Fredericks Peebles & Morgan LLP
ads@blueearthmarketing.com   712.224.5420

Environment | Law
Maine tribes lose sovereignty in EPA water case


In a blow to their sovereignty, a federal appeals court on Wednesday blocked two Maine tribes from regulating water quality on their reservations.

The Penobscot Nation and the Passamaquoddy Tribe sought to set their own standards under the Clean Water Act. By exercising their inherent powers, tribes across the country are able to do so independent of state governments.

But the 1st Circuit Court of Appeals said the Maine tribes lost those powers when they settled their land claims. Under special acts of Congress, the state's "authority far exceeds what is normal for Indian tribes to which no such legislation applies," Judge Michael Boudin wrote in the unanimous decision.

"This markedly contrasts with the status of Indian tribes in other states not subject to the settlements acts," Boudin continued.

The 25-page decision comes in a long-running battle between the tribes, the state and the Environmental Protection Agency. No one fully agreed on the extent of the tribe's rights versus the state's and the matter festered under the Clinton and Bush administrations.

In a plan submitted to the EPA, the state asserted jurisdiction over Penobscot and Passamaquoddy lands. The tribes, meanwhile, said their sovereignty protected them from state encroachment.

The EPA took the middle ground by approving the state's plan to regulate water at 19 off-reservation sites, even though some of the sites discharge water into the Penobscot and Passamaquoddy reservations.

But the agency blocked the state from regulating discharges at two tribal-owned sites. And EPA reserved the right to object to future state actions that might affect tribal subsistence.

In its opinion, the 1st Circuit said the EPA was correct about the off-reservation sites. The court rejected the tribes' broad reading of their settlement acts, citing Maine's "explicit authority over tribal lands and natural resources" under the laws.

The court, however, said the EPA was wrong about the two tribal-owned sites. Regulating water quality is not an "internal tribal matter" -- as that term is contemplated by the Maine settlement acts -- the 1st Circuit said.

"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," Boudin wrote.

Finally, the court said it was too early to rule on the EPA's claim that it has a general environmental trust responsibility to the tribes to protect their subsistence rights. Both tribes depend on water in two rivers -- the Penobscot and St. Croix -- that will be regulated by the state.

"The EPA was entitled to give warning as to its enforcement intentions; but that does not mean that the standards it proposes to employ are independently reviewable in advance," Boudin wrote.

The ruling is the latest in a series of cases from that have limited the sovereignty of tribes in New England. The Penobscot Nation and the Passamaquoddy Tribe were previously forced to release tribal council documents related to their water quality standards because the state and federal courts said they were subject to state laws.

Two other Maine tribes have to comply with state employment law, the 1st Circuit said in a recent decision. And a Massachusetts tribe and a Rhode Island tribe have lost major sovereignty cases at the state and federal level.

Court Decision:
Maine v. EPA (August 8, 2007)

Relevant Documents:
EPA Federal Register Notice | PDF version

Relevant Links:
Penobscot Nation - http://www.penobscotnation.org
Passamaquoddy Tribe at Pleasant Point - http://www.wabanaki.com
Passamaquoddy Tribe, Indian Township - http://www.peopleofthedawn.com

Related Stories:
EPA allows state jurisdiction over Maine tribal lands (12/3)
Maine tribes march for sovereignty (5/24)
Maine tribes to hand over documents (5/21)
Maine tribes cite industry pressure (5/13)
Maine tribes agreed to state oversight (4/12)
Supreme Court declines tribal cases (2/20)
Today's actions by Supreme Court (2/19)
Supreme Court docket shaping up (2/19)
Supreme Court declines tribal cases (2/20)
Supreme Court rejects tribal privacy case (11/14)
EPA foresees long battle over tribal water authority (11/14)
Maine tribes lose paper case appeal (6/21)
Maine tribes want document case reviewed (5/17)
US sues to compensate Penobscot Nation (5/3)
Tribes ordered to release some documents (5/2)
Court rejects challenge to tribal authority (4/17)
Maine tribes await EPA decision (4/17)
Go directly to jail, do not collect sovereignty... (2/7)
Leaders pledge support of Maine tribes (11/17)
Tribal leaders ordered arrested (11/10)