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Maine v. Johnson

ELR Citation: 37 ELR 20204
Nos. No. 04-1363, (1st Cir., 08/08/2007)

The First Circuit, in a dispute among two Native American tribes, the U.S. Environmental Protection Agency (EPA), and the state of Maine, affirmed in part and vacated in part an EPA order partially ceding Clean Water Act discharge permitting authority to the state. The order was affirmed insofar as it cedes permitting authority to Maine over 19 sites not in Indian territory. However, the order was vacated with regard to two tribal-owned sites for which the Agency retained permitting authority. The sites, located on tribal lands, discharge into navigable waters within the tribes' territories, but then pass on to other downstream communities. EPA determined that the discharges from these facilities were "immaterial" and had no "substantial effect[] on non-members" and concluded that their regulation was an "internal tribal matter" over which the state lacked adequate authority under a 1980 Maine statute, ratified by a federal statute also in 1980, known collectively as "the Settlement Acts." But while the examples given in the Settlement Acts of what "internal tribal matters" means are not exclusive, discharging pollutants into navigable waters is not of the same character as tribal elections, tribal membership, or other exemplars that relate to the structure of Indian government or the distribution of tribal property. The court, therefore, vacated that portion of the order.