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MONDAY, 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)

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

Related Stories:
Court rejects challenge to tribal authority (4/17)
EPA Budget: No new tribal grants (4/13)
Pueblo battles arsenic in water standard (4/16)
EPA attorney pleads guilty (06/28)