Montana v. United States Environmental Protection Agency

This case is a facial challenge to regulations the Environmental Protection Agency (EPA) promulgated pursuant to § 518(e) of *1138 the Clean Water Act, 33 U.S.C. § 1377 (Supp.1997). That section authorizes EPA to permit Indian tribes “to be treated as a state” (TAS) for purposes of promulgating water quality standards (WQS) pursuant to § 303 of the Act. 33 . U.S.C. § 1313 (1986).. The plaintiffs-appellants, collectively referred to as “Montana,” include state and municipal entities who own fee interests in land located within the boundaries of the Flathead Indian Reservation. The Reservation is occupied by the Confederated Salish and Kootenai Tribes. The Tribes, along with EPA officials, are the defendants-appellees.

Montana filed this action attacking EPA’s decision to grant TAS status to the Tribes to promulgate WQS that apply to all' sources of pollutant emissions within boundaries of the Reservation, regardless of whether the sources are located on land owned by members or non-members of the Tribe. Montana maintained that the regulations permit tribes to exercise authority over non-members that is broader than the inherent tribal powers recognized as necessary to…