Montana v. U.S. E.P.A., CV 97-49-BLG-JDS.

• Decision Date: 16 November 1998
• Docket Number: No. CV 97-49-BLG-JDS.,CV 97-49-BLG-JDS.
• Citation: 141 F.Supp.2d 1259
• Parties: State of MONTANA, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol Browner, Administrator of the United States Environmental Protection Agency, Defendants, and Assiniboine and Sioux Tribes of the Fort Peck Reservation, Montana, Defendant-Intervenor.
• Court: U.S. District Court — District of Montana

141 F.Supp.2d 1259

State of MONTANA, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Carol Browner, Administrator of the United States Environmental Protection Agency, Defendants, and Assiniboine and Sioux Tribes of the Fort Peck Reservation, Montana, Defendant-Intervenor.

No. CV 97-49-BLG-JDS.

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

November 16, 1998.

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

Lorraine D. Gallinger, Office of the U.S. Attorney, Billings, MT, Kevin Washburn, U.S. Department of Justice — Indian Resources Section, Washington, DC, David A. Carson, U.S. Department of Justice — Environmental Enforcement, Denver, CO, Charles Jakosa, U.S. Dept. of Justice, Environmental & Natural, Resources Divisi, Indian Resources Section, Washington, DC, for Environmental Protection Agency, United States Environmental Protection Agency, Carol M. Browner, Administrator of the United States Environmental Protection Agency, defendants.

ORDER

SHANSTROM, Chief Judge.

Before the Court are the separate motions for summary judgment of Plaintiff [Doc. No. 39], Defendants [Doc. No. 41] and Defendant-Intervenor [Doc. No. 43]. The Court has jurisdiction of this matter under 28 U.S.C. § 1331.

BACKGROUND

The State of Montana brought this declaratory judgment action seeking a determination by the Court that the United States Environmental Protection Agency's [EPA's] action on August 29, 1996 was unlawful. On that date, the EPA decided to treat the Sioux and Assiniboine Tribes [Tribes] in the same manner as a state under section 518(e) of the Clean Water Act, 33 U.S.C. § 1377(e).

The following quote provides a general factual and legal background for the issues here and is taken from State of Montana v. United States Environmental Protection Agency, 137 F.3d 1135 (9th Cir.1998) [Flathead TAS case] with citations and footnotes omitted:

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. For most discharges, such compliance is achieved by obtaining and adhering to the terms of a National Pollutant Discharge Elimination System (NPDES) permit. 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.

Under the NPDES program, each state must adopt [water quality standards] WQS for its waters. These standards are subject to review and approval by EPA. 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.

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....

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....

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." The potential impacts of regulated activities on the tribe must be "serious and substantial."

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 welfare. Nonetheless, under the Final Rule EPA will make a case-specific determination on the scope of each tribal applicant's authority. Because EPA's generalized findings will be incorporated into the analysis of tribal authority, the factual showing required under [40 C.F.R. § 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.

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. Unless the party objecting demonstrates the tribe's lack of jurisdiction, the EPA will determine there is inherent authority.

State of Montana, et al. v. United States Environmental Protection Agency, 137 F.3d 1135, 1138-39 (9th Cir.1998) (citations and footnote omitted). Because of the EPA's decision here, the Tribes are now empowered to promulgate water quality standards within the Fort Peck Indian Reservation, and the EPA will issue an NPDES permit only if the tribe certifies that any discharges under the proposed permit will be consistent with its WQS.

DISCUSSION

Applicable Law

In ruling upon a motion for summary judgment, the Court's role is to consider only whether a genuine issue of material fact exists, thus precluding judgment as a matter of law and requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" exists where the fact-finder could reasonably return a verdict for the nonmoving party. See id., at 248-52, 106 S.Ct. 2505. A "material fact" is a fact which might, under the applicable substantive law, affect the outcome of the case. See id., at 248, 106 S.Ct. 2505. In assessing the existence of genuine issues of material fact, all reasonable inferences are drawn in favor of the nonmoving party. See id., at 255, 106 S.Ct. 2505.

In this review of the EPA's decision for unlawfulness, the Court is required to determine whether the EPA's decision in granting TAS status to the Tribes was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Rybachek v. Environmental Protection Agency, 904 F.2d 1276, 1284 (9th Cir.1990). An "agency's interpretation of its own regulations is entitled to a high degree of deference and will be upheld as long as it is not plainly erroneous or inconsistent with the regulation." Washington State Health Facilities v. DSHS, 879 F.2d 677, 681 (9th Cir.1989)(citing United States v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977)).

During the period of briefing upon the current motions, the State of Montana had before the United States Supreme Court a petition for certiorari in the Flathead TAS case. In that procedural posture, the State...