ELR Citation: ELR 20177
No(s). 99-2618 (7th Cir. Sep 21, 2001)

The court affirms a district court decision upholding the U.S. Environmental Protection Agency's (EPA's) grant of "treatment as state" status to a Native American tribe under the Clean Water Act (CWA). Wisconsin, in which the tribe and its reservation are located, challenged EPA's decision to treat the tribe as a state claiming that the tribe does not have inherent authority to regulate water quality within the borders of its reservation. The court first holds that the state's claim that a lake on the reservation is not within the borders of the reservation, and therefore not within the tribe's control, is waived because it was raised for the first time on appeal. However, if EPA had been given a chance to consider this point, it would have been completely reasonable for EPA to interpret the phrase "within the borders" to include the lake. The court also rejects the state's claim that the tribe lacked authority over the water resources on the reservation because the state has ownership of the underlying lake beds. The breadth of federal authority over navigable waters and Native American affairs is well-established. Further, in the absence of tribal state status. EPA and not the state might well be the proper authority to administer the CWA programs for the reservation because state laws may usually be applied to Native Americans on their reservations only if Congress expressly provides. Because the state does not contend that its ownership of the beds would preclude the federal government from regulating the waters within the reservation, it cannot now complain about the federal government allowing tribes to do so. Lastly, the court holds that it was reasonable for EPA to determine that since the U.S. Supreme Court has held that a tribe has inherent authority over activities having a serious effect on the health of the tribe, this authority is not defeated even if it exerts some regulatory force on off-reservation activities.

Counsel for Plaintiff
Thomas L. Dosch
Attorney General's Office
114 E. State Capitol, Madison WI 53707
(608) 266-1221

Counsel for Defendants
William J. Libscomb
U.S. Attorney's Office
530 U.S. CtHse.
517 E. Wisconsin Ave., Milwaukee WI 53202
(414) 297-1700

Wood, J. Before Kanne and Williams, JJ.