12 Tribal Nations have intervened in the Idaho v. EPA lawsuit to assist the federal agency in defending the Tribal Reserved Rights water rule.
Background:
Since 1972, the U.S. Environmental Protection Agency (EPA) has reviewed and approved water quality standards developed and established by state and tribal governments. Historically, the EPA lacked a formal rule outlining the specific process and obligations for states to determine how tribal rights connected to water uses would be affected by state water quality standards.
Without a formal rule, states often addressed tribal rights in an ad-hoc and adversarial manner at the very end of the process to establish water quality standards, which jeopardized protection of the Tribal rights. The lack of formal rules left tribal communities open to inconsistencies and/or lack of protection in many states. Some states, for example, failed to fully consider or protect tribal members’ use of waters for fishing or gathering.
“Tribal Nations today depend on clean water for everything, from fishing, gathering wild rice and practicing cultural traditions to simply making a living,” said Bay Mills Indian Community (BMIC) President Whitney Gravelle. “Our reserved rights to hunt, fish, and gather on ceded territories are as important as the air we breathe and the water we drink. Yet up until now, governments only considered these rights in an erratic, case-by-case way.”
Some states’ failure to address water uses that serve tribal reserved rights water when the states set water quality standards—i.e., tribal fish consumption or use aquatic plants in ways or quantities that non-Indigenous people do not—caused tribal citizens to receive less protection and more frequent exposure to toxic pollutants than non-Indigenous citizens. For example, an investigation by Oregon Public Broadcasting and ProPublica found that unsafe water quality standards cause Tribes in the Columbia River Basin to face a disproportionate risk of toxic exposure due to their salmon-rich diets.
On May 2, 2024, the EPA released the Tribal Reserved Rights Rule, a final rule that formalized a process for states and the federal government to consider water-dependent tribal reserved rights when setting water quality goals and pollution limits for rivers, lakes, and streams under the Clean Water Act (1972). The rule established a process for states, EPA, and Tribes to work together to address Tribal reserved rights when setting state water quality standards throughout the standards-setting process, helping to ensure consistency and completeness of protections for Tribes.
“Preserving and protecting the earth, air, and water is at the core of who we are as a people. This has been a guiding principle for us well before the United States even existed,” said Lac du Flambeau Band of Lake Superior Chippewa Indians Tribal President John D. Johnson, Sr. “Our ability to hunt, fish and gather is directly impacted by the health and sustainability of earth, air and water and memorialized in our Treaty Rights with the United States. According to our teachings, the Lac du Flambeau and many other Tribes make decisions with seven generations in mind. We ask how our decisions today impact those who come after us hundreds of years from now. We respectfully ask every level of U.S. government to do the same.”
The EPA rule went into effect on June 3, 2024. A week later, 12 states filed State of Idaho v. EPA, a lawsuit seeking to dismantle the EPA rule, and soon thereafter filed a preliminary injunction to stop further implementation of the rule.
Litigation Updates:
June 2024: Tribal Nations Seek to Join Case and Protect Water Rights
On June 28, 2024, seven Tribal Nations (Nez Perce Tribe, Quinault Indian Nation, the Bay Mills Indian Community, Puyallup Indian Tribe, Lac du Flambeau Band of Lake Superior Chippewa, Sokaogon Chippewa Community, and the Confederated Salish and Kootenai Tribes) filed a motion in the U.S. District Court for the District of North Dakota to intervene in defense of the EPA’s Tribal Reserved Rights Rule.
“We are defending this rule because it sets a consistent federal expectation that recognizes Tribal rights and protects water quality at a time when climate change and environmental degradation is jeopardizing our shared future on this planet.” said Bay Mills Indian Community President Whitney Gravelle.
“Under the United States Constitution, treaties between the United States and tribal nations are the supreme law of the land and states and federal agencies are bound to follow them,” stated Shannon F. Wheeler, Chairman of the Nez Perce Tribal Executive Committee. “EPA’s rule under the Clean Water Act adheres to this constitutional principle and ensures that states and EPA engage in a consistent and accountable process with tribes to provide for the protection of treaty-reserved rights in developing, revising, and approving state water quality standards. We, therefore, support EPA in promulgating this important rule to protect the waters and treaty-reserved resources that are important to us all.”
The Native American Rights Fund and Earthjustice represent the Tribal Nations. The Tribal Nations next prepared to respond to the states’ efforts to enjoin the rule.
“Tribal rights must be protected and accounted for when setting state water quality standards; it is a legal and moral obligation,” said NARF Staff Attorney Daniel Cordalis. “For states to fight a practical and needed rule is frustrating because it shows the ongoing effort to subordinate tribal rights in state water management.”
July 2024: More Tribal Nations Join in Support of Tribal Water Rights
On Friday, July 12, five more Tribal Nations joined the motion to intervene in State of Idaho v. EPA.
The Tribal Nations now involved in the case include the Bay Mills Indian Community, Confederated Salish & Kootenai Tribes of the Flathead Reservation, Fond du Lac Band of Lake Superior Chippewa, Grand Traverse Band of Ottawa and Chippewa Indians, Lac du Flambeau Band of Lake Superior Chippewa Indians, Nez Perce Tribe, Port Gamble S’Klallam Tribe, Puyallup Tribe of Indians, Quinault Indian Nation, Red Lake Band of Chippewa Indians, Sokaogon Chippewa Community, and White Earth Band of the Minnesota Chippewa Tribe.
On the same day, the Tribal Nations also filed a response to the states’ motion for preliminary injunction. The filing demonstrated the absence of any legal basis to support the states’ request for a preliminary injunction and no harm to the states from incorporating tribal uses of water when setting water quality standards.
Kanji Kayzen PLLC, who is representing Port Gamble, joined NARF and Earthjustice in representing the total of 12 Tribal Nations litigating this matter.
The Court granted the Tribal Nations’ motion to intervene on July 24, 2024.
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