Environmental Permitting, Tribal TAS Status Under Federal Environmental Laws and Impacts on Mineral Development

January 08, 2007

Summary
This Nation’s major federal environmental laws were originally drafted to promote a federal-state partnership in environmental regulation. The federal government established basic standards and then delegated the authority to implement and enforce those standards to the states. As originally drafted, the major federal environmental laws did not expressly provide a role for Indian tribes in this regulatory scheme.

I. INTRODUCTION:

This Nation’s major federal environmental laws were originally drafted to promote a federal-state partnership in environmental regulation. The federal government established basic standards and then delegated the authority to implement and enforce those standards to the states. As originally drafted, the major federal environmental laws did not expressly provide a role for Indian tribes in this regulatory scheme.

Beginning in the late 1970’s, Congress embarked on a series of amendments of the major federal environmental laws which gradually included Indian tribes in the regulatory partnership.[1] By 1990, several federal environmental laws included provisions authorizing the United States Environmental Protection Agency (“EPA”) to treat qualifying Indian tribes in a manner similar to a state for purposes of delegation of program authority.[2] Tribes that are approved for treatment as a state (“TAS”) status may develop and implement regulatory standards and programs that impact sources or activities both inside and outside of Indian country.[3] A qualifying tribe is not required to receive delegation of all permitting or regulatory programs under a given statutory scheme. Such a tribe may, for example, elect to obtain delegation of authority under the Clean Water Act (“CWA”) to establish water quality standards, but not authority for a National Pollution Discharge Elimination System (“NPDES”) permitting program. In such a case, EPA would administer the NPDES permitting for sources determined to be within the jurisdiction of that tribe. Thus, within Indian country, both a tribe and EPA may have a direct role in permitting and regulating a mineral development project. Tribal regulatory programs also may impact sources outside of Indian country. Tribal water quality standards adopted under the Clean Water Act, for instance, might impact the activities of an upstream discharger, even though that discharger is located outside of the tribe’s reservation. Given these impacts, mineral developers must carefully evaluate the TAS status of tribes in the proximity of a mineral development project and determine which regulators (federal, state, and/or tribal) may exercise jurisdiction over that project.

This paper provides an overview of the TAS provisions in the Safe Drinking Water Act (“SDWA”),[4] the CWA,[5] and the Clean Air Act (“CAA”),[6] and the relative roles of the tribal, state, and federal governments in environmental permitting and enforcement on and near Indian country. Part II of the paper begins with a brief historical overview of the development of some fundamental principles of federal Indian law. The remainder of Part II then discusses the historic federal-state environmental partnership and the emergence of the TAS provisions. Part III of the paper reviews the general standards that tribes must meet to qualify for TAS status and the differences in the scope of jurisdiction accorded to qualifying tribes under the SDWA, CWA and CAA. Part IV of the paper addresses a variety of legal and practical problems associated with TAS provisions.

II. FEDERAL ENVIRONMENTAL LAWS AND THE EMERGING ROLE OF INDIAN TRIBES:

A. Brief Historical Overview of Federal Indian law

Indian tribes “have occupied an important, but often ill-defined, position in our constitutional system of government from the outset of the Republic.”[7] While Indian tribes have long been recognized as “distinct, independent political communities,”[8] federal Indian policy has historically “vacillated between two different and irreconcilable visions. In one vision, the federal government has supported the tribal right to exist as culturally distinct self-governing communities; in the other vision the federal government has suppressed tribal cultures and promoted the assimilation of Indian people into the larger American society.”[9] An understanding of that historical background provides a useful backdrop for understanding the status of tribes within the federal environmental regulatory scheme.

1. Treaty Era

Through approximately 1871, the United States treated Indian tribes as foreign sovereigns having authority over both their land and people. In three significant opinions during this period,[10] the Supreme Court announced three general principles which continue to have force today in evaluating jurisdictional power on Indian lands. First, the Court recognized broad federal power over Indian affairs and Indian lands, and found that there had been no general federal cession to states of power over Indians.[11] Second, the Court declared that the relationship between the United States and tribes was that of a “ward to his guardian.”[12] This trust relationship includes a federal power to control Indians’ alienation of their lands and a concomitant federal trust obligation to protect tribal property. Third, the Court acknowledged tribes’ sovereign power over their members and lands unless divested by federal action or voluntarily relinquished by the tribe.[13]

2. Allotment Era

Between roughly 1871 and 1928, federal Indian policy sought to dismantle Indian reservations, allot reservation land in individually owned tracts, and gradually terminate the trust relationship with respect to Indians and their lands. The General Allotment Act of 1887[14] was the most commonly used statute to accomplish those goals. Under that Act, reservation lands were opened for allotment and the Secretary of the Interior was authorized to negotiate with tribes for purchase of lands that were not allotted to tribal members. Indians on individual allotments were subjected to civil and criminal jurisdiction of the state or territory in which they resided. The individual allotments were subject to a trust for a period of at least twenty five years. At the end of that trust period, the restrictions on alienation would be removed and the land would be patented to the individual Indians in fee. The General Allotment Act and other similar acts resulted in the breakup of many large reservations and the creation of “checker boarded” areas which raise title and jurisdictional issues to this day.

3. Indian Reorganization Era

From the late 1920’s through the mid 1940’s, federal Indian policy shifted away for allotment and toward strengthening of tribal governments. The Indian Reorganization Act of 1934[15] prohibited further allotment of lands, indefinitely extended restrictions on alienation of existing allotments and provided models for creation of tribal governments along the lines of modern corporations.[16]

4. Termination Era

Between the mid 1940’s and 1961, federal Indian policy swung back toward termination era notions. During this period, some federally recognized Indian tribes were “terminated,” ending both their existence as tribes and any special status or services resulting from that tribal existence.[17] Congress also enacted the Indian Claims Commission Act of 1946,[18] which created a procedure for final resolution of tribal claims against the United States for loss of lands, and Public Law 280, which provided a mechanism for states to assume civil and criminal jurisdiction in “Indian country.”[19] Public Law 280 ceded civil and criminal jurisdiction over Indian country to five states automatically[20] and provided procedures for other states to assume such jurisdiction.

5. Self-Determination Era

In the early 1960’s, federal Indian policy shifted away from notions of termination and again began to promote tribal governments. Presidential proclamations during this era repeatedly announced a federal policy that “stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership and self help.”[21] The amendments to federal environmental laws authorizing tribes to be treated in a similar manner as a state for purposes of delegation of program authority are an outgrowth of this self-determination policy.

B. The Federal-State Partnership and the Emergence of TAS Provisions:

Most major federal environmental laws represent an exercise in cooperative federalism. The federal governmental establishes national pollution control standards and environmental regulatory programs. The states, in turn, are delegated authority to enforce those standards and implement those programs. When it enacted many of the major federal environmental laws in the early 1970’s, Congress did not expressly provide a role for Indian tribes in this regulatory scheme or address implementation of those statutes within Indian country. Not surprisingly, Congress’s failure to specifically address the role of tribes led to disputes as to the respective powers of the states, the EPA and the tribes to regulate within Indian country.[22]

By the late 1970s, EPA had staked out its position that states did not have authority to undertake environmental regulation in Indian country. Instead, relying on general principles of federal Indian law limiting state authority over Indian tribes and tribal members within reservation boundaries, EPA determined both that it would directly implement regulatory programs in Indian county and that it would, where possible, afford tribes a regulatory role. In three appellate decisions during the 1980s, courts generally upheld EPA’s approach.

In Nance v. Environmental Protection Agency,[23] the Ninth Circuit Court of Appeals upheld EPA’s delegation to Indian tribes of authority to redesignate the classification of their reservation lands. EPA’s 1974 Prevention of Significant Deterioration (“PSD”) regulations established a program to prevent significant deterioration of air quality. Those regulations established three area designations (Class I, Class II and Class III) and corresponding increments for allowable pollutant increases in those areas. Class I areas had the most stringent increment levels. Class II areas were generally those in which the air quality deterioration that occurs with moderate, well-controlled growth is considered insignificant. Class III areas allowed for the greatest level of deterioration and thus had the least stringent increment levels. Although the CAA in force at that time did not expressly provide a role for Indian tribes, EPA established procedures in its 1974 PSD regulations for a tribal governing body to redesignate its reservation lands.[24] After the Northern Cheyenne Tribe took advantage of those regulations and redesignated its reservation from Class II to Class I (which ultimately had the effect of preventing start up of an adjacent strip mining operation) an appeal was filed challenging both the EPA’s delegation of redesignation authority and the approval of the Northern Cheyenne Tribe’s redesignation. The Ninth Circuit upheld both the delegation of redesignation authority and the Northern Cheyenne Tribe’s redesignation of their reservation. The Ninth Circuit reasoned:

 

Within the present context of reciprocal impact of air quality standards on land use, the States and Indian tribes occupying federal reservations stand on substantially equal footing. The effect of the regulations was to grant the Indian tribes the same degree of autonomy to determine the quality of their air as was granted to the states. We cannot find compelling indications that the EPA’s interpretation of the Clean Air Act was wrong. Nor can we say that the Clean Air Act constitutes a clear expression of Congressional intent to subordinate the tribes to state decision making.[25]

The Ninth Circuit also found that subsequent amendments to the CAA, which added a provision specifically granting tribes redesignation authority,[26] indicated “Congress’s view that such Indian authority to redesignate their lands is appropriate.”[27]

A few years later, in State of Washington Department of Ecology v. EPA,[28] the Ninth Circuit upheld EPA’s disapproval of the State of Washington’s application to administer a hazardous waste program under the Resource Conservation and Recovery Act
(“RCRA”)[29] on lands within Indian reservations. Noting that neither RCRA’s statutory language nor its legislative history made any reference to state jurisdiction in Indian county, the Ninth Circuit concluded that Congress “apparently did not consider whether state programs authorized ‘in lieu of’ the federal program would apply in Indian country.”[30] The court thus upheld EPA’s decision disapproving Washington’s application noting that EPA’s decision was consistent with the principle of federal Indian law that “states are generally precluded from exercising jurisdiction over Indians in Indian county unless Congress has clearly expressed an intention to permit it.”[31]

The following year, in Phillips Petroleum Co. v. EPA,[32] the Tenth Circuit Court of Appeals upheld EPA’s direct implementation of an Underground Injection Control (“UIC”) program on an Indian reservation.[33] In that case, Phillips Petroleum Company (“Phillips”) challenged EPA’s authority to promulgate a UIC program for the Osage Reservation in Oklahoma. In 1981, EPA had approved Oklahoma’s application for underground injection control primacy for the entire state except the Osage Reservation. “The State of Oklahoma made no attempt to assert jurisdiction over the Osage Reserve and [did] not contest the EPA’s authority to promulgate the Osage regulation.”[34] Phillips, however, argued that Congress had only given authority to the EPA to implement UIC programs where state governments had failed to do so. Phillips thus argued that, because the State of Oklahoma could not be said to have failed to establish a program over the Osage Reservation, EPA had no authority to implement a UIC program within that reservation. Instead, Phillips argued that the Bureau of Indian Affairs was the proper entity to establish such a program. The Tenth Circuit rejected Phillips’s argument explaining that

 

the SDWA clearly establishes national policy with respect to clean water, including sources of underground water. To hold, as Phillips suggests, that the EPA did not have authority to promulgate underground injection control programs for Indian lands would contradict the clear meaning and purpose of the SDWA by creating, prior to 1986, a vacuum of authority over underground injections on Indian lands, leaving vast areas of the nation devoid of protection from groundwater contamination.[35]

While these three decisions generally upheld EPA’s approach, significant questions remained about the proper role of the states, the tribes, and EPA in administering federal environmental programs within Indian country. By the mid 1980’s, those issues had come to Congress’s attention. As a result, in 1986, Congress began to enact amendments to some federal environmental laws authorizing EPA to treat Indian tribes in a manner similar to states. First, Congress amended the Safe Drinking Water Act to include a treatment as states provision.[36] Congress thereafter made similar amendments to the Clean Water Act in 1987[37] and the Clean Air Act in 1990.[38] The specifics of those TAS provisions are discussed below.

III. TREATMENT AS A STATE PROVISIONS:

A. Common Formula for Determining Tribal Eligibility:

The SDWA, CWA, and CAA all employ similar standards for determining tribal eligibility for TAS status.[39] First, the applicant tribe must have “a governing body carrying out substantial duties and powers.”[40] Second, the tribe must be “reasonably expected to be capable, in the Administrator’s judgment, of carrying out the functions to be exercised in a manner consistent” with the terms and purposes of the Act and applicable regulations.[41] Third, the functions to be exercised by the tribe must be performed within the tribe’s jurisdiction. Each of the statutes, however, utilizes a different formulation to describe the scope of tribal jurisdiction. The SDWA, for instance, declares that the functions to be exercised must be “within the area of the Tribal Government’s jurisdiction.”[42] The CWA, on the other hand, requires that the functions “pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation. . . .”[43] The CAA employs yet a different formulation, directing that the functions must “pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction.”[44] Some of the implications of those varying jurisdictional descriptions are discussed below.

B. Varying Jurisdictional Scope of TAS Provisions:

1. Safe Drinking Water Act:

The SDWA establishes overall minimum drinking water protection standards for the United States. For mineral developers, the most significant portion of the SDWA is the Underground Injection Control (“UIC”) program. That program seeks to “prevent underground injection which endangers drinking water sources . . . .”[45] “Underground injection” is defined as “the subsurface emplacement of fluids by well injection.”[46] A “well” is defined as any man-made hole “whose depth is greater than the largest surface dimension.”[47] Applicants for drilling or mining permits must demonstrate compliance with the SDWA.

Under the SDWA, an Indian tribe “may assume primary enforcement responsibility for underground injection control”[48] over sources that are “within the area of the Tribal Government’s jurisdiction.”[49] In the preamble to the regulations implementing the SDWA TAS provision for UIC programs, EPA made clear that its did not view the statute as providing an express delegation of regulatory authority to Indian tribes. “Just as when EPA considers an application for State primacy, EPA must not delegate enforcement responsibility to a Tribe unless the Tribe can adequately show it possesses the requisite jurisdiction.”[50] EPA also expressly rejected comments suggesting that “for jurisdictional determinations the Agency should include a definition of ‘Indian lands’ in the regulations which equates Indian lands with ‘Indian country’” as defined in 18 U.S.C. § 1151.[51] EPA explained that the “basic concern addressed by these regulations is to allow an eligible Indian Tribe to regulate public water systems and underground injection activities located only on those lands over which the Tribe adequately demonstrates jurisdiction.”[52]

 

EPA believes that adoption of the proposed definition of “Indian country” would tend to generate additional jurisdictional disputes. This is because the term “Indian country” encompasses areas which are “dependent Indian communities.” The issue of whether a particular area constitutes a “dependent Indian community” is inherently complex; what constitutes the proper resolution of this issue will be the subject of sharply divergent views among the affected governmental entities. To effectively increase the number of potentially disputed areas would not be in the best interest of the public health. Also, regulated entities carrying on activities within disputed areas would be presented with uncertainty as to whether a particular Indian Tribe or another governmental entity was the proper regulatory authority.[53]

The SDWA directs that “[u]ntil an Indian Tribe assumes primary enforcement responsibility, the currently applicable underground injection control program shall continue to apply. If an applicable underground injection control program does not exist for an Indian Tribe, the Administrator shall prescribe such a program . . . .”[54] To implement this directive, EPA issued a series of regulations in the fall of 1988.[55] While EPA declined to incorporate the definition of “Indian country” from 18 U.S.C. § 1151 in the SDWA TAS regulations, EPA did include that notion in the direct federal UIC implementation program regulations. “The adoption of the ‘Indian country’ definition within the Underground Injection Control Direct Implementation . . . regulations reflects EPA’s basic concern with ensuring that all underground injection activities on all lands, including Indian lands, are included.”[56] Thus, in the direct federal implementation program regulations, EPA defined “Indian lands” to mean

 

“Indian county” as defined in 18 U.S.C. 1151. That section defines Indian country as:

(a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;

(b) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and

(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.[57]

EPA acknowledged in the preamble to its regulations governing the EPA administered UIC program for lands of the Navajo, Ute Mountain Ute, and all other New Mexico Tribes[58] that the adoption of the “Indian county” definition from 18 U.S.C. § 1151 was not without problems.

 

Whatever definition is chosen, there will be disagreements about whether particular lands fall within the definition. An Indian tribe would probably object to a State exercising jurisdiction over lands it perceives as Indian lands, and a state would object to Indian tribe exercising authority over lands which it believes to be non-Indian lands. Thus, disputes could prevent both the State and the Indian tribe from exercising primary enforcement responsibility for a UIC program. In order to ensure regulation of injection wells and minimize any disruption, pending the resolution of jurisdictional disputes, EPA will implement the Federal UIC program for disputed lands.[59]

In those regulations, EPA further directed that it would “assume that lands described by the definition in 40 C.F.R. 144.3 are Indian lands and will begin implementation of the UIC program on them. If disputed territory is later adjudged to be non-Indian lands, it will be deleted from the EPA Direct Implementation Indian lands program and added either to the EPA (non-Indian land) DI program for that state or to the state program as appropriate.”[60]

The difficulties inherent in this regulatory scheme were highlighted in HRI, Inc. v. Environmental Protection Agency.[61] HRI, a non-Indian corporation, had proposed to operate an in situ leach mining operation on the Church Rock mine site in northwestern New Mexico within an area commonly known as the “checker board,” because of its pattern of mixed Indian and non-Indian land title. HRI’s proposed mine site consisted of two parcels. The first parcel contained approximately 160 acres located in the southeast portion of § 8, T16N, R16W, and was owned by HRI in fee simple (the “Section 8 Property”). The second parcel was in § 17, T16N, R16W, south of and contiguous to the Section 8 Property (the “Section 17 Property”). The Section 17 Property was a split estate. The United States owned the surface estate in trust for the Navajo Nation. HRI owned the mineral estate together with certain surface use rights under a 1929 reservation and a 1959 surface owners agreement between the Navajo Nation and one of HRI’s predecessors in interest. Both the Section 8 Property and the Section 17 Property were located outside of the Navajo reservation boundaries.

In 1989, the New Mexico Environment Department (“NMED”) approved a groundwater discharge plan for HRI’s underground injection on the Section 8 Property. NMED also applied to EPA for, and obtained, an aquifer exemption for the aquifer underlying HRI’s Section 8 Property. Four years later, HRI sought an extension of the NMED discharge permit to the Section 17 Property and NMED applied for an additional aquifer exemption for that property. Following a hearing, the director of the EPA Region 6 Water Management Division issued a letter denying the Section 17 Property aquifer exemption on the ground that Section 17 is “Indian land” under 40 C.F.R. § 144.3. NMED nonetheless continued to process HRI’s groundwater discharge permit application for the Section 17 Property. The Navajo Nation then moved to dismiss that proceeding for lack of jurisdiction on the ground that the Section 17 Property was in Indian county. Following a hearing, NMED ruled in mid-1994 that it had authority to regulate the Section 17 Property and that that property was not Indian county.

The following year, NMED again requested from EPA an extension of the Section 8 Property aquifer exemption to the Section 17 Property. EPA Region 6 again rejected that exemption and declared that HRI must obtain a federal UIC permit prior to obtaining an aquifer exemption. EPA’s letter determination directed HRI and NMED to submit applications to EPA Region 9 for an aquifer exemption under the federal UIC program.

After receipt of that letter, NMED entered into a lengthy process with EPA Region 9 and the Navajo Nation to resolve the jurisdictional dispute through “joint permitting” of the Section 17 Property. Those negotiations resulted in a July 14, 1997 letter from EPA which formed the basis for the appeal to the Tenth Circuit. In that letter, EPA stated that it “believes that Section 17 clearly is Indian country,” but also that it would treat “the status of Section 17 as in dispute” requiring federal permitting but not requiring NMED to concede jurisdiction.[62] The Tenth Circuit noted that, based on EPA’s determination that “the Navajo Nation has presented substantial arguments to support its claim that Section 8 is within Indian country,” EPA’s letter determination indicated that EPA would treat Section 8 as in dispute under the dispute rule of the Indian lands UIC rule preamble.[63] HRI and NMED then appealed to the Tenth Circuit challenging EPA’s decision to implement the direct federal UIC program on both the Section 8 Property and the Section 17 Property.

With respect to the Section 8 Property, HRI argued on appeal that the EPA’s assertion of jurisdiction over that private fee land violated the SDWA provision that “until an Indian tribe assumes primary enforcement responsibility, the currently applicable underground injection and control program shall continue to apply.”[64] HRI argued that because EPA recognized New Mexico’s jurisdiction over the Section 8 Property by granting the 1989 aquifer exemption, the NMED program was the “currently applicable” UIC program and thus should continue to apply until a tribe assumes primary responsibility. The Tenth Circuit, however, rejected that argument stating that such an analysis

 

mischaracterizes the scope of EPA’s authority under the SDWA. EPA does not have the power to change the Indian county status of land – that is a status conferred by Congress. If Section 8 is indeed Indian county, then New Mexico’s program could not extend to it in the first instance and cannot be “currently applicable” within the meaning of the statute. An aquifer exemption by EPA cannot change the congressionally-defined jurisdictional status of the land.[65]
The Tenth Circuit also rejected the argument that, by subjecting the Sections 8 Property and the Section 17 Property to the direct federal implementation UIC program, EPA violated the terms of the preamble to its Indian lands UIC regulations because those properties were “later adjudged” to be non-Indian land. According to the Tenth Circuit, because EPA was not a party to the prior state court proceeding concerning this status of the Section 8 and 17 properties and because EPA “as an agency of the federal government, has an independent duty to protect Indian interests, … the agency did not err in finding, despite the state adjudications, a legitimate dispute as to the jurisdictional status of the lands in question.”[66] The Tenth Circuit further found that the “EPA’s decision . . . implicates the core federal trust responsibilities of administering - and safeguarding - Indian lands.”[67] While there was no allegation before the Tenth Circuit of a breach of a specific statutory, treaty, or trust obligation, the court nonetheless stated that “the federal executive is to consider its strict fiduciary obligation when interpreting regulations that directly affect its ‘administ[ration] of Indian lands.’”[68] The court declared that the trust duty “is most relevant . . . when an agency decision necessarily incorporates a determination as to whether certain lands are within the scope of tribal territorial sovereignty.”[69]

Next, the Tenth Circuit considered whether EPA committed reversible error in finding a legitimate dispute as to the Indian county status of the Section 8 property and in finding Section 17 Property to be “Indian county.” With respect to the Section 8 Property, the Tenth Circuit emphasized that it did not “determine definitively whether Section 8 is Indian county because the question is not ripe for judicial review.”[70] The court, however, concluded that “there is a legitimate dispute” following Alaska v. Native Village of Venetie Tribal Government[71] as to whether “Section 8 falls within a ‘dependent Indian community’ under 18 U.S.C. § 1151(b).”[72] Specifically, the court believed that there were grounds for dispute as to “what constitutes the proper ‘community of reference’ in determining the Indian country status of Section 8.”[73] While the court acknowledged that the Supreme Courts decision in Venetie “may require some modification” of the Tenth Circuit’s multi-step dependent Indian community test in Pittsburg & Midway Coal Mining Co. v. Watchman,[74] the court concluded that “nothing in Venetie speaks to the propriety of the first element of that test – determination of the proper community of reference.”[75] The court thus believed that because Venetie did not speak directly to the issue, Watchman “continued to require a ‘community of reference’ analysis prior to determining whether land qualified as a dependent Indian community under the set-aside and supervision requirements of 18 U.S.C. § 1151(b).”[76]

With respect to the Section 17 Property, the court determined that that property is Indian country under 18 U.S.C. § 1151(a) because it was purchased with funds from a 1928 Congressional act appropriating funds for the “purchase of additional land and water rights for the use and benefit of the Indians of the Navajo Tribe”[77] and because there was “uncontested evidence in the record that the Section 17 land is supervised by the Bureau of Indian Affairs in the same manner as lands within the formal Navajo Reservation.”[78]

There may be a question as to the continued vitality of the EPA’s Indian lands regulations and the HRI decision. In Atkinson Trading Company, Inc. v. Shirley,[79] the Supreme Court declared that “Section 1151 simply does not address an Indian tribe’s inherent or retained sovereignty over non-members on non-Indian fee land.”[80] EPA has made clear that it does not view the SDWA as an express delegation of authority to Indian tribes.[81] Instead, tribes applying for TAS status under the SDWA must demonstrate inherent authority over lands which they claim are subject to their jurisdiction. Because there is not an express statutory delegation of authority, Section 1151 may not appropriately be relied upon to define tribal jurisdiction for SDWA purposes.

2. Clean Water Act:

The CWA TAS provision defines the jurisdictional scope of a tribe’s authority more narrowly than the SDWA. Under the CWA, the Administrator is authorized to treat an Indian tribe as a state if

 

the functions to be exercised by the Indian tribe pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation….[82]

The CWA further defines “Federal Indian reservation” to mean “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, not withstanding the issuance of any patent, and including rights-of-way running through the reservation….”[83]

EPA’s regulations implementing the CWA’s TAS provision limit tribal authority to water resources within a reservation.

 

The water quality standards program to be administered by the Indian Tribe pertains to the management and protection of water resources which are within the borders of the Indian reservation and held by the Indian Tribe, within the borders of the Indian reservation and held by the United States in trust for Indians, within the borders of the Indian reservation and held by a member of the Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of the Indian reservation. . . .[84]

In the preamble to its final rules, EPA declared that it “believes that it was the intent of Congress to limit tribes to obtaining TAS status to lands within the reservation.”[85] EPA further declared that it “has consistently read” the phrase “otherwise within the borders of an Indian reservation” as “a modifier of the proceeding three categories of water resources….”[86]

EPA has not interpreted the CWA TAS provision as an express delegation of regulatory authority to tribes. Instead, EPA has interpreted the provision to require tribes to demonstrate that they possess inherent authority over the activities affected by their water regulations. EPA’s regulations permit tribes to establish this authority by demonstrating that impairment of reservation waters would affect “the political integrity, the economic security, or the health or welfare of the tribe.”[87] The courts have recognized that delegation of TAS authority over waters within a reservation can also vest a tribe with jurisdiction to regulate the activities of non-Indians on non-Indian owned fee lands within reservation boundaries. In Montana v. EPA,[88] for example, the state of Montana, Lake County Montana, and several municipalities, all of which own fee interest in lands located within the boundaries of the Flathead Indian reservation, challenged EPA’s grant of TAS status to the Confederated Salish and Kootenai Tribes. The Ninth Circuit affirmed EPA’s grant of TAS authority. As the Ninth Circuit explained,

 

we have previously recognized that threats to water rights may invoke inherent tribal authority over non-Indians. “A tribe retains the inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the health and welfare of the tribe. This includes conduct that involves the tribe’s water rights.” Colville Confederated Tribes v. Walton, 647 F.2d 42, 52 (1981) (internal citations omitted, emphasis added). Colville also supports EPA’s generalized finding that due to the mobile nature of pollutants in surface water it would in practice be very difficult to separate the effects of water quality impairment on non-Indian fee land from impairment on the tribal portions of the reservation: “A water system is a unitary resource. The actions of one user have an immediate and direct affect on other users. Id.[89]

Courts have also recognized that the grant of TAS status may confer power to require of-reservation discharges to comply with tribal water quality standards. Thus, in Wisconsin v. EPA,[90] the Seventh Circuit rejected the state of Wisconsin’s arguments that the EPA erred in granting TAS status to the Sokaogan Chippewa Community because that tribe had failed to demonstrate inherent authority over off reservation activities with non-Indians.

 

Once a tribe is given TAS status, it has the power to require upstream off-reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the down stream on-reservation waters (assuming for the sake of argument that the reservation standards are more stringent than those the state is imposing on the upstream entity). … Such compliance may impose higher compliance costs on the upstream company, or in the extreme case it might have the effect of prohibiting the discharge or the activities altogether.[91]

The Seventh Circuit also rejected Wisconsin’s argument that granting the tribes TAS status would vest it with a veto power over upstream discharge activities.

 

The tribe cannot impose any water quality standards or take any action that goes beyond the federal statute or the EPA’s power. To the contrary, the EPA supervises all standards and permits. Far from allowing a tribe to veto a state permit, granting TAS status to tribes simply allows the tribes some say regarding those standards and permits. It is quite possible that, in particular cases, perhaps through the vehicle of the statutory mediation mechanism, the EPA may require the tribe’s more stringent standards to give way to upstream discharge and development. Whether the tribe or the state ultimately “wins” in the dispute, it is the EPA, not the tribe or the state, that has the ultimate authority to decide whether or not to issue a permit.[92]

Thus, a developer must be mindful of potential for a downstream tribe to affect a project by adopting standards which are more stringent than hose of the surrounding state.

3. Clean Air Act:

The CAA TAS provision utilizes yet a different formula to define the jurisdictional scope of a tribe’s authority once it has been granted TAS status. The applicable CAA provision declares that the Administrator may treat a tribe as a state if “the functions to be exercised by the Indian tribe pertain to the management and protection of air resources within the exterior boundaries of the reservation or other areas within the tribe’s jurisdiction….”[93]

In the regulations implementing the CAA TAS provision, EPA adopted a “territorial approach” allowing qualified tribes to assume jurisdiction to “address conduct relating to air quality on all lands, including non-Indian owned fee lands, within the exterior boundaries of a reservations.”[94] EPA asserted that the language of the TAS provision “viewed within the overall framework of the CAA, establishes a territorial view of tribal jurisdiction and authorizes a tribal role for all air resources within the exterior boundaries of Indian reservations without distinguishing among various categories of on-reservation land.”[95] In the implementing regulation, EPA defined the term “reservation” as “all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.”[96] EPA explained that the “term ‘reservation’ in CAA § 301(d)(2)(B) should be interpreted in light of Supreme Court case law, including Oklahoma Tax Comm’n, in which the Supreme Court held that a ‘reservation,’ in addition to the common understanding of the term, also includes trust lands that have been validly set apart for the use of a tribe even though the land has not been formally designated as a reservation.”[97] The preamble to the implementing regulation further declared that “EPA will consider lands held in fee by non-members within a Pueblo to be part of a ‘reservation’ . . . [and] will consider on a case-by-case basis whether other types of lands other than Pueblos and tribal trust lands may be considered ‘reservations’ under federal Indian law even though they are not formally designated as such.”[98] EPA declared that its “territorial approach” to regulation of sources within reservation boundaries also had a practical basis. According to EPA, the adoption of the territorial approach “will have the effect of minimizing jurisdictional entanglements and checkerboarding within reservations.”[99]

In the implementing regulations, EPA also declared that eligible tribes could develop and implement air quality programs on non-reservation “Indian country” if the area is determined to be within the tribes jurisdiction.[100] According to the EPA, such authorization is consistent with the provisions of CAA § 301(d)(d)(B) which provides that a tribe may be treated in the same manner as the state for functions regarding air sources which are “within the exterior boundaries of the reservation or other areas within the tribes jurisdiction. . . .”[101] EPA explained that

 

the phrase “other areas within the tribe’s jurisdiction” contained in CAA Section 301(d)(2)(B) . . . is meant to include all non-reservation areas over which a tribe can demonstrate authority, generally including all non-reservation areas of Indian country. . . . it is EPA’s interpretation that Congress has not delegated authority to otherwise eligible tribes to implement CAA programs over non-reservation areas as it has done for reservation areas. Rather, a tribe seeking to implement a CAA program over non-reservation areas may do so only if it has authority over such areas under general principals of federal Indian law.[102]

EPA declared that, in determining which non-reservation areas may be subject to tribal jurisdiction, EPA will rely upon the definition of “Indian country” contained in 18 U.S.C. § 1151.[103] EPA acknowledged that “there may be controversy over whether a particular non-reservation area is within a tribe’s jurisdiction. However, EPA believes that these questions should be addressed on a case-by-case basis in the context of particular tribal applications.”[104]

In adopting its approach to non-reservation areas, EPA rejected the risks of “jurisdictional entanglements and checkerboarding” which it had relied upon to support a territorial approach to jurisdiction within reservation boundaries.[105] EPA acknowledged that “there may be cases where the Agency may approve a tribes application to implement a CAA program over a relatively small area,” and that “approval of a tribal program over a small area that is surrounded by land covered by a state CAA program could lead to less uniform regulation.”[106] EPA explained that while it “recognizes that its approval of tribal programs over small areas may result in less uniform regulation in some cases, the Agency believes that the approach to tribal jurisdiction outlined in this Tribal Authority Rule best reconciles federal Indian and environmental policies.”[107]

In Arizona Public Service Company v. EPA,[108] the D.C. Circuit Court of Appeals upheld both EPA’s interpretation that the CAA TAS constituted an express delegation of regulatory authority over all lands within reservation boundaries, including non-Indian owned fee land, and EPA’s definition of the term “reservation.” The court declared that the “statute’s clear distinction between areas ‘within the exterior boundaries of the reservation’ and ‘other areas within the tribe’s jurisdiction’ carries with it the implication that Congress considered the areas within the exterior boundaries of a tribe’s reservation to be per se within the tribe’s jurisdiction.”[109] The D.C. Circuit also affirmed EPA’s interpretation of the term “reservation” as including formally designated reservations as well as “trust lands that have been validly set apart for the use of a tribe even though the land has not been formally designated as a reservation.”[110]

In Michigan v. EPA,[111] the D.C. Circuit ruled that EPA lacked authority to administer a federal operating permits program on land as to which the “Indian country” status was in question. In 1999, EPA issued its final rule establishing a federal operating permits program throughout “Indian country unless a Tribal or State Part 70 [operating permit] program has been explicitly approved for the area.”[112] The plan provided that

 

The Administrator will administer and enforce an operating permits program in Indian country as define in § 71.2, when an operating permits program which meets the requirements of part 70 of this chapter has not been explicitly granted full or interim approval by the Administrator for Indian country. For purposes of administering the part 71 program, EPA will treat areas for which EPA believes the Indian country status is in question as Indian country.[113]

The D.C. Circuit found that the CAA did not grant EPA independent authority to implement and enforce an operating permit program even where there was a dispute as to the “Indian country” status of an area.

 

We conclude that the plain meaning of 42 U.S.C. § 7601(d) and § 7661a grants EPA the authority to “promulgate, administer and enforce a [federal operating permits] program” for a state or tribe, if, and only if, (1) t he state or tribe fails to submit an operating program or (2) the operating program is disapproved by EPA or (3) EPA determines the state or tribe is not adequately administering and enforcing a program.[114]

Thus, the court held that EPA must either act “in the shoes of a tribe or the shoes of the state. There is no residual authority granted by the CAA for the EPA to refuse to make a jurisdictional determination and operate a federal program under some general authority of its own.”[115 ]

C. Special Provisions Concerning Oklahoma Tribes:

The 2005 Transportation Equity Act[116] contains two provisions impacting environmental regulation in Indian country. Section 10211(a) of that act provides that:

 

Notwithstanding any other provision of law, if the Administrator of the Environmental Protection Agency (referred to in this section as the “Administrator”) determines that a regulatory program submitted by the State of Oklahoma for approval by the Administrator under a law administered by the Administrator meets applicable requirements of the law, and the Administrator approves the State to administer the State program under the law with respect to areas in the State that are not Indian country, on request of the State, the Administrator shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.

Section 10211(b) provides that

 

Notwithstanding any other provision of law, the Administrator may treat an Indian tribe in the State of Oklahoma as a State under a law administered by the Administrator only if

(1) the Indian tribe meets requirements under the law to be treated as a State; and

(2) the Indian tribe and the agency of the State of Oklahoma with federally delegated program authority enter into a cooperative agreement, subject to review and approval of the Administrator after notice and opportunity for public hearing, under which the Indian tribe and that State agency agree to treatment of the Indian tribe as a State and to jointly plan [and] administer program requirements.

III. LEGAL AND PRACTICAL PROBLEMS:

A. Notice, Comment, Building the Record, Appeal:

1. SDWA and CWA Notice and Comment:

The original regulations implementing the SDWA and CWA TAS provisions each required EPA to provide “appropriate governmental entities” notice and a thirty (30) day period to submit comments on an applicant tribe’s jurisdictional assertions.[117] In 1994, however, EPA amended those TAS regulations to delete the notice and comment provisions for all TAS applications for program authority under the SDWA and under the CWA Section 404 and NPDES programs.[118] EPA explained that

 

For approvals of all Drinking Water regulatory programs and most Clean Water programs under existing regulations, EPA will not authorize a state to operate a program without determining that the state has adequate authority to carry out those actions required to run the program. See e.g. 40 CFR 142.10 (PWS), 145.24 (UIC). This applies also to a tribe seeking program approval, and ensures that a close analysis of the legal basis of a tribe’s jurisdiction will occur before program authorization.

Accordingly, a separate “TAS” jurisdictional review is not needed to verify that a tribe meets the statutory jurisdictional requirement and, therefore, will be eliminated for all programs under the Safe Drinking Water Act, and for the Clean Water Act’s 404 and NPDES programs. This change will have the effect only of eliminating duplicative requirements. In no case can a tribe receive program approval until the Agency has received full and adequate input concerning the scope and extent of the tribe’s jurisdiction. Moreover, EPA will expect each tribe seeking program approval to provide a precise description of the physical extent and boundaries of the area for which it seeks regulatory authority. This description should ordinarily include a map and should identify the sources or systems to be regulated by the tribe.[119]

EPA emphasized that, for those program applications that would still be subject to notice and comment by “appropriate governmental entities,”[120] any comments “must be offered in a timely manner” and that “where no timely comments are offered, the Agency will conclude that there is no objection to the tribal applicant’s jurisdictional assertion. Moreover, to raise a competing or conflicting claim a comment must clearly explain the substance, basis, and extent of its objection.”[121]

In that 1994 rulemaking, EPA also elaborated on its process for resolving questions concerning a tribe’s jurisdictional assertions. “EPA may, in its discretion, seek additional information from the tribe or the commenting party, and may consult as it sees fit with other federal agencies prior to making a determination as to tribal jurisdictional authority, but is not required to do so. Henceforth, EPA will no longer be required, by regulation, to consult with thee Department of Interior.”[122] EPA also addressed the effect of its jurisdictional determination on future tribal applications or activities.

 

The Agency notes that certain disputes concerning tribal jurisdiction may be relevant to a tribe’s authority to conduct activities and obtain program approval under several environmental statutes. For example, if a tribe and a state or another tribe disagree as to the boundary of a particular tribe’s reservation, each time the tribe seeks to assert authority over the disputed area, the dispute will recur. The Agency recognizes that its determinations regarding tribal jurisdiction apply only to activities within the scope of EPA programs. However, it also believes that, once it makes a jurisdictional determination in response to a tribal application regarding any EPA program, it will ordinarily make the same determination for other programs unless a subsequent application raises different legal issues. Thus, for example, once the Agency has arrived at a position concerning a boundary dispute, it will not alter that position in the absence of significant new factual; or legal information. By contrast, however, a determination that a tribe has inherent jurisdiction over activities in one medium might not conclusively establish its jurisdiction over activities in another medium.[123]

2. CAA Notice and Comment:

In 1998, EPA issued the regulations implementing the CAA TAS provision.[124] Those regulations require that, within thirty (30) days of receipt of an initial complete application for TAS authority, the Regional Administrator “shall notify all appropriate governmental entities.”[125] For tribal applications addressing air resources within the exterior boundaries of a reservation, “EPA’s notification . . . shall specify the geographic boundaries of the reservation.”[126] For tribal applications addressing non-reservation areas, EPA’s notification “shall include the substance and bases of the tribe’s jurisdictional assertions.”[127] Pursuant to the regulations, the “appropriate governmental entities” receiving notice of the application have thirty (30) days to “provide written comments to EPA’s Regional Administrator regarding any dispute concerning the boundary of the reservation. Where a tribe has asserted jurisdiction over non-reservation areas, appropriate governmental entities may request a single 30-day extension to the general 30-day comment period.”[128]

In the 1998 regulations, EPA “provided for notice and a limited opportunity for input respecting the existence of competing claims over tribes’ reservation boundary assertions and assertions of jurisdiction over non-reservation areas to ‘appropriate governmental entities,’ which the Agency has defined as states, tribes and other federal entities located contiguous to the tribe applying for eligibility.”[129] On January 10, 2000, EPA issued a “clarification” declaring that EPA

 

continues to recognize that the tribal eligibility determination process is an inherently government-to-government process. Normally, most of the relevant information on jurisdictional boundaries resides with those sovereign entities most concerned with the specific jurisdictional claims. However, private citizens may at times possess information relevant to the jurisdictional determination. In such cases, EPA believes that nothing in the nature of the government-to-government relationship between the U.S. and the tribe requires involvement of a third sovereign – the state – in order to facilitate EPA’s receipt of information.[130]

EPA thus declared that, for purposes of tribal applications under the CAA,

 

On those occasions when a member of the public may have relevant information on a tribe’s jurisdictional claim, that information may be submitted directly to the appropriate EPA Regional Office. In this context, ‘relevant information’ is limited to information related to the tribe’s jurisdictional assertions, e.g., the geographical boundaries of the reservation, the status of areas outside the reservation boundaries, agreements that may limit the tribe’s jurisdiction, etc. However, given the government-to-government nature of the process, as well as the need to inform all affected parties about the relevant comments that are submitted, where a member of public elects to submit comments directly to EPA, EPA suggests that the commenter also send a copy to its “appropriate governmental entity.”[131]

Once the Administrator makes a determination as to the jurisdictional scope of a tribe’s authority for purposes of CAA program authority, that determination is binding on all future program applications under the CAA.[132]

3. Building the Record for Appeal:

EPA’s decision concerning a TAS application is a final agency action which may be appealed under the Administrative Procedure Act.[133] Such an appeal will be based on the administrative record. Because EPA has eliminated the notice and comment procedures for applications for delegation of authority the SDWA and under the Section 404 and NPDES programs of the CWA,the record likely will be limited to the tribal application and supporting documentation as well as materials that EPA may have added to the file to support its decision. In the case of applications for delegation of authority under the CWA water quality standards program or under the CAA, there is a greater opportunity to shape the administrative record. A mineral developer who learns of the pendency of such an application will need to carefully evaluate the applicant tribe’s jurisdictional assertions and then determine what historical, land title and legal documentation may be needed to address those jurisdictional claims.

Applications under the CAA asserting jurisdiction over non-reservation areas may present significant challenges for a mineral developer who may wish to object to the tribe’s jurisdictional assertions. In the preamble to its 1998 regulations implementing the CAA TAS provision, EPA noted that

 

the definition of “Indian country” contained in 18 U.S.C. section 1151, while it appears in a criminal code, provides the general parameters under federal Indian law of the areas over which a tribe may have jurisdiction, including civil judicial and regulatory jurisdiction.[134]

Relying on that language, a tribe could seek to assert jurisdiction over a broad category of lands that are encompassed within Section 1151’s terms, including “dependent Indian communities.” Such a jurisdictional assertion may be legally unsupportable in light of the Supreme Court’s declaration in Atkinson Trading Company[135] that “Section 1151 simply does not address an Indian tribe’s inherent or retained sovereignty over nonmembers on non-Indian fee lands.” Nonetheless, a mineral developer may still need to develop information addressing each of the factors under dependent Indian community analysis to include in the administrative record.[136]

B. Multiple Regulators – EPA, Tribes, States:

In light of the delegation of program authority under TAS provisions, a project may now be subject to regulation by at least three different regulators – EPA, a tribe, and a state. The various regulatory permutations that can arise are too numerous to discuss in detail here. Instead, this section of the paper briefly examines the regulatory impacts that tribes can have on off reservation sources.

Courts have generally rejected claims that tribes which have received TAS program delegation should not be permitted to impact conduct of off-reservation non-Indian sources. In Wisconsin v. EPA,[137] for example, the State of Wisconsin appealed from the EPA’s grant of TAS status to Sokaogon Chippewa Community under the CWA authorizing the tribe to establish water quality standards for lakes adjacent to or surrounded by the tribe’s reservation, including Rice Lake. The “grant of TAS status alarmed the State of Wisconsin, which saw it as both an affront to the state’s sovereignty and, more pragmatically, as an action with the potential to throw a wrench into the state’s planned construction of a huge zinc-copper sulfide mine on the Wolf River, upstream from Rice Lake.”[138] Both the district court and the Seventh Circuit rejected Wisconsin’s arguments that the tribe did not possess inherent authority over off-reservation activities. According to the Seventh Circuit,

 

[o]nce a tribe is given TAS status, it has the power to require upstream off-reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters (assuming for the sake of argument that the reservation standards are more stringent than those the state is imposing on the upstream entity).[139]

In the end, the Seventh Circuit concluded that it was “reasonable for the EPA . . . to allow the tribe to regulate water quality on the reservation, even though that power entails some authority over off-reservation activities.”[140]

In both City of Albuquerque v. Browner[141] and Montana v. EPA,[142] the courts approved more stringent tribal standards under the Clean Water Act. In City of Albuquerque, the City owned and operated a waste water treatment facility. Pursuant to an EPA issued NPDES permit, the City discharged the effluent from the treatment facility into the Rio Grande River approximately five miles north of the Pueblo of Isleta. EPA recognized the Pueblo as a state for purposes of the CWA in October, 1992 and subsequently approved the Pueblo’s water quality standards in December 1992. Those standards were more stringent than the State of New Mexico’s standards. In its complaint challenging the approval of the Pueblo’s water quality standards, the City challenged whether the EPA reasonably interpreted CWA § 1377 as providing the Pueblo authority to adopt water quality standards that are more stringent than required by statute and whether the Pueblo’s standards could be applied by EPA to upstream permit users. The district court granted summary judgment in favor EPA, and the Tenth Circuit affirmed.

On appeal, the City argued that the Pueblo could not adopt discharge limits more stringent than those of the EPA because CWA § 1377 does not make reference to CWA § 1370 which “prohibits states from imposing standards which are less stringent than those imposed by the federal government, while acknowledging states’ inherent right to impose standards or limits that are more stringent than those imposed by the federal government.”[143] While the Tenth Circuit declined “to read § 1377 as incorporating § 1370 because it was not explicitly included in § 1377(e), as other sections are,”[144] it nonetheless ruled that “Congress’s failure to incorporate § 1370 into § 1377 does not prevent Indian tribes from exercising their inherent sovereign power to impose standards or limits that are more stringent than those imposed by the federal government.”[145] The Tenth Circuit reasoned that

 

Indian tribes have residual sovereign powers that already guarantee the powers enumerated in § 1370, absent an express statutory elimination of those powers. In Arkansas [v. Oklahoma, 503 U.S. 91 (1992)], the Court explained that § 1370 “only concerns state authority and does not constrain the EPA’s authority,” . . . likewise, we do not view § 1370 as implicitly constraining tribe’s sovereign authority. We conclude that the EPA’s construction of the 1987 amendment to the Clean Water Act – that tribes may establish water quality standards that are more stringent than those imposed by the federal government – is permissible because it is in accord with powers inherent in Indian tribal sovereignty.[146]

Next, the Tenth Circuit rejected the City’s argument that CWA § 1377 does not expressly permit Indian tribes to enforce effluent limitations or standards under CWA
§ 1311 on upstream point source dischargers outside of tribal boundaries.

 

The express incorporation in § 1377(e) of §§ 1341 and 1342 gives the EPA the authority to issue NPDES permits in compliance with a tribe’s water quality standards. Section 1341 authorizes states to establish NPDES programs with the EPA, and § 1342 authorizes the EPA to issue NPDES permits in compliance with downstream state’s water quality
standards. . . . Under the statutory and regulatory scheme, tribes are not applying or enforcing their water quality standards beyond reservation boundaries. Instead, it is the EPA which is exercising its own authority in issuing NPDES permits in compliance with downstream state and tribal water quality standards. In regard to this question, therefore, the 1987 amendment to the Clean Water Act clearly and unambiguously provides tribes the authority to establish NPDES programs in conjunction with the EPA. Under §§ 1311, 1341, 1342 and 1377, the EPA has the authority to require upstream NPDES dischargers, such as Albuquerque, to comply with downstream tribal standards.[147]

In its 1991 regulations implementing the CWA TAS provision, EPA confirmed that, as a matter of policy, “until a Tribe is treated as a State and establishes its own standards, or EPA otherwise decides in consultation with the Tribe and the State that a State lacks jurisdiction, . . . EPA will assume that existing State standards are applicable to reservation waters.”[148] In 2001, EPA proposed “core” federal water quality standards for Indian country, but those propose standards have since been withdrawn.[149] There thus remains some question whether permits for sources in Indian country based on state water quality standards contain enforceable limits.

Tribes also have means under the CAA to regulate, directly or indirectly, sources located off-reservation. First, tribes have the authority to redesignate their reservation lands under the Prevention of Significant Deterioration program.[150] Such a redesignation would allow a tribe to lower the allowable increases in ambient concentrations of certain criteria pollutants and may give a tribe some measure of control over off–reservation sources. In Nance v. EPA,[151] for example, the Northern Cheyenne Tribe’s redesignation of its reservation from Class II to Class I effectively shut down a near-by off-reservation strip mining operation. In that case, the Ninth Circuit found that “just as a tribe has the authority to prevent the entrance of non-members onto the reservation, a tribe may exercise control . . . over the entrance of pollutants onto the reservation.”[152]

Second, tribes that have received TAS status under the CAA may rely on the Title V permitting process to exercise some degree of regulatory control over sources that are otherwise outside of their jurisdiction. Title V of the CAA requires each permitting authority to give notice of all proposed permits to all states (including tribes that have been determined to qualify for TAS status under the CAA) whose air quality may be affected and that are contiguous to the state in which the emissions originate or are within 50 miles of the emission source.[153] The state issuing the permit must then provide those states and tribes a chance to submit written comments and recommendations concerning the proposed permit. If the state issuing the permit does not accept those recommendations, it must set forth its reasons in writing to that state or tribe and to EPA.[154] Also, if the state issuing the permit does not adopt the recommendations, the commenting state or tribe can petition EPA to compel the issuing state to require further protections.[155]

Third, a tribe which has been granted TAS status pursuant to the CAA could file a petition under CAA § 126[156] of the CAA seeking a determination that a major source or group of stationary sources in another state is emitting or will emit pollutants which contribute significantly to non-attainment in, or interfere with maintenance by, the tribe with respect to national primary or secondary ambient air quality standards. If the Administrator makes such a finding, it is then a violation of the CAA for “any major proposed new (or modified) source” with respect to which such a finding has been made “to be constructed or to operate” or for “any major existing source to operate more than three months after such finding has been made with respect to it.”[157]

C. Compacts, Cooperative Agreements, and Dispute Resolution:

To help avoid problems between tribes and states, both the CWA and the CAA contain provisions authorizing cooperative agreements and compacts. Those acts also establish mechanisms for resolving disputes between the state and tribes.

CWA § 1377(d) CWA provides that “[i]n order to ensure the consistent implementation of the requirements of this chapter, an Indian tribe and the State or States in which the lands of such tribe are located may enter into a cooperative agreement, subject to the review and approval of the Administrator, to jointly plan and administer the requirements of this chapter.”[158]

Similarly, the CAA declares:

 

[t]he consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for (1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and (2) the establishment of such agencies, joint or otherwise, as they may deem desirable for making effective such agreements or compacts. No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress. It is the intent of Congress that no agreement or compact entered into between States after November 21, 1967, which relates to the control and abatement of air pollution in an air quality control region, shall provide for participation by a State which is not included (in whole or in part) in such air quality control region.[159]

The State of Colorado and the Southern Ute Tribe, for example, have entered into such an agreement.[160] Pursuant to that agreement, the Southern Ute Indian Tribe/State of Colorado Environmental Commission (the “Environmental Commission”) was created[161] as the “air quality policy making and the administrative review entity” for the air quality program for the Southern Ute Reservation.[162] The Environmental Commission consists of three members appointed by the Southern Ute Tribe and three members appointed by the Governor of Colorado.[163] Among other things, the Environmental Commission has the responsibility to:

 

(a) Determine the specific air quality programs under the federal “Clean Air Act,” or other air quality programs, that should apply to the reservation, taking into account the specific environmental, economic, geographic, and cultural needs of the reservation;

(b) Promulgate rules and regulations that are necessary for the proper implementation and administration of those programs, including determining which administrative actions are appealable to the commission;

(c) Establish procedures the commission will follow in promulgating rules and regulations and for administrative review of actions taken by the tribe;

(d) Review and approve of a long-term plan, initially prepared by the tribe, to improve and maintain air quality within the reservation, which also takes into account regional planning in the La Plata and Archuleta county region;

(e) Monitor the relationships among the state and tribal environmental protection agencies to facilitate cooperation, information sharing, technical assistance, and training;

(f) Review enforcement actions according to the commission’s adopted administrative procedures;

(g) Approve and adopt fees for permits and other regulatory services conducted by the tribe or the state, after considering a proposed fee schedule prepared by the tribe, and direct payment by air pollution sources to the tribe;

(h) Ensure consistency and adherence to applicable standards and resolving disputes involving third parties;

(i) Review emission inventories as developed by the tribe and state;

(j) Conduct public hearings pertaining to the adoption of rules and regulations, or relating to enforcement and permit appeals, and to issue orders resulting from those proceedings;

(k) Request tribal staff to perform any administrative or clerical functions necessary to issue orders and conduct commission business, or the commission, at its option, may appoint a technical secretary to perform such duties; except that no authority shall be delegated to adopt, promulgate, amend or repeal standards or regulations, or to make determinations, or to issue or countermand orders of the commission;

(l) Any other duties necessary to accomplish the purposes of the intergovernmental agreement and as authorized by the state and tribe enabling legislation.[164]

The Agreement establishes a schedule for the State and the Tribe to conduct periodic reviews “to discuss compliance, progress in implementation, whether amendments are necessary, and other issues . . . .”[165]

In the CWA, Congress specifically directed the EPA Administrator to “provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by States and Indian tribes located on common bodies of water.”[166] In the regulations implementing the CWA’s TAS provision, the Administrator adopted such a regulation. That regulation provides that where “disputes between States and Indian Tribes arise as a result of differing water quality standards on common bodies of water, the lead EPA Regional Administrator . . . shall be responsible” for undertaking the dispute resolution as described in the regulation.[167] The regulation directs that the Regional Administrator “shall attempt to resolve such disputes” where:

 

(1) The difference in water quality standards results in unreasonable consequences;

(2) The dispute is between a State (as defined in § 131.3(j) but exclusive of all Indian Tribes) and a Tribe which EPA has determined is eligible to the same extent as a State for purposes of water quality standards;

(3) A reasonable effort to resolve the dispute without EPA involvement has been made;

(4) The requested relief is consistent with the provisions of the Clean Water Act and other relevant law;

(5) The differing State and Tribal water quality standards have been adopted pursuant to State and Tribal law and approved by EPA; and

(6) A valid written request has been submitted by either the Tribe or the State.[168]

D. Enforcement Issues:

1. Civil Enforcement:

Once EPA has delegated program authority to a tribe pursuant to a treatment as a state provision, that tribe typically will have full civil enforcement authority over all regulated entities within the jurisdiction established by the EPA in the eligibility determination. A cooperative agreement between a tribe and a state may further define the respective roles of enforcement authority.[169]

2. Criminal Enforcement:

In Oliphant v. Suquamish Indian Tribe[170] the Supreme Court held that “by submitting to the overriding sovereignty of the United States, Indian tribes . . . necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.”[171] The TAS provisions in the SDWA, CWA, and CAA do not expressly authorize qualifying tribes to assume criminal jurisdiction over non-Indians. As a consequence, EPA typically exercises criminal enforcement authority for violations of programs delegated to tribes under TAS provisions.

In the regulations implementing the CAA TAS provision, for example, EPA declared that

 

[t]o the extent that an Indian tribe is precluded from asserting criminal enforcement authority, the Federal Government will exercise primary criminal enforcement responsibility. The tribe, with the EPA Region, shall develop a procedure by which the tribe will provide potential investigative leads to EPA and/or other appropriate Federal agencies, as agreed to by the parties, in an appropriate and timely manner. This procedure shall encompass all circumstances in which the tribe is incapable of exercising applicable enforcement requirements as provided in Sec. 49.7(a) (6). This agreement shall be incorporated into a Memorandum of Agreement with the EPA Region.[172]

In the preamble to that rule, EPA clarified the enforcement procedure by explaining that the “Criminal Investigation Division office located at the appropriate EPA regional office and the tribe will establish a procedure by which any duly authorized agency of the tribe (tribal environmental program, tribal police force, tribal rangers, tribal fish and wildlife agents, tribal natural resources office, etc.) shall provide timely and appropriate investigative leads to any agency of the federal government (EPA, U.S. Attorney, BIA, FBI, etc.) which has authority to enforce the criminal provisions of federal environmental statutes.”[173] Similarly, in the Intergovernmental Agreement between the Southern Ute Tribe and the State of Colorado, the parties expressly agreed that “EPA will exercise criminal enforcement jurisdiction over any persons on all lands within the Reservation boundaries for violations of the Reservation Air Program.”[174]

 

ENDNOTES

1. See, e.g., Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 127(a), 91 Stat. 685 (1977), as amended by Pub. L. No. 95-190, § 14(a) (42) & (43), 91 Stat. 1402 (codified at 42 U.S.C. §§ 7470 through 7479). Specifically, as a part of the Prevention of Significant Deterioration program, Congress declared that “[l]and within the exterior boundaries of reservations of federally recognized Indian tribes may be redesignated only by the appropriate Indian governing body. Such Indian governing body shall be subject in all respect to the provisions of subsection (e) of this section.” 42 U.S.C. § 7474(c). Prior to the adoption of this provision, the EPA had administratively acknowledged the power of Indian tribes to redesignate lands within the boundaries of their reservations. See 40 C.F.R. § 52.21 (c) (1975). See also Nance v. Environmental Protection Agency, 645 F.2d 701 (9th Cir. 1981), discussed infra at Point II.B.

2. The federal environmental laws which authorize the United States Environmental Protection Agency to treat Indian tribes in a manner similar to a state or which otherwise authorize a substantial role for Indian tribes are: (a) the Clean Air Act, 42 U.S.C. § 7401 through 7671q (§ 7601(d) authorizes the Administrator to treat qualifying Indian tribes as a state); (b) the Clean Water Act, 33 U.S.C. §§ 1251 through 1387 (§ 1377 authorizes the Administrator to treat qualifying Indian tribes as a state); (c) the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 through 9675 (§ 9607(f) provides for Indian tribes to recover natural resource damages; §9626 directs that the “governing body of an Indian tribe shall be afforded substantially the same treatment as a State with respect to the provisions of section 9603(a) of this title (regarding notification of releases), section 9604(c)(2) of this title (regarding consultation on remedial actions), section 9604(e) of this title (regarding access to information), section 9604(i) of this title (regarding health authorities) and section 9605 of this title (regarding roles and responsibilities under the national contingency plan and submittal of priorities for remedial action, but not including the provision regarding the inclusion of at least one facility per State on the National Priorities List)”); (d) the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 through 136y (§ 136u authorizes EPA to enter into cooperative agreements with Indian tribes to delegate to a tribe “authority to cooperate in the enforcement of this subchapter through the use of its personnel or facilities, to train personnel of . . . the Indian tribe to cooperate in the enforcement of this subchapter, and to assist . . . Indian tribes in implementing cooperative enforcement programs through grants-in-aid); and (e) the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j-26 (§ 300j-11 authorizes the Administrator to treat qualifying Indian tribes as states).

3. As used in this paper, “Indian country” includes reservations, all lands held by the United States in trust for an Indian tribe, all lands held by the United States in trust for individual Indians, and all lands owned in fee by individual Indians subject to federal restrictions against alienation or encumbrance. This term may be defined differently in various federal statutes.

4. 42 U.S.C. § 300j-11.

5. 33 U.S.C. § 1377.

6. 42 U.S.C. § 7601(d).

7. Kevin J. Worthen, Federal Common-law Limits on Tribal Civil Jurisdiction Over Non-Indians Involved in On-reservation Resource Development Projects: Following the Strate Path, in NATURAL RESOURCES DEVELOPMENT AND ENVIRONMENTAL REGULATION IN INDIAN COUNTRY, Rocky Mountain Mineral Law Foundation (1999).

8. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). See also United States v. Wheeler, 435 U.S. 313, 323 (1978) (describing Indian tribes as “unique aggregations possessing attributes of sovereignty over both their members and their territory”).

9. Dean B. Suagee, Indian Country Environmental Law, in ENVIRONMENTAL LAW PRACTICE GUIDE, at 15 A-14 (2004).

10. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).

11. See Worcester v. Georgia, 31 U.S. (6 Pet.) at 557 & 559 (noting that “all intercourse with [Indians] shall be carried on exclusively by the government of the union” and that the Constitution confers on Congress “the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulations of our intercourse with the Indians.” (emphasis in original)).

12. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) at 17.

13. See id. at 47-48.

14. 25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, & 381.

15. 25 U.S.C. §§ 476 and 477.

16. See COHEN HAND BOOK OF FEDERAL INDIAN LAW, 142-144 (R. Strickland, et al. eds., 1982).

17. See COHEN, supra at 162-180. See also South Carolina v. Catawaba Indian Tribe, 476 U.S. 498 (1986).

18. 60 Stat. 1049, formerly codified at 25 U.S.C. §§ 70a-§ 70v-3.

19. Pub. L. No. 280, 67 Stat. 588, codified at 18 U.S.C. § 1162; 25 U.S.C. §§ 1321-1326; & 28 U.S.C. § 1360.

20. Those five states were California, Oregon, Minnesota, Nebraska, and Wisconsin.

21. See, e.g., Lyndon B. Johnson, Special Message on Problems of the American Indian (March 6, 1968).

22. This also generated a significant discussion among commentators. See, e.g., Will, Indian Lands Environment – Who Should Protect It, 18 NAT. RESOURCES J. 465 (1978); Petros, The Applicability of the Federal Pollution Acts to Indian Reservations: A Case for Tribal Self-Government, 48 U. COLO. L. REV. 63 (1976).

23. 645 F.2d 701 (9th Cir. 1981).

24. 40 C.F.R. 52.21(c) (1975).

25. 645 F.2d at 714.

26. See 42 U.S.C. § 7474(c).

27. 645 F.2d at 714.

28. 752 F.2d 1465 (9th Cir. 1985).

29. 42 U.S.C. §§ 6901-6992k.

30. 752 F.2d at 1469.

31. Id. at 1469 - 70.

32. 803 F.2d 545 (10th Cir. 1986).

33. By the time the Tenth Circuit decided this case, Congress had amended the SDWA to include specific authority for Indian tribes to implement UIC programs. The Tenth Circuit noted that the “issue cannot recur and in the future will be no more than a historical curiosity, probably confined to this case.” Id. at 551-52.

34. Id. at 549.

35. Id. at 556.

36. Pub. L. No. 99-339, § 302(a), 100 Stat. 665 (1986), (codified at 42 U.S.C. § 300j-11).

37. Pub. L. No. 100-4, Title IV, § 506, 101 Stat. 76 (1987) (codified as amended at 33 U.S.C. § 1377).

38. Pub. L. No. 101-549, §§ 107(d), 108(i) (codified at 42 U.S.C. § 7601(d) and 7410(o)).

39. Compare 33 U.S.C. § 1377(e), 42 U.S.C. § 300j-11(b)(1) & 42 U.S.C. § 7601(d)(2). For special provisions concerning Oklahoma tribes, see Part III.C infra.

40. 33 U.S.C. § 1377(e)(1); 42 U.S.C. § 300j-11(b)(1)(A); 42 U.S.C. § 7601(d)(2)(A). The regulations implementing each of these statutes add the requirement that the applicant tribe be “an Indian tribe recognized by the Secretary of the Interior.” See, e.g., 40 C.F.R. §145.52(a) (requirements for tribal eligibility for the SDWA Underground Injection Control Program); 40 C.F.R. § 123.31(a) (requirements for tribal eligibility for CWA NPDES program authority); 40 C.F.R. § 131.8(a) (requirements for tribal eligibility for CWA water quality standards program); 40 C.F.R.§ 49.6(a) (requirements for tribal eligibility under CAA).

41. 33 U.S.C. § 1377(e)(3); 42 U.S.C. §300j-11(b)(1)(C); 42 U.S.C. § 7601(d)(2)(C).

42. 42 U.S.C. § 300j-11(b) (1) (B).

43. 33 U.S.C. § 1377(e)(2).

44. 42 U.S.C. §7601 (d)(2)(B).

45. 42 U.S.C. § 300h(b)(1).

46. Id. § 300h(d)(1).

47. 40 C.F.R. § 144.3.

48. 42 U.S.C. § 300h-1(e).

49. 42 U.S.C. § 300j-11(b)(1)(B). The regulations implementing this provision are contained at 40 C.F.R. §§ 145.52 – 145.58.

50. 53 Fed. Reg. 37396, 37400 (September 26, 1988).

51. Id.

52. Id.

53. Id.

54. 42 U.S.C. § 300h-1(e).

55. Underground Injection Control Programs for Certain Indian Lands, 53 Fed. Reg. 43096 (October 25, 1988), codified at 40 C.F.R. Part 147, Subpart HHH; Underground Injection Control Programs on Indian Lands, 53 Fed. Reg. 43084 (October 25, 1988) codified at 40 C.F.R. Part 147; and Safe Drinking Water Act – National Drinking Water Regulations, Underground Injection Control Regulations; Indian Lands, 53 Fed. Reg. 37396 (September 26, 1988) codified in 40 C.F.R. Parts 35, 124, 141, 142, 143, 144, 145, and 146.

56. 53 Fed. Reg. at 37400.

57. 40 C.F.R. § 144.3.

58. 53 Fed. Reg. 43096 (October 25, 1988).

59. Id. at 43097.

60. Id.

61. 198 F.3d 1224 (10th Cir. 2000).

62. Id. at 1235.

63. Id.

64. 42 U.S.C. § 300h-1(e).

65. 198 F. 3d at 1242.

66. Id. at 1244.

67. Id. at 1246.

68. Id.

69. Id.

70. Id. at 1248.

71. 522 U.S. 520 (1998).

72. 198 F.3d at 1248.

73. Id.

74. 52 F.3d 1531 (10th Cir. 1995). In Pittsburg& Midway, the Tenth Circuit adopted a four-prong test for determining what constitutes a “dependent Indian community” under 18 U.S.C. § 1151. The factors to be considered under that test are “(1) whether the United States has retained ‘title to the lands which it permits the Indians to occupy” and “authority to enact regulations and protective laws respecting this territory,” (2) ‘the nature of the area in question, the relationship of the inhabitants in the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area,’ (3) whether there is ‘an element of cohesiveness . . . manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,’ and (4) ‘whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.’” Id. at 1546.

75. 198 F.3d at 1248.

76. Id. at 1249.

77. 198 F.3d at 1251 (citing Act of May 29, 1928, ch. 853, 45 Stat. 883, 899-900).

78. 198 F.3d at 1253.

79. 532 U.S. 645 (2001).

80. Id. at 655 n.5.

81. See

82. 33 U.S.C. § 1377(e)(2).

83. Id. § 1377(h)(1).

84. 40 C.F.R. § 131.8(a)(3). The implementing regulations also adopted the definition of “Federal Indian reservation” set forth in 33 U.S.C. § 1377(h). See 40 C.F.R. § 131.3.

85. 56 Fed. Reg. at 64,881.

86. Id.

87. See 56 Fed. Reg. at 64,877. This regulatory language tracts the Supreme Court’s decision in Montana v. United States, 450 U.S. 544 (1981) in which the Supreme Court recognized the general rule that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U.S. at 565. The Montana Court, however, went on to hold that “a tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 566.

88. 137 F.3d 1135 (9th Cir. 1998).

89. Id. at 1141.

90. 266 F.3d 741 (7th Cir. 2001).

91. Id. at 748 (citing Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996)).

92. 266 F.3d at 749-50.

93. 42 U.S.C. § 7601(d)(2)(B).

94. 63 Fed. Reg. 7254, 7254 (February 12, 1998).

95. Id.

96. 40 C.F.R. § 49.2(b).

97. 63 Fed. Reg. at 7258 (citing Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991)).

98. 63 Fed. Reg. at 7258.

99. Id. at 7258. EPA also set forth this rationale in the preamble to its final federal operating permits program rule. See 64 Fed. Reg. 8247, 8252 & 8254 (February 19, 1999).

100. 63 Fed. Reg. at 7258.

101. Id. at 7254.

102. Id. at 7259.

103. Id.

104. Id.

105. See id at 7258.

106. Id. at 7260.

107. Id.

108. 211 F.3d, 1280 (D.C. Cir. 2000).

109. Id. at 1288.

110. Id. at 1292.

111. 268 F.3d 1075 (D.C. Cir. 2001).

112. See 64 Fed. Reg. at 8247, 8249 (codified at 40 C.F.R. § 71.4(b)).

113. 40 C.F.R. § 71.4(b) (1999).

114. 268 F.3d at 1082.

115. Id. at 1085.

116. Pub. L. No. 109-58, 119 Stat. 594.

117. See 40 C.F.R. § 142.78 (1989) (TAS application procedures for public drinking water system program authority); 40 C.F.R. § 145.58(b) (1989) (TAS application for UIC program authority); 40 C.F.R. § 131.8(c) (2) (TAS application procedures for CWA water quality standards).

118. 59 Fed. Reg. 64339 (December 14, 1994).

119. Id. at 64340.

120. Those would include applications for water quality standard authority under the CWA.

121. 59 Fed. Reg. at 64340.

122. Id.

123. Id.

124. 63 Fed. Reg. 7253 (February 2, 1998) codified at 40 C.F.R. Part 49.

125. 40 C.F.R. § 49.9(b).

126. Id. § 49.9(b)(1).

127. Id. § 49.9(b)(2).

128. Id. § 494.9(c).

129. 63 Fed. Reg. at 7267.

130. 65 Fed. Reg. 1322, 1323 (January 10, 2000).

131. Id.

132. See 40 C.F.R. § 49.9 (f) ("A determination by the EPA Regional Administrator concerning the boundaries of a reservation or tribal jurisdiction over non-reservation areas shall apply to all future Clean Air Act applications from that tribe or tribal consortium and no further notice to governmental entities, as described in paragraph (b) of this section, shall be provided, unless the application presents different jurisdictional issues or significant new factual or legal information relevant to jurisdiction to the EPA Regional Administrator.").

133. 5 U.S.C. § 702. See Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001).

134. 63 Fed. Reg. at 7259.

135. 532 U.S. 645, 653 n.5.

136. See note 74 supra for a list of dependent Indian community factors.

137. 266 F.3d 741 (7th Cir. 2000).

138. Id. at 745.

139. Id. at 748.

140. Id. at 750. See also City of Albuquerque v. Browner, 97 F.3d 415, 423 (10th Cir. 1996) (holding that the Pueblo of Isleta could establish water quality standards that are more stringent than those imposed by the federal government).

141. 865 F. Supp. 733 (D.N.M. 1993), aff'd, 97 F.3d 415 (10th Cir. 1996).

142. 941 F. Supp. 945 (D. Mont. 1996), aff'd, 137 F.3d 1135 (9th Cir. 1998).

143. 97 F.3d at 423.

144. Id.

145. Id.

146. Id.

147. Id. at 423-424.

148. 56 Fed. Reg. 64876, 64890 – 91 (December 12, 1991).

149. The proposed draft regulations are available at www.epa.gov/ost/standards/tribal.

150. See 42 U.S.C. §74749(c).

151. 645 F.2d 701 (9th Cir. 1981).

152. Id. at 715.

153. 42 U.S.C. § 7661d (a)(2).

154. 42 U.S.C. § 7661d(a).

155. 40 C.F.R. § 70.8(d).

156. 42 U.S.C. § 7426 (b).

157. Id. § 7426(c).

158. 33 U.S.C. § 1377 (d).

159. 42 U.S.C. § 7402 (c).

160. See Intergovernmental Agreement Between the Southern Ute Indian Tribe and the State of Colorado Concerning Air Quality Control on the Southern Ute Indian Reservation, CRSA § 24-62-101 (hereinafter the “IGA”).

161. See IGA, Article VII, CRSA § 24-62-101; CRSA § 25-7-1303.

162. IGA, Article I, CRSA § 24-62-101.

163. CRSA § 25-7-1303 (4).

164. CRSA § 25-7-1304(2).

165. IGA, Article XIII.H, CRSA § 24-62-101.

166. 33 U.S.C. § 1377(e).

167. 40 C.F.R. § 131.7(a).

168. Id. § 131.7 (b).

169. In the case of the Intergovernmental Agreement between the Southern Ute Tribe and the State of Colorado, for example, the parties agreed that “the Tribe will exercise civil enforcement jurisdiction over any persons on all lands within Reservation Boundaries fro violations of the Reservation air quality program, subject to administrative review by the Commission.” IGA, Article X.B.1, CRSA §24-62-101.

170. 435 U.S. 191 (1978).

171. Id. at 210.

172. 40 C.F.R. § 49.8.

173. 63 Fed. Reg. at 7266.

174. IGA, Article X.B.2, CRSA §24-62-101.