Ninth Circuit Briefing — Tribal Sovereign Immunity Under the Clean Water Act

Here are the briefs relevant to the sovereign immunity issue in Deschutes River Alliance v. Portland General Electric Company:

Final Tribal Amici Brief in Support of Warm Springs – File-Stamped

Second Brief on Cross-Appeal – CTWS (filed 9 28 20)

And here are the lower court materials in Deschutes River Alliance v. Portland General Electric Company (D. Or.):

72 Warm Springs Motion to Dismiss

74 Pacific Gas Motion to Dismiss

76 Deschutes River Response

78 Pacific Gas Reply

82 Warm Springs Reply

84 Warm Springs Brief in Support of Defendants

103 DCT Order

Tribes Sue EPA over Clean Water Act Rules

Here is the complaint in Pascua Yaqui Tribe v. EPA (D. Ariz.):

1 Complaint

Here is the complaint in Navajo Nation v. Wheeler (D. N.M.):

1 Complaint

Fond du Lac Ojibwe Sues EPA over Mine, “Existential Threat” to Tribe

Here is the complaint in Fond du Lac Band of Lake Superior Chippewa v. Stepp (D. Minn.):


Federal Court Denies Warm Springs Rule 19 Motion, Holding Clean Water Act Abrogates Tribal Immunity

Here are the materials in Deschutes River Alliance v. Portland General Electric Company (D. Or.):

74 Motion to Dismiss

76 Response

78 Reply

103 DCT Order

Menominee Tribe’s Notice of Intent to Sue to Enforce CWA

Links: Press Release, 60 Day Legal Notice(PDF)


The 60-Day Notice of Intent to Sue under the Clean Water Act outlines violations of federal agency duties under the Act that will affect water quality of the Menominee River and adjacent wetlands, and downstream to Green Bay, as a result of the Back Forty Mine Project.

EPA publishes Revised Interpretation of Clean Water Act TAS Provision

On May 16, the EPA published a final revised interpretation of the Clean Water Act’s TAS provision in the Clean Water Act, concluding that the Treatment as State provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to section 518(e)’s eligibility requirements.  This revised interpretation eases the burden for tribes applying for TAS status under the Act, removing the hurdle of having to demonstrate inherent regulatory authority under the Montana test in order to apply for TAS status.  The revised interpretation is likely to reduce the time and resources required to obtain EPA approval of TAS applications, particularly for tribes with lands owned by non-Indians within their reservation boundaries.

The Final Interpretive Rule published in the Federal Register is here.

The EPA’s Response to Public Comments on the Revised Interpretation here.

Continue reading

EPA Accepting Comments on Revised Interpretation of CWA Tribal Provisions

Link to Request for Comments here.

EPA proposes to conclude definitively that section 518 includes an express delegation of authority by Congress to eligible Indian tribes to administer regulatory programs over their entire reservations. This reinterpretation would eliminate the need for applicant tribes to demonstrate inherent authority to regulate under the Act, thus allowing tribes to implement the congressional delegation of authority unhindered by requirements not specified in the statute. The reinterpretation would also bring EPA’s treatment of tribes under the Clean Water Act in line with EPA’s treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of Indian reservation areas.

Comments must be submitted by October 6, 2015.

EPA Announces Proposed Interpretive Rule for Tribal Treatment as State (TAS) status under the Clean Water Act

The proposed rule would streamline the TAS process for many tribes seeking eligibility to administer water quality standards and other Clean Water Act programs.

See the Federal Register announcement here.  The deadline for comments is October 6, 2015.

From the announcement:

The effect of this proposal would be to relieve tribes of the need to demonstrate their inherent authority when they apply for TAS to administer CWA regulatory programs. In particular, this proposal would eliminate any need to demonstrate that the applicant tribe retains inherent authority to regulate the conduct of nonmembers of the tribe on fee lands under the test established by the Supreme Court in Montana. Instead, applicant tribes would be able to rely on the congressional delegation of authority in section 518 as the source of their authority to regulate their entire reservations under the CWA, without distinguishing among various categories of on-reservation land. As EPA explained in connection with the CAA, such a territorial approach that treats Indian reservations uniformly promotes rational, sound management of environmental resources that might be subjected to mobile pollutants that disperse over wide areas without regard to land ownership. See 59 FR at 43959. As specifically recognized by the district court in Montana v. EPA, the same holds true for regulation under the CWA. Montana, 941 F. Supp. at 952.

Pueblo of Santa Ana members measure water quality under the tribe's extensive water-monitoring program, recently certified as autonomous under the Clean Air Act by the U.S. Environmental Protection Agency. Read more at
Pueblo of Santa Ana members measure water quality under the tribe’s extensive water-monitoring program, recently certified as autonomous under the Clean Air Act by the U.S. Environmental Protection Agency.

Ninth Circuit (Largely) Rejects Alaska Eskimo Whaling Commission Challenge to Oil & Gas Exploration Permits

Here is the opinion in Alaska Eskimo Whaling Commission v. EPA:


From the court’s syllabus:

The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.

The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of noncontact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because
of the effect of such discharge on bowhead whales, including deflection from their migratory paths.

The panel denied the petition in all other respects because the EPA’s issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.

New Scholarship on Fracking Near Indian Country

Heather Williams and Hillary M. Hoffman have posted “Fracking Near Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Right to Clean Water,” forthcoming in the Wyoming Law Review, on SSRN.

Here is the abstract:

The tortured history of the federal and state governments’ relationships with Native American tribes has created a legal structure in which Native American people are, quite frequently, the recipients of non-native waste generated off of native lands. Traditionally, this has taken the form of solid waste, but in recent years, it has grown to include nuclear waste and wastewater generated by hydraulic fracturing, otherwise known as “flowback fluids”, or “produced water.”

Over the last two years, produced water from four different hydraulic fracturing operations was found being discharged onto dry land and into “streambeds covered in white crystals,” on the Wind River Reservation in central Wyoming. In addition to the open dumping of these fluids, there was also visible oil and foam sheen. Pollution events like these are the result of a regulatory exemption under the Resource Conservation and Recovery Act (“RCRA”), commonly referred to as the “livestock loophole.” The livestock loophole, created in 1979, allows oil and gas operations to discharge hazardous waste fluids generated from fracking operations onto reservation land if they are consumed by livestock and wildlife, or used for agricultural purposes. The EPA, which regulates RCRA and has a fiduciary responsibility toward Indian Tribes, has not set maximum levels for many compounds used in the drilling process, and uses antiquated data to regulate toxics that have been capped. Further, industrial “trade secrets” prohibit the disclosure of additional toxics in drilling fluids under intellectual property laws, making it impossible to regulate pollution limits for surface waters under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).

The policy behind the livestock loophole is complex. Reports of gushing streams of toxic fracking fluids on reservation land reek of environmental injustice, yet tribes, as sovereign governments, are willing, able, and informed participants in the solicitation, installation, and placement of non-native waste on their own tribal lands.

Several questions arise out of the issues faced by the Wind River tribes: Is the federal policy to dump fracking fluids in Indian country consistent with its federal trust obligation, and its requirement under RCRA to protect human health and safety from toxic compounds? Is the livestock loophole’s policy to feed fracking fluids to livestock, wildlife, and agriculture a legitimate beneficial use under the Prior Appropriation doctrine? Should the EPA be forced to conduct up-to-date studies on the compounds in produced water, and their effects on living organisms, including humans? This Article will answer those questions and explore the bounds of tribal sovereignty and the federal trust responsibility in the context of produced water from fracking operations.