State of Mont. v. U.S. E.P.A.

• Decision Date: 27 March 1996
• Docket Number: No. CV 95-56-M-CCL.,CV 95-56-M-CCL.
• Citation: 941 F.Supp. 945
• Parties: STATE OF MONTANA; Lake County, Montana, a political subdivision of the State of Montana; City of Ronan, Montana, a municipality of the State of Montana; and Town of Hot Springs, Montana, a municipal corporation, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol Browner, Administrator of the United States Environmental Protection Agency; and the Confederated Salish and Kootenai Tribes, Defendants.
• Court: U.S. District Court — District of Montana

941 F.Supp. 945

STATE OF MONTANA; Lake County, Montana, a political subdivision of the State of Montana; City of Ronan, Montana, a municipality of the State of Montana; and Town of Hot Springs, Montana, a municipal corporation, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol Browner, Administrator of the United States Environmental Protection Agency; and the Confederated Salish and Kootenai Tribes, Defendants.

No. CV 95-56-M-CCL.

United States District Court, D. Montana, Missoula Division.

March 27, 1996.

Joseph P. Mazurek, Attorney General for State of Montana, Harley R. Harris, Clay R. Smith, Office of the Montana Attorney General, Helena, MT, for Plaintiffs.

Sherry S. Matteucci, U.S. Attorney, District of Montana, Office of the U.S. Attorney, Billings, MT, Deanne L. Sandholm, Office of the U.S. Attorney, Helena, MT, David A. Carson, U.S. Department of Justice, Environmental Enforcement, Denver, CO, Lauren N. Soll, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, for Defendant Environmental Protection Agency and Defendant Carol M. Browner.

Daniel F. Decker, Confederated Salish & Kootenai Tribes, Legal Department, Pablo, MT, for The Confederated Salish and Kootenai Tribes of the Flathead Nation.

Jon Metropoulos, Doney, Crowley, Bloomquist & Metropoulos, P.C., Helena, MT, for Flathead Joint Board of Control, Mission Irrigation District, Jocko Valley Irrigation District, Flathead Irrigation District, Ross Middlemist, Wayne W. Maughan, William Slack, Glenn Murphy.

OPINION AND ORDER

LOVELL, District Judge.

Before the court is a motion to intervene filed by the Flathead Joint Board of Control, the Mission Irrigation District, the Jocko Valley Irrigation District, the Flathead Irrigation District, Ross Middlemist, Wayne Maughan, William Slack, and Glenn Murphy. The Defendants oppose the motion, but Plaintiff consents to the intervention. Also before the court are cross motions for summary judgment.

1. Background.

In July, 1993, the Confederated Salish and Kootenai Tribes (the "Tribes") submitted a completed application for treatment-as-state ("TAS") status under section 303, 33 U.S.C § 1313, of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387 (1987 & 1995 Cum. Supp.), with respect to all surface waters within the Flathead Indian Reservation (the "Reservation"). The Environmental Protection Agency ("EPA") notified the State of Montana ("Montana") of the Tribes' application pursuant to 40 C.F.R. § 131.8(c)(2). Montana timely filed its comments regarding the application in accordance with 40 C.F.R. § 131.8(c)(3). Montana opposed the EPA granting the Tribes TAS status on the ground that the Tribes do not possess inherent civil regulatory authority over lands owned by nonmembers. Montana also contested factual assertions made by the Tribes in its application and requested an evidentiary hearing through which Montana could contest the Tribes' factual allegations. Because only Montana was considered an "appropriate governmental entity" entitled to make comments on the Tribes application, see 56 Fed.Reg. 64876, 64884 (December 12, 1991), the local government Plaintiffs and the proposed intervenors submitted their comments through Montana. All public comments were considered by the EPA before reaching its decision. See Decision Document, p. 7, AR # 27.

On February 27, 1995, the Director of EPA Region VIII approved the Tribes' application to establish water quality standards for surface waters within the Reservation under section 303 of the CWA. The EPA found that Montana did not rebut the presumption created by the Tribes' showing that pollution of surface waters traversing or appurtenant to nonmember land would have serious and substantial impact on the Tribes' health and welfare. On March 28, 1995, the Tribes adopted water quality standards for all surface waters on the Reservation.¹ The Tribe has submitted those standards to the EPA for approval in accordance with section 303(c) of the CWA.

2. Pleadings.

Plaintiffs filed their first amended complaint for declaratory and injunctive relief on June 8, 1995. Plaintiffs invoke the court's jurisdiction pursuant to the Administrative Procedures Act, 5 U.S.C. § 702.

(a) Plaintiffs' complaint.

Montana holds a permit that allows discharges into Flathead Lake from the State's Yellow Bay research facility. Montana's permit was issued by the State under the Montana Pollutant Discharge Elimination System ("MPDES"). Mont.Code Ann. § 75-5-605(2) (1994); Mont.Admin.R. 16.20.1300-.1347. Montana believes that because the EPA has decided to grant the Tribes treatment-as-state (TAS) status, the State will now be required to seek an additional permit from the EPA under its National Pollutant Discharge Elimination System ("NPDES") program. See 33 U.S.C. § 1342.

Lake County owns a wastewater treatment facility on the Reservation, which makes discharges into Post Creek. Lake County already holds an NPDES permit issued by the EPA.

The City of Ronan owns a wastewater treatment facility on the Reservation, which makes discharges into Crow Creek. Ronan holds an MPDES permit issued by the State of Montana. Ronan alleges that EPA is now requiring it to obtain an NPDES permit.

The Town of Hot Springs owns a wastewater treatment facility within the Reservation, which makes discharges into Hot Springs Creek. Hot Springs holds an MPDES permit issued by the State of Montana. Hot Springs alleges that EPA is now requiring it to obtain an NPDES permit.

Plaintiffs' First Claim for Relief asserts that the EPA's final decision is based upon an erroneous application of legal principles relating to the Tribes' inherent regulatory authority and that the interested parties were not granted an evidentiary hearing attacking the facts upon which the agency decision was based. Furthermore, Plaintiffs state that the final decision improperly subjects them to the civil regulatory authority of the Tribes and infringes on Montana's authority under section 401 of the CWA.² Montana concludes that the EPA's decision to grant TAS status to the Tribes has or will in the future result in the State of Montana being deprived of its authority as a state under section 401 of the CWA.

Plaintiffs' Second Claim for Relief asserts that the Tribes are without authority to rely on the agency action for the purpose of regulating Plaintiffs' activities on the Reservation.

The Plaintiffs request a declaratory judgment that determines that the agency action granting TAS to the Tribes pursuant to section 518(e) of the CWA was unlawful and that the Tribes are without authority to rely upon the agency action.

(b) EPA's Answer to Plaintiffs' Complaint.

EPA concedes that Yellow Bay's compliance with the CWA is conditioned upon Yellow Bay's application for a NPDES permit if Yellow Bay discharges pollutants from a point source into waters of the United States on the Flathead Reservation.³ EPA questions who historically considered Yellow Bay to be in compliance with the CWA. Likewise, EPA questions who historically considered Ronan's wastewater treatment facility to be in compliance with the Clean Water Act. EPA also admits that Ronan's compliance with the CWA is conditioned upon Ronan's application for and receipt of a federal NPDES permit if Ronan discharges pollutants from a point source into waters of the United States on the Flathead Reservation. EPA poses a similar question and states a similar admission as to the Town of Hot Springs.

EPA also avers that federal administrative remedies are available to any discharger who is required to obtain a permit from EPA pursuant to section 402 of the CWA. See 40 C.F.R. § 122-124 (1995). EPA admits that such a permit may include effluent limitations necessary to meet the water quality standards adopted by the Tribes. However, EPA asserts that it and not the Tribes will retain NPDES permitting authority on the Reservation,⁴ and that it and not Montana has always held CWA regulatory jurisdiction over the waters of the United States on the Flathead Indian Reservation. The EPA also asserts that the court lacks jurisdiction over Plaintiffs' claims, that the complaint states claims for which relief cannot be granted, that Plaintiffs lack standing, that Plaintiffs' claims are not ripe for review and are not justiciable.

(c) Tribes' Answer to Plaintiffs' Complaint.

The Tribes admit they have waived their sovereign immunity for purposes of accepting service of Plaintiffs' First Amended Complaint. The Tribes assert that Plaintiffs' claims are not within the zone of interests meant to be protected by the Clean Water Act and that Plaintiffs' interest has not been or will not be injured or adversely affected by agency action within the meaning of 5 U.S.C. § 704. The Tribes assert that there is no actual controversy upon which this court may declare the rights and legal relations, and therefore Plaintiffs' claims are not justiciable. The Tribes assert that Montana has failed to timely challenge the 1991 regulations upon which EPA's decision is based; the Tribes assert that Montana's claim is stale since Montana commented on the regulations and/or actively participated in the formulation of those regulations by the EPA. Finally, the Tribes assert that the Plaintiffs have failed to allege facts sufficient to establish a valid facial challenge to the regulations and policy complained of in Plaintiffs' complaint.

(d) Proposed Plaintiff-Intervenors' proposed complaint.

The JBC and the Irrigation Districts provide water for over one hundred thousand acres of irrigated land,⁵ and the water is delivered from the federal Flathead Irrigation and Power Project. Approximately 2,000 farmers and ranchers own this land. Proposed Intervenors bring their complaint pursuant to the APA, 5 U.S.C. § 702. Intervenor Irrigation Districts assert inter alia that they have been granted the power by the Montana Legislature to...