99-2618 State of Wisconsin v. EPA, et al.

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“[I]n 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).”

“[W]e 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.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Wood, J.