State of Montana v. U.S. E.P.A.
| Decision Date | 03 March 1998 |
| Docket Number | 96-35508,Nos. 96-35505,s. 96-35505 |
| Citation | 137 F.3d 1135 |
| Parties | , 28 Envtl. L. Rep. 21,033, 98 Cal. Daily Op. Serv. 1497, 98 Daily Journal D.A.R. 2077 STATE OF MONTANA; Lake County, Montana, a political subdivision of the State of Montana; City of Ronan, Montana, a municipal corporation; Town of Hot Springs, Montana, a municipal corporation, Plaintiffs, and Flathead Joint Board of Control, Mission Irrigation District, Jocko Valley Irrigation District, Flathead Irrigation District, local governments; Ross Middlemist, Wayne Maughan, William Slack and Glenn Murphy, Plaintiffs-Intervenors-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol M. Browner, Administrator of the United States Environmental Protection Agency; and the Confederated Salish and Kootenai Tribes, Defendants-Appellees. STATE OF MONTANA; Lake County, Montana; City of Ronan, Montana, a municipal corporation; Town of Hot Springs, Montana, a municipal corporation, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol M. Browner, Administrator of the United States EPA; Confederated Salish and Kootenai Tribes of the Flathead Reservation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harley Harris, Assistant Attorney General, Helena, Montana, for plaintiffs-appellants.
Lois J. Schiffer, Assistant Attorney General, Martin W. Matzen, David A. Carson, Kevin Washburn, U.S. Department of Justice, Environment and Natural Resources Division, on the briefs; Leigh Price, Assistant Regional Counsel, James J. Havard and Randolph L. Hill, Office of General Counsel, U.S. Environmental Protection Agency, of counsel, Washington, DC, for defendants-appellees.
Daniel Decker, Marion Yoder, and John Carter, Tribal Legal Department, Confederated Salish and Kootenai Tribes of the Flathead Nation, Pablo, Montana, for tribal-appellees.
Arthur Lazarus, Jr., Sonosky, Chambers, Sachse & Enderson, Washington, DC, amicus curiae for Assiniboine and Sioux Tribes of Fort Peck Reservation, Montana.
Jon Metropoulos, Helena, Montana, for plaintiffs-intervenors-appellants.
Jeanne S. Whiteing, Whiteing & Thompson, Boulder, Colorado, amicus curiae for Blackfeet Tribe.
Sam W. Maynes, Maynes, Bradford, Shipps & Sheftel, Durango, Colorado, amicus curiae for Southern Ute Indian Tribe.
Hans Walker, Jr., Hobbs, Straus, Dean & Walker, Washington, DC, amicus curiae for Three Affiliated Tribes of Fort Berthold Reservation, North Dakota.
Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank, Montana, amicus curiae for Montana Association of Counties.
Thomas L. Dosch and John S. Greene, Assistant Attorneys General for the State of Wisconsin, Madison, WI, amici curiae for appellants.
Jeffery R. Cutter, Lyon, Weigand & Gustafson, Yakima, Washington, amicus curiae for Yakima Reservation Irrigation District.
Appeals from the United States District Court for the District of Montana; Charles C. Lovell, District Judge, Presiding. D.C. No. CV-95-00056-CCL.
Before: SCHROEDER and BEEZER, Circuit Judges and SCHWARZER, * District Judge.
This case is a facial challenge to regulations the Environmental Protection Agency (EPA) promulgated pursuant to § 518(e) of the Clean Water Act, 33 U.S.C. § 1377 (Supp.1997). That section authorizes EPA to permit Indian tribes "to be treated as a state" (TAS) for purposes of promulgating water quality standards (WQS) pursuant to § 303 of the Act. 33 U.S.C. § 1313 (1986). The plaintiffs-appellants, collectively referred to as "Montana," include state and municipal entities who own fee interests in land located within the boundaries of the Flathead Indian Reservation. The Reservation is occupied by the Confederated Salish and Kootenai Tribes. The Tribes, along with EPA officials, are the defendants-appellees.
Montana filed this action attacking EPA's decision to grant TAS status to the Tribes to promulgate WQS that apply to all sources of pollutant emissions within boundaries of the Reservation, regardless of whether the sources are located on land owned by members or non-members of the Tribe. Montana maintained that the regulations permit tribes to exercise authority over non-members that is broader than the inherent tribal powers recognized as necessary to self-governance. See Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981).
In addition, Flathead Irrigation District and related entities ("the Intervenors") have sought to intervene as of right in the action although their uses of the land are not sources of emissions regulated by the Clean Water Act.
The district court granted summary judgment to the defendants, and denied intervention by the Intervenors because they lacked any discernible interest in the subject matter of the litigation as required by Rule 24 of the Federal Rules of Civil Procedure. Montana and the Intervenors have each filed a separate appeal. We affirm in both.
The Clean Water Act (CWA) prohibits discharges from a point source of any pollutant into waters unless the emission discharge complies with the Act's requirements. See 33 U.S.C. § 1311(a). For most discharges, such compliance is achieved by obtaining and adhering to the terms of a National Pollutant Discharge Elimination System (NPDES) permit. See 33 U.S.C. § 1342. NPDES permits are issued by EPA or, in those jurisdictions in which EPA has authorized a state agency to administer the NPDES program, by a state agency subject to EPA review. See 33 U.S.C. § 1342(b).
Under the NPDES program, each state must adopt WQS for its waters. See 33 U.S.C. § 1313. These standards are subject to review and approval by EPA. See 33 U.S.C. § 1313(a)-(c). Once WQS have been adopted, EPA will issue an NPDES permit only if the relevant state certifies that any discharges under the proposed permit will be consistent with its WQS. See 33 U.S.C. § 1341(a).
In 1987, Congress added § 518(e) to the CWA which authorized EPA to permit tribes "to be treated as a state" (TAS) for purposes of promulgating WQS. 33 U.S.C. § 1377(e). The relevant language of the provision is set forth in the margin. 1
EPA issued a final rule in 1991 implementing the provision by setting forth the standards for processing tribal requests for TAS status and concomitant authority to institute WQS. See Environmental Protection Agency, 56 Fed.Reg. 64,876 (1991) (codified at 40 C.F.R. § 131.8(b)(3)) (hereinafter Final Rule). The Final Rule was promulgated after notice and comment, during which Montana voiced its objections to the rule as too broad. Conversely, some tribal interests, represented in this case by amici briefs, took the position that the authority was too narrow, and that Congress had in effect delegated the power to the tribes to promulgate WQS. EPA rejected both extremes and promulgated the regulations here at issue:
1. The tribe must be federally recognized and exercising governmental authority;
2. The tribe must have a governing body carrying out "substantial governmental duties and powers;"
3. The water quality standards program which the tribe seeks to administer must "pertain to the management and protection of water resources," which are "within the borders of an Indian reservation;"
4. The Indian tribe is reasonably 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 regulations.
The third requirement, with which we are principally concerned, is intended to reflect the scope of a tribe's "inherent power," a concept developed by the Supreme Court to define when tribes may engage in nonconsensual regulation of activities of non-members. See Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258; United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085-86, 55 L.Ed.2d 303 (1978).
To demonstrate authority over the activities of non-members on non-Indian fee lands, EPA requires a tribe to show that the regulated activities affect "the political integrity, the economic security, or the health or welfare of the tribe." Final Rule, 56 Fed.Reg. at 64,877 (quoting Montana, 450 U.S. at 566, 101 S.Ct. at 1258). The potential impacts of regulated activities on the tribe must be "serious and substantial." Id. at 64,878.
EPA believes that tribes will normally be able to demonstrate that the impacts of regulated activities are serious and substantial due to "generalized findings" on the relationship between water quality and human health and welfare. See id. Nonetheless, under the Final Rule EPA will make a case-specific determination on the scope of each tribal applicant's authority. See id. Because EPA's generalized findings will be incorporated into the analysis of tribal authority, the factual showing required under § 131.8 is limited to the tribe's assertion that (1) there are waters within the reservation used by the tribe, (2) the waters and critical habitat are subject to protection under CWA, and (3) impairment of waters would have a serious and substantial effect on the health and welfare of the tribe. See id. at 64,879.
Once the tribe meets this initial burden, EPA will, in light of the facts presented by the tribe and the generalized statutory and factual findings regarding the importance of reservation water quality, presume that there has been an adequate showing of tribal jurisdiction over fee lands. See id. Unless the party objecting demonstrates the tribe's lack of jurisdiction, the EPA will determine there is inherent authority. See id.
In 1992, the Tribes applied for TAS status with respect to all...
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