ELR Citation: ELR 21033
No(s). s. 96-35505, -35508 (9th Cir. Mar 3, 1998)

The court upholds the U.S. Environmental Protection Agency's (EPA's) decision granting "treatment as state" (TAS) status under Federal Water Pollution Control Act (FWPCA) §518 to two tribes to promulgate water quality standards for all point sources within the boundaries of the Flathead Indian Reservation in Montana. The court first affirms the district court's decision that EPA's regulations pursuant to which the tribes' TAS status authority was granted are valid as reflecting appropriate delineation and application of inherent tribal regulatory authority over nonconsenting nontribal members. Although EPA's scope of inherent tribal authority is a question of law for which EPA is not entitled to deference, EPA did not commit any material mistakes of law in its delineation of the scope of inherent tribal authority. Rather, the Agency took a cautious view by incorporating both Justice White's and Justice Stevens' admonitions in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), that, to support the exercise of inherent authority, the potential impact of regulated activities must be serious and substantial. EPA's decision found that the activities of the non-members posed such serious and substantial threats to tribal health and welfare that tribal regulation was essential. In addition, the court notes that its decision is consistent with the only other circuit opinion that has yet considered the issue of tribal authority to set water quality standards. In that case, the tribe promulgated standards more stringent than federal standards, and the court observed that the authority to establish such standards is in accord with powers inherent in tribal authority.

The court next holds that the district court correctly denied the intervenors' application to intervene as of right. None of the proposed intervenors holds a national pollutant discharge elimination system (NPDES) permit that may potentially be modified due to any change in water quality standards imposed by the tribes. Because the intervenors hold no NPDES permits, they cannot be subject to NPDES enforcement proceedings. Moreover, TAS status does not confer enforcement authority to the tribes; it only enables the tribes to set standards. Finally, even assuming that EPA's approval of the tribal water quality standards program might affect property values, such a speculative and purely economic interest does not create a protectable interest in litigation concerning a statute that regulates environmental, not economic, interests.

[A prior decision in this litigation is published at 27 ELR 20421.]

Counsel for Plaintiffs
Harley Harris, Ass't Attorney General
Attorney General's Office
Justice Bldg.
215 N. Sanders St., Helena MT 59620
(406) 444-2026

Counsel for Defendants
Kevin Washburn
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Beezer and Schwarzer^*, JJ.