Amicus Curiae Brief — City of Albuquerque v. Browner

caste eur, U.S

FILED

2 JUN 9 1997

No. 96-1587

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF ALBUQUERQUE,

Petitioner,

vs.

CAROL M. BROWNER, OR HER SUCCESSOR, AS

ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMICUS CURIAE BRIEF IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

STEVEN BARSHOV

SIVE, PAGET & RIE EL, P.C.

460 Park Avenue

New York, New York 10022

(212) 421-2150

(For Further Appearance See Reverse Side of Cover)

RICHARD VIRTUE

VIRTUE, NAJJAR & BARTELL

300 Paseo de Peralta, Suite 200

P.O. Box 4265

Santa Fe, New Mexico 87502-4265

(505) 983-6101

Counsel for Amici Curiae New

Mexico Municipal League;

Alabama League of Municipalities;

South Dakota Municipal League;

Nevada League of Cities; League

of Wisconsin Municipalities; New

York Conference of Mayors; New

Jersey League of Cities; League of

Kansas Municipalities; and

International Municipal Lawyers

Association

QUESTIONS PRESENTED FOR REVIEW

1. Whether the United States Environmental Protection

Agency can approve Indian Tribe water quality standards

which are not supported by a scientific or rational basis, are

adopted for Indian Tribe religious and ceremonial purposes,

or both, merely because such standards are more stringent

than federal minimum standards?

2. Whether the United States Environmental Protection

Agency has violated the establishment clause by requiring the

City of Albuquerque to expend taxpayer funds to comply with

water quality standards adopted for religious and ceremonial

purposes by the Isleta Pueblo?

3. Whether the United States Environmental Protection

Agency can force non-Indians outside Indian country and

outside fee lands to comply with Indian Tribe water quality

standards?

4. Whether the United States Environmental Protection

Agency can force non-Indians outside Indian country and

outside fee lands to comply with Indian Tribe water quality

standards, if such regulations are not supported by a scientific

or rational basis and/or are adopted for ceremonial and

religious purposes?

5. Whether EPA’s prohibition against municipalities

invoking EPA’s dispute resolution procedures violates the

Clean Water Act?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............

AES GE Ce i ieicsicissimsthiniascarnsininiohsiwenionasnes

CONSENT TO FILE AMICUS CURIAE BRIEF ....

SUMMARY OF ARGUMENT .........cccccsscsssesssorsssoees

THE AMICI CURIAE ARE VITALLY

INTERESTED IN THIS LITIGATION

BECAUSE OF THE LIKELIHOOD THAT EPA

WILL ENFORCE TRIBE ENVIRONMENTAL

REGULATIONS AGAINST NON-INDIAN

ae Ps FEE cosivitivessnsinsdoeancaliamanctetsinnsse

PAPO E. Wichsibicnicessitiensaintiaicnivitaticsiiiilanoabbeinasdintides

I. UNDER FEDERAL INDIAN LAW, INDIAN

TRIBE REGULATIONS CANNOT BE

APPLIED TO OR ENFORCED AGAINST

NON-INDIANS OUTSIDE RESERVATION

NEE fikerhavcniresacensinindaineinenucaisinndicaeiinss

II. IN ALLOWING EPA TO TREAT INDIAN

TRIBES AS STATES, CONGRESS DID NOT

AUTHORIZE EPA TO DISREGARD

FEDERAL INDIAN LAW AND APPLY

TRIBE REGULATIONS TO NON-INDIANS

OUTSIDE RESERVATION BORDERS ..........

Ill. THE CLEAN WATER ACT CLEARLY AND

UNAMBIGUOUSLY PROHIBITS INDIAN

TRIBES FROM ADOPTING WATER

QUALITY STANDARDS WHICH ARE

MORE STRINGENT THAN FEDERAL

MINIMUM STANDARDS ....... cece eeeseeeees

CS ee i ievinicsrnsisintecsimuasilesanbiaanieiic sila diatatakessiabeatainiaid

14

16

Vv

TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 503 U.S. 91 (1992)...

Brendale v. Confederated Tribes and Bands of the

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

Chevron, USA, Inc. v. Natural Resources Defense

Council, 467 U.S. 837, (1984)... cccsesesseeseeeeees

DeCoteau v. District County Court, 420 U.S. 425

FWP einciaiuiserenaiearieaibieruninnaelocessban cieauiehmaionwediecaie

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

Natural Resources Defense Counsel Inc. v. USEPA,

966 F.2d 1292, 1305 (9th Cir. 1992) o.oo.

New Mexico v. Mescalero Apache Tribe, 462 U.S.

ee sidechains i ey:

State of Alaska v. Native Village of Venetie, 856

Fe CUE CN GO COIN i csccsconssiisinatniccenebenscavtosnesss

State of Washington, Department of Ecology v.

United States Environmental Protection Agency,

TI Fhe VAGS (OG Cie. 1965) ..n.ccccssesessccsssecsseeceses

Williams v. Lee, 358 U.S. 217 (1959) .o..ccccecsceceeeee.

Worcester v. Georgia, 31 U.S. 515 (1832) ....c.ccccccese.

Statutes:

BOF OP ME IT ins shasseredieinatetacidess isdcesiuectmaretkes:

Bes OP t OE IN, cissceswnssssssacsniactansddcintermencecinn

Fe SA EE astern erccpiseinealsestedendhsvee eben cs

FF USC. & ESTEE MC) ns ccocosesecsasesescesecesrescesvoreaeses

A Es D PO icicareciseatecscobsauiasuumnnanaceaes

vi

Statutes: Page

PF ears ROTH csaicdssesacnisedistburinpusvanisedeosolstoruezcsss 13

Fo AP Ra Rare © RAF PUD vcscicdineinvovencssntoveevdeinicenscs 2, 10, 12, 13, 14

42 U.S.C. § 300}-110O)(1).........ccccsoresnscecesessscsscecsereree. 2

42 U.S.C. § TEOUANZ) ...cessesececosescooscessssssececesseseesasees y

EIA yG Ps vvcasnessesvesstososnsncssnsisearocssecseanevaasseress 2

Other Authorities:

We Gr ite © FE Math stcsinvsasccreinacsceceeceieeccce 12

58 Fed. Reg. 8172, 8176 (1993) o.....cccccccccssssssseseseecee. 12

BOP SION BG. FOS isksiesnisscnancidercsavscerudaneciccasecc 10

SOF SAMI WO FE POP ceccskeccsecnscasmvisccanntniceesriscieecee, 10

$53 Cotag. Rec. S 1021 ...cescscsccsssecscecsosesesvssszececssssssces 1]

Congressional Research Service, American Law

Division, Memorandum to Senate Select

Committee On Indian Affairs (February 21,

to 5 eT OT ME Enh ok fa has 4S 8,9

Felix S. Cohen’s Handbook Of Federal Indian Law

CRE i citsbinaiacsbn tee AOC Fe 7

EPA Policy For The Administration Of

Environmental Programs On Indian Reservations

PT By, Fe aisitcteccck ee okays ee 9

Sly, EPA And Indian Reservations: Justice Stevens’

Factual Approach, 20 Envtl.L.Rep. (News &

Analysis) 10429, 10430 (1990) ooo. .cceccccccccccsceseceee, 8

No. 96-1587

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF ALBUQUERQUE,

Petitioner,

VS.

CAROL M. BROWNER, OR HER SUCCESSOR, AS AD-

MINISTRATOR, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMICUS CURIAE BRIEF IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

CONSENT TO FILE AMICUS CURIAE BRIEF

Consent to the filing of this amicus curiae brief was

granted by Walter Dellinger, Esq., Acting Solicitor General,

on behalf of Carol Browner, Administrator of the United

States Environmental Protection Agency, and by Bruce S.

Garber, Esq., on behalf of the City of Albuquerque.

SUMMARY OF ARGUMENT

This case presents multiple issues of first impression aris-

ing from the unprecedented and ultra vires attempt by the

United Siates Environmental Protection Agency (“EPA”) to

|

force the City of Albuquerque (“City”), a non-Indian political

subdivision located outside Indian Country, to comply with

water quality standards (“WQS”) adopted by the Isleta Pueblo

(“Isleta”), an Indian Tribe, pursuant to the “treatment as a

state” (“TAS”) amendment to the Clean Water Act (“CWA”),

33 U.S.C. § 1377(e).

In 33 U.S.C. § 1377(e), Congress authorized EPA to treat

an Indian Tribe as a state for certain purposes contained in

enumerated sections of the CWA and then only “to the degree

necessary to carry out the objectives” of treating an Indian

Tribe as a state. Jd. (emphasis added). As states cannot en-

force either state or federal environmental regulations against

Indians in Indian Country, and the United States has long had

a policy of maximizing Indian Tribe control over local Tribe

affairs, Congress amended the CWA to authorize Indian

Tribes to be treated as states so they could develop and en-

force environmental regulations within Indian Country.

However, by authorizing Indian Tribes to take control of

2 their own environmental affairs, Congress did not authorize

4 EPA to export such regulations and apply them to non-Indians

’ outside Indian Country, including states and their political

. subdivisions. Such a fundamental -- indeed seminal -- change

in the balance of jurisdiction and power between Tribes, EPA

and the states/political subdivisions is not only ultra vires and

contrary to fundamental principles of Federal Indian Law, but

also contrary to Congressional intent and legislative history.

Although EPA’s unilateral decision to enforce Indian Tribe

WQS against non-Indians outside Indian Country is extremely

troubling in its own right, the CWA is not the only major fed-

eral environmental statutory scheme which has been amended

to include a TAS provision, Congress, using virtually the

same language, enacted TAS provisions in the Safe Drinking

Water Act, 42 U.S.C. § 300j-11(b)(1); the Clean Air Act, 42

U.S.C. § 7601(d)(2); the Surface Mining Control and Recla-

mation Act, 30 U.S.C. § 1235(k); and the Comprehensive

Environmental Response, Compensation, and Liability Act,

42 U.S.C. § 9626. Accordingly, the resolution of this

3

litigation will delineate the fundamental powers and jurisdic-

tional boundaries of EPA, Indian Tribes, and the states/their

political subdivisions across the full range of the major fed-

eral environmental statutes.

The need to determine whether EPA can enforce Indian

Tribe environmental regulations against non-Indians outside

Indian Country is urgent and is becoming more so. There are

approximately 550 Indian Tribes across the United States

(approximately 300 in the continental 48 states) and EPA is

actively dispensing grants to an increasing number of these

Tribes to facilitate their generation of various environmental

regulations, including water quality regulations. Thus, the is-

sues presented are national in scope and are highly likely to

arise again repeatedly.

Even worse, in New Mexico alone, grants have been

awarded to multiple Tribes on the Rio Grande raising the

specter of separate Tribe WQS governing the same body of

water. If EPA continues on its present course, these multiple

sets of Tribe environmental regulations would all be enforced

by EPA against non-Indian political subdivisions outside In-

dian Country. Municipalities will soon find themselves being

forced to comply with multiple Tribe WQS.

Aside from EPA’s decision to export Indian Tribe envi-

ronmental regulations, this litigation also challenges EPA’s

policy of not reviewing the substance of the Tribe WQS it is

exporting, so long as such WQS exceed minimum federal re-

quirements. Thus, EPA approved the Isleta WQS even though

they were promulgated for Tribe religious and ceremonial

purposes and contained an irrational and scientifically insup-

portable arsenic standard. The Isleta arsenic standard is in

parts per trillion which is 1000 times beyond the capacity of

the most sophisticated laboratory equipment to detect or

measure. It is also far above the naturally occurring level of

arsenic in the region. EPA has always conceded, and both the

Tenth Circuit and the : *w Mexico District Court recognized,

that the Isleta arsenic st:ndard has no sound scientific basis.

4

While Congress has empowered Tribes to regulate their

own discharges into Tribe waters, EPA has no authority to

require non-Indians outside Indian Country to comply with

irrational and scientifically unsound Tribe WQS or regula-

tions promulgated for Tribe religious and ceremonial pur-

poses. The latter violates the Establishment Clause.

Finally, EPA’s refusal to allow political subdivisions to

invoke its dispute resolution mechanism has been challenged.

EPA’s refusal leaves political subdivisions without any effec-

tive dispute resolution process.

Overall, EPA has attempted to create a one way street -- it

will export and enforce Indian Tribe WQS and other Tribe

environmental regulations to non-Indians outside Indian

Country, while Indian Tribes are immune from corresponding

state regulations. Given EPA’s unprecedented ultra vires acts

and the high likelihood that they will be repeated both in con-

nection with other Tribes and other federal statutes, the Court

should grant the City’s Petition to resolve the important issues

of first impression presented.

THE AMICI CURIAE ARE VITALLY INTERESTED

IN THIS LITIGATION BECAUSE OF THE

LIKELIHOOD THAT EPA WILL ENFORCE TRIBE

ENVIRONMENTAL REGULATIONS AGAINST

NON-INDIAN MUNICIPALITIES

The amici consist of the New Mexico Municipal League

(“NMML”); other state municipal leagues, including: the

Alabama League of Municipalities; South Dakota Municipal

League; Nevada League of Cities; League of Wisconsin Mu-

nicipalities; New York Conference of Mayors; New Jersey

League of Cities and the League of Kansas Municipalities

(collectively the “State Leagues”); and the International Mu-

nicipal Lawyers Association (“IMLA”).

The NMML and the other State Leagues are associations of

incorporated municipalities in their various States. The geo-

graphic diversity of the State Leagues, as well as the partici-

pation of the IMLA, confirm that the issues presented have

5

serious national implications. The NMML participated as

amicus curiae before the Tenth Circuit Court of Appeals.

The pattern of events which triggered the NMML’s partici-

pation in this litigation as amicus curiae is a harbinger of

what is about to happen in other states and is of serious con-

cern to the amici. In New Mexico, Isleta was the first Tribe to

adopt WQS for the Rio Grande. Subsequent to approval of

Isleta’s WQS, EPA also approved WQS adopted by the San-

dia Pueblo and the San Juan Pueblo. The Isleta Pueblo is lo-

cated just south of the City; the Sandia Pueblo is located just

north of the City; and the San Juan Pueblo is located much

further north. The Rio Grande flows from north to south. Both

the Isleta and Sandia Pueblos are tiny compared to the popu-

lation and scale of economic activity in and around the City.

Thus, the Isleta and Sandia WQS will have far more effect on

the City and other New Mexico municipalities than on the

pueblos themselves.

Moreover, the Isleta, Sandia, and San Juan Pueblos are not

the only Tribes whose boundaries include portions of the Rio

Grande. Over merely 150 miles, the Rio Grande traverses the

aforementioned pueblos as well as the following pueblos, all

of whom could adopt WQS: Cochiti, Picuris, San Idelfonso,

San Felipe, Santa Ana, Santa Clara, Santo Domingo, and

Taos. Four of these pueblos have received grants from EPA to

develop WQS: Picuris, San Idelfonso, Santa Clara, and Taos.

In addition, three other pueblos encompass waters which are

tributaries of the Rio Grande: Nambe, Tesuque and Pojoaque.

These tribes have also received grants to develop WQS. In

sum, ten Tribes have either adopted or are in the process of

adopting WQS, seven of whom are located on the Rio

Grande, and three of whom are on tributaries -- a// within a

150 mile stretch of the Rio Grande.

The NMML’s member municipalities do now or will in the

future purchase, finance and operate sewage treatment plants

which discharge into the Rio Grande and/or its tributaries at

locations upstream and outside the Reservation borders of one

or more of the aforementioned Tribes. These member

6

municipalities include Albuquerque, the City of Santa Fe, the

incorporated County of Los Alamos, the City of Farmington,

the City of Rio Rancho, the Village of Jemez Springs, the

City of Aztec, the City of Bloomfield, Town of Bernalillo,

Village of Cuba, and the Village of House (collectively

“NMML Burdened Municipalities”).

Many of the NMML Burdened Municipalities are upstream

from more than one Tribe. For example, Rio Rancho and Ber-

nalillo are upstream and relatively close to both the Isleta and

Sandia Pueblos. If the actions of EPA challenged in this liti-

gation are sustained, then all of the NMML Burdened Mu-

nicipalities would be forced by EPA to comply with all

downstream Tribe WQS. As more Tribe WQS are approved

by EPA, other NMML member municipalities would be

forced to comply. Based on Albuquerque’s estimated 250

million dollar cost of attempted compliance with the Isleta

arsenic WQS, NMML Burdened Municipalities are likely to

face very large costs as well.

The same general pattern exists throughout the country, and

in the jurisdictions represented by the State Leagues. Many of

their members are located on rivers upstream from Tribes

who are in the process of promulgating, or could adopt, WQS

which would be enforced and applied by EPA in a manner

similar to EPA’s enforcement of Isleta’s WQS. The foresee-

able impact of EPA’s actions as sustained by the Tenth Cir-

cuit will be to require municipalities in New Mexico and

throughout the country -- who are in full compliance with

their states’ WOS -- to expend millions, perhaps billions, of

dollars, to meet Tribe WQS which need not have a scientific

basis and can be adopted solely for Tribe religious purposes.

Given the wide range of federal environmental legislation in

which TAS provisions have been inserted, these concerns are

not limited to water pollution, but include air quality, solid

waste, etc. Given the extremely serious implications of this

litigation for the State Leagues’ members, they strongly urge

the Court to grant the City’s Petition.

OR Manta te saat Pn

ARGUMENT

I. UNDER FEDERAL INDIAN LAW, INDIAN TRIBE

REGULATIONS CANNOT BE APPLIED TO OR

ENFORCED AGAINST NON-INDIANS OUTSIDE

RESERVATION BORDERS

Traditionally, Indian tribe jurisdiction was confined to In-

dian territory, state jurisdiction was confined to non-Indian

lands, and neither could exercise jurisdiction over territory

within the jurisdiction of the other.’ Under Federal Indian

law, land within reservation borders owned or held in trust for

Indians is “Indian Country.” Indian tribes have jurisdiction

over tribe members and non-Indians in Indian Country. New

Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). A

state cannot enforce its own or federal laws against Indians in

Indian Country in the absence of a clear delegation of author-

ity from Congress. State of Washington, Department of Ecol-

ogy v. United States Environmental Protection Agency

(“Washington”), 752 F.2d 1465 (9th Cir. 1985).

As a result of land allocation acts, such as the Dawes Act.

25 U.S.C § 331 et seq., large tracts of land on many reserva-

tions were conveyed to non-Indians. Brendale v. Confeder-

ated Tribes and Bands of the Yakima Indian Nation

(“Brendale”), 492 U.S. 408, 437 (1989). Lands within reser-

vation borders which are owned by non-Indians are “fee

lands.” Montana v. United States (“Montana”), 450 U.S. 544

(1981). Many reservations are now “checkerboarded” with

Indian country hopelessly intermingled with fee lands. Sly,

' See Williams v. Lee, 358 U.S. 217 (1959) and Worcester v. Georgia, 31

U.S. 515 (1832). Early in our history, Indian and non-Indian lands were

usually physically separate, thus keeping jurisdictional lines relatively

distinct. Felix S. Cohen’s Handbook Of Federal Indian Law 28-29 (1982

ed.).

* Indian Country also includes dependent Indian communities and Indian

land allotments, the Indian titles to which have not been extinguished. See

18 U.S.C. § 1151. This definition has been applied in a civil context. See

DeCoteau v. District County Court, 420 U.S. 425 (1975).

EPA And Indian Reservations: Justice Stevens’ Factual Ap-

proach, 20 Envtl.L.Rep. (News & Analysis) 10429, 10430

(1990).

Generally Tribes lack any inherent sovereign regulatory

power over fee lands, and, thus, non-Indians on fee lands are

generally exempt from the reach of tribal regulations. Mon-

tana, 450 U.S. at 565. The Montana rule has two limited ex-

ceptions: if a non-Indian enters a consensual arrangement

with the tribe (e.g., a contract), or, if a non-Indian’s activities

directly affects the tribe's political integrity, economic secu-

rity or heath and welfare. /d. at 566. Even if one of the excep-

tions to the Montana rule is satisfied, the tribe gains

jurisdiction over non-Indians on fee lands only. Id?

While the power of Indian tribes to regulate non-Indians on

fee lands has been hotly contested, no case could be found

which even hinted that general sovereign Indian regulatory

powers could be extended outside reservation boundaries to

reach non-Indians. State of Alaska v. Native Village of Venetie

(“Venetie”), 856 F.2d 1384 (9th Cir. 1988) (sovereign power

of Indian tribes to tax cannot apply outside Indian country).

3 Indeed, even the minority Justices in Brendale who viewed Indian juris-

diction most broadly conceded that within reservations there may be:

_. . essentially self-contained, definable, areas in which non-

Indian fee lands so predominate that the tribe has no signifi-

cant interest in controlling land use.

Brendale, 492 U.S. at 448.

* See Congressional Research Service, American Law Division, Memo-

randum to Senate Select Committee On Indian Affairs (“C.R.S. Mem.”) at

6 (February 21, 1991), (maximum territorial limit of a tribe’s authority is

reservation boundaries). In very few instances, irrelevant to this litigation,

Indian tribes may exercise extraterritorial powers. Tribes may be empow-

ered to govern “dependent Indian communities” because federal law in-

cludes them within “Indian country.” Venetie, supra. However, Indians

have no inherent sovereign power to regulate activities of non-Indians

outside reservation borders. /d.

9

In short, it is settled that non-Indians outside reservation

boundaries are not subject to Indian Tribe police power regu-

lations and that the only dispute over jurisdiction between

states and Tribes occurs within the fee lands. It is against this

legal backdrop that Congress allowed EPA to treat Indian

tribes as states.

II. IN ALLOWING EPA TO TREAT INDIAN TRIBES

AS STATES, CONGRESS DID NOT AUTHORIZE

EPA TO DISREGARD FEDERAL INDIAN LAW

AND APPLY TRIBE REGULATIONS TO NON-

INDIANS OUTSIDE RESERVATION BORDERS.

Prior to enacting the TAS provision in the CWA, Congress

was well aware that Indian Tribes lacked the funds and expe-

rience to administer CWA programs and that, as a result, en-

vironmental regulation and enforcement lagged within

reservations. C.R.S. Mem. at 8-9 (quoting from the Senate

debate in the Congressional Record).” To promote Indian en-

vironmental programs within reservation boundaries and to

enable tribes to receive grants, Congress amended the CWA

as follows:

The Administrator is authorized to treat an Indian

tribe as a State for purposes of Subchapter II of this

chapter® and Sections 1254, 1256, 1313, 1315.

1318, 1319, 1324, 1329, 1341, 1342, and 1344 of

this title to the degree necessary to carry out the

objectives of this section, but only if. . .

(2) the functions to be exercised by the Indian

tribe pertain to the management and protection of

: Congress could have enacted a statute expressly delegating to states the

power to enforce State and federal environmental laws within Indian

country. Washington, supra. However, such a delegation would have been

inconsistent with the federal policy of encouraging Indian self-

government. See EPA Policy For The Administration Of Environmental

Programs On Indian Reservations (Nov. 8, 1984).

; Subchapter II contains many of the Federal grant programs.

10

water resources held by an Indian tribe, held by the

United States in trust for Indians, held by a member

of an Indian tribe. . . or otherwise within the borders

of an Indian reservation. .. .

33 U.S.C. § 1377(e) (emphasis added).

Congress’ intention to deny EPA authority to apply Indian

WQS to non-Indians outside reservation borders is clearly ex-

pressed in the Act’s legislative history. Senator Burdick

stated:

Those water quality standards set by Indian tribes

and accepted by EPA will not be used off reserva-

tion borders.

133 Cong. Rec. S 753 (emphasis added).

Moreover, the precise issues raised in this litigation were

addressed in a Memorandum to Rep. Morris K. Udall in con-

nection with the proposed amendment to the CWA:

[NJothing . . . in the existing Clean Water Act or in

any provision of H.R.1 gives the EPA administrator

or the Tribes the power to force States to alter their

approved water quality standards or their operations

under an approved plan in order to accommodate

higher Tribal water quality standards. . .

We can find nothing in the Clean Water Act as pro-

posed to be amended by H.R.1 which will in any

way expand substantive Indian Water Rights which

will expand or enhance the power of Indian Tribes

to effect off-reservation activity which might de-

grade or spoil on-reservation water quality.

133 Cong. Rec. S 754 (emphasis added).

Yet another reference, even more specifically correlated to

the facts of this case, was made by Senator Hecht during the

debate on the proposed amendments:

11

In Nevada ... the Cities of Reno and Sparks have in-

vested millions of dollars in water treatment facili-

ties ... the Pyramid Lake Indian Reservation is

located down stream and the tribes and the cities are

involved in difficult legal battles over water quality.

I am convinced by the chairman’s very helpful

statement that Nevada’s water rights and standards

are not put into any jeopardy by this legislation. . .

133 Cong. Rec. S 1021 (emphasis added).

In essence the legislative history set forth above reveals a

series of specific questions in the congressional record from

western states’ senators requesting assurances that the TAS

provisions will not affect off-reservation water quality regu-

lations. All the assurances given by the sponsoring members

were to the effect that the TAS provisions would simply give

Tribes the powers they needed to regulate their own activities

and activities within Indian Country. The decision of the

Tenth Circuit ignores this clear congressional intent.

Moreover, in EPA’s commentary to its regulations, EPA

conceded, after reviewing Montana and Brendale, that Con-

gress did not expand Indian authority to regulate nonmembers

and required EPA to treat Indian tribes as states within the

rules of Federal Indian law:

EPA believes that if Congress had intended to make

a change as important as an expansion of Indian

authority to regulate nonmembers, it probably

would have done so through Statutory language and

discussed the change in the committee reports. . .

EPA believes that it should not find that the statute

expands or limits the scope of Tribal authority be-

yond that inherent in the Tribe absent an express

indication of Congressional intent to do so...

EPA believes that Congress only manifested an

explicit intent to authorize EPA to treat Indian

Tribes as States over any activities within the scope

of Tribal authority in light of the relevant principles

12

of Federal Indian law. EPA believes that this ap-

proach will best effectuate the overall purposes of

the statute.

58 Fed. Reg. 8172, 8176 (1993) (emphasis added).

Thus, EPA concedes that it has no power to act in a manner

which violates Federal Indian law. Accordingly EPA requires

an Indian tribe seeking to regulate non-Indians’ activities on

fee lands to affirmatively establish its jurisdiction by satisfy-

ing the second exception to the Montana rule. See 40 C.F.R.

§ 131.8. Even though EPA concedes that it is bound by Fed-

eral Indian law in implementing the CWA TAS provisions,

EPA illogically contends that the same legislation forces it to

apply Indian environmental regulations to non-Indians outside

reservation borders - - where no tribe has ever had jurisdiction

under Federal Indian law. EPA attempts to find support for its

ultra vires exercise of power within Arkansas v. Oklahoma

(“Arkansas”), 503 U.S. 91 (1992), a case having nothing to do

with Indian WQS or the Act’s “treatment as a state” provi-

sion.

In Arkansas, EPA’s authority to require a discharger seek-

ing a National Pollution Discharge Elimination System

(“NPDES”) permit in one state to meet the anti-degradation

element of a downstream state’s WQS was upheld. Now EPA

contends it must substitute the Isleta WQS for the down-

stream state’s WQS in the Arkansas fact pattern because it is

“treating Isleta as a state”.

EPA’s attempted mechanistic substitution ignores the clear

language of the Act which authorizes EPA to treat Isleta as a

state only for certain particular enumerated purposes, to the

degree necessary, and in conformity with Federal Indian law.

See 33 U.S.C. § 1377(e) and 58 Fed. Reg. 8172, 8176 (1993).

Incorporation of tribe WQS into the NPDES permit of a non-

Indian municipality meets none of those criteria.

EPA has argued that 33 U.S.C. § 1311(b)(1)(C), not other

provisions of law, purportedly mandates incorporation of the

Isleta WQS into Albuquerque’s NPDES permit. In 33 U.S.C.

13

§ 1377(e), Congress enumerated the specific instances when

EPA could treat a tribe as a state by listing the various sec-

tions of the Act for which such treatment was authorized.

Congress omitted 33 U.S.C. § 1311(b)(1)(C) from the 33

U.S.C. § 1377(e) list. Thus, the Act does not authorize EPA to

treat a Tribe as a state for purposes of incorporating tribe

WQS into the NPDES permit of an upstream non-Indian city

outside the reservation boundaries.

Moreover, incorporation of a tribe’s WQS into a non-

Indian municipality’s NPDES permit is not necessary to carry

out the objectives of 33 U.S.C. § 1377. Indeed, Isleta itself

has never sought to force its standards on Albuquerque and

omission of the Isleta standards from Albuquerque’s NPDES

permit will in no way interfere with the purpose of 33 U.S.C.

§ 1377 - - to give Isleta and other Indian tribes the means to

control activities within reservation boundaries.

Finally, and most importantly, substituting Isleta’s WQSs

for the downstream state’s WQS in the Arkansas fact pattern,

will cause Isleta’s WQS to be applied to non-Indians outside

reservation borders in clear violation of Federal Indian law.

Nothing in Arkansas even remotely suggests that this Court

addressed, no less altered, the established jurisdictional limits

of Federal Indian law. While Arkansas allows EPA to require

a discharger in one state to comply with a downstream state’s

anti-degradation element of its WQS, nothing in Arkansas

allows EPA to substitute an Indian tribe for the downstream

state and apply tribe WQS to non-Indians in violation of Fed-

eral Indian Law.

The only rationale advanced by the Tenth Circuit in support

of its holding to the contrary, is that EPA is exercising its own

authority in requiring the City to comply with Isleta’s WQS.

However, nowhere does the Tenth Circuit address, no less

explain, how such a result can be harmonized with EPA’s

own concession that it must comply with Federal Indian Law.

In reality, the Tenth Circuit, perhaps feeling chastened after

the castigation delivered in this Court’s opinion in Arkansas

concerning deference to EPA, has now swung to the opposite

14

extreme -- it has upheld a clear violation of Federal Indian

Law by EPA. This Court should mandate EPA’s compliance

with Federal Indian Law.

Ill. THE CLEAN WATER ACT CLEARLY AND UN-

AMBIGUOUSLY PROHIBITS INDIAN TRIBES

FROM ADOPTING WATER QUALITY STAN-

DARDS WHICH ARE MORE STRINGENT THAN

FEDERAL MINIMUM STANDARDS.

The court below erred in finding an ambiguity in the TAS

provision of the CWA. Citing Chevron, USA, Inc. v. Natural

Resources Defense Council (“Chevron”), 467 U.S. 837,

(1984), the lower court applied this Court’s two step approach

to judicial review of agency interpretations of acts of Con-

gress. The first step requires the court to look to the clear and

unambiguous intent of Congress. A careful reading of the Act,

including the TAS provision establishes the clear and unam-

biguous intent of Congress that Indian Tribes not be empow-

ered to adopt WQS more stringent than federal Standards.

Indeed, Congress took specific care to assure that such was

the case, realizing that allowing more stringent standards

would be disastrous to the uniformity of the comprehensive

system of regulating water quality established under the Act.

Under Chevron: “If a court, employing traditional tools of

statutory construction, ascertains that Congress had an inten-

tion on the precise question before it, that intention is the law

and must be given effect.” Jd, 467 U.S. at 843 (n.9). When

EPA impermissibly alters the statutory scheme, as established

in the Act and its legislative history, EPA’s acts must be set

aside. Natural Resources Defense Counsel Inc. v. USEPA,

966 F.2d 1292, 1305 (9th Cir. 1992).

The TAS provision clearly specifies those purposes for

which Indian Tribes will be treated as a state under the Act.

Conspicuously absent from 33 U.S.C. § 1377(e) is 33 U.S.C.

§ 1370, which is the authority for states to adopt standards

more stringent than those adopted by EPA. Since the sole

authority for such stricter standards has specifically been

withheld from Tribes, the clear language of the Act reveals

15

Congress’ intent that Indian Tribes not be allowed to adopt

standards more stringent than those adopted by the federal

government.

EPA has attempted to justify its interpretation of Section

1370 by indicating that it is simply a restatement of the inher-

ent sovereign power of States to adopt more stringent stan-

dards. The Tenth Circuit adopted this rationale and held that

the omission of any reference to § 1370 in the TAS provision

does not deprive Indian Tribes of authority to adopt more

stringent standards. However, the Tenth Circuit decision ig-

nores a fundamental distinction between Indian sovereignty

and State sovereignty. The sovereignty of Indian Tribes exists

only at the sufferance of Congress and is subject to complete

defeasance. Congress did not change that rule by enacting

TAS provisions. Thus, when Congress adopted a TAS provi-

sion excluding Section 1370, Congress consciously withheld

from Indian Tribes the authority to adopt more stringent stan-

dards and thus deprived the Indian Tribes of any potential

power to the contrary.

Indeed, the Tenth Circuit decision turns the proper analysis

of the TAS provision on its head by allowing Indian Tribes to

adopt WQS that are not consistent with the purposes of the

Act, are technically and scientifically arbitrary and insupport-

able, and require millions of dollars in expenditures to achieve

a theoretical water quality level with little if any incremental

benefit. The intent of Congress in adopting the TAS provision

was to allow Indian Tribes to address their own problems and

take control of their own environmental affairs. In so doing,

Congress wisely precluded Indian Tribes from adopting WQS

that are more stringent than those adopted by the federal gov-

ernment, apparently in recognition that the adoption of more

stringent WQS could wreak havoc on the comprehensive

system of water quality in this country by creating a

multi-tiered system which would be driven by Indian Tribes.

Indeed, since EPA has stated unequivocally that it will re-

quire all upstream non-Indian municipalities to comply with

Tribe WQS, it is clear that Tribes need not ever take an

SE a PES A ie §

16

affirmative step to enforce their WQS against upstream com-

munities. They can simply wait for EPA to enforce the Tribe

WQS. This is not at all how Congress intended the system to

work.

CONCLUSION

All other issues have been fully addressed by the City and

the amici adopt and support the arguments set forth in the

City’s Petition. For the reasons stated in the Petition, and for

the reasons stated hereinabove, amici support the City’s Peti-

tion and request that the Court issue the requested Writ of

Certiorari.

Respectfuily submitted,

STEVEN BARSHOV

SIVE, PAGET & RIESEL, P.C.

460 Park Avenue

New York, New York 10022

(212) 421-2150

RICHARD VIRTUE

VIRTUE, NAJIAR & BARTELL

300 Paseo de Peralta, Suite 200

P.O. Box 4265

Santa Fe, New Mexico 87502-4265

(505) 983-6101

Counsel for Amici Curiae New Mexico

Municipal League; Alabama League of

Municipalities; South Dakota Municipal

League; Nevada League of Cities;

League of Wisconsin Municipalities;

New York Conference of Mayors; New

Jersey League of Cities; League of Kan-

sas Municipalities; and International

Municipal Lawyers Association

Dated: New York, New York

June 9, 1997

Serna Baer ee rn a r’

MBSE os ea em, AANA ten WES Ay trate etl Se By ats teteh "