Blue Legs v. USEPA
| Decision Date | 03 September 1987 |
| Docket Number | Civ. No. 85-5097. |
| Citation | 668 F. Supp. 1329 |
| Parties | Taylor Wallace BLUE LEGS, Executor of the Estate of Mattie Blue Legs, deceased; and Margaret Jenkins, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lee M. Thomas, Administrator of the Environmental Protection Agency; United States Bureau of Indian Affairs; United States Indian Health Service; and the Oglala Sioux Tribe, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Krista Clark, Dakota Plains Legal Services, Mission, S.D., for plaintiffs.
Marvin Amiotte, Pine Ridge, S.D., Ted L. McBride, Asst. U.S. Atty., Rapid City, S.D., Carl Strass, Environmental Defense Section, U.S. Dept. of Justice, Washington, D.C., for defendants.
Plaintiffs Taylor Wallace Blue Legs, administrator of the estate of Mattie Blue Legs, and Margaret Jenkins, have sued the Environmental Protection Agency (EPA), its Administrator Lee Thomas, the Bureau of Indian Affairs (BIA), the Indian Health Service (IHS), and the Oglala Sioux Tribe (OST), alleging that all are in violation of the provisions of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., and the federal regulations applicable to it.
The Plaintiffs seek an injunction and declaratory relief requesting an order that all of the Defendants insure that the solid waste on the Pine Ridge Indian Reservation (Reservation) is disposed of in compliance with the Resource Conservation and Recovery Act (RCRA—the successor to the Solid Waste Disposal Act), 42 U.S.C. § 6901 et seq.; the Snyder Act, 25 U.S.C. § 13; the Indian Sanitation Facilities Act, 42 U.S.C. § 2004a; the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. § 1601 et seq.; and the federal government's trust responsibility.
This case is presently before the Court on cross motions for summary judgment by all of the parties.
The parties have stipulated to the following facts:
1. Plaintiff, Mattie Blue Legs, now deceased, was a United States citizen of American Indian descent and an enrolled member of the Oglala Sioux Tribe.
2. Plaintiff, Margaret Jenkins, is a United States citizen of American Indian descent and an enrolled member of the Oglala Sioux Tribe.
3. Margaret Jenkins resides in Wanblee, South Dakota, approximately three miles from a solid waste disposal site that is located in Wanblee.
4. The present solid waste disposal facility at Wanblee is fenced and has a disposal pit. The facility at Wanblee was opened by the local tribal community. Wanblee, South Dakota, is within the exterior boundaries of the Pine Ridge Indian Reservation.
5. Solid waste disposal sites are also located in the towns of Kyle, South Dakota; Sharps Corner, South Dakota; Batesland, South Dakota; Porcupine, South Dakota; Manderson, South Dakota; Wounded Knee, South Dakota; Pine Ridge, South Dakota; and Oglala, South Dakota. Other solid waste disposal sites are located near the Evergreen and Wolf Creek housing sites on the Pine Ridge Indian Reservation and there is an old solid waste disposal site at Wanblee.
6. With the exception of the Batesland site, all of these solid waste disposal sites are located on lands of the Oglala Sioux Tribe and/or individual tribal members that are held in trust for the Tribe by the United States of America.
7. It is the position of BIA, IHS, and the Oglala Sioux Tribe (OST) that the Tribe, as the beneficial owner of lands held in trust by the United States, does not need a lease or permit from the BIA or IHS to use or occupy tribal trust lands for these purposes.
8. It is the position of the Plaintiffs that the Tribe cannot use its lands for these purposes without the consent of the BIA or IHS.
9. The Batesland site is fee land that is not held in trust by the United States of America.
10. Each of the solid waste disposal sites identified or referred to in paragraphs four through six and paragraph nine is located within the exterior boundaries of the Pine Ridge Indian Reservation.
11. Each of the solid waste disposal sites identified or referred to in paragraphs four through six and paragraph nine is operated in the manner of a "community open pit." None of these solid waste disposal sites is supervised. None, except the new Wanblee site, is fenced. Approximately half of the sites have a sanitary trench. Application of cover material is infrequent and irregular. All have scattered debris. Most of the sites are in the vicinity of or near one or more of the following: housing, schools, and streams or springs.
12. On or about December 14, 1976, the Oglala Sioux Tribal Council enacted a garbage and refuse disposal ordinance, Ordinance No. 76-14 which was denominated "An ordinance for the regulation of garbage and refuse storage collection and disposal, for the promotion of health and control of disease." The ordinance pertains, among other things, to solid waste disposal and collection on the Pine Ridge Indian Reservation.
13. The Pine Ridge Village Garbage Service collects and disposes of solid waste generated by OST. The Pine Ridge Village is one of the communities of the Tribe.
14. Bureau of Indian Affairs (BIA) facilities on the Pine Ridge Indian Reservation consist of the Pine Ridge Agency, a few residences and/or school buildings.
15. BIA pays the Pine Ridge Village Garbage Service (PRVGS) to collect and dispose of solid waste generated by the Pine Ridge Agency on a month-to-month basis using a procurement contract or purchase orders for this service.
16. BIA maintenance personnel dispose of solid waste collected from the Crazy Horse Day School in Wanblee, the American Horse Day School, and government-owned quarters in Allen, South Dakota, and the Loneman Day School in Oglala by transporting the waste to the solid waste disposal facilities operated by the Tribe at Wanblee, Allen, and Oglala, respectively, and depositing it there.
17. The Indian Health Service (IHS) pays the Pine Ridge Village Garbage Service to collect solid wastes from IHS facilities at Pine Ridge, Wanblee, and Allen on a month-to-month basis using purchase orders. IHS facilities at Pine Ridge consist of the hospital, 47 homes, and the nurses' quarters. IHS facilities at Wanblee consist of the health center and seven housing units. IHS facilities at Allen consist of the health station. The PRVGS transports collected waste to the Pine Ridge and Wanblee dump sites (community open pits) for disposal.
18. IHS has an informal arrangement with the BIA contractors operating BIA contract schools in Porcupine and Loneman to collect solid waste from the IHS health stations in addition to the collections from the BIA schools and dispose of the solid waste at the Porcupine and Oglala dumps.
19. IHS health stations at Kyle and Manderson burn their solid wastes on site in open-topped 55-gallon drums.
20. IHS health facilities on the Reservation require IHS personnel to transport all infectious solid wastes to either the Pine Ridge Hospital or the Wanblee clinic for incineration.
21. OST has not entered into any contracts or agreements with the BIA or IHS or any other persons for the purpose of disposing of solid wastes generated by BIA or IHS on the Reservation.
22. BIA and IHS have not entered into any contracts or agreements with OST or each other for the purposes of disposing of solid wastes generated by BIA or IHS on the Reservation.
23. IHS does not authorize, license, or grant permits for the operation and maintenance of solid waste facilities on the Reservation.
24. Generally, IHS provides technical assistance to OST to assist the Tribe with its solid waste operation and maintenance responsibilities. Specifically, IHS provides technical assistance through IHS-employed engineers and sanitarians to Tribal Utility Organizations concerned with water, sewer, and solid wastes. The technical assistance is information and research by the engineers and sanitarians of the Environmental Health Program of IHS.
25. IHS has expended funds, under its authority in Pub.L. No. 86-121, 42 U.S.C. § 2004a, to obtain solid waste equipment for tribal use, to assist the Tribe in the development of solid waste ordinances for tribal adoption, to assist the Tribe in the development of solid waste plans for tribal implementation, and to assist the Tribe in the closing of dumps in response to requests for assistance from the Tribe or the submission of proposals by the Tribe.
26. IHS does not supervise or assist in the operation and maintenance of the solid waste disposal facilities located on the Reservation, but assists the Tribe by taking the actions described in paragraph 25.
27. The Bureau of Indian Affairs, Pine Ridge Agency, has neither issued nor approved any leases or permits for dumpsites, sanitary landfills, or other "solid waste disposal facilities" on the Pine Ridge Indian Reservation during the period at issue in this litigation.
28. BIA does not supervise the Tribe's operation of solid waste disposal on the Reservation, but upon request from the Tribe, BIA provides technical assistance by providing general answers to technical questions pertaining to site location and suitability or technical information in response to a specific inquiry and the short term loan of equipment as requested by OST.
29. BIA does not operate, supervise, or otherwise control operation of any of the "solid waste disposal facilities," "dumpsites," or "sanitary landfills" on the Pine Ridge Indian Reservation, but assists the Tribe by taking the actions described in paragraph 28.
30. The Environmental Protection Agency (EPA) does not authorize, license, or grant permits for the operation and maintenance of solid waste facilities on the Reservation.
31. EPA does not operate, supervise, or otherwise control operation or maintenance of any of the solid waste disposal facilities located on the Reservation.
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