9th Circuit upholds broad tribal authority over water quality
Story-Date: 01:43 p.m. PST Friday   , March 6, 1998

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9th Circuit upholds broad tribal authority over water quality



MISSOULA, Mont. (AP) -- A federal appeals court upheld the right of the
Confederated Salish and Kootenai Tribes to set water-quality standards for
their reservation, including non-Indians.

The three-judge panel of the 9th U.S. Circuit Court of Appeals issued the
unanimous ruling Tuesday, setting the stage for an expected appeal to the
Supreme Court.

"This is a cutting-edge case in the United States," said Chris Tweeten,
Montana's chief deputy attorney general. "We're the first case before the
Court of Appeals that squarely presents these jurisdictional questions."

The appellate court upheld a 1996 ruling by U.S. District Judge Charles
Lovell in Helena.

In the case, Montana joined Lake County and two municipalities in
challenging the Environmental Protection Agency's decision to
allow the tribes to regulate water quality on the Flathead Indian
Reservation in western Montana.

The lawsuit contended the EPA's decision improperly subjected state and
local governments to "the civil regulatory authority of the tribes and
infringes on Montana's authority" under the Clean Water Act.

Among other claims, the state complained that the change would require it
to seek an additional EPA permit for water discharges into Flathead
Lake from the state's Yellow Bay research facility.

County and municipal governments also would be required to get permits in
addition to those granted by the state for discharges from their wastewater
treatment facilities into local creeks, the state said.

The judge upheld the EPA's decision, noting that the Water Quality Act
of 1987 allowed Indian tribes to be "treated as states" in carrying out
some provisions of the Clean Water Act, including setting water quality
standards.

The judge also noted that the EPA had determined the tribes should have
jurisdiction over surface waters that cross nonmember lands within the
reservation.

"The EPA affirmed that the tribes require clean water for a domestic
water supply and to maintain fish, aquatic life and other wildlife for both
subsistence and cultural reasons," he wrote.

The 9th Circuit ruling upheld Lovell's decision.

State officials said Thursday they were studying the decision and could not
say if it would be appealed. However, during earlier proceedings the
attorney general's office predicted it would end up before the Supreme
Court.

"The question that we're dealing with is probably one of the biggest
unresolved questions in Indian law today: just what standards apply to
determining when Indians have authority over non-Indians," said Harley
Harris, assistant attorney general.

Mickey Pablo, chairman of the Tribal Council, contended that the EPA
retains ultimate authority over both state and tribal regulation of water
quality, so nonmember concerns about tribal authority are vastly
overstated.

He also argued that the tribes have a responsible record of regulatory
authority over nontribal members and have cooperated with the state on many
issues.

"Instead of trying to sit down and talk about things, the state
automatically jumps into lawsuits," he complained.

And John Wardell, the EPA administrator for Montana, noted the tribes
have not asked the EPA to delegate enforcement authority, so the
EPA remains responsible for enforcing the tribes' quality standards.

But non-Indians who live on the reservation say the decision must be
appealed because of the implications of tribal authority over non-Indian
citizens.

"Our position has been for 75 years that the state has been in charge,"
said Lake County Commissioner Mike Hutchin. "Why should we change (to
tribal regulation) when we have no vote in the process?"



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