Environmental Regulation on Indian Lands

November 03, 1999

Summary
RCRA, 42 U.S.C. §§ 6901-6987 (1988), does not expressly address whether Indian tribes have a role in its administration. However, in recognition of federal enforcement authority, one court has held that the EPA may refuse to certify a state's RCRA program insofar as it would apply to Indian lands within the state's borders. Washington Dep't of Ecology v. United States EPA, 752 F.2d 1465 (9th Cir. 1985). Tribes may, however, be held liable for RCRA violations for hazardous waste sites on reservation lands. The Eighth Circuit has held that the Oglala Sioux Tribe was amenable to suit under RCRA's private suit provisions for damage caused by widespread RCRA violations on the reservation, because the tribe's sovereign status carried with it the responsibility to regulate dumping on the reservation. Blue Legs v. United States EPA, 668 F. Supp. 1329 (D.S.D. 1987), aff'd, 867 F.2d 1094 (8th Cir. 1989).

Native American tribes play an increasingly critical role in regulating the environment in and around Indian lands. Evaluating environmental regulations applicable to Indian lands requires one to predict whether federal, tribal, or state regulators will govern. If tribal regulators will govern, jurisdiction-related businesses may have to adapt not only to new regulators with different regulatory standards and procedures, but also to a legal system with which many are unfamiliar. As tribes increasingly flex their regulatory muscles, often with the blessing of the federal government, the ability of the regulated community to evaluate and respond to tribal regulation will become more important. In addition, as tribal regulation increases, so too will potential regulatory overlap and conflict between tribes, states, and the federal government.

THE BALANCE OF ENVIRONMENTAL REGULATORY POWER IN INDIAN COUNTY

Tribal environmental regulation potentially can affect all businesses in and around Indian lands or reservations. Tribes have comprehensive power over their members on reservation or on other tribal lands. However, while tribes may have regulatory powers over non-Indians and Indian members of other tribes in certain circumstances, those powers are not clearly defined. Generally, tribal powers derive from three major sources: inherent tribal authority akin to sovereign powers of states or the federal government, treaties with the United States, or federal statutes or executive orders which confer or reserve lands and related rights to tribes, and federal statutory delegations of authority to tribes. However, the Supreme Court has also found certain limitations on tribal power implicit in their "dependent" status in the federal system. For example, tribes lack inherent power to exercise criminal jurisdiction over non-Indians. See Oliphant v. Suguamish Indian Tribe, 435 U.S. 191 (1978). Tribal power over non-Indian activity on private lands within a reservation generally has been limited to that necessary to protect tribal members' health and safety. See Montana v. United States, 450 U.S. 544 (1981).

Federal power over tribes, their lands, and non-Indians dealing with tribes is broad. Consequently, an express federal statute allocating governmental authority over specific activities will control. Moreover, inherent tribal authority may be preempted by a comprehensive federal regulatory scheme. See Northern States Power Co. v. Prairie Island Mdewakanten Sioux Indian Community, 991 F.2d 458 (1994).

State power over activities on Indian land generally is narrow. States may exercise power conferred by express federal delegation or when, under a balancing analysis, state regulatory interests are strong and federal or tribal interests comparatively weak. Unfortunately for tribes and business interests, the United States Supreme Court has complicated the assessment of sovereigns, competing claims for power over Indian lands activities by laying down subjective tests to resolve such conflicts. Even when states implement a federal environmental program under "agreement state" status, their power may not reach tribal lands.

Tribal land ownership is an additional, yet important, determinant of which sovereign will have regulatory power, and complex, often "checkerboarded," patterns of land ownership in Indian country further complicate jurisdictional predictions. Generally, tribal power will be strongest over tribally owned "trust or restricted" land, lands within a formally established reservation, or where the lands are within a block of solidly Indian-owned and Indian-occupied lands; tribal power will be weaker (if existent), and state power correspondingly stronger, over non-Indian fee lands, Indian lands outside reservation boundaries, or reservation lands within a "checkerboarded" area with dense non-Indian development. See Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 427 (1989). Evaluating tribal environmental regulatory power entails analyzing these sources and limitations of tribal power in the context of the specific tribe and regulatory power involved. The analysis should take into account whether federal statutory delegations or land holding or demographic patterns suggest state or federal primacy.

TRIBAL INHERENT POWERS--ZONING/HEALTH AND SAFETY REGULATION

Tribes generally have inherent power to implement zoning and to regulate activities affecting environmental quality on tribal lands to protect tribal members' health and safety. Tribes have broad power to regulate activities on tribal lands. Under the rule in Montana v. United States, 450 U.S. 544, 547 (1981), tribes' inherent authority may support tribal regulation of non-Indian activities affecting reservation water quality, and other areas of environmental concern. See Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951 (9th Cir.), cert. denied, 459 U.S. 977 (1982) (shoreline protection ordinance); Lummi Indian Tribe v. Hallauer, 9 Ind. L. Rep. 3025, 3026 (W.D. Wash. 1982) (tribal sewage treatment). Consequently, businesses in and around Indian lands should identify and understand any potentially applicable tribal regulation.

FEDERALLY DELEGATED ENVIRONMENTAL REGULATION

Congress has acted under several federal environmental statutes to authorize the U.S. Environmental Protection Agency (EPA) to delegate to Indian tribes specific enforcement and regulatory authority to the same or a similar degree EPA previously was authorized to delegate to states. Because a growing number of tribes are seeking such delegation, activities on Native American lands may be governed by tribal programs that have the backing of federal law. The discussion which follows includes only a few of the potentially applicable federal environmental protection laws.

EPA Indian Policy.

The EPA has implemented an "Indian policy" designed to implement federal policies of tribal self-determination in its environmental regulation on Indian lands. Initially proclaimed on November 8, 1984, by EPA Administrator William D. Ruckleshaus, the policy seeks to expand tribal involvement in EPA program implementation. The EPA Indian policy has two major elements: first, EPA or tribes, rather than states, should implement federal environmental statutes on Indian lands; second, where it is authorized, EPA will cooperate with and assist tribes in developing and implementing tribal programs under federal environmental statutes. Consistent with these policies, EPA has been influential in urging Congress to enact statutory authority for tribes to assume program implementation authority under EPA-administered environmental statutes. The Clinton administration EPA has reaffirmed the Indian policy and proposed to streamline procedures and create a national Indian Program Office. See 59 Fed. Reg. 13820 (March 23, 1994); 59 Fed. Reg. 38460, 38461 (July 28, 1994). EPA must be viewed as a strong proponent of tribal environmental regulation. As a result of these efforts and policies, tribes increasingly will develop regulatory programs under federal environmental statutes. The following discussion addresses the extent to which tribes may obtain regulatory primacy under federal statutory schemes.

Clean Water Act ("CWA")

The CWA is the main instrument of federal policy regarding water quality. It achieves its goals through setting standards governing the water quality, or stream standards, that must be maintained or achieved in each river or other navigable water, and then requiring dischargers into navigable waters to obtain a discharge permit imposing maximum levels of allowable pollutants that can be discharged. Permits are tailored to achieve the applicable stream standards.

The 1987 amendments to Section 518 of the Clean Water Act authorize EPA to delegate to a qualifying tribe regulatory authority comparable to that previously delegable only to states for permitting under the National Pollutant Discharge Elimination System ("NPDES"), permitting for dredging and filling under CWA § 404, and for setting water quality standards under Section 303 of the CWA. See 33 U.S.C. § 1377 (1988); see 58 Fed. Reg. 67966-67985 (Dec. 22, 1993) (adopting final rule implementing CWA tribal program regulations). To obtain "treatment as state" ("TAS") status, a tribe must establish that it meets criteria reflecting its ability to effectively implement the program to qualify for a delegation under CWA. Although EPA may delegate CWA program authority only over waters "within the area of the Tribal Government's jurisdiction," approval of tribal water quality standards under CWA § 303 can affect upstream, off-reservation, sources.

Precisely because of their effect on upstream, off-reservation sources, tribal water quality standards under CWA § 303 have generated controversy. EPA has approved tribal stream standards of three New Mexico Pueblos applicable to the Rio Grande in central New Mexico. Litigation arising from EPA's approval of water quality standards of the Pueblo of Isleta, which require water clean enough to support tribal ceremonial uses, has spawned a decision generally affirming EPA's power to approve tribal water quality standards despite that the standards may have potentially profound impact on upstream sources. See City of Albuquerque v. Browner, No. 93-82-M (D.N.M., Oct 22, 1993), on appeal, Tenth Circuit No. 93-2315. As in City of Albuquerque, jurisdictional conflicts may arise when standards set by a tribe differ from those set by a state which has concurrent jurisdiction over the same stream or body of water.

Clean Air Act ("CAA")

The CAA is the principal federal statute regulating emissions into the Nation's air. It functions primarily by requiring sources of air pollutants to obtain new source or operating permits. To date, the CAA has been implemented either by EPA or through state regulation pursuant to EPA-state agreement. In the CAA Amendments of 1990, Congress gave EPA authority to delegate to federally recognized tribes considerable authority over air quality matters on Indian lands, including over permit issuance. 42 U.S.C. § 7601 (D)(2) (1988 and Supp. II 1990). The 1990 Amendments authorized the EPA Administrator to treat tribes as states when the Administrator determines a tribe is capable of carrying out those functions "in a manner consistent with the terms and purposes of the Act." EPA has proposed regulations to implement the 1990 Amendments, 59 Fed. Reg. 43956-43983 (Aug. 25, 1994), but final regulations have not been issued. Consequently, no tribe has yet been granted TAS status under those provisions.

Tribes had limited powers under the CAA even prior to the 1990 Amendments. The EPA was affirmed in its acceptance of a tribal air quality designation, which allowed the tribe to regulate indirectly emission from sources near the reservation by designating airshed quality under the "prevention of significant degradation" standards of the CAA. Nance v. United States EPA, 645 F.2d 701 (9th Cir.), Crow Tribe v. United States EPA, cert. denied sub nom., 454 U.S. 1081 (1981). Nance raises concerns for "extra-territorial" environmental regulation by tribes similar to those that arise under the CWA.

Other Federal Statutes.

Under the Safe Drinking Water Act ("SDWA") amendments of 1986, tribes may be treated as states under SDWA provisions empowering EPA to delegate program authority. 42 U.S.C. § 300h-1e (1988); 40 C.F.R. § 145 Subpart E (1994). Consequently, if a tribe demonstrates its ability to administer a program effectively, the EPA may delegate to it primary enforcement authority over underground injection well regulation or other SDWA program enforcement.

The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")

CERCLA, also known as the "Superfund" statute, governs the cleanup of certain designated sites that contain toxic or hazardous material. CERCLA authorizes tribes to be treated "substantially the same" as a state for some purposes, but it did not delegate to tribes authority as broad as that delegated to states. Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9626 (1988). CERCLA enumerates specific areas of authorized delegation: receipt of notice of release of hazardous substances, consultation with respect to formulation of remedial action (but not initiation, development, and selection of remedial actions to be undertaken on the reservation), formulation of the National Contingency Plan, access to information concerning hazardous substances maintained by operators of facilities, and participation in disease and exposure registration related to toxic materials. consequently, the tribal role in Superfund remediation remains relatively limited as compared to that of the states. Tribes also may assert natural resource damage claims under CERCLA.

Resource Conservation and Recovery Act ("RCRA").

RCRA, 42 U.S.C. §§ 6901-6987 (1988), does not expressly address whether Indian tribes have a role in its administration. However, in recognition of federal enforcement authority, one court has held that the EPA may refuse to certify a state's RCRA program insofar as it would apply to Indian lands within the state's borders. Washington Dep't of Ecology v. United States EPA, 752 F.2d 1465 (9th Cir. 1985).

Tribes may, however, be held liable for RCRA violations for hazardous waste sites on reservation lands. The Eighth Circuit has held that the Oglala Sioux Tribe was amenable to suit under RCRA's private suit provisions for damage caused by widespread RCRA violations on the reservation, because the tribe's sovereign status carried with it the responsibility to regulate dumping on the reservation. Blue Legs v. United States EPA, 668 F. Supp. 1329 (D.S.D. 1987), aff'd, 867 F.2d 1094 (8th Cir. 1989).

Coping With Tribal Environmental Regulation

The basic skills necessary to respond effectively to federal and state environmental regulation apply to responding to tribal regulation. The regulated person or entity must understand thoroughly the applicable tribal laws of council resolutions, tribal agency regulations, and the tribal regulatory agency, its personnel and policies.

Tribal regulation, however, may present some special considerations. Tribes generally enjoy immunity from suit without their consent and generally can require that suits against them be brought in tribal courts. Consequently, regulated companies generally must enforce substantive and procedural rights within tribal administrative or judicial systems. And, there is no ready answer whether, after all tribal proceedings have run their course, federal court review will be available unless federal administrative and/or judicial review is provided for in EPA-approved plans delegating federal program authority to a tribe. Careful analysis of the regulatory and juridical procedures that will apply in the event of disputes with tribal authorities is necessary.

CONCLUSION

Determining whether tribal environmental regulation falls within a tribe's jurisdiction requires analysis both of the source of tribal power and of the lands and persons against whom the power is asserted. A thorough review of applicable tribal history and the history of federal delegations to the tribe will be necessary to assess the tribal power.