribe was not

entitled to regulate non-member hunting and fishing on lakes

within its reservation because the State held title to the lake beds.

The court nevertheless left open the possibility of tribal regulation,

even when the State owned the lake beds, where necessary to pro-

tect the “political integrity, the economic security, or the health or

welfare’ of the Band.” Id. at 1835 (quoting Montana, 450 U.S. at

566). As the court of appeals below recognized, limitations on

tribal regulation of hunting and fishing on non-tribal lands within a

reservation are of little or no relevance here where the issue is

tribal authority to set water quality standards pursuant to the

CWA. See Pet. App. 8a-9a. Hunting and fishing rights “have

traditionally been the subject of state regulation,” id. at 8a, while

“the ultimate authority for the water quality standards lies with

the federal EPA, not the state of Wisconsin (which itself has acted

only pursuant to federal delegation).” Ibid.

-*

20

Nevada v. Hicks, 533 U.S. 358, 358 (2001) (quoting

Strate).

Here, the record shows that water quality is parti-

cularly important to the Band since the Band “is

heavily reliant on the availability of the water resources

within the reservation for food, fresh water, medicines,

and raw materials.” Pet. App. 4a. The court of appeals

based its decision, in part, on the Band’s “unusual”

reliance on water resources, ibid., and left “for another

day” the question as to how far tribal authority might

extend on a different set of facts. Jd. at 14a. In light of

EPA’s Tribe-by-Tribe approach, petitioner cannot cred-

ibly claim (Pet. 23) that a finding of tribal regulatory

jurisdiction is necessarily “guarantee[d]” in every in-

stance. To the contrary, the court of appeals’ analysis

was based on the facts in the record before it, which

show that EPA correctly found that impairment of

water quality would have a serious and substantial

effect on the health and welfare of the Band because its

“water resources are essential to its survival.” Pet.

App. 13a.

Petitioner also errs (Pet. 24-25) in asserting that

tribal authority may be invoked only where the record

reflects “a real” threat to the Tribe arising from wholly

inadequate federal and state oversight. In support of

that contention, petitioner again primarily relies on

® Moreover, the effects of water pollution are far more

threatening to a Tribe than isolated traffic accidents. As the court

of appeals in Montana v. EPA explained, “the conduct of users of a

small stretch of highway has no potential to affect the health and

welfare of a tribe in any way approaching the threat inherent in

impairment of the quality of the principal water source.” 137 F.3d

at 1141. See Albuquerque, 97 F.3d at 423 (observing that the

authority to establish water quality standards “is in accord with

powers inherent in Indian tribal sovereignty”).

21

Montana and Strate. But that is not what those de-

cisions say. This Court determined in Montana that a

Tribe lacks inherent authority to regulate non-member

activity unless such activity threatens the Tribe’s

political integrity, economic security, or the “sub-

sistence or welfare of the Tribe.” 450 U.S. at 566. The

Court noted that, in some circumstances, the State’s

failure to manage nonmember activities may itself

create a threat to the Tribe’s political integrity,

economic security, or health or welfare that would

warrant a Tribe’s taking regulatory action. Jd. at 566

n.16."° See Lower Brule Sioux Tribe v. South Dakota,

104 F.3d 1017, 1023 (8th Cir.), cert. denied, 522 U.S. 816

(1997). It did not, however, limit tribal regulatory

authority to circumstances-in which State or federal

regulation was wholly inadequate.”

10 This Court stated:

Similarly, the complaint did not allege that the State has

abdicated or abused its responsibility for protecting and

managing wildlife, has established its season, bag, or creel

limits in such a way as to impair the [Tribe’s] treaty rights to

fish or hunt, or has imposed less stringent hunting and fishing

regulations within the reservation than in other parts of the

State.

450 U.S. at 566 n.16.

1! Likewise, this Court’s decision in Strate supports no such

requirement. As discussed above, Strate held that a tribal court

lacked jurisdiction over a tort case arising from a traffic accident

between non-members on a portion of state highway_crossing an

Indian reservation. This Court concluded that the Montana test

was not satisfied because tribal jurisdiction over an accident

involving only non-members was not “crucial to the ‘political in-

tegrity, the economic security, or the health or welfare of the

(Tribe) ” and was not necessary to protect tribal self-government.

520 U.S. at 459. The Court noted that a state judicial forum was

available to resolve the dispute, but it did not suggest that tribal

22

In short, this case does not involve a “dramatic

expansion” (Pet. 25) of this Court’s recognition in

Montana that Tribes retain some aspects of inherent

sovereignty. Rather, this case simply involves EPA’s

application of Section 1377(e) of the CWA to a discrete

factual situation in a manner consistent with the text of

the statute, the agency’s regulations, and the decisions

of the only two other courts of appeals that have had

occasion to interpret that statutory provision.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

GREER S. GOLDMAN

ANDREW C. MERGEN

JEFFREY R. KEOHANE

Attorneys

MAY 2002

jurisdiction over non-members exists only in the absence of an

alternative forum.