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PUBLIC COMMENTS OF THE PENOBSCOT NATION REGARDING MAINE’S

APPLICATION FOR APPROVAL OF WATER QUALITY STANDARDS FOR

APPLICATION WITHIN THE PENOBSCOT INDIAN RESERVATION

September 13 2013

The Penobscot Nation the “Nation” or the “Tribe” through counsel hereby

submits its written Public Comments to the United States Environmental Protection

Agency the “EPA” on the request of the State of Maine the “State” or “Maine” to the

EPA for approval within the Nation’s Indian territory of a set of water quality standard

WQS revisions regarding the human health ambient water quality criteria of the

allowable levels in surface waters for three toxic pollutants arsenic acrolein and phenol

under section 303 c of the Clean Water Act 33 USC 1313

BACKGROUND

Rather than fully restate relevant background information that the EPA is already

familiarwith the Nation incorporates herein by reference its Public Comments dated

February 9 2000 and all attachments thereto and its Supplemental Comments dated

August 21 2000 and all attachments thereto on the Application of the State of Maine to

the EPA for the Authorization to Administer the NPDES Program in Indian territory

“NPDES Public Comments” 1The Penobscot Nation summarizes some of that

background

1

All of this material was eventually compiled as part of the Joint Appendix for the matter of

Maine v Johnson before the US Court of Appeals for the First Circuit and the Nation

incorporates that Joint Appendix by reference herein as well as its own submissions therein The

Nation references certain material here in accordance with the exhibits it provided as part of the

NPDES Public Comments All of the facts stated herein in reference to the NPDES Public

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1 The Penobscot Nation is a federally recognized Indian tribe which since

aboriginal times has occupied the Penobscot River watershed and relied upon its water

and resources for physical cultural and spiritual sustenance

2 The EPA has never approved any of Maine’s WQS in the Penobscot Indian

Reservation 2

3 The Penobscot Nation has twice requested the EPA to promulgate federal

water quality standards for the Penobscot River but the EPA has not acted on those

requests See Exhibit 13 to NPDES Public Comments

4 The United States Department of the Interior “DOI” is charged with

authority to administer the Maine Indian Claims Settlement Act of 1980 the “Settlement

Act” and is therefore afforded deference in its views on rights and authorities

thereunder

5 DOI has informed the EPA that

a pursuant to the Settlement Act Congress confirmed the right of

Penobscot Nation tribal members to take fish from the Nation’s

reservation waters in the Penobscot River for their sustenance as “an

expressly retained sovereign activity a reservation from the

Comments continue today If the EPA would like the Nation to resubmit copies of any specific

materials made part of the prior agency record or to otherwise verify facts set forth herein the

Nation will to do so

2

Currently before the EPA is a request for the approval of WQS with regard to three pollutants

arsenic acrolein and phenol No other WQS are currently before the EPA for approval in Indian

territories in Maine

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aboriginal rights given up by the Penobscot Nation,” Exhibit 17 to

NPDES Public Comments

b the Penobscot Indian Reservation in which this protected sustenance

fishery is located includes the waters surrounding Indian Island the

principal residence of Penobscot Nation members and other islands

northward thereof id

c “when taking federal actions which affect tribal resources EPA’s

fiduciary obligation to the Penobscot Nation requires it to first protect

Indian rights and resources,” id

d the Penobscot Nation has “the right to take fish and the right that others

not unreasonably pollute the waters” in its reservation id at 67

e the Nation’s federally protected “right to take fish for individual

sustenance within the boundaries of the reservation demands that

there be sufficient fish to take and that such fish be safe to eat,” Exhibit

14 to NPDES Public Comments

f the EPA “must ensure that environmental degradation such as exists on

the Penobscot River not be allowed to impair the Nation’s fishing

rights,” id

g “due to the island location of its reservation the Penobscot Indian

Nation is subject to a disproportionate burden of the risks and the harms

occasioned by pollutant dischargers]” into the Penobscot River id

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7 The EPA acknowledges that it has a trust obligation to protect the

Penobscot Nation’s sustenance fishery in the Penobscot River See eg Exhibit 15 to

NPDES Public Comments

8 The Nation’s members rely upon that fishery for their individual sustenance

and for ceremonial purposes central to the Penobscot culture See eg Exhibits 1 2 4

5 6 10 14 16 and 19 to NPDES Public Comments

9 Maine rejects the view that the Penobscot Nation’s reservation extends into

the Penobscot River and therefore includes a sustenance fishery therein that deserves

any safeguards to ensure that the fish are safe to eat or can sustain tribal members See

Letter from William Schneider submitted herewith see also Maine’s Briefs to the US

Court of Appeals for the First Circuit in the matter of Maine v Johnson

LEGAL ARGUMENT

Overview

Congress confirmed that the Penobscot Indian Reservation includes a fishery

within the Penobscot River to sustain the members of the Penobscot Nation This was a

fundamental purpose of the reservation As such the Nation’s reservation includes not

only the fishery for use by the Tribe’s members but a fishery that must be of a quality to

provide them with sustenance By virtue of Congress having set aside such a reservation

for the Penobscot people they are entitled to water quality within the Penobscot River

surrounding their reservation islands that will support fish that they may consume for

their subsistence See US v Adair 723 F2d 1394 1414 15 9th Cir1984 The so

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called Winters doctrine grounded in Winters v United States 207 US 564 1908

requires nothing less See Adair 723 F2d at 1412 15

States lack jurisdiction in Indian reservations absent express authorization by

Congress Eg Wisconsin v EPA 266 F3d 741 747 7th Cir2001 State of

Washington Dep't of Ecology v USEPA 752 F2d 1465 1469 9th Cir1985 citing

cases Pursuant to the Settlement Act Congress granted Maine certain regulatory

jurisdiction not granted to most other states but made perfectly clear that with regard to

the Penobscot Nation “internal tribal matters,” including the aboriginal right of tribal

members to take fish from the Penobscot Indian Reservation “for their individual

sustenance,” “shall not be subject to regulation by the state.” 25 USC 1721 b

1725 h ratifying 30 MRSA 6206 1 state may not regulate “internal tribal

matters” 6207 4 Nation has exclusive jurisdiction over sustenance fishing other than

limited residual authority granted to Maine

Here the State asks that EPA approve a set of WQS that purport to set an

acceptable to the State cancer risk and an acceptable to the State fish consumption rate

for the sustenance of Penobscot Tribal members in the exercise of the Nation’s

“expressly retained sovereign activity” within the Penobscot Reservation However the

State has no jurisdiction to regulate the Nation’s sustenance fishery or the internal tribal

matter of what is an acceptable cancer risk for tribal members eating fish out of the

Tribe’s reservation waters

Under the Clean Water Act and its implementing regulations EPA cannot approve

any Water Quality Standards if they are insufficient to “protect the designated water

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uses,” which with regard to Indian territories in Maine include protection of the human

health of a sensitive subpopulation of subsistence fishers members of the Penobscot

Nation 33 USC 1313 c2A40 CFR 131.52 In asking EPA to approve its

water quality standards Maine is asking the EPA to sanction the State’s assertion of what

is an acceptable cancer risk and fish consumption rate for the sustenance of members of

the Penobscot Nation This is plain from the language in the State’s WQS submittal

“Using a cancer risk factor of 10E6 Maine maintains that the 32.4 gramday fish

consumption rate is...protective of the higher end sensitive subpopulation of Native

American” anglers based on a study expressly criticized by the tribe in the comment

process See DEP Response to Comments at 20 May 25 2012 The State then goes on

to conclude that “Maine believes that the validity of the study and the protective nature

of its revised fish consumption rate for sensitive subpopulations 138 gramsday are

demonstrated Id at 21 Such a determination is a direct regulation of the aboriginal

right of the Nation’s members to take fish for their individual sustenance an internal

tribal matter over which the State obtained no jurisdiction from Congress under the

Settlement Act

The EPA therefore cannot approve Maine’s Water Quality Standards in the

Penobscot Indian Reservation in particular the sustenance fishery

Further pursuant to the Constitution the federal government including the EPA

holds a trust responsibility to protect the authorities and resources of the Penobscot

Nation That trust responsibility cannot be delegated to Maine Indeed Maine refuses

to even recognize the existence of the Nation’s reservation sustenance fishery The

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EPA’s approval of Maine’s WQS with respect to the Nation’s reservation sustenance

fishery would therefore constitute an unlawful delegation of its federal trust responsibility

to Maine a delegation that would be a breach of its trust responsibility and an action that

is constitutionally suspect

I The EPA’s ConstitutionallyBased Trust Responsibility Requires It to

Reject Maine’s Application

Water quality associated with the Nation’s sustenance fishery in the Penobscot

Indian Reservation is a matter of physical and cultural survival for the Penobscot people

The EPA readily recognizes that Indian tribes like the Nation “ see protection of the

reservation environment as essential to the preservation of the reservations themselves

Environmental degradation is viewed as a form of further destruction of the remaining

land base and pollution prevention is viewed as an act of tribal selfpreservation that

cannot be entrusted to others.” EPA Federal Tribal and State Roles in the Protection

and Regulation of Reservation Environments July 1991 “Clean water including

critical habitat i e wetlands bottom sediment spawning beds etc is absolutely crucial

to the survival of Indian reservations.” 56 Fed Reg 64,876 64,878 Dec 12 1991

This is plainly true for the Penobscot Nation’s reservation sustenance fishery

The United States has a trust obligation to Indian nations of the highest order

which necessarily includes the protection of their reservation resources here the Nation’s

sustenance fishery in the Penobscot River This trust responsibility has its origins in the

constitutional responsibility for Indian affairs lodged in Congress and in Chief Justice

Marshall’s foundational Indian law decisions interpreting that responsibility See

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Worcester 31 US at 551 52 555 protection that United States owes to Indian nations

involves “a nation claiming and receiving the protection of one more powerful not that

of individuals abandoning their national character and submitting as subjects to the laws

of a master” see also Oneida County v Oneida Indian Nation 470 US 226 247 1985

discussing trust doctrine and its grounding in the Constitution As Senior Ninth Circuit

Judge William Canby has explained “one of the basic premises underlying the

constitutional allocation of Indian affairs to the federal government was that the states

could not be relied upon to deal fairly with the Indians.” Canby American Indian Law

West 2005 This is a consideration of critical importance to the matter at hand

The Ninth Circuit through Judge Canby elaborated upon this constitutionally

based trust responsibility in State of Washington Dep't of Ecology v USEPA752

F2d 1465 9th Cir1985

Accompanying the broad congressional power over Indian affairs under the

Constitution is the concomitant federal trust responsibility toward the Indian

tribes That responsibility arose largely from the federal role as a guarantor of

Indian rights against state encroachment We must presume that Congress

intends to exercise its power in a manner consistent with the federal trust

obligation

Respect for the long tradition of tribal sovereignty and selfgovernment also

underlies the rule that state jurisdiction over Indians in Indian country will not be

easily implied Vague or ambiguous federal statutes must be measured

against the “backdrop” of tribal sovereignty especially when the statute affects an

area in which the tribes historically have exercised their sovereign authority or

contemporary federal policy encourages tribal selfgovernment

Id at 1469 70 The Court went on to hold that the EPA’s trust responsibility warranted

excluding Indian lands from an otherwise approved state hazardous waste program In

accordance with the federal trust responsibility to protect tribal resources and authority

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“the state was required to yield to an exercise of jurisdiction by the federal

government.” Id at 1470 71

The EPA has the authority under the Clean Water Act to promulgate federal water

quality standards for the Penobscot Indian Reservation to protect the Nation’s sustenance

fishery or to approve the Tribe’s own promulgated water quality standards to refrain

from approving Maine’s and to take measures to protect the Tribes’ sustenance fishery in

the meantime That is precisely what is required by the EPA’s constitutionally based

trust obligation to the Penobscot Nation here See Wisconsin v EPA 266 F3d 741 747

7th Cir2001 Wood J“The Constitution vests the Federal Government with

exclusive authority over relations with Indian tribes.” US Const Art I 8 cl 3

In fact in the absence of tribal TAS status the EPA and not the state of Wisconsin might

well be the proper authority to administer Clean Water Act programs for the

reservation” Indeed were the EPA to approve Maine’s WQS it would unlawfully

abdicate its trust responsibility by empowering Maine to control tribal resources when

Maine does not even recognize the existence of the Nation’s reserved sustenance fishery

This would be a breach of the EPA’s trust responsibility to the Tribe and a

constitutionally suspect undertaking because by virtue of the Constitution the EPA may

not relinquish its trust responsibility to the Nation and leave it at the mercy of a hostile

state

A Clarification of the Penobscot Nation’s Position

As an aside the Penobscot Nation sees fit to make perfectly clear its position here

given the misstatements that have been made by Maine and pollution dischargers into the

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Penobscot River in other contexts the Nation claims no authority to regulate the

discharges of paper mills or municipalities into the Penobscot River The First Circuit’s

decision in Maine v Johnson established that Maine has that authority The Nation’s

position here is that Maine does not have authority to impose its own WQS within the

Penobscot Nation’s sustenance fishery and that such authority must reside with federal

government as the Tribe’s trustee in the first instance or eventually with the Penobscot

Nation By asserting that such authority must reside with the EPA in the first instance

and may ultimately reside with the Penobscot Nation the Tribe is not asserting regulatory

authority over any pollution dischargers into the Penobscot River

The ability of the Nation to promulgate water quality standards is a long ways off

but that opportunity must be preserved because as explained more fully below it

involves the exercise of the Nation’s inherent sovereign authority which Congress did

not divest by the terms of the Settlement Act and which is expressly excluded from state

authority as an “internal tribal matter.” But if and when the Nation were to promulgate

its own water quality standards the Nation would not thereby regulate any pollution

dischargers in the River As the Seventh Circuit has explained

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 in recognition of their water quality

standards simplyallows 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 a 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

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Wisconsin v EPA266 F3d at 749 50 emphasis added

II Congress Did Not Grant Maine Authority To Promulgate Water

Quality Standards For the Nation’s Reservation Sustenance Fishery

Which the State Refuses to Recognize

While it is no doubt true that the relationship between the Tribes and Maine is

unique because of certain express divestitures of tribal authority and grants of state

authority established by Congress in the Settlement Act 3 the framework for

understanding the effect of the statutory terms is not unique Such framework is

established under federal Indian common law and the Constitution and must be

considered prior to any examination of the Settlement Acts See Penobscot Nation v

Fellencer 164 F3d 706 709 1st Cir1999 cert denied 527 US 1022 1999 citing

US Const art I sec 8 cl3 State of Rhode Island v Narragansett Indian Tribe 19

F3d 685 701 1st Cir1994

The essential features of this framework are wellestablished

1 The powers of Indian tribes exist by virtue of their original status as

governments predating the Republic Narragansett Indian Tribe at 694 Bottomly v

Passamaquoddy Tribe 599 F2d 1061 1065 1066 1st Cir1979 They are not granted

by the federal government Id at 1065 Rather they are the “inherent powers of a

limited sovereignty which has never extinguished.” Id at 1065 66 quotations citations

and emphasis omitted These attributes of sovereignty exist “only at the sufferance of

3 See eg 25 USC 1725d divesting Tribes of inherent sovereign immunity from suit 30

MRSA 62061 imposing municipallike liabilities upon the Tribes 25 USC 1725c

divesting Tribes of protections against state jurisdiction over crimes committed within their

territories Compare Canby AMERICAN INDIAN LAW West 2005 at 72104 describing

attributes of tribal sovereignty and attendant constraints on state authority

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Congress” and are “subject to complete defeasance But until Congress acts the tribes

retain their existing sovereign powers.” Id at 1066 quotations citations and emphasis

omitted

2 Since the power to divest Tribes of their attributes of sovereignty rests

exclusively with Congress these attributes cannot be lost by implication by acquiescence

to state power or through non use A tribe’s “sovereign power even when unexercised

is an enduring presence and will remain intact unless surrendered in unmistakable

terms.” Merrion v Jicarilla Apache Tribe 455 US 130 148 1982 Accord

Narragansett Indian Tribe at 701 02 Bottomly at 1066 And such power carries with it

“a historic immunity from state and local control.” New Mexico v Mescalero Apache

Tribe 462 US 324 332 1983

3 As explained above since Indian tribes are considered “wards” of the

federal government there exists a unique trust relationship between the United States and

tribes grounded in the Constitution That federal trust responsibility includes a duty to

protect Indian tribes and their resources from encroachments by states See Worcester v

Georgia 31 US 6 Pet 515 560 61 1832 Washington Dep’t of Ecology v EPA 752

F2d at 1470 There is a “deeply rooted policy in our Nation’s history of leaving Indians

free from state jurisdiction and control.” Oklahoma Tax Comm’n v Sac Fox Nation

508 US 114 123 1993 citations and quotations omitted Thus “i n the absence of

federal authorization all aspects of tribal sovereignty are privileged from

diminution by the States.” Three Affiliated Tribes of Ft Berthold v Wold Eng’g 476

US 877 891 1986

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a The federal trust doctrine also requires the federal courts to observe

that ordinary rules of statutory construction “do not have their usual force in cases

involving Indian law.” Montana v Blackfeet Tribe of Indians 471 US 759 766

1985 Accord Fellencer at 709 “Statutes or treaties relating to the Indians

shall be construed liberally and in a non technical sense as the Indians would

naturally understand them and never to the Indians prejudice.” Passamaquoddy

v Morton 528 F2d 370 380 1st Cir1975 Accord Narragansett Indian Tribe

at 702

4 Since the sovereignty held by tribes is fragile in the face of external

pressures and pursuant to the Constitution Congress has exclusive and plenary authority

over Indian affairs absent a crystal clear directive from Congress the federal courts and

agencies must avoid undermining the traditional attributes of tribal authority or allowing

states to undermine such authority See eg Kiowa Tribe of Oklahoma v Mfg Techs

Inc 523 US 751 758 60 1998 New Mexico v Mescalero Apache Tribe 462 US

324 331 32 1983 Santa Clara Pueblo v Martinez 436 U S 49 60 72 1978

Williams v Lee 358 US 217 219 220 1959 Thus when Congress is silent on

whether a particular attribute of tribal sovereignty remains the “proper inference is that

the sovereign power remains intact.” Merrion 455 US at 148 n14

5 Congress is presumed to have known this wellestablished framework upon

compromising the Tribes’ historic land claims against Maine and enacting the Settlement

Act See Goodyear Atomic Corp v Miller 486 US 174 184 85 1988 Akins v

Penobscot Nation 130 F3d 482 489 1st Cir1997 Indeed citing directly to the First

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Circuit’s decision in Bottomly v Passamaquoddy Tribe 599 F2d 1061 1st Cir1979 in

its final committee reports Congress said that the Tribes came to the Settlement Act in

1980 “possess ing inherent sovereignty to the same extent as other tribes in the United

States” and were “entitled to protection under the federal Indian common law doctrines.”

SRep No 96957 at 1314 HRRep No 961353 at 1314 reprinted in 1980

USCCAN 3789 90

Given this framework the first question to ask with respect to Maine’s asserted

authority to establish standards governing the Nation’s sustenance reservation fishery is

whether an attribute of the Tribes’ inherent sovereignty is at stake and if so whether

Congress unequivocally destroyed it by giving it to Maine

A Congress Did Not Divest the Penobscot Nation of Its Essential

Authority to Protect the Sustenance Reservation Fishery and

Turn that Authority Over to Maine

The attributes of sovereignty that Tribes possess absent their divestment by the

federal government are wellestablished see Aroostook Band of Micmacs v Ryan 404

F3d 48 62 1st Cir2005 and Maine’s request for approval of its WQS in the Nation’s

sustenance fishery implicates one at the core the inherent authority of tribes to address

reservation intrusions that directly threaten the “health or welfare of the tribe.” See eg

Montana v United States 450 US 544 565 66 1981 Wisconsin v EPA 266 F3d at

750 City of Albuquerque v Browner 97 F3d 415 423 10th Cir1996 See also

Fellencer at 710 quoting Montana Water rights and governmental jurisdiction are

“two critical elements necessary for tribal sovereignty.” City of Albuquerque v

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Browner 97 F3d 415 418 10th Cir1996 emphasis added This agency action clearly

implicates this core matter of tribal sovereignty See generally Edmund J Goodman

Indian Tribal Sovereignty and Water Resources 20 J LAND RESOURCES ENVTL L

185 192 2000 More specifically this case involves the regulation of a matter of the

very survival of an unique Indian tribal people what water quality standard will protect

the Nation’s sustenance fishing in the Penobscot River both in terms of a the fish

consumption rate and b what is an acceptable cancer rate for tribal members engaged in

fishing in their aboriginal homeland the Penobscot River It is no exaggeration to say

that this case is pivotal for the longterm health of this reservation fishery set aside for the

sustenance of Penobscot tribal members and it therefore affects the very cultural and

spiritual wellbeing of the Penobscot Nation

So framed the question presented is whether Congress pursuant to the Settlement

Acts unequivocally abrogated the Tribe’s inherent authority to protect this sustenance

fishery and unequivocally turned that authority over to Maine Absent any such clear

intent on the part of Congress this Agency must not give that authority to Maine

In the Settlement Act Congress did not divest the Nation of this sovereign

authority On the contrary Congress recognized that the Nation’s sustenance fishing

right is an expressly retained sovereign authority and the United States has time and

again confirmed it as such See eg Exhibit 17 to NPDES Public Comments Indeed

upon enacting the Settlement Act Congress confirmed the Penobscot Nation’s aboriginal

fishing rights within the Penobscot River by ratifying 30 MRSA 6207 4 which

provides in pertinent part that “notwithstanding any law of the State the members of

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the Penobscot Nation may take fish within the boundaries of their Indian

reservation for their individual sustenance.” 25 USC 1721 b If this express

confirmation of authority were not enough the legislative history of the Settlement Act

makes clear that the Tribe’s separate sovereign authority including the power to set water

quality standards sufficient to protect the health of tribal members engaged in the taking

of fish for their individual sustenance as protected by federal law including the Clean

Water Act was retained by the tribe The final Senate Committee Report on the

Settlement Act explained that Congress recognized “the independent source of tribal

authority that is the inherent authority of a tribe to be selfgoverning Santa Clara

Pueblo v Martinez 436 US 49 1978).” Senate Report at 29 emphasis added It

further explained that the Nation’s qualified agreement to adopt certain State laws as their

own other than with respect to internal tribal matters such as regulation of the sustenance

fishery see 30 MRSA 6202 6206 6207 would “not violate the principles of

separate sovereignty.” Senate Report at 29 emphasis added The report continued

“t hough identical in form and subject to redefinition by the State of its laws the laws

are those of the tribes.” Id citing Wauneka v Campbell 22 ArizApp 287 526 P2d

1085 CA 1974

The Senate Committee Report which is authoritative see Akins v Penobscot

Nation 130 F3d 482 489 1st Cir1997 cannot be ignored Congress intended

Wauneka v Campbell to fully inform the terms of the Settlement Act In Wauneka v

Campbell the Arizona Court of Appeals held that the State of Arizona could not enforce

its Motor Vehicle Safety Responsibility Laws against Indians on the Navajo reservation

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notwithstanding the fact that the Navajo Tribal Code required all Navajo Indians residing

on the Navajo Reservation in Arizona to obtain an Arizona Driver’s license Noting that

the Navajo Nation within its reservation had police power authority to govern the

activities of tribal members the court held that imposition of Arizona’s Motor Vehicle

Safety Responsibility Laws would interfere with the Nation’s right to selfgovernment

The Nation’s adoption of the Arizona Driver’s licensing requirements as its own did not

prevent it from enacting laws more suitable to its territory and members nor did it

constitute consent to allow state jurisdiction over the reservation See id at 1088 89 As

the court explained

The Tribe in requiring its members who drive on the Reservation to be

licensed by the state in which they live insures that those driving on the

Reservation have demonstrated certain minimal skill and knowledge

relative to the operation of motor vehicles The tribal driver’s license

statute has not ceded either civil or criminal jurisdiction over Reservation

events to Arizona courts or administrative agencies

Id at 1089

This is of no small significance It shows that by virtue of 30 MRSA 6204 as

ratified by Congress Congress did not supplant the Penobscot Nation’s sovereign

authority by ensuring that Maine’s law would apply to the Nation and to its resources

Rather section 6204 simply confirmed that the Tribe would adopt State law as its own at

least to the extent that internal tribal matters are not affected In other words the Nation

is free to use state law standards as a floor and to provide more legal protection where

“internal tribal matters” are at stake In short for the Penobscot Nation section 6204

merely confirms that the Nation will adopt Maine law as its own but it does not

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expressly impose any form of state regulatory authority upon the Tribe or its natural

resources

In addition at the time of the Settlement Act Congress through its final

committee reports addressed as “Special Issues” the Tribes’ fears that the Settlement

Acts would amount to a “destruction” of their “sovereign rights and jurisdiction.” SRep

No 96957 at 14 emphasis added HRRep No 961353 at 1415 reprinted in 1980

USCCAN 3786 3790 emphasis added Congress assured the Tribes that they came

to the Settlement Act possessing the attributes of “inherent sovereignty to the same extent

as other tribes in the United States,” and that under Bottomly they were “entitled to

protection under the federal Indian common law doctrines.” SRep at 1314 emphasis

added HRRep at 1314 reprinted in USCCAN at 3789 90 same One “Special

Issue” that was expressly addressed was the Tribes’ fear that the Settlement Act would

destroy their fishing rights Congress assured the Tribes that this was not the case and

that their sustenance fishing right was an example of an “expressly retained sovereign

activit y].” SRep at 15 HRRep at 15 reprinted in 1980 USCCAN at 3791

Again by its plain language the Settlement Acts confirmed that the members of each

Tribe would be able to take fish “for their individual sustenance,” within the Tribes’

respective reservation boundaries 30 MRSA 6207 4 ratified by 25 USC

1721 b

Nothing could be more at the core of this Tribe’s existence than the reliance of its

tribal members on their ability to take sustenance culturally spiritually and physically

from the Penobscot River To turn over the regulation of that matter to Maine would

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violate the preservation of this right for the Tribe to govern first pursuant to Maine law

and second where internal tribal matter are implicated beyond the protections that Maine

law provides

The word “sustenance” is defined as “means of sustaining life nourishment.”

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE at 1433 Thus even absent

the liberal reading of Congress’s reservation of the right of these Tribes’ members to take

fish for their “sustenance,” it is clear by this plain meaning that Congress intended that

right to carry with it a right to catch fish that would provide nourishment not

contaminated fish or “whatever fish are available” as the State would have it Congress

did not simplysay the Tribes had the right to fish It said they had the right to fish for

“sustenance.” The problem here as explained below is that Maine fails to account for

such sustenance and cannot be entrusted responsibility to do so Indeed in actual

practice the promises of a trustee to a dependent beneficiary is lodged in the federal

government not the State

B The First Circuit’s Decision in Maine v Johnson Does Not Control the

Agency Decision Here

While the United States Court of Appeals for the First Circuit has held that the

State of Maine has jurisdiction to run the permitting program for NPDES discharges this

does not permit the State to regulate the Tribe’s sustenance fishery including 1 the

internal tribal matters of how much fish a tribal member can safely eat or 2 what is an

acceptable cancer risk for those tribal members Maine v Johnson 498 F3d 37 48 1st

Cir2007 “we take no view today as to the ultimate resolution of these potential

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issues.” Under longstanding principles of federal Indian law and EPA policy reflecting

that law the Nation’s inherent authority to protect its aboriginal fishery must be given

primacy over Maine

Thus while Maine may continue to administer the NPDES program the ability to

set standards that are sufficiently protective of the health of tribal members engaged in

the taking of fish for their individual sustenance remain with the EPA and the Penobscot

Nation not Maine See EPA Policy for Administration for Environmental Programs on

Indian Reservations Nov 8 1984 EPA Federal Tribal and State Roles in the

Protection and Regulation of Reservation Environments July 10 1991 at 34 EPA will

retain enforcement primacy for reservation pollution when tribe cannot demonstrate

jurisdiction over certain sources See also HRI Inc v EPA 198 F3d 1224 1245

10th Cir 2000 “The federal government bears a special trust obligation to protect the

interests of Indian tribes including protecting tribal property and jurisdiction.”

C Congress’ Express Recognition that The Sustenance Fishery Shall Not

Be Subject To Regulation By the State and the AkinsFellencer Factors

Demonstrate that Setting Water Quality Standards Sufficient To

Protect The Sustenance Fishery IsAn Internal Tribal Matter

This agency proceeding is not Maine v Johnson which simplydealt with the

authority of Maine to administer the NPDES permitting program not to directly

determine how to protect particular uses of reservation resources here in a setting where

the State refuses to even recognize them Thus the EPA should employ the

Fellencer Akins standards See Akins at 488 490 considering factors Fellencer at

710 712 same Applying those standards the establishment of water quality standards

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for the Nation’s reservation sustenance fishery must be deemed an “internal tribal matter”

over which state jurisdiction is barred

1 Whether the Matter Concerns Only Tribal Members or Affects

Non Indians

The “matter” at issue determination of the acceptable cancer risks and fish

consumption rates of Tribal members engaged in a sustenance fishing in tribal waters in

order to set WQS in Indian territories directly affects the health and welfare of tribal

members in and around their principal reservation and has only an indirect effect on non

Indians As described above the structure of the CWA provides that upstream and

discharges may need to take into account the WQS set for the Nation’s sustenance fishery

in the Penobscot River but this is a minor indirect effect imposed by Congress and is

the same indirect effect that all non Indians are subject to when water quality standards

are set in Indian Territory See Arkansas v Oklahoma 503 US 91 105 110 1992 City

of Albuquerque v Browner 97 F3d 415 10th Cir1996 Moreover the guaranteed

right to a tribal sustenance fishery must be taken into account for any WQS The EPA’s

trust authority or the Tribe’s own authority to determine what is an acceptable health risk

to tribal members engaged in a sustenance fishery has only an incremental effect on non

Indians who would already be subject to WQS that must be protective of the sensitive

subpopulation of tribal sustenance fishers To put Maine in control of determining

acceptable health risks for tribal members engaged in sustenance fishing on tribal waters

is to permit the State to effectively eliminate any tribal sustenance fishing right by setting

levels that are not adequately protective of tribal health In context the interests of non

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_22_

members cannot outweigh the paramount interests of the Tribe the concomitant federal

trust interest and the federal goals of the Clean Water Act

2 Whether the Matter Concerns the Harvesting or Deriving of Value

from Tribal Resources

Attendant to the Tribe’s reserved sustenance fishing right is the right to water in

sufficient quantity and of sufficient quality to preserve sustenance fishing See United

States v Adair 723 F2d 1394 1408 11 9th Cir1983 The Nation’s reserved right to

take fish “for sustenance” is more than a mere right of tribal members to dip their nets

into the water in the hopes of catching a fish See Washington v Washington State

Commercial Passenger Fishing Ass’n 443 US 658 676 679 1979 Rather it is at the

very least a legally protected interest to have fish in the river of sufficient health and

quantity to provide tribal members with a “moderate living.” Id at 686 United States v

Adair 723 F2d at 1414 15 Control over water quality standards for the Nation’s

sustenance fishery is essential for the growth health and reaping of this critical

reservation Akins at 487 88

3 Whether the Matter Concerns the Regulation or Conservation of

Tribal Resources

The Akins Court described the timber permitting policy at issue as “control over

the growth and health” of a tribal resource and the “regulation and conservation of

natural resources.” Akins at 487 88 Further in the face of Congressional silence about

imposing state law upon that concern the First Circuit refrained from concluding that

state law operated in this domain since “the inherent selfgoverning authority of a tribe”

appeared to be at stake Id at 489 Identical concerns are at issue here even more so

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control of the WQS in the Penobscot River directly implicate the health and welfare of

tribal member in reference to their use and consumption of a reservation resource EPA’s

retention of the authority to set standards sufficiently protective of the tribal sustenance

fishery is at least equivalent to if not more imperative than preserving and protecting

tribal prerogatives from being undermined by the State at issue in Akins Because “the

inherent selfgoverning authority of a tribe,” albeit one not as yet not fully exercised

is at stake here this Akins factor points to reserving the matter from Maine’s control

4 Whether the Matter Implicates Interests of the State of Maine

Stripped of its dressings the only interest Maine can legitimately assert in setting

the WQS applicable in the Penobscot Indian Reservation is the subordination of the

Nation and its interest in protecting its reservation fishery Maine has no trust

responsibility to protect that fishery and refuses to acknowledge that it is even part of the

Penobscot’s reservation Only the EPA or the Tribe itself can ensure the protection of

this critical tribal resource and if Maine succeeds in its application here it will have

succeeded in its endeavor to end any say of the Tribe with respect to matters involving its

very survival as a unique Indian people dependent upon the River from which they derive

their name

5 Whether Under Federal Indian Common Law Principles the

Matter Involves the Inherent Authority of an Indian Tribe Free

From Undermining By a State

Proper consideration of federal Indian law precedents to the “matter” at issue –the

right to determine acceptable cancer risks and fish consumption rates of tribal members

engaged in a sustenance fishery in tribal waters in order to set WQS in Indian territories

EPA004962
_24_

leaves no doubt that it is a core attribute of tribal authority protected from any

undermining by a state and therefore subject to preservation by the federal government

See Washington Dep’t of Ecology 752 F2d at 1470 1472 See also Wisconsin 266 F3d

at 74748 Montana v EPA 137 F3d at 1140 41 Albuquerque 97 F3d at 423 Pursuant

to federal Indian common law principles Indian tribes throughout the United States are

free from the state intrusion of setting water quality standards within their reservation

waters

To state the precise “matter” is virtually to identify it as an “internal tribal

matter.” It is the right to determine acceptable cancer risks and fish consumption rates of

Penobscot Nation tribal members who engage in their aboriginal right to fish for their

sustenance in the Penobscot River The WQS at issue must protect the practices of this

Indian tribe practices that it has relied upon for its physical cultural and spiritual

sustenance since aboriginal times The State presumes to usurp this matter to itself and it

unabashedly presumes authority to announce its own standards for what is necessary to

protect this Indian tribe’s aboriginal sustenance fishery It is hard to imagine a worse

intrusion into the Penobscot Nation’s “internal tribal matters.”

III The EPA Must Deny Approval of Maine’s WQS Within the Nation’s

Reservation Sustenance Fishery That Are Insufficiently Protective of the

That Fishery

The United States trust responsibility to the Indian tribes is the result of common

law doctrine that has developed over nearly two centuries

EPA004963
_25_

Indian tribes occupy a territory to which we assert a title independent of their

will which must take effect in point of possession when their right of possession

ceases meanwhile they are in a state of pupilage Their relations to the United

States resemble that of a ward to his guardian They look to our government for

protection rely upon its kindness and its power appeal to it for relief to their

wants and address the President as their great father

Cherokee Nation v State of Georgia 30 US 1 10 1831 MarshallJsee also

Protecting Habitat forOffReservation Tribal Hunting and Fishing Rights Tribal

Comanagement as a Reserved Right 30 Envtl L 279 291 2000 Cassandra Barnum A

Single Penny an Inch of Land or an Ounce of Sovereignty The Problem of Tribal

Sovereignty and Water Quality Regulation Under the Maine Indian Claims Settlement

Act 37 Ecology LQ 1159 1194 2010

This trust responsibility extends to the protection of tribal health and natural

resources See United States v Mitchell Mitchell II 463 US 206 225 1983 quoting

Seminole Nation v United States 316 US 286 296 1942

Thus even if Maine's water quality standards satisfy the requirements of the CWA

and attendant regulations for the population at large EPA nevertheless must by virtue of

its trust responsibility to Indian tribes reject those standards as applied to Indian

territories when tribal members engaged in sustenance fisheries will be

disproportionately impacted by water contamination In the matter here there is no doubt

that Maine cannot be entrusted to protect the Tribe’s aboriginal sustenance fishery

EPA’s interpretation of the Clean Water Act and attendant regulations no doubt

implicate the trust responsibility and therefore require higher water quality standards than

those issued by any state when state standards do not adequately support the legally

EPA004964
_26_

established interest of an Indian tribe here a fishery that must sustain an Indian tribe and

its members See Amoco Prod Co v Vill of Gambell 480 US 531 1986 citing “the

familiarrule of statutory construction that doubtful expressions must be resolved in favor

of Indians”

Even where water quality standards may be sufficient to protect fish populations

from disease and death they may not be approved where they do not prevent toxic

bioaccumulation in fish to protect Indian tribes that have a legally protected sustenance

fishery While the fish may not die in multitudes and therefore the natural resource may

be protected in one sense the standards at their current levels do not adequately protect

natural resources to adequately sustain a Native American population identified by

Congress to have a specific right to use the resource for sustenance As a factual matter

protecting human health often requires more stringent standards than protecting the

environment alone As a legal matter therefore the trust requires the EPA to reject state

water quality standards that are insufficiently protective of the health of Penobscot Nation

tribal members as the legally protected consumers of Penobscot River fish for their

sustenance The Supreme Court makes this perfectly clear the “punctilio of honor the

most sensitive” requires or at least allows the federal government to manage tribal

resources in such a way as to maintain their usefulness to the Tribes Seminole Nation v

United States 316 US 286 297 n12 1942 quoting Meinhard v Salmon 164 NE

545 546 1928 This is particularly true where as here Congress has expressly

recognized the tribal right to the sustenance fishery

EPA004965
_27_

EPA's current focus on environmental justice as a policy area of particular concern

should also weigh in favor of taking action to protect tribal resources See eg Hearing

on EPA's 2011 Budget Proposal Senate Committee on Environment and Public Works

111th Cong 2010 statement of LisaP Jackson AdministratorUS Envtl Prot

Agency)(“ We have begun a new era of outreach and protection for communities

historically underrepresented in environmental decision making We are building strong

working relationships with tribes communities of color economically distressed cities

and towns young people and others but this is just a start We must include

environmental justice principles in all of our decisions.” Exhibit 14 to NPDES Public

Comments “President Clinton's recent Executive Order regarding environmental justice

should be applied to this permit process As you know one purpose of the Order and the

federal government's increased emphasis on environmental justice is to ensure that

minorities in our society live in healthy communities Due to the island location of its

reservation the Penobscot Indian Nation is subject to a disproportionate burden of the

risks and harms occasioned by industrial plants”

In contrast Maine has made very clear not only in its submissions to this Agency

but in its historical resistance to the actions of federal agencies to protect tribal interests

in water resources that it will not protect these unique tribal uses Maine refuses to

recognize that the Tribes have a reservation right to fish of a quality to provide

sustenance to tribal members See eg Brief of the State of Maine to the First Circuit in

Maine v Johnson

EPA004966
_28_

Thus apart from the jurisdictional barrier that “internal tribal matters,” including

the taking fish by tribal members “for their individual sustenance,” “shall not be subject

to regulation by the state.” 25 U SC 1721 b ratifying 30 MRSA 6206 1

6207 4 EPA cannot approve Maine’s WQS in Indian territories because it would

constitute an abdication of its trust authority to the Nation EPA should not cede to Maine

the ability to set WQS in Indian territories in Maine EPA should therefore retain for

itself in consultation with the Nation authority to set WQS sufficiently protective of the

tribal sustenance fishery

IV The EPA’s approval of Maine’s WQS Would Be ArbitraryAnd

Capricious Because Maine’s WQS Are Premised on the Physical

Impossibility that Tribal Members Consume Different Amounts of Fish

Depending on the Particular Pollutant at Issue

The State originallyproposed 9,900 increase in the permissible concentrations

of inorganic arsenic AWQC for Human Health criteria of both “OrganismsOnly” and

“Water and Organisms” for waters in the State of Maine outside Indian territories

increasing respectively from 0.028 _gL to 2.8 _gL and 0.012 _gL to 1.2 _gL The

EPA determined that such standards were not sufficiently protective of the sensitive

subpopulation of tribal sustenance fishers The State now asks EPA to approve for Indian

territories in Maine an even greater increase 13,114 increase for “Organisms only” and

10,733 increase “Water and Organisms” in the permissible concentrations over those

that formerlyapplied elsewhere in the state These newly proposed standards are not

sufficiently protective of tribal sustenance fishers and should not be approved in Indian

territories in Maine

EPA004967
_29_

The proposed standards would also be arbitrary and capricious if they were

applied to Indian territories Maine proposed to use a fish consumption rate of 138 gday

for the purpose of determining acceptable levels of inorganic arsenic but use a

consumption rate of 32.4 gday for all other pollutants Even 138 gday is below the

estimated intake of tribal sustenance fisherman which has been estimated at 286 514

gday See Wabanaki Traditional Cultural Lifeways Exposure Scenario at 6263 July 9

2009 available at httpwww epagov negovt tribespdfsDITCA pdf hereafter

Wabanaki Study The Wabanaki Study was conducted in a joint effort between the

EPA and the Maine Tribes expressly for the purpose of determining WQS in Indian

territories in Maine

This document presents the Wabanaki Cultural Lifeways Exposure Scenario a

numerical representation of the environmental contact diet and exposure

pathways present in traditional cultural lifeways in Maine This project was a

coordinated effort among the five federally recognized Tribal Nations in Maine

and the US EPA

...

The purpose of this report is to describe Maine tribal traditional cultural uses of

natural resources and to present them in a format that can be used by EPA to

evaluate whether or not tribal uses are protected when they are requested to review

or develop water quality standards in waters that include Indian territories in

Maine Presentday environmental conditions may not allow many people to fully

engage in a fully traditional lifestyle until resources are restored but this is still an

‘ actual’ and not ‘ hypothetical’ lifestyle

...

This report will enable EPA to understand Tribal use of the water resource for

food medicine cultural and traditional practices and recreation so that EPA can

evaluate whether or not those uses are protected regardless of who develops water

quality standards

Wabanaki Study at 78 The Nation hereby incorporates by reference the entire

Wabanaki Study This is the only “local data on fish consumption” available with regard

EPA004968
_30_

to Indian territory and so is the preferred value for purposes of WQS EPA’s AWQC

Methodology Sections 1.6 2.6 2.8.2 Maine ignores this study and uses a 1992

ChemRisk study as evidence that the 32.4 gday and 138 gday rates it uses in its ambient

water quality criteria are protective of Maine tribes However the ChemRisk study is

flawed and does not accurately reflect consumption rates of Penobscot or other tribal

people First the ChemRisk study only captures consumption of fish from State not

tribal waters Second it captures suppressed consumption rates in the presence of health

advisories when people were being warned against consuming fish from Maine rivers

including the Penobscot The surveys for the study were done in 1990 while the Maine

Bureau of Health and the ME DEP have issued fish consumption advisories since at least

1987 for the Penobscot including more restrictive advisories in 1990 Third because the

ChemRisk study only surveyed people that held a 1989 Maine resident recreational

fishing license it is not representative of Penobscot sustenance fisherman Penobscot

tribal members get sustenance fishing licenses directly from the tribe and are not required

to get Maine recreational licenses to fish in tribal waters including the Penobscot River

In the Nation’s experience tribal people who carry out subsistence lifestyles are not

likely to be captured in mail or telephone surveys

Maine discounts the Wabanaki study because it argues that it does not constitute

“empirical” data as compared with the ChemRisk study There is no basis in the Clean

Water Act or the implementing regulations for this distinction Instead the EPA

recommends “local data on fish consumption in place of this default value when deriving

AWQC.” EPA’s AWQC methodology Section 1.6 The Wabanaki study constitutes

EPA004969
_31_

“local data” with regard to Indian territories while the ChemRisk study does not The

Wabanaki Study was created precisely for use in WQS determinations and it fully

justifies its methods The consumption of fish for sustenance is a present use of waters in

Indian territories and there is nothing in the Clean Water Act or its implementing

regulations to suggest that it is improper to look to data that is based in part on

information that predates the Clean Water Act in determining the appropriate fish

consumption rates sufficient to protect modern day tribal sustenance fishers

The consumption rates from the Wabanaki Exposure Scenario more accurately

reflect sustenance fishing practices and demonstrate the inadequate protection offered by

the proposed water quality standards Any WQS standards that are directly applicable to

Indian territories should use the consumption rates of the Wabanaki Study These

consumption rates should be used for all pollutants

Similarly the Nation objects to the use of a one in ten thousand cancer risk rate for

the known carcinogen of inorganic arsenic Maine uses a one in one million cancer risk

rate for other carcinogens It is offensive for the State of Maine to be purporting to

determine what an acceptable cancer risk rate within Indian territory for sustenance tribal

fishermen As described above we believe the State has no jurisdiction to make this

determination and further believe that the EPA consistent with its permissible authority

under its Trust responsibility should not approve such a determination over the Nation’s

objection The Nation further believes that it would be arbitrary and capricious to do so

EPA004970
_32_

CONCLUSION

For all of the above reasons the EPA should decline to approve Maine’s proposed

WQS within the Penobscot Nation’s sustenance reservation fishery

Dated September 13 2013 s Kaighn Smith Jr

Kaighn Smith JrEsq

David M Kallin Esq

Counsel for the Penobscot Nation

Drummond Woodsum MacMahon

84 Marginal Way Suite 600

Portland Maine 04101 2480

CoCounsel

Mark Chavaree Esq

Penobscot Nation

6 River Road

Indian Island Maine 04468

EPA004971