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Native American Nations Impose Far-Reaching Regulations

Fall 1995

Congress has granted Native American tribes broad authorities under federal environmental laws. Recently, Wisconsin tribes have taken the initiative to assert this authority, creating regulatory uncertainty for Wisconsin businesses already struggling with the complexity of federal and state environmental laws.

Clean Air Act. Generally under the Clean Air Act, Native American tribes can petition the U.S. Environmental Protection Agency ("EPA") to reclassify the degree of protection afforded air quality on tribal lands. Last year, the Potawatomi tribe made such a request for a Class I redesignation (now, Class II) for its reservation lands near Rhinelander. A major source that may affect the air quality in a Class I area could be required to meet more rigorous air quality standards. (Generally, a "major source" is a facility emitting over 250 tons per year, or 100 tons for certain industries such as electric utilities.)

The meaning of the term "may affect" is currently interpreted by EPA policy to include all major sources or major modifications which propose to locate within 100 kilometers of a Class I area. Air emissions from these sources will be evaluated to determine if they will impact Air Quality Related Values ("AQRVs"), which could result in EPA or DNR placing restrictions in a facility’s air permit. AQRVs can be quantitative (i.e., they can be predicted by air quality modeling or through monitoring), or they an be qualitative and address such items as cultural resources, geological features, and acid precipitation. The unknowns relating to AQRVs are probably the most controversial aspect of the reclassification efforts by the tribes. Another potential hurdle for sources near Class I areas is lower allowable "increments" which are, in effect, caps on total emissions within or near a Class I area.

Both Governor Thompson and Michigan’s Governor Engler have formally opposed the Potawatomi reclassification request. That objection has triggered a dispute resolution process in which EPA will act as a mediator between the tribe and the states. Wisconsin’s primary goal during the dispute resolution process will be to reach an agreement with the Potawatomi tribe on how they will develop AQRVs.

Clean Water Act. Under the Clean Water Act, EPA is authorized to treat a Native American tribe as a "state" for the purposes of setting water quality standards and otherwise administering the Act within reservation boundaries. The Menominee, Sokaogon Chippewa Community (Mole Lake Band), Lac du Flambeau and Oneida tribes of Wisconsin each have petitioned EPA for recognition of the tribes’ regulatory authority under the Clean Water Act. EPA may grant the Mole Lake Band’s request (the first tribe to file a petition) by the end of 1995. Anticipating that EPA will approve their request, the Mole Lake Band and Menominee Tribe have drafted broad water quality regulations.

On the surface, both the Menominee’s and the Mole Lake Band’s draft water quality standards appear broad enough in scope to regulate off-reservation activities. The State of Wisconsin is generally taking the position that upon designation, a tribe cannot take actions that exceed those limits placed on states under the Act. Because states have little ability to affect upstream sources outside their boundaries, it follows that Wisconsin tribes would face similar restrictions. But the Act does allow a tribe (or state) to petition DNR or EPA against any proposed permit that, if granted, would allow a discharge that may cause violation of its water quality standards. Thus, if the court finds the Menominee Tribe has certain treaty rights relating to the Fox River, for example, the tribe could be designated a natural resource trustee for the Fox. This in turn would provide the tribe with certain authority including, for example, authority to regulate aspects of Fox River sediment cleanup efforts.

Menominee Treaty Rights Litigation. In early 1995, the Menominee Tribe filed suit in Dane County federal court asserting off-reservation treaty rights on specified "territory." The territory claimed in the suit consists of 9.5 million acres in eastern and central Wisconsin and in Lake Michigan. It runs from Milwaukee to Stevens Point to Marinette and includes all of the Door County Peninsula, as well as all of Wisconsin’s Lake Michigan waters, Lake Winnebago, Green Bay, and a large portion of the Fox, Wolf, and Wisconsin River drainage basins. The state disputes the assertion the tribe has any such treaty rights and has moved for dismissal of the suit.

One concern that industry has over the Menominee suit is that, should the Menominee Tribe be successful in asserting fish harvest and other rights under the treaties at issue, it would be a logical extension of those rights that the tribe be designated by the federal government as natural resources trustee for those waters. As a trustee under the Clean Water Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the tribe would have certain authorities, including the ability to assess natural resources damages that could give rise to or heighten natural resources claims under the federal law.

Conclusion. The ultimate impact of the Wisconsin tribes’ assertion of environmental law authorities on off-reservation facilities is unclear and will be the subject of an ongoing debate over the next several years between the tribes, EPA, the State of Wisconsin, and industry. The likely practical effect is the recognition that, although the tribes have little authority to directly regulate sources outside their lands, they do have an official "seat at the table" on permits for sources that discharge pollutants that adversely affect reservation air or water quality.

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If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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