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Montana v. EPA

ELR Citation: 27 ELR 20421
Nos. CV 95-56-M-CCL, 941 F. Supp. 945/(D. Mont., 03/27/1996)

The court holds that the U.S. Environmental Protection Agency's (EPA's) final decision granting "treatment as state" (TAS) status under the Federal Water Pollution Control Act (FWPCA) to Native American tribes is supported by the administrative record, consistent with EPA's regulations, and not contrary to law. State, county, and municipal governments challenged EPA's grant of TAS status to the tribes, which permitted the tribes to establish water quality standards (WQSs) for a reservation. Irrigation districts, and nonmember irrigators owning land on the reservation sought to intervene.

The court first holds that irrigators that depend on water from the Native American reservation have no significant protectable interest in the outcome of the litigation and are therefore not entitled to intervene as of right. Tribal regulatory jurisdiction over nonmembers is not being determined for all purposes, but merely for purposes of setting WQSs for the reservation. EPA intends to continue issuing and enforcing national pollution discharge elimination system (NPDES) permits. None of the proposed intervenors possesses an NPDES permit or would in any other way be affected by the tribes' setting of WQSs; and proposed intervenors do not engage in any other activity regulated by the FWPCA. Proposed intervenors assert that their property interest is in keeping tribal government small, because any expansion of government power by tribes causes their property values to decline. Although this general concept may be accurate, the interest is vague and attenuated and there is no statute that entitles proposed intervenors to bring such a claim.

The court next declines to grant permissive intervention. Proposed intervenors have no independent grounds of jurisdiction to support their permissive intervention. Moreover, such permissive intervention would likely unduly delay or complicate the resolution of the case, and it would not lead to the fairest and most efficient handling of the case.

Turning to EPA's conferral of TAS status on the tribes, the court holds that the action was not arbitrary, capricious, an abuse of discretion, or in violation of the law. The court based its decision on the numerous instances of pollution discharge on nonmember lands that caused serious and substantial impacts to tribes' water resources, EPA's avoidance of checkerboarding and factionalizing reservations into trust and fee lands, and EPA's policy of providing tribal governments with a lead role in managing programs to protect the reservation environment and its populace.

Counsel for Plaintiffs
Joseph P. Mazurek, Attorney General
Attorney General's Office
Justice Bldg.
215 N. Sanders, Helena MT 59620
(406) 444-2026

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