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Mole Lake wins final victory in federal clean water case

The Mole Lake Sokaogon Chippewa Community is attempting to protect its drinking water and wild rice beds from the potential threat of acid mine drainage and groundwater drawdown.

````````````````````````````````````````````````````
 Crandon Mine threatens Chippewa wild rice beds

 State challenge to tribe's authority rejected, June 4, 2002
 Decision puts water quality in tribe's hands
, June 3, 2002
•  Mole Lake wins final victory in federal clean water case , June 2002
•  U.S. Backs Tribal Environmental Rights, May 15, 2002
•  Wisconsin wants tribal water ruling reconsidered , Nov. 6, 2001
•  State appeals ruling giving tribe authority to regulate water quality on reservation,     Nov. 6, 2001
•  Mole Lake water standards, Sept. 25, 2001
•  Tribe hails ruling in dispute against proposed Crandon mine.
   http://www.jsonline.com/news/state/sep01/mine25092401a.asp ,
Sept. 24, 2001
•  State challenge to tribal authority rejected, Sept. 24, 2001
•  Appellate Court upholds Mole Lake water standards, Sept. 21, 2001
•  State Appeals Ruling on Tribal Water Rights, July 18, 1999
•  Court Upholds Tribal Water Quality Standards, Spring 1999
 re: letter   Mar. 24   letter to Attorney General Doyle

POSTER for North American Indigenous Mining Summit (Mole Lake, June 12-15, 2002)
 • Mar. 1997
Mole Lake statement to United Nations

 

State challenge to tribe's authority rejected



June 4, 2002
http://www.indianz.com/News/show.asp?ID=2002/06/04/epa


The state of Wisconsin's long-running battle against tribal sovereignty hit a roadblock on Monday thanks to the Supreme Court.

Without comment, the Justices rejected an appeal of a ruling which upheld an Ojibwe tribe's right to regulate water quality on its reservation. The move lets stand a Clinton-era "treatment as state" (TAS) designation for the Sokaogon Band of northern Wisconsin.

The state challenged the status as a "dramatic expansion" of inherent tribal sovereignty. But by turning down the case, the Court refused to invalidate the Sokaogon's powers over the 1,850-acre Mole Lake reservation.

The status is largely fact-specific, with the Environmental Protection Agency over the course of the several-year dispute laying out a solid basis for the TAS designation under the Clean Water Act. Bush administration attorneys supported the tribe's right to control its water resources, which include a lake used for subsistence and cultural purposes.

The case nonetheless represents a victory for the tribe and its supporters, who oppose plans for a huge 55 million-ton zinc-copper sulfide mine. To be located upstream from the reservation, the operation is supported by the state.

The TAS designation, in theory, allows the Sokaogon Band to implement strict water standards that could restrict the development The Supreme Court, in a case involving a New Mexico tribe, upheld the reaches of such regulations even off-reservation.

In upholding the tribe's authority, the 7th Circuit Court of Appeals noted much the same. "Once a tribe is given TAS status, it has the power to require upstream off- reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters," wrote Circuit Judge Diane P. Wood for the majority.

In addition to the Sokaogon Band, area tribes also oppose the project. The Forest County Potawatomi Tribe, the Menominee Nation and the Red Cliff Ojibwe Band have jointed a broad coalition of municipalities and environmentalists against the cyanide mining practices of the industry.

The groups contend the use of cyanide will pollute the water supply, a charge disputed by Nicolet Minerals, the company behind the proposal. Nicolet has repeatedly said its mine will not harm sacred sites, cultural resources or harm the environment.

Up to 200 tons of the chemical could be used at the mine each year. A bill to ban cyanide mining has stalled in the state Legislature.

Sokaogon Chairwoman Sandra L. Rachal was traveling yesterday and could not be reached for comment.

 

 

Decision puts water quality in tribe's hands

Sokaogon can set standard near mine



By LEE BERGQUIST
Journal Sentinel staff
June 3, 2002


The Sokaogon Chippewa have the right to regulate water quality on their reservation in northern Wisconsin - a decision that could affect the proposed Crandon mine and spur other tribes to take over regulation of their waterways.

The U.S. Supreme Court let stand on Monday a lower court decision that gave the Sokaogon, or Mole Lake, the power to set water quality standards that are higher than those now promulgated by the state Department of Natural Resources.

Those standards mean that Nicolet Minerals Co. would have to return water from its proposed zinc and copper mine in Forest County at the same pristine quality as before it came into contact with the mine.

Dale Alberts, president of Nicolet Minerals, said Monday the company could comply with stricter limits.

Perhaps more significantly, the decision is likely to open the door for other tribes to seek authority to regulate pollution on lakes, rivers and streams on their reservations - rather than rely on the DNR.

"We suspect that other tribes will be interested in this," said Mike Lutz, a DNR lawyer.

Indeed, an official of the nearby Menominee tribe said it will ask for the same authority as the Sokaogon because tribal members believe they can police their water better than the DNR.

"Currently the State of Wisconsin and the DNR have a different agenda than we do," said Ken Fish, director of the Menominee treaty rights and mining impact office.

State water quality regulations allow for bodies of water to absorb some commerce-created pollution because the pollution will dissipate over time, Lutz said.

But Fish said that while economic development is important to his tribe, clean water is more important.

"If our ancestors were willing to lay down their lives for this territory, certainly we can sacrifice the money, time and efforts for those who will live here in future generations," Fish said.

Mining company confident

Regardless of the standard, Alberts said the company believes it can extract 55 million tons of zinc and copper, and smaller amounts of lead, silver and gold, without harming surrounding groundwater.

"We stayed out of that fight," Alberts said. "We decided that we could comply with their non-degradation standard, and we intend to do so."

The mine would be five miles south of the Crandon and two miles east of Highway 55. Located on about 550 acres, the ore body is about 4,900 feet long and about 100 feet wide. The mine would start about 200 feet below the surface and would extend to about 2,200 feet below the surface.

The Crandon ore body was discovered in 1975. Alberts said that while it has faced long-standing opposition, the company wants to mine it because the zinc there is one of the largest undeveloped sources in North America, and it lies within 500 miles of 64% of zinc consumption in the country.

Water quality plays a role in the mining process because groundwater seeps into the mine tunnels. Some of the water is pumped out, and some is used during the mining process. All of the groundwater has to be treated before being returned to the aquifer.

The Sokaogon live next the proposed facility and are concerned about how the mine will affect the groundwater, as well as nearby Swamp Creek and Rice Lake, which is fed by the stream. The Sokaogon harvest wild rice from the lake - and consider the annual harvest as highly important to their culture.

"We mainly harvest it for ceremonies," said Tina Van Zile, the Sokaogon's vice chairwoman. "It's a very sensitive plant. If the water level dropped a foot, we could lose a crop that year."

Decision in 2004

The DNR said a decision on whether the plant can proceed will probably not take place until 2004. The agency must still complete an environmental review before the decision goes to an administrative law judge.

There also have been numerous legislative fights related to the mine. Most recently, opponents sought legislation this year that would ban the use of cyanide in mining. Cyanide is one of the chemicals used in the mining process.

The court case pitted the Sokaogon and the U.S. Environmental Protection Agency against the DNR.

The EPA argued that Congress authorized the EPA to treat the American Indian tribes the same way as states. But the DNR said it had authority over water resources within the state. The agency also said it had higher standing because Wisconsin achieved statehood before the Sokaogon were ceded land for a reservation.

But a federal appeals court panel said that the Sokaogon band was a community and American Indian culture relies heavily on water resources. Further, the court said that the ore body's 1,850 acres are all owned by American Indians.

The Menominee, Oneida and the Lac du Flambeau tribes had previously sought to have authority over water quality matters, but backed out after an EPA attorney was charged and later convicted of faking documents to buttress the EPA's case.



Appeared in the Milwaukee Journal Sentinel on June 4, 2002.

Mole Lake wins final victory in federal clean water case

Tribal authority challenged denied



June 4, 2002
http://www.indianz.com/News/show.asp?ID=2002/06/03/wisconsin


The Supreme Court today refused to invalidate a Wisconsin tribe's power to regulate water on its reservation.

The decision lets stand a federal appeals court decision which upheld the "treatment as state" designation for the Sokaogon Band of Ojibwe. The Environmental Protection Agency granted the status under the Clean Water Act to allow the tribe to define its own water quality standards.

The state was opposing the designation, saying it was a "dramatic expansion" of the tribe's inherent rights.

The state also has an interest in a mine operation located upstream from the reservation which the tribe might now be able to scuttle with strict regulations.

 

````````````````````````````````````````````````````Ask Doyle to Drop U.S. Supreme Court Case

State Attorney General Jim Doyle is running for Wisconsin governor. With one hand, he recently supported two legislative bills to reform state mining laws. Yet with the other hand, he is suing the Mole Lake Chippewa Tribe for using the federal Clean Water Act to protect its wild rice beds from the proposed Crandon mine. Doyle has it within his power to drop the lawsuit against Mole Lake's "Treatment-As-State" (TAS) status within the EPA, and help the effort to stop the proposed Crandon mine. Yet instead, he has chosen to appeal the case to the U.S. Supreme Court. Even the Bush Administration has now sided with the tribe against Wisconsin's "poor" legal challenge.

Doyle lost a federal appeal of Wisconsin v. EPA last September. In its ruling, the Court stated: "This grant of TAS status alarmed the State of Wisconsin, which saw it as both an affront to the state's sovereignty and, more pragmatically, as an action with the potential to throw a wrench into the state's planned construction of a huge zinc-copper sulfide mine on the Wolf River, upstream from Rice Lake. Concerned about its loss of authority over certain territory within its outer boundaries and worried that the tribal water standards might limit the activities of the mine by prohibiting some or all of the discharge from the mine, Wisconsin filed this action...."

Please write the Doyle for Governor Campaign, to ask that the candidate put his actions where his words are, and drop Wisconsin v. EPA. We don't want our state taxes being used to fight a hopeless legal battle against a tiny Native community trying to protect its water and its culture. Please write or call the campaign, bring it up in debates and interviews, and ask other candidates to point out Doyle's contradictory behavior.

DOYLE 2002
P.O. Box 2687,
Madison, WI 53701
Phone (608) 284-2002
Fax (608) 284-2003
E-mail: campaign@doyle2002.com

 

 

````````````````````````````````````````````````````U.S. Backs Tribal Environmental Rights

 

May 15, 2002
http://www.indianz.com/News/show.asp?ID=2002/05/15/scourt


The Bush administration has asked the Supreme Court to allow a tribe to implement potentially strict water quality standards over the objections of the state of Wisconsin.

In a brief filed earlier this month, Solicitor General Ted Olson defends the right of the Sokaogon Band of Ojibwe to exercise authority over the Mole Lake Reservation. Citing a history of related cases, he urges the nation's highest court to reject the state's "poor" challenge and let a September 2001 appeals court ruling stand.

"The suggestion that this decision will inevitably lead to tribal regulation of waterways throughout Wisconsin vastly exaggerates the impact of this case," Olson wrote on May 3.

Under the Clean Water Act, the tribe applied for, and received, permission from the Environmental Protection Agency to develop a water quality program. This "treatment as a state," or TAS, designation was based on several factors including the tribe's heavy dependence on Rice Lake, which is used for food, fresh water, medicine and raw materials.

More significantly, however, the 1,850-acre reservation is almost entirely tribally owned.

But according to the state of Wisconsin, allowing the tribe exercise control would have an impact well beyond the borders of the reservation.

In his brief, Thomas L. Dosch, a Wisconsin assistant attorney general, said the TAS approval was a "dramatic expansion" of the tribe's inherent --and limited -- rights.

More specifically, though, the state has an economic interest in a controversial zinc-copper sulfide operation on Wolf River, which feeds into Rice Lake. Tribal officials, Native activists and environmentalists have opposed the mine, which would be located approximately one mile away from the reservation.

By enacting tough water requirements, the tribe could put a wrench in the state's plans. The Supreme Court, in a case affecting Isleta Pueblo in New Mexico, held that tribal standards must be adhered to by upstream communities.

Still, Dosch asserted that the case is "a good vehicle for addressing the limits of tribal sovereignty over nontribal resources and persons." The state wants the EPA's fact-specific TAS designation invalidated.

Siding with Wisconsin in the state of Idaho, which has disputed the extent and reach of tribal sovereignty in several recent cases but has lost them all. Fidelity Exploration & Production Company, an oil and gas conglomerate which is currently eyeing lands throughout the Wyoming and Montana for lucrative coalbed methane drilling operations, has filed a brief in support as well.

Last year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate tribal regulations implemented under the Clean Air Act. The case was refused in March 2001.

Related Documents: DOJ Brief
http://www.usdoj.gov/osg/briefs/2001/0responses/2001-1247.resp.pdf
Supreme Court Docket Sheet
http://www.supremecourtus.gov/docket/01-1247.htm
Related Decisions:
STATE OF WISCONSIN v. ENVTL. PROT. AGENCY, No 99-2618 (7th Cir. September 21, 2001)
http://laws.lp.findlaw.com/7th/992618.html
Relevant Links: Ban Cyanide at Crandon Mine
http://treaty.indigneousnative.org/cyanide.html
Crandon Mine - http://www.crandonmine.com
American Indian Environmental Office, EPA - http://www.epa.gov/indian
Petition to WI Atty. Gen. Jim Doyle to drop Mole Lake water quality case

 

 

 

```````````````````````````````````````````````````` Wisconsin wants tribal water ruling reconsidered



Tues., Nov. 6 2001
http://www.indianz.com/SmokeSignals/Headlines/showfull.asp?ID=env01/1162001-1


Having lost the latest round in a long battle against tribal sovereignty, the state of Wisconsin is asking a federal appeals court for a second chance to prove the Sokaogon Band of Ojibwe shouldn't control the quality of water on the Mole Lake Reservation.

In September, the 7th Circuit Court of Appeals upheld the tribe's right to enact tough water standards, even if they affect non-Indians elsewhere. By unanimous decision, a three-judge panel of the court said the tribe "demonstrated that its water resources are essential to its survival" and should be allowed to develop its own programs.

But the state on Friday asked the full panel of the court to hear the case all over again. If the court agrees, Wisconsin will get another chance to convince 11 judges it is sole authority.

The dispute centers on a still controversial set of regulations implemented during the Clinton administration. Under the Clean Air Act and the Clean Water Act, the Environmental Protection Agency is allowed to treat tribes as states.

The designation recognizes a tribe's authority to enact environmental standards that have an impact beyond reservation borders. For this reason, a number of states and industry -- whom EPA officials call "the usual suspects" -- have challenged the treatment as states, or TAS, program.

in the case at hand, a mining company's plans for a 55 million-ton zinc-copper sulfide mine would be limited by the TAS designation for the Sokaogon Band of Lake Superior Ojibwe. The mine would be located about a mile upstream from the reservation and the tribe's water standards could be so high as to make the project unfeasible for both the company and the state, which stands to benefit financially.

The mine has drawn the opposition of tribal officials, members and environmentalists. In particular, tribal members who depend on Rice Lake for food, water, medicine and other subsistence purposes say the project would devastate their traditional lifestyle.

The tribe's reliance on the lake helped convince the 7th Circuit of the necessity of the TAS designation. Additionally, the court considered that all 1,850 acres of the reservation are tribally-owned.

Since the ruling was unanimous, there isn't any indication that the state would succeed the second time around. But that hasn't stopped states throughout the country from continuing to challenge tribal authority.

Earlier this year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate clean air regulations affecting Indian Country. The Supreme Court declined to hear the case in March.

New Mexico previously took its water dispute with Isleta Pueblo to the Supreme Court and lost. Wisconsin has been more successful -- the threat of litigation forced the withdrawal of TAS designations for three tribes.

If the full panel of the 7th Circuit agrees to rehear the case, it take up to another year for a decision to be handed down. Barring a reconsideration, the state could also seek Supreme Court review.

Get the Case:
STATE OF WISCONSIN v. ENVTL. PROT. AGENCY, No 99-2618
(7th Cir. September 21, 2001)
http://laws.lp.findlaw.com/7th/992618.html

Relevant Link:
American Indian Environmental Office, EPA - http://www.epa.gov/indian

 

 

```````````````````````````````````````````````````` State appeals ruling giving tribe authority to regulate water quality on reservation



November 6, 2001
http://news.altavista.com/r?ck_sm=98922e68&ref=8001b0081&ci=4701&r=http://c.moreover.com/click/here.pl?z27271660&z=75932
By Robert Imrie/Associated Press


WAUSAU, Wis. -- The state is appealing a federal court ruling that grants a northern Wisconsin American Indian tribe full authority to regulate water quality on its reservation downstream from a proposed underground zinc and copper mine.

"The state feels this is an issue of sovereignty," Randy Romanski, a state Department of Justice spokesman, said Monday. "The state should not give up its right to protect its waters."

The 7th Circuit Court of Appeals in Chicago had ruled the U.S. Environmental Protection Agency can allow the Sokaogon band of Lake Superior Chippewa to regulate waters on its reservation. The three-judge panel said tribal members showed the waters were essential to their survival.

The state had argued only Wisconsin officials can regulate water quality because the state owns streams and lakebeds.

In its appeal filed Friday, the state asked the appeals court to reconsider its ruling and have all 11 judges decide the case, Romanski said. A decision on whether to take up the appeal could come within a month.

The tribe argues any upstream activity, including the mine proposed by Nicolet Minerals Co. near Crandon, could change the water quality on tribal lands. A message left by The Associated Press at the tribe's Crandon office was not immediately returned Monday.

Nicolet Minerals, a subsidiary of Australia-based BHP Ltd., is seeking state, federal and local permits to mine 55 million tons of zinc and copper ore.

Company spokesman Dale Alberts said Monday the company has been designing the mine with the tribe's higher water-quality standards in mind since 1995.

"We believe we can and will comply with the Sokaogon standards," he said. "We have to make sure we don't impact their water quality. Our scientific analysis demonstrates clearly we can do that so that they have no change to their water quality."

Opponents of the mine argue toxic chemicals from the mine will damage the environment, especially Swamp Creek and Rice Lake, which waters the tribe's wild rice beds. Swamp Creek runs through the mine's property before reaching the reservation.

Mine supporters say it can operate without harming the environment and will create much-needed jobs.

The state Department of Natural Resources is expected to release its recommendations on the project by next spring, Alberts said.

 




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Mole Lake water standards



Milwaukee Journal Sentinel
Sept. 25, 2001
www.jsonline.com/WI/092501/wi--crandonmine092501879.asp


A northern Wisconsin American Indian tribe has full authority to regulate the water quality on its reservation downstream from a proposed zinc and copper mine, a federal court ruled.

The ruling by the 7th Circuit Court of Appeals in Chicago could put another obstacle in the path of the proposed mine south of Crandon.

The court ruled Friday the U.S. Environmental Protection Agency can allow the Sokaogon Chippewa band to regulate waters on its reservation because tribal members have shown the waters are essential to their survival.

"This decision means that this ecosystem, which has sustained the tribe for all these centuries, will survive," the tribe's attorney, Glenn Reynolds of Madison, told the Milwaukee Journal Sentinel. "Any upstream activity cannot produce change of water quality on tribal lands.

"Nicolet Minerals Co. wants to open the zinc and copper mine in Forest County. Company spokesman Dale Alberts said the company understood the tribe's high water-quality standards before acquiring mining rights from Exxon in 1998.

"They have their standards and we're going to meet them," Alberts said.

The tribe's tough rules could strain Nicolet's resources, said Tina Van Zile, tribal vice chairwoman.

"All we want to do is protect what we have," Van Zile said. "Our resources are everything to us. We're taught to respect them and we want them to be there for our generations to come."

Nicolet Minerals is a subsidiary of BHP Ltd., headquartered in Australia. The company wants state, federal and local permits to mine 55 million tons of zinc and copper ore.

Opponents of the mine argue toxic chemicals from it will damage the environment, especially Swamp Creek and Rice Lake, which waters the tribe's wild rice beds.

Those who support the mine say it can operate responsibly and will create much-needed jobs.

The court rejected the state's appeal that argued only Wisconsin officials can regulate water quality because the state owns streams and lakebeds.

The court said the EPA has the power to regard Indian tribes as states under the Clean Water Act.

The EPA, not the state or the tribe, can issue permits for the mine, the court said. The state will decide whether to appeal by Oct. 5

 

 

````````````````````````````````````````````````````State challenge to tribal authority rejected



September 24, 2001

Upholding a set of regulations implemented by the Clinton administration, a federal appeals court on Friday rejected the state of Wisconsin's challenge to the Sokaogon Ojibwe Tribe's authority over water within the Mole Lake Reservation.

The Environmental Protection Agency was justified to treat the tribe as a state under the Clean Water Act, said a three-member panel of the 7th Circuit Court of Appeals. Affirming a lower court decision, the judges said the tribe can control water quality on the reservation even if it impact the activities of non-Indians elsewhere.

"Because the Band has demonstrated that its water resources are essential to its survival, it was reasonable for the EPA," wrote Judge Diane P. Wood for the majority, "to allow the tribe to regulate water quality on the reservation, even though that power entails some authority over off-reservation activities."

Wisconsin's challenge is one of several cases that have tested the EPA's "treatment as states," or TAS, program. The program allows tribes, like states, to regulate air and water quality within Indian Country.

But since the authority can involve regulating upstream or downstream rivers -- in the case of the Clean Water Act -- non-Indians are often affected. Understanding the limitations of tribal sovereignty, the Clinton administration implemented regulations which take non-Indian impact into consideration.

Among the factors are non-Indian ownership within a reservation. In the case of the Sokaogon, all 1,850 acres of the Mole Lake Reservation are held in trust for the tribe, one factor which persuaded the court to conclude the EPA was correct in its TAS designation.

Also affecting the court's decision was the impact of water quality on tribal health and welfare. The tribe "is heavily reliant on the availability of the water resources within the reservation for food, fresh water, medicines, and raw materials," said the court, writing that Rice Lake provides a traditional source of wild rice for tribal members.

Notably, the lake is downstream from the Wolf River, where Wisconsin officials want to build a zinc-copper sulfide mine. Citing threats to Rice Lake, tribal officials and indigenous activists have opposed the mine, which would be located approximately one mile away from the reservation.

Despite the victory for the tribe, the case is -- as the court said -- fact specific. Each TAS determination is made on a case-by-case basis and in some states, the EPA has withdrawn a designation due to a local challenge.

The court also wrote it was "inevitable" that states would continue to challenge the regulations and any designations. EPA officials have agreed, saying there was a list of "usual suspects" among those who have fought the program.

Earlier this year, New Mexico, South Dakota, Michigan and Nevada asked the Supreme Court to invalidate similar regulations implemented under the Clean Air Act. The Supreme Court declined to hear the case in March.


Get the Case:
STATE OF WISCONSIN v. ENVTL. PROT. AGENCY, No 99-2618 (7th Cir. September 21, 2001) http://laws.lp.findlaw.com/7th/992618.html

Relevant Links:
Ban Cyanide at Crandon Mine - http://treaty.indigneousnative.org/cyanide.html
American Indian Environmental Office, EPA - http://www.epa.gov/indian

 

 





May 12, 1999
The Honorable James E. Doyle
Attorney General
Capitol

Subject: Mole Lake Treatment as a State Decision

Dear Attorney General Doyle:

Pursuant to s. 165.25, Stats., the Department of Natural Resources requests the continued assistance of your office in the matter of the delegation of treatment as a State (TAS) authority to the Sokaogon Chippewa community (the Mole Lake Band) by the Environmental Protection Agency. As you know, in a decision issued on April 28, 1999, Judge Clevert upheld EPA's delegation of TAS authority to the Band. It remains our view that the Mole Lake Band was unable to make the requisite showing of jurisdiction over the waters on the Reservation. Our view is that under the Equal Footing Doctrine, the State of Wisconsin received sovereignty over all navigable water in the State upon achieving statehood, and that this sovereignty could be neither taken away nor transferred to the Tribe upon the creation of the Mole Lake Reservation in 1937.

We are especially frustrated by the District Court's failure to address, in any meaningful way, the State's public trust/equal footing arguments. We do not believe that it was appropriate to ignore the State's well-reasoned position simply by showing deference to EPA's interpretation of Federal Indian law. This is hardly within the traditional expertise of the Environmental Protection Agency.

For the reasons state above, we request that you appeal this case to the Seventh Circuit Court of Appeals. Attorney Michael A. Lutz will remain as the Department liaison in this matter.



Sincerely,

    /signed/
    George E. Meyer, Secretary

cc:
Tom Dosch-DOJ
John Greene-DOJ
James Kurtz-LS/5 Michael A. Lutz-LS/5
Governor Thompson


 

````````````````````````````````````````````````````Appellate Court upholds Mole Lake water standards

September 21, 2001

 

The U.S. Seventh Circuit Appellate Court has turned down Wisconsin's appeal to overturn the Mole Lake Sokaogon Chippewa Community's enhanced water quality standards. In 1995, the EPA granted the tribe "Treatment-As-State" (TAS) status under the federal Clean Water Act, in a decision challenged by State Attorney General James Doyle.

In its ruling, the Court stated, "This grant of TAS status alarmed the State of Wisconsin, which saw it as both an affront to the state's sovereignty and, more pragmatically, as an action with the potential to throw a wrench into the state's planned construction of a huge zinc-copper sulfide mine on the Wolf River, upstream from Rice Lake. Concerned about its loss of authority over certain territory within its outer boundaries and worried that the tribal water standards might limit the activities of the mine by prohibiting some or all of the discharge from the mine, Wisconsin filed this action...."

 



http://www.ca7.uscourts.gov/op3.fwx

In the United States Court of Appeals For the Seventh Circuit

No. 99-2618
State of Wisconsin,
Plaintiff-Appellant,

v.

Environmental Protection Agency and Christie Whitman,/* Defendants-Appellees, and Sokaogon Chippewa Community, Intervening Defendant-Appellee.

 

Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 96-C-90--Charles N. Clevert, Judge.

Argued November 6, 2000--Decided September 21, 2001

Before Kanne, Diane P. Wood, and Williams, Circuit Judges.

 

Diane P. Wood, Circuit Judge. Although the general model of sovereignty suggests that different sovereign states normally occupy different geographic territories, see, e.g., Restatement (3d) of the Foreign Relations Law of the United States, sec. 201 (1986), the existence of federations and confederations shows that overlapping sovereignty is also a common feature of modern political organization. In this case, we confront one of the more complex kinds of overlapping sovereignty that exists in the United States today: that between the States and Indian tribes. The Supreme Court addressed one aspect of that relationship in its 2000 Term in Nevada v. Hicks, 121 S. Ct. 2304 (2001), which held that tribal authorities lacked legislative jurisdiction to regulate the activities of state officials on reservation land when those officials were investigating off-reservation violations of state law. Id. at 2318. A different aspect of the same relationship is before us here: namely, whether the Environmental Protection Agency (EPA), acting through authority delegated to it by statute, was empowered to treat a particular tribe as a "state" for purposes of certain water quality rules. Like the district court, we conclude that the EPA acted properly in doing so, and we thus affirm the district court's judgment rejecting the challenge Wisconsin has brought to the EPA's action.

I

A. The Clean Water Act

The Clean Water Act (the Act) prohibits the discharge of pollutants into navigable waters unless the discharge is sanctioned by a permit or statute. See 33 U.S.C. sec. 1311(a). Permits are issued by the EPA or by state agencies subject to EPA review. Id. at sec. 1342. The Act also gives states the authority to establish water quality standards for waters within their boundaries (id. at sec. 1313), to certify compliance with those standards (id. at sec. 1341), and to issue and enforce discharge permits (id. at secs. 1342, 1319), all under the watchful eye of the EPA. Like other states, Wisconsin has enacted its own federally approved comprehensive water pollution regulatory system. See Wis. Adm. Code chapters 33, 280, 281, NR 100- 91, and NR 102-106.

In 1987, Congress amended the Act to authorize the EPA to treat Indian tribes as states under sec. 518 of the Act. Once a tribe has treatment-as-state (TAS) status, the statute permits it to establish water quality standards for bodies of water within its reservation and to require permits for any action that may create a discharge into those waters. 33 U.S.C. sec. 1377(e). In 1991, after full notice-and-comment rule- making, the EPA issued a final rule implementing this provision and setting forth the requirements Indian tribes would have to meet in order to be granted TAS status:

(1) the tribe must be federally recognized;

(2) the tribe must have a governing body carrying out substantial governmental duties and powers;

(3) the functions to be exercised by the tribe must pertain to the management and protection of water resources which are held by the tribe, held by the United States in trust for the tribe, or otherwise within the borders of the reservation; and

(4) the tribe must be capable of carrying out the functions of the Act.

40 C.F.R. 131.8(a); see also 33 U.S.C. secs. 1377(e)(1)-(3).

Relying heavily on the Supreme Court's decision in Montana v. United States, 450 U.S. 544 (1981), the EPA concluded that this was neither a plenary delegation of inherent authority to tribes to regulate all reservation waters, nor was it a standard that precluded tribal regulation of any non-member or any off-reservation activity. See 56 Fed. Reg. at 64877. Instead, the agency chose a case-by-case approach under which a tribe attempting to satisfy element (3) of the regulation would have to show that it possesses inherent authority over the waters in light of evolving case law. See 56 Fed. Reg. at 64878. There was no question that tribes could regulate the activities of tribal members, undertaken on the reservation, in order to protect the quality of reservation waters. In addition, the EPA concluded that "a tribe may regulate the activities of non- Indians on fee lands within its reservations when those activities threaten or have a direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id.

The EPA acknowledged that this will usually be an easy showing, based on "generalized findings" that water quality is related to human health and welfare. See id. Although the EPA stated that it would make a case-specific determination with regard to the scope of each tribe's authority, once a tribe has shown that impairment of the waters on the reservation would have a serious and substantial effect on the health and welfare of the tribe, the EPA presumes that there has been an adequate showing of inherent authority. Id. at 64879.

B. The Mole Lake Band and its Application For TAS Status

The waters at issue in this case are lakes and streams adjacent to or surrounded by the reservation of the Sokaogon Chippewa Community, also known as the Mole Lake Band of Lake Superior Chippewa Indians (the Band), located in northeastern Wisconsin. The Mole Lake reservation is unusual in two respects. First, the Band is heavily reliant on the availability of the water resources within the reservation for food, fresh water, medicines, and raw materials. In particular, Rice Lake, the largest body of water on the reservation, is a prime source of wild rice, which serves as a significant dietary and economic resource for the Band. Second, all of the 1,850 acres within the reservation are held in trust by the United States for the tribe. None of the land within the reservation is controlled or owned in fee by non- members of the tribe.

In August 1994, the Band applied for TAS status under the Act. Wisconsin opposed the application, arguing that it was sovereign over all of the navigable waters in the state, including those on the reservation, and that its sovereignty precluded any tribal regulation. Nevertheless, after elaborate administrative proceedings, on September 29, 1995, the EPA approved the Band's application, finding that the tribe had satisfied all of the requirements of 40 C.F.R. sec. 131.8, including the necessary demonstration of its inherent authority over all water resources on the reservation. In keeping with its earlier positions, the EPA noted that the inherent authority question did not turn on who had title to the land underneath the waters.

This grant of TAS status alarmed the State of Wisconsin, which saw it as both an affront to the state's sovereignty and, more pragmatically, as an action with the potential to throw a wrench into the state's planned construction of a huge zinc-copper sulfide mine on the Wolf River, upstream from Rice Lake. Concerned about its loss of authority over certain territory within its outer boundaries and worried that the tribal water standards might limit the activities of the mine by prohibiting some or all of the discharge from the mine, Wisconsin filed this action in district court on January 25, 1996, reiterating its challenge to the EPA's grant of TAS status to the Band. (The United States and the EPA waived immunity under 5 U.S.C. sec. 702.) The state's case raises a fundamental challenge to the TAS grant; the relief it seeks is outright revocation of the grant, rather than mere accommodation for any particular project. We are therefore satisfied that the issue is ripe now and need not await the Band's promulgation of specific water quality standards. If Wisconsin is right, it is entitled to have the EPA's creation of a state-like entity within its borders voided--an action that lies within the power of the court. See Community Trend Service, Inc. v. Commodity Futures Trading Comm'n, 233 F.3d 981 (7th Cir. 2000). Similarly, it is one in which a failure to review the issue now would cause hardship to the parties. Id.

In April 1999, the district court upheld the TAS grant, finding that the EPA's determination that a tribe could regulate all water within the reservation, regardless of ownership, was a reasonable interpretation of the relevant statutes and regulations. Wisconsin now appeals.

II

We review a grant of summary judgment de novo, Doe v. Howe Military Sch., 227 F.3d 981, 990 (7th Cir. 2000), applying the same standards as the district court: we will set aside an agency determination only if it is "procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute." See United States v. Mead Corp., 121 S.Ct. 2164, 2171 (2001); see also the Administrative Procedure Act, 5 U.S.C. sec. 706(2)(A) (set aside agency decision if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law). We should uphold the agency's determination as long as it considered relevant data under the correct legal standards and offered a satisfactory explanation for its actions. See Howard Young Med. Ctr., Inc. v. Shalala, 207 F.3d 437, 441 (7th Cir. 2000). Moreover, the EPA here has interpreted the statute by promulgating formal regulations, using plenary notice- and-comment procedures, and then implementing its rule with respect to the Band through a formal process in which the state was entitled to be heard. Its regulations and subsequent decision are therefore entitled to deference under Mead, 121 S. Ct. at 2171, and Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1994).

Wisconsin is challenging the EPA's findings only with respect to the third requirement for TAS status--the demonstration of the tribe's inherent authority to regulate water quality within the borders of the reservation. Wisconsin gives three reasons why the EPA's determination that the tribe had established such authority was unreasonable.

1. Not "Within the Borders"

For the first time on appeal, Wisconsin contends that Rice Lake is not "within the borders" of the reservation because the legal description of the reservation runs only to the Lake's highwater mark. This argument is waived, however, because Wisconsin did not present it to the EPA. See Vermont Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553-54 (1978). Furthermore, even if we could overlook this waiver and considered the argument on its merits, we would reject it. As the map attached to the Stipulated Joint Appendix illustrates, Rice Lake is almost completely surrounded by reservation land (and the small percentage that is not abuts off-reservation trust lands). If the EPA had been given a chance to consider this point, it would have been completely reasonable for it to interpret the phrase "within the borders" to include such a body of water.

2. No Authority Because No Title

Second, Wisconsin argues that the tribe does not have authority over the water resources on the reservation because the state has ownership of the underlying lake beds. We will assume for the purposes of this appeal that, pursuant to the Equal Footing Doctrine, the state does indeed have title to the lake beds within the reservation. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 283-88 (1997); Utah Div. of State Lands v. United States, 482 U.S. 193, 195-96 (1987).

This court has indeed held that, in some situations, state ownership of lake beds may restrict a tribe's authority to regulate the waters running over those beds. In Wisconsin v. Baker, 698 F.2d 1323, 1335 (7th Cir. 1983), we found that, because the state of Wisconsin held title to the underlying lake beds in a reservation, the Chippewa Band was precluded from restricting hunting and fishing in the reservation waters.

But contrary to Wisconsin's assertions, Baker does not dispose of this case. Most importantly, Baker did not involve a particular statute under which Congress specified that tribes would be entitled to be treated as states under particular circumstances, and both Congress and the responsible agency outlined the regulatory authority tribes were to exercise. The legal structure governing Baker involved only the treaty that created the reservation, and that treaty did not contain any language regarding the tribe's power to regulate reservation waters. The Clean Water Act, by contrast, explicitly gives authority over waters within the borders of the reservation to the tribe and does not even discuss ownership rights. Secondly, the Baker court explicitly stated that the "defendants do not contend that public fishing and hunting pose an imminent threat to the 'political integrity, the economic security, or the health or welfare' of the Band." Id. at 1335. Thus, the Baker court left open the possibility that state ownership of lake beds may not preclude tribal authority over the waters if tribal regulation was necessary to protect the "political integrity, the economic security, or the health or welfare" of the Band, as both parties concede is the case here. Thirdly, Baker was about hunting and fishing rights, which have traditionally been the subject of state regulation, while the ultimate authority for the water quality standards lies with the federal EPA, not the state of Wisconsin (which itself has acted only pursuant to federal delegation).

Baker therefore has little or no application to the case before us. We find pertinent instead a number of legal principles all of which support the EPA's determination that a state's title to a lake bed does not in itself exempt the waters from all outside regulation. First, "the power of Congress to regulate commerce among the states involves the control of the navigable waters of the United States." Coyle v. Smith, 221 U.S. 559, 573 (1911). This power has not been eroded in any way by the Equal Footing Doctrine cases, which "involved only the shores of and lands beneath navigable waters. [The doctrine] cannot be accepted as limiting the broad powers of the United States to regulate navigable waters under the Commerce Clause." Arizona v. California, 373 U.S. 546, 597- 98 (1963). Unlike the situation in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), here no one disputes that the waters at issue are "navigable waters" for purposes of either the Clean Water Act or the Commerce Clause.

The breadth of federal authority over Indian affairs is equally well- established: "The Constitution vests the Federal Government with exclusive authority over relations with Indian tribes." Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985); United States v. Wheeler, 435 U.S. 313, 319 (1978) ("Congress has plenary authority to legislate for the Indian tribes in all matters."); U.S. Const., Art. I, sec. 8, cl. 3. In fact, in the absence of tribal TAS status, the EPA and not the state of Wisconsin might well be the proper authority to administer Clean Water Act programs for the reservation, because state laws may usually be applied to Indians on their reservations only if Congress so expressly provides. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987).

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. It was reasonable for the EPA to determine that ownership of the waterbeds did not preclude federally approved regulation of the quality of the water, and we uphold that determination.

3. No Inherent Authority over Off- Reservation Activities

Finally, Wisconsin argues that the Band did not make the required showing of authority over those activities potentially affected by its imposition of water quality standards. Because the EPA has determined that, unlike the Clean Air Act, the Clean Water Act is not an express delegation of power to tribes, see 56 Fed. Reg. at 64880, the EPA requires tribes to show that they already possessed inherent authority over the activities undoubtedly affected by the water regulations. EPA regulations allow a tribe to establish this authority by showing that impairment of the reservation's waters would affect "the political integrity, the economic security, or the health or welfare of the tribe." 56 Fed. Reg. at 64877.

This regulatory language tracks the Supreme Court's decision in Montana v. United States, supra, in which the Court recognized the general rule that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," 450 U.S. at 565, but went on to hold that "[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 566. See also Atkinson Trading Co., Inc. v. Shirley, 121 S. Ct. 1825 (2001). The regulations also track the more recent Supreme Court language in Strate v. A-1 Contractors, 520 U.S. 438 (1997), by noting that authority is usually proper because "water quality management serves the purpose of protecting public health and safety, which is a core governmental function, whose exercise is critical to self- government." 56 Fed. Reg. at 64879. (We note too that this case does not involve any question of the tribe's ability to restrict activities of state law enforcement authorities on the reservation, when those officials are investigating off-reservation crimes, and thus the rule of Hicks, 121 S. Ct. 2304, is not implicated.)

Once a tribe is given TAS status, it has the power to require upstream off- reservation dischargers, conducting activities that may be economically valuable to the state (e.g., zinc and copper mining), to make sure that their activities do not result in contamination of the downstream on-reservation waters (assuming for the sake of argument that the reservation standards are more stringent than those the state is imposing on the upstream entity). See Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996). Such compliance may impose higher compliance costs on the upstream company, or in the extreme case it might have the effect of prohibiting the discharge or the activities altogether. This is a classic extraterritorial effect, which Wisconsin argues is impermissible and takes this case beyond the scope of Montana, which concerned only tribal authority over non-member activities on reservation fee lands.

But this is not the only situation where upstream and downstream users may have different standards and some accommodation is necessary. Wisconsin's argument could be made equally if the downstream regulator were Illinois, yet in that case the need for the two states to coordinate their standards, or for the upstream company to comply with the more stringent rules, would be clear. In fact, Congress anticipated this very problem in the statute, and it had the following to say about it:

The Administrator shall, in promulgating such regulations [for TAS status], consult affected States sharing common water bodies and provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by States and Indian tribes located on common bodies of water. Such mechanism shall provide for explicit consideration of relevant factors including, but not limited to, the effects of differing water quality permit requirements on upstream and downstream dischargers, economic impacts, and present and historical uses and quality of the waters subject to such standards. Such mechanism should provide for the avoidance of such unreasonable consequences in a manner consistent with the objective of this chapter.

33 U.S.C. sec. 1377(e).

The EPA has developed the mechanism called for by the statute, which allows it to mediate conflicting interests when a tribe's standards differ from those of a state. See also 33 U.S.C. sec. 1341(a). In addition, once a tribe is given TAS status, the Act gives it the same right as that given to states to object to permits issued for upstream off- reservation activities. See 56 Fed. Reg. at 64887. In deciding whether to issue a permit for discharge within a state that may violate the water quality standards of a downstream tribe, the EPA may ask the parties to engage in mediation or arbitration, in which the decision-maker and the EPA administrator, who has the final authority over the issuance of the permit, will consider such factors as "the effects of differing water quality permit requirements on upstream and downstream dischargers, economic impacts, and present and historical uses and quality of the waters subject to such standards." 33 U.S.C. sec. 1377(e). The EPA may then ask the tribe to issue a temporary variance from its standards for the particular discharge or may ask the state to provide additional water pollution controls. See 54 Fed. Reg. at 39099-101; 56 Fed. Reg. at 64885-89; 40 C.F.R. secs. 121.11 through 121.16. This mechanism, rather than a futile effort to avoid extraterritorial effects, is the way both Congress and the agency sought to accommodate the inevitable differences that would arise.

We say "inevitable" because activities located outside the regulating entity (here the reservation), and the resulting discharges to which those activities can lead, can and often will have "serious and substantial" effects on the health and welfare of the downstream state or reservation. There is no case that expressly rejects an application of Montana to off-reservation activities that have significant effects within the reservation, and it would be exceedingly hard to say that the EPA's interpretation is contrary to law in the face of the express recognition of this issue and the choice of a solution in the statute itself. It was reasonable for the EPA to determine that, since the 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.

Finally, we think Wisconsin exaggerates the power of the tribe to veto upstream discharge activities. The tribe cannot impose any water quality standards or take any action that goes beyond the federal statute or the EPA's power. To the contrary, the EPA supervises all standards and permits. Far from allowing a tribe to veto a state permit, granting TAS status to tribes simply allows the tribes some say regarding those standards and permits. It is quite possible that, in particular cases, perhaps through the vehicle of the statutory mediation mechanism, the EPA may require the tribe's more stringent standards to give way to upstream discharge and development. Whether the tribe or the state ultimately "wins" in the dispute, it is the EPA, not the tribe or the state, that has the ultimate authority to decide whether or not to issue a permit.

Because the Band has demonstrated that its water resources are essential to its survival, it was reasonable for the EPA, in line with the purposes of the Clean Water Act and the principles of Montana, to allow the tribe to regulate water quality on the reservation, even though that power entails some authority over off-reservation activities. Since a state has the power to require upstream states to comply with its water quality standards, to interpret the statutes to deny that power to tribes because of some kind of formal view of authority or sovereignty would treat tribes as second- class citizens. Nothing in sec. 1377(e) indicates that Congress authorized any such hierarchy. Particularly in light of the deference we owe to the EPA's decisions here, we see nothing that would justify our setting aside the agency's action.

III

We conclude that the EPA's grant of TAS status to the Band is not arbitrary, unreasonable, or contrary to law and we therefore AFFIRM the district court's judgment. We note once again in closing that the EPA's decision in each case seeking TAS status is fact-specific. In this case, both parties conceded that the waters within the Band's reservation are very important to the Band's economic and physical existence. Additionally, the reservation here is unusual in that there are no parcels of fee land within the reservation owned by non-members of the tribe. We have no occasion to say whether, on a different set of facts, the EPA might extend the notion of a tribe's "inherent authority" to affect off- reservation activities so far as to go beyond the standards of the statute or the regulations. If it ever arises, that will be another case, for another day.

FOOTNOTE
* Pursuant to Fed. R. App. P. 43(c), Christie Whitman is substituted as a party for Carol M. Browner.


```````````````````````````````````````````````````` State Appeals Ruling on Tribal Water Rights

 

July 18, 1999
By Susan Campbell
Green Bay Press Gazette


The state is appealing a federal judge's decision to uphold a northern Wisconsin Indian tribe's right to establish water-quality standards for its reservation near the proposed Crandon mine.

Jim Haney, spokesman for the state Attorney General's Office, said the offices has filed a notice of its intent to appeal the May decision regarding the Mole Lake Chippewa tribe.

That decision, issued by U.S. District Court Judge Charles Clevert of Milwaukee, dismissed a state challenge to the U.S. Environmental Protection Agency's authority to grant "treatment as state" status allowing the tribe to set its own water quality standards.

"We had indicated shortly after the district court's decision in Milwaukee that we believed the case needed to be appealed, in large part, because the judge had not resolved the crucial issues as far as the state of Wisconsin is concerned - and that is, whose waters are these?" Haney said.

Linda Sturnot, vice president of the Mining Impact Coalition of Wisconsin, said the Department of Natural Resources' recommendation that the state appeal the decision shows the agency's bias in favor of the proposed Crandon mine. Sturnot said in a statement that DNR Secretary George Meyer's request to appeal the decision 'leads Wisconsin citizens to believe the DNR's role in the Crandon mine environmental impact statement and mine permitting process is not without bias or a conflict of interest." The coalition has said the Tribe's water-quality regulations, if they stand, could make it harder for the proposed mine to comply with state environmental regulations.

Included in those standards is designation of Swamp Creek, which flows through the reservation and within a mile of the tribe's ancient wild rice beds in Rice Lake, as an "Outstanding Natural Resource Water." The designation carries with it a non-degradation standard.

Meyer said his recommendation to appeal the federal judge's decision "has nothing to do with the Crandon mine" - and noted the state has litigated the same point with three other tribes, two of which have no relation to the mine. "There's a very strong disagreement with the tribes in regard to issues over who has jurisdiction over public waterways in the state," he said. Meyer said that in the event the tribe's water quality standards are overturned, he has told the tribe he would recommend to the state's Natural Resource Board that Rice Lake and its tributaries be designated 'Outstanding Resource Waters'. "This is not a disagreement over the need to afford the highest standard of protection for those bodies of water," he said.

Although an environmental review is still under way, Meyer said it doesn't appear that the mine would contaminate the tribal waters because of the project's design. Nicolet Minerals Co., a subsidiary of Toronto-based Rio Algom Ltd., seeks state permits to remove 55 million tons of zinc and copper from the mine site. Meyer said the state's draft EIS for the project will be completed by August 2000.


Copyright, Green Bay Press Gazette, July 18, 1999






```````````````````````````````````````````````````` Court Upholds Tribal Water Quality Standards -

State Loses Lawsuit against Mole Lake Sokaogon Chippewa
and Environmental Protection Agency

Contacts:

  • Chairman Roger McGeshick, Jr.,Mole Lake Sokaogon Chippewa Community, 715-478-7504
  • Tina L. Van Zile-Mole Lake Chippewa Environmental Dept., 715-478-7605
  • Glenn Stoddard, Garvey & Stoddard, S.C, 608-256-1003
  • Tim Tynan, Mining Impact Coalition of Wisconsin, 608-245-1525, tynan@itis.com
  • Zoltan Grossman, Midwest Treaty Network, 608-246-2256, mtn@igc.org
  • Dave Blouin, Sierra Club, 608-233-8455, burroak15@aol.com

Crandon, Wisconsin. In an April 28 decision, the U.S. District Court dismissed a lawsuit by the State of Wisconsin against the U.S. Environmental Protection Agency (EPA) and the Mole Lake (Sokaogon) Chippewa. The suit was an attempt to deny EPA's authority to grant "Treatment as State" (TAS) status to Mole Lake Reservation. The EPA originally granted TAS status to Mole Lake in 1995, to support Mole Lake's sovereign authority to set its own water quality standards under the federal Clean Water Act.

The decision reaffirming the TAS status has far-reaching implications not just for the Mole Lake Chippewa, but for the controversial proposed Crandon mine, and potentially for other Native American reservations around the country.

The State of Wisconsin disputed Mole Lake's authority, claiming that all navigable waters within Wisconsin could only be regulated by the state. Yet the EPA, under the federal Clean Water Act, allows for Indian tribes to be treated as states to regulate and manage their own resources. State Attorney General James E. Doyle challenged the federal law by suing both the EPA and Mole Lake. A citizens' petition recently asked Doyle to drop the suit; it was signed by 26 Wisconsin environmental groups, by two neighboring townships, and by 454 individuals from 121 communities around the state. (The letter is below.)

The District Court resoundingly rejected the state's logic and dismissed the suit. Part of the state's underlying argument had been that tribal governments in general have neither the technical capacity nor the commitment to environmental protection, and so the EPA should not treat them like states. Yet the federal court decision praised Mole Lake's technical effort in setting its water quality standards, and stated that the tribe has stronger environmental protection regulations than those contained in Wisconsin's environmental statutes.

Roger McGeshick, Jr., Chairman of the Mole Lake Sokaogon Chippewa Community, said, "I believe this decision is going to benefit our community and the tribes throughout the U.S.. In the past, history has proven the tribes have been taken advantage of and the outcome of this lawsuit has given our people more strength. Our Water Quality Standards will never be negotiated!"

Tina L. Van Zile, a Mole Lake Sokaogon Chippewa Tribal Council member, stated, "Within 90 days from when EPA approved our water standards, the state filed the lawsuit. We've been in court for three years; the decision has brought some relief, although we know this is not going to be the end. In the future, we'll be strengthening our water quality standards even more."

Mole Lake immediately wrote Attorney General James Doyle and asked him to not appeal the decision made by U.S. District Judge Charles N. Clevert. Glenn Stoddard, Attorney for the Sokaogon Chippewa, said, "This is a very good decision for the Sokaogon Chippewa and for the environment in the area that would be affected by the proposed Crandon Mine. We have encouraged Attorney General Doyle to not appeal the decision and to respect the tribe's strong and legitimate interest in protecting its very important natural resources, including its historic rice beds. We hope Attorney General Doyle will make the right decision and begin to work with the tribe rather than against the tribe. But this issue goes beyond even the State vs. the Sokaogon Chippewa because it is directly related to the proposed mine and its effect on the Wolf River and Wisconsin's environment."

Zoltan Grossman of the Midwest Treaty Network said, "Tribal environmental powers based on federally backed Native sovereignty can help protect the environment for Indians and non-Indians alike. Many residents of northeastern Wisconsin are trusting Native sovereignty to protect their environmental and economic interests more than the sovereignty of a pro-mining state government."

Grossman added, "As in the recent Supreme Court decision in the Mille Lacs treaty rights case, the District Court decision in the Mole Lake case seriously undercut the 'equal footing doctrine' that states have tried to use to prioritize States' Rights over federally backed tribal sovereignty. The courts are clearly affirming the nation-to-nation relationship that is the bedrock of U.S. Indian policy."

Tim Tynan of the Mining Impact Coalition in Madison said, "Wisconsin's current water quality and enforcement standards are insufficient and will not adequately protect the reservation's ancient wild rice beds from the threats of metallic sulfide mining upstream. Rice Lake, an enormous wild rice bed situated within their reservation boundaries, lies a few thousand feet downstream from the proposed Crandon mine."

Although the Crandon mine is not directly mentioned in the legal decision, the proposed mine must now comply with Mole Lake's regulatory authority.

"We are also pleased with this decision," said Dave Blouin, Sierra Club spokesman, "The Sierra Club supports Mole Lake's right and authority to protect its people and resources from unsafe metallic sulfide mining. We ask Wisconsin citizens to call on Attorney General Doyle not to appeal the decision and to stop wasting taxpayers' dollars on frivolous lawsuits on behalf of mining companies such as Rio Algom."

The case is: State of Wisconsin v. United States Environmental Protection Agency and Carol Browner and Sokaogon Chippewa Community, the United States District Court, Eastern District Court of Wisconsin; Case No. 96-C-90.

 




````````````````````````````````````````````````````re: the letter




CONTACT:
Dave Anderson (715) 478-5179 bluebird@newnorth.net
Timothy Tynan (608) 245-1525 / (608) 246-3340 x.13 tynan@itis.com
Zoltán Grossman (608) 246-2256 mtn@igc.org
Dave Blouin (608) 233-8455 burroak15@aol.com
Al Gedicks (608) 784-4399 gedicks.albe@mail.uwlax.edu



In a March 24 letter to Wisconsin Attorney General James E. Doyle, 28 Wisconsin groups and 454 individuals demanded that the State drop a lawsuit against the U.S. Environmental Protection Agency (EPA), for the agency's recognition of enhanced federal water protection codes by the Sokaogon Chippewa Community at Mole Lake (see below).

In 1995, the EPA granted Mole Lake "Treatment-As-State" (TAS) status under the federal Clean Water Act, enabling the tribe to strengthen protection of its reservation waters. The Mole Lake Reservation is adjacent to the proposed Crandon zinc-copper mine site in Forest County, and tribal members have expressed fears that their wild rice beds and drinking water would be affected by sulfide contamination and groundwater reductions from the underground mine.

The letter marked the 10th anniversary of the Exxon Valdez oil spill, which brought the company that initiated the Crandon mine proposal under heavy environmental criticism; its former partner Rio Algom, Ltd. now manages the project, though Exxon would still share in the financial proceeds from the mine if it went forward.

The letter was initiated by the Wolf Watershed Educational Project, an alliance of environmentalists, sportfishing groups, Native American nations, local residents, unionists, and students opposed to the Crandon mine plans. It states that the lawsuit "singles out" Mole Lake from other TAS-status tribes, because the status could potentially affect the mine. It concludes that preventing a Native American community from protecting its natural and cultural treasures "fits the criteria of environmental racism." Timothy Tynan of the Wolf Watershed Educational Project and Mining Impact Coalition added that "dropping the suit would be an act of environmental justice."

Dave Anderson, a water consultant to Mole Lake and an author of the tribe's strengthened water standards, said, "It is time for the State of Wisconsin to realize that using tax dollars to sue over the rights of Native American people is wrong and should end. The Attorney General's office should not be used to further the interests of private mining companies." Anderson added, "The Department of Natural Resources and Attorney General must recognize the inherent rights of Native peoples to protect their natural resources. If the DNR does not agree that the tribe has sovereign authority to protect resources on its own reservation, then it should at least adopt water quality standards stringent enough to protect the wild rice beds of the Sokaogon Chippewa."

The letter was signed by 28 Wisconsin groups, including the Wolf Watershed Educational Project, Midwest Treaty Network, Mining Impact Coalition, Wisconsin Resources Protection Council, Great Lakes Regional Indigenous Environmental Network, EarthWINS, and Wisconsin's Environmental Decade. They were joined by environmental groups in Ashland, Hayward, Minocqua, Green Bay, Sturgeon Bay, Shawano, White Lake, Washburn, Oshkosh, Stevens Point, Superior, and elsewhere around the state (see list below).

The letter was passed as a resolution by the town board of Nashville, which covers half the proposed mine site and includes Mole Lake, and by the town board of Ainsworth, which lies in Langlade County immediately south of the mine site. A similar petition was signed by 454 individuals from 121 Wisconsin communities, nearly all in the northern part of the state. The letter was also signed by 19 groups outside Wisconsin, including indigenous rights support groups from Austria and Belgium.



 

````````````````````````````````````````````````````the letter


March 24, 1999

Attorney General James E. Doyle
Room 114 East
State Capitol
Madison, WI 53702



Dear Attorney General Doyle,

We support the attempts by Wisconsin Indian tribes to obtain and maintain Treatment-As-State (TAS) environmental standards, and further respect the authority granted by Congress to the EPA to recognize TAS status. We insist that agreements entered into by Wisconsin officials and tribes never undermine the legal authority of tribal governments to protect the health and well-being of their respective tribal members or tribal lands, waters, or air. We respectfully request you to drop all current state lawsuits against the U.S. Environmental Protection Agency (EPA) with respect to already granted TAS status, and refrain from future lawsuits which attempt to undermine the sovereignty of Wisconsin's Native American nations.

Congress has acted under federal environmental statutes to authorize the EPA to delegate to Indian tribes specific enforcement and regulatory authority to the same or a similar degree as is delegated by the EPA to the states.

The Clean Water Act sets the standards governing the water quality that must be maintained or achieved in rivers and other navigable waters, and requires dischargers into these waters to obtain permits imposing maximum levels of allowable pollutants. In 1987, Congress amended the Act and authorized the EPA to delegate to a qualifying tribe regulatory authority to set water quality standards under Section 303, to grant permits for dredging and filling under Section 404, and grant discharge permits under the National Pollutant Discharge Elimination System. In 1986, Congress had similarly amended the Safe Water Drinking Act to allow the EPA to to delegate to a tribe primary enforcement authority over underground injection well regulation or other program enforcement.

The Clean Air Act is the principal federal statute regulating emissions into the nation's air, and functions primarily by requiring sources of air pollutants to obtain new source or operating permits. In 1990, Congress amended the Act to authorize the EPA Administrator to treat tribes as states whenever tribes are capable of carrying out those functions.

Many of Wisconsin's 11 federally recognized tribes are seeking or have obtained TAS status from the EPA, in an attempt to protect their reservation waters or air from polluting industries such as mines, coal- burning power plants, and paper mills. Yet state agencies and officials appear to prefer economic interests over the human and sovereign rights of indigenous peoples, their traditional means of subsistence, their right to development, and their sacred relationship with the land, water, and air.

We ask you, Governor Tommy Thompson, and Department of Natural Resources Secretary George Meyer to stop blocking attempts by Wisconsin tribes to obtain or maintain TAS status. We oppose any pressure on the tribes to give up their pursuit of TAS status in return for gaming rights. We feel that you are wrongly representing Wisconsin citizens by vowing to sue the EPA when any tribe successfully achieves TAS status, and by claiming that only the state government has sovereign authority over the air and navigable waters of Indian reservations.

We particularly oppose your lawsuit against EPA for granting TAS status in 1995 to the Mole Lake Sokaogon Chippewa Community. The tribe is attempting to protect its drinking water and wild rice beds from the potential threat of acid mine drainage and groundwater drawdown. We feel that the lawsuit represents only the interests of the Rio Algom mining company in opening its proposed Crandon mine adjacent to the reservation. The State of Wisconsin is attempting to prevent one of its own communities from protecting its clean water and cultural resources. The tribe's wild rice beds are the mainstay of its ancient cultural heritage, and should be a treasure for all citizens of the state. Your legal action singles out a small tribe that is at potential risk from water contamination, and in doing so fits the criteria of environmental racism.

We strongly feel that Wisconsin should initiate a respectful government-to-government relationship with tribes to protect our common resources. In the 21st century, we should not be repeating the cultural genocide of the 19th century.


Sincerely,

Amik Sisters, Milwaukee • Anishinaabe Niijii, Hayward • Chequamegon Audubon Society, Ashland • Citizens for Safe Water Around Badger, Merrimac • Clean Water Action Council, Green Bay • Door County Environmental Council, Sturgeon Bay • EarthWINS Network, Shawano • Environmental Studies Student Association, Madison • Environmentally Concerned Citizens of Lakeland Areas (ECCOLA), Minocqua • Great Lakes Regional Indigenous Environmental Network • Green Onion Resource Center, Washburn • Lake Superior Greens, Superior • Madison Treaty Rights Support Group, Madison • Midwest Treaty Network, Statewide • Mining Impact Coalition of Wisconsin, Statewide • Progressive Action Coalition, Stevens Point • Protect Our Wolf River (POW'R), Shawano • Student Environmental Action Coalition, Oshkosh Town of Ainsworth, Langlade County • Town of Nashville, Forest County • University of Wisconsin Greens, Madison • Watershed Alliance To End Environmental Racism, Springbrook • Wisconsin Greens, Statewide • Wisconsin Indian Educational Association, Indian Mascot and Logo Taskforce, Mosinee • Wisconsin Resources Protection Council, Statewide • Wisconsin's Environmental Decade, Madison • Wolf Watershed Educational Project, Statewide • Wolf River Watershed Alliance, White Lake • Association Working Against Keweenaw Exploitation (AWAKE), Mohawk MI • Bastrop County Environmental Network, Bastrop TX • Bison Land Resource Center, Brookings SD • Boalt Hall Environmental Law Society, Berkeley CA • Campaign to Safeguard America's Waters, Haines, Alaska • Dark Night Notes, Chicago IL • Earth First!, Eugene OR • Indigenous Support Coalition of Oregon, Eugene OR • KOLA International Campaign Office, Brussels, Belgium • Native Ecology Initiative, Brookline Village MA • North American Water Office, Lake Elmo, MN • People's Alliance, Berkeley CA • Society for Endangered Peoples, Vienna, Austria • Women in Black Berkeley, Berkeley CA

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