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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

by Lynn H. Slade and Walter E. Stern

Native American tribes play an increasingly critical role in regulating the environment on Indian lands. As tribes' regulatory muscles grow-- often with the blessing of the federal government--the regulated community must learn to adapt not only to different regulatory standards and procedures, but also to a different legal system.

In addition, the regulated community must be mindful that, as the power of tribes to regulate increases, so will the potential for overlap and conflict among tribal, state, and federal regulations.

A Balance of Powers

Tribal environmental regulation potentially can affect all businesses in and around Indian lands or reservations. Tribes have comprehensive power over their members on reservations 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; and federal statutory delegations of authority to tribes. However, the Supreme Court also has found certain limitations on tribal power implicit in the tribes' "dependent" status in the federal system. For example, tribes lack inherent power to exercise criminal jurisdiction over non-Indians (see Oliphant v. Suquamish 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 Mdewakanton Sioux Indian Community, 991 F.2d 458 (1993)).

State power over activities on Indian reservations 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 are comparatively weak. Unfortunately for tribes and business interests, the Supreme Court has complicated the assessment of competing claims of states and tribes 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 and important determinant of which sovereign will have regulatory power. 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 lands that 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 landholding or demographic patterns suggest state or federal primacy.

Tribes generally have inherent power to protect members' health and safety by implementing zoning and regulating activities affecting environmental quality 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 on Indian reservation lands should identify and understand any potentially applicable tribal regulation.

Federal Delegation

Congress has acted under several federal environmental statutes to authorize the Environmental Protection Agency (EPA) to delegate to Indian tribes specific enforcement and regulatory authority to the same or a similar degree as is delegated by the EPA to the states. Because a growing number of tribes is seeking such delegation, activities on Native American lands may be governed by tribal programs that have the backing of federal law. Potentially applicable federal environmental protection laws include the Clean Water Act, the Clean Air Act, and other statutes.

The EPA has implemented an "Indian policy" that incorporates federal policies of tribal self-determination in its environmental regulation on Indian lands. Announced in November of 1984, the policy seeks to expand tribal involvement in EPA program implementation. The EPA Indian policy has two major elements: first, the EPA or tribes, rather than states, should implement federal environmental statutes on Indian lands; second, where it is authorized, the EPA will cooperate with and assist tribes in developing and implementing tribal programs under federal environmental statutes. Consistent with these policies, the EPA has been influential in urging Congress to enact statutory authority for tribes to assume program implementation authority under EPA-administered environmental statutes.

Under the Clinton administration, the EPA has reaffirmed the Indian policy and proposed the streamlining of procedures and creation of a national Indian Program Office (59 Fed. Reg. 13820 (March 23, 1994); 59 Fed. Reg. 38460, 38461 (July 28, 1994)). The EPA must be viewed as a strong proponent of tribal environmental regulation. As a result of its efforts and policies, tribes will develop regulatory programs under federal environmental statutes, and will obtain regulatory primacy under those laws.

Water Quality

The Clean Water Act (CWA) is the main instrument of federal policy regarding water quality. It sets standards governing the water quality that must be maintained or achieved in rivers and other navigable waters, and requires dischargers into navigable waters to obtain discharge permits imposing maximum levels of allowable pollutants. Permits are tailored to achieve the applicable stream standards.

The 1987 amendments to section 518 of the Clean Water Act authorize the EPA to delegate to a qualifying tribe regulatory authority--comparable to that previously delegable only to states--to grant discharge permits under the National Pollutant Discharge Elimination System (NPDES), permits for dredging and filling under CWA 404, and to set water quality standards under section 303 of the CWA (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 under the CWA, a tribe must meet criteria reflecting its ability to effectively implement the program. Although the 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. For example, the EPA has approved the tribal stream standards set by three New Mexico pueblos that impact the Rio Grande in central New Mexico. Litigation arising from the EPA's approval of the water quality standards of one--the Pueblo of Isleta, which requires water clean enough to support tribal ceremonial uses--has spawned a decision generally affirming the EPA's power to approve tribal water quality standards despite the 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, compliance questions, and permitting issues may arise when standards set by a tribe differ from those set by a state that has concurrent jurisdiction over the same stream or body of water.

Air Quality

The Clean Air Act (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 the EPA or through state regulation pursuant to an EPA-state agreement. In the CAA Amendments of 1990, Congress gave the EPA power 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 whenever tribes are capable of carrying out those functions "in a manner consistent with the terms and purposes of the Act." The 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 had allowed the tribes to regulate indirectly emissions from sources near the reservation by designating airshed quality under the "prevention of significant degradation" standards of the CAA (see 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.

Drinking Water

Under the Safe Drinking Water Act (SDWA) amendments of 1986, tribes may be treated as states through provisions empowering the EPA to delegate certain 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 the tribe primary enforcement authority over underground injection well regulation or other SDWA program enforcement.

Rights Under CERCLA

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the "Superfund" statute, governs the cleanup of certain designated sites that contain toxic or hazardous material. The act authorizes tribes to be treated "substantially the same" as states for some purposes, but it does 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)). Instead, 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. However, like states, tribes may assert natural resource damage claims under CERCLA.

The Resource Conservation and Recovery Act (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 (see Washington Dep't of Ecology v. United States EPA, 752 F.2d 1465 (9th Cir. 1985)). Currently, the EPA retains RCRA regulatory authority over Indian lands.

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 (see Blue Legs v. United States EPA, 668 F. Supp. 1329 (D.S.D. 1987), aff'd, 867 F.2d 1094 (8th Cir. 1989)).

How to Cope

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

Tribal regulation, however, may present some special considerations. Generally, tribes enjoy immunity from suit without their consent and can require that suits against them be brought in tribal courts. Consequently, regulated companies often must enforce substantive and procedural rights within tribal administrative or judicial systems. And, after all tribal proceedings have run their course, it is unclear whether 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 important.
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Lynn H. Slade and Walter E. Stern practice federal Indian natural resources, and environmental law in Albuquerque, New Mexico.

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