MEMORANDUM

In a memorandum dated July 9, 1997, we established an

Agency-wide workgroup to review EPA's process for making

determinations on tribal applications for EPA-approved regulatory

programs. That memorandum noted that "it is vital that the

Agency have a clear, well-documented process to assemble and

review relevant information, and decide on tribal program . applications, in order to assure that the Agency makes sound

decisions that can be defended successfully." The Workgroup's

charge was to review the Agency's current process for making such

determinations and develop recommendations, which might lead to

written guidance, for improving the process to ensure reliably

defensible decisions.

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FROM:

TO:

Adoption of the Recommendations from the EPA Workgroup

::b:::b::r:::::::l;;YJ~el.J~~~ Assistant Administ!?WfJ5{ ~he "N;tIonal Indian Program

Jonathan z. Cannon '...if (A",.

General Counsel A/VT~

Assistant Administ ators

Regional Administr tors

The Workgroup submitted its recommendations on December 23,

1997. Before making its final recommendations, the Workgroup

shared its preliminary recommendations with the Tribal Caucus of

the Tribal Operations COIlIllIittee (the TOC), individual tribes, and

EPA offices for their review and comment. The Workgroup's final

recommendations have been shared with the EPA senior managers for

the Indian Program for their views.

We too have reviewed th~ re~ommendation9, and considered the

comments received regarding the recommendations from within the

Agency an~ from tribes. By this memo, we accept in full the - recommendations made by the Workgroup. Below we provide: 1) a

summary of the Workgroup process; and 2) a description of the

recommendations and a discussion of how each recommendat~on will

be implemented.

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When we initiated the review that led to these

recommendations, we asked that Regions generally defer making

final determinations on tribal applications for regulatory

authority until the review was completed. Now that the review is

completed, we request that the Regions resume decision-making on

tribal applications in accordance with the recommendations and

guidance adopted today.

The Workgroup Process

The Workgroup, which was chaired by Robert G. Dreher, Deputy

General Counsel, included representatives from all EPA Regions,

and' a number of headquarters (HQ) offices. The Workgroup

developed a list of five issues to be addressed and established

issue subgroups to prepare options papers on each issue. A list

of Workgroup and Subgroup members is attached .as Attachment A.

The five issues identified and addressed by the Workgroup were:

1) the.process for maintaining .and compiling administrative

records for EPA determinations on tribal eligibility to run

regulatory programs; 2) the appropriate consultation and

concurrence role for HQ in these decisions; 3) the application of

the Montana test for evaluating tribal authority over non-Indians

on fee lands within reservations; 4) opportunities for

stakeholder involvement on EPA decisions regarding tribal

applications for eligibility to establish wateL quality standards

under the Clean Water Act; and 5) evaluation of treatment in the

same manner as state (TAS) criteria for grants.'

The Workgroup arrived at preliminary recommendations by the

middle of October. Workgroup members solicited comments on the

options and preliminary recommendations from their respective - offices. Then, at the beginning of November, the Workgroup

solicited comments on the options and preliminary recommendations

from the Tribal caucus of the TOC and from individual tribes.

The Workgroup also provided periodic updates on its progress

during the TOC's monthly conference calls.

The Workgroup considered comments·trom the TOC, indjvidual

tribes, and EPA offices. The Workgroup made several changes to

the preliminary recommendations to address these comments.

Finally, the Workgroup provided its recommendations to us, along

with a discussion of the key considerations, comments received,

and/options evaluated for each issue.

The Workgroup also identified one longer-term issue

the tribal role under FIFRA -- that the Workgroup recommends the

Agency evaluate in the future.

2
Adoption and Implementation of the Workgroup Recqmmendations

The primary considerations of the Workgroup were to develop

recommendations that will: 1) improve the consistency and legal

defensibility of EPA decisions regarding tribal programs;

2) avoid burdensome procedural requirements that may

unnecessarily delay decisions on tribal applications; and

3) recognize the importance to tribes and EPA's Indian Program of

decisions involving tribal sovereignty. The principal concerns

raised by the TOC, tribes, and Regions in their comments on the

preliminary recommendations were that the Agency avoid adopting

progedures that will place undue burdens and delays on EPA's

process for making decisions on tribal applications. The

Workgroup considered and made several changes to the preliminary

recommendations to address these concerns. We believe that the

recommendations adopted below achieve the Workgroup's goal of

significantly improving the defensibility of EPA's decisions

without placing undue burdens on the decision-making process for

tribal applications. To the extent the recommendations place

additional burdens on the process, we believe they are warranted

in order to ensure that the Agency handles decisions pertaining

to tribal sovereignty with the utmost care.

Issue 1 -- Administrative Records: Improving EPA's process for

maintaining and compiling administrative records on EPA decisions

regarding tribal eligibility to run regulatory programs.

Workgroup Recommendation: The Assistant Administrator (AA)

for Water (as the AA for the National American Indian Program)

and the Office of General Counsel (OGC) should jointly issue a

memorandum providing guidance and establishing docketing

procedures specific to the compilation and maintenance of

administrative records for EPA determinations on tribal

applications for eligibility to run regulatory programs under all

relevant EPA statutes. The memorandum should also ask Regions to

establish a training program to ensure that the guidance and

procedures are followed. .

Adoption and Implementation: We adopt this recommendation

in full. The final guidance is attached as Attachment B.

Issue 2 -- HQ Role: What concurrence/consultation role should HQ

play in EPA decisions regarding tribal el!gibility to run

regulatory programs?

Workgroup Recommendation: HQ review and concurrence should

be required for all nationally-significant matters. Decisions on

national significance should be guided by semi-annual review and

3
consultation meetings between HQ offices (the American Indian

Environmental Office (AIEO), OGC, and the national program

manager (NPM) offices) and Regions to discuss national

concerns/issues and to provide Regions the opportunity to discuss

potential upcoming tribal actions/cases. 2 In all cases,

regional-HQ consultation should begin as early as possible,

particularly prior to a tribe's application where regional staff

believe, based on early involvement with the tribe, that

nationally-significant issues may be raised by an application.

In addition, to help inform decisions on national significance,

Regions. should be asked to provide a brief memorandum to HQ

assessing ~he national significance of each tribal application

for a regulatory program as applications come into the Region.

HQ should be ultimately responsible for determining national

significance.

The determination regarding national significance should be

made within 30 days of EPA receipt of a tribal application. On

applications with nationally-significant issues, an expectation

should be established that HQ will concur or provide specific

guidance to the Region within 30 days after a Region's tentative

decision has been provided to HQ, provided there has been early

involvement for HQ. Regions should ensure that a tribe that has

applied for eligibility is kept informed of the status of the

decision-making process. The process described above should be

reevaluated after 3 years.

AIEO, OGe and the relevant national program office are the

appropriate HQ offices to be involved in the consultation and

concurrence process.

Finally, Regions should have periodic "Round table"

discussions with their tribes. Regional Counsel attorneys Should

have early consultation with tribal attorneys to identify

potential legal issues pertaining to tribal eligibility for

regulatory programs.

2 The Workgroup recommended that there be one meeting

involving all Regions ana one Region-specific meeting each year.

In addition, the Workgroup recommended that existing procedures (~, the National Indian Workgroup) be used to improve

coordination. Although the scope of the Workgroup's analysis was

limited to EP~ determinations on tribal eligibility applications

for regulatory programs, the Workgroup noted that other pending

or possible future Agency actions affecting environmental

programs in Indian country (~, PSD redesignations, sitespecific rulemaking under RCRA) can and should be discussed in

these semi-annual meetings.

4
Adoption and Implementation: We adopt this recoIlUl\endation

in full. Appropriate changes to the Agency's delegations manual

will need to be made to implement the HQ concurrence aspects of

this recoIlUl\endation. Bob Perciasepe is initiating appropriate

delegations manual changes for Office of Water programs. We have

asked the Assistant Administrators for the Office of Prevention,

Pesticides, and Toxic Substances and the Office of Air and

Radiation to initiate appropriate changes to the delegations

manual for their programs. We ask that ArEO consult with those

offices and report to us on the status of these delegations

manual changes in one month. We ask that regional and HQ offices

implement all other aspects of the recoIlUl\endations outlined

above. '

We emphasize that the consultation and concurrence process

should operate as efficiently as possible. It is essential that

HQ and Regions consult early in the process, even before tribal

applications are submitted whenever possible. We will reevaluate

this process, with input from Regions, NPMS, ArEO and tribes,

after three years.

Issue 3 -- Application of the Mont,n. test.

I}ilsue 3a - - Should EPA prepare guidance on applying the Montana

impacts test (regarding tribal authority over nonmembers on fee - lands within reservations)?

Workgroup Recommendation: The AA for Water (as the AA for

the National American Indian Program) and OGC should jointly

issue general guidance to EPA regional staff, and request that

AIEO work with OGC and the Regions to develop and initiate a

training program to supplement the guidance. The training should

be conducted in Regions with nonmember fee lands and should allow

for discussion of the application of the Montana test and the

development of decision documents. Such training should be

required for all persons developing decision documents that

include an-analysis under the Montana test. For all other

persons involved in the Indian Program, the training should be

encouraged. Finally, Regions should be ready to work w£th tribes

that request assistance in preparing applications involving

Montana test issues.

Adoption and Implementation: We adopt this recoIlUl\endation

in full. The final guidance is attached as Attachment C. We ask

that AIEO work with OGC and the Regions to develop a training

program as discussed above.

5
Issue 3b - - Generalized Pindings. Should EPA publish a set of "1

generalized findings, to supplement reservation-specific

findings, regarding the nature of the pollutants and activities

regulated under the environmental statutes and the importance of

effective regulation under those statutes?

Recommendation: The Agency should issue .in the Federal

Register an appropriate set of generalized findings for all

relevant programs regarding the seriousness and mobility of

pollutants and the importance of environmental regulation to

tribal self-governance.

Adoption and Implementation: We adopt this recOllllllendation in

full and ask that AIEO and the relevant NPMs in the Office of

Water and the Office of Prevention, Pesticides, and Toxic

Substances, in consultation with OGC and the Regions, prepare in

a timely manner appropriate generalized findings consistent with

the Workgroup's recommendation.

Issue 4 -- Stakeholder Involvement; Who are the appropriate

eJ1tities to comment on tribal water quality standards (WQS)

eligibility applications? Should opportunity for comment be

provided on supplemental application materials or teJ1tative

determinations? This issue is limited to opportunity fo~

comment on a tribe's assertion of jurisdiction.

Recommendation: The current process for review of tribal

eligibility to set WQS provides "appropriate governmental

entities" (i.e., adjacent states, tribes, and federal agencies)

an opportunity to comment on tribal assertions of jurisdiction

contained in the initial application from a tribe. In addition,

under the current process, notice of availability of a tribal

application is provided to other potential commenters, specifying

that any comments are to be funneled through "appropriate

governmental entities." The Workgroup recommends that EPA

supplement this current process by also providing:

1) supplemental application materials to "appropriate

governmental entities," 2) a 30-day opportunity for these

governments to comment on EPA's proposed findings of fact (under

the Montana test) where a tribe seeks program approval over

nonmembers on fee lands, and 3) notice of availability of such

proposed findings of fact to other potential commenters (with

comments to go through "appropriate governmental entities"). The

Agency should also ensure that applicant tribes have an

opportunity to review EPA's draft proposed findings of fact

(under the Montana test) before they are made available to

"appropriate governmental entities." ~PA' should also provide

tribes an opportunity. to respond to any' comments submitted by

"appropriate governmental entities."

In addition, EPA should ensure that tribes are given an

opportunity to comment on any state application to EPA containing

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an assertion of jurisdiction over areas that are in or adjacent

to Indian country.

Adoption and Implementation: . We adopt this recommendation

in full. EPA decisions regarding tribal eligibility to set WQS

should proceed consistent with the process detailed above. This

expanded process may be implemented without changes to EPA

regulations (see 40 C.F.R. § 131.8). Nonetheless, the Office of

Science and Technology within the Office of Water, in

consultation with AIEO, the Regions and.OGC, should explore

whether it is advisable for the Agency to incorporate this

expanded process into regulation.

Issue 5 -- Eligibility requirements for grants: Ensuring

consistent and adequate documentation regarding tribal

eligibility for grants (LL, evaluation of -treatment in the

same manner as a state- (TAS) criteria -- federal recognition,

substantial duties, jurisdiction, and capability).

Recommendation: EPA should prepare guidance for EPA staff on

the TAS considerations unique to grants. The guidance should

address issues such as: the jurisdictional component of grant

eligibility decisions; tribal authority issues relating to CWA

§ 319(h) grants; the "reservation" requirement under the CWA; use

of CWA § 106 funds for off-reservation activities that relate to

the protection of waters within reservations; the capability

component of grant eligibility decisions; procedures for

documenting eligibility determinations for grants; and internal

Agency concurrences required for grant eligibility decisions.

The Agency should ensure that appropriate grant and program

offices receive copies of the guidance.

Adoption and Implementation: We adopt this recommendation

in full and ask that AIEO and the Office of Administration and

Resources Management, in consultation with aGe and the Regions,

prepare in a t~ely manner guidance consistent with the

Workgroup's recommendation"

Conclusion

We would like to thank all the members of the Workgroup for

dedicating so much of their time and energy to reviewing the

Agency's process for making tribal eligibility determinations and

developing the recommendations and the guidance for improving

this process. Also, we would like to thank the Tribal Caucus of

the TOC for taking the t~e to review thoroughly the draft

recommendations and for providing the Workgroup with detailed

comments. We believe that the recommended changes in the

Agency's process, the proposed training programs, and the new

guidance will improve the Agency's decision-making process for

tribal applications for eligibility to run regulatory programs.

7
If you have any questions regard1ng this memorandum, please

contact Robert Dreher (202-260-8064) or have your staff contact

Tony Hanson (202-260-8106) or Jim Havard (202-260-1003).

Attachments

cc: Senior Indian Managers

Associate General Counsels

Regional Counsels

Tribal Eligibility Workgroup Members

National Indian Workgroup Members

EPA Indian Law Workgroup Members

R
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ATTACHMENT A

EPA's Workgroup on Tribal Eligibility Determinations

Workgroup Members

Jim Sappier, Region 1

Nina Dale, Region 2

Christine Yost, Region 2

Samantha Fairchild, Region 3

Wayne Aronson, Region 4

Fred Hunter, Region 4

Bob Springer, Region 5

Ben Harrison, Region 6

Rupert Thomas, Region 7

Kerry Cough, Region 8

Tom Speicher, Region 8

Leigh Price, Region 8

Sadie Hoskie, Region 8

Danita Yocom, Region 9

Rich McAllister, Region 10

Joe Ryan, Region 10

Phil Metzger, OW

Tom Wall, OW (AlBO)

Kathy Gorospe, OW (AlBO)

Elizabeth Bell, OW (AlBO)

Jim Hanlon, OW (OST)

Karen Gourdine, OW (OST)

Betty West, OW (OWM)

Rosanna Hoffmann, OW (OWM)

Ray Enyeart, OW (OGWDW)

David Laroche, OAR

Maureen Ross, OARM

Tom Hooven, OPPTS

Pete Rosenberg, OECA

Bob Dreher, OGe

Jim Havard, OGe

Leslie Darman, OGe
EPA's Workgroup on Tribal Eligibility Determinations

Subgroup Members

Process for maintaining and compiling administrative records for

determinations on tribal applications for eligibility to run

regulatory programs

Rich McAllister, Wayne Aronson, Ben Harrison, Tom

Speicher, Leigh Price, Robert Springer, Jim Havard

KQ role indeterDdnations on tribal applications for eligibility

to run regulatory programs programs

Betty West, Rosanna Hoffmann, Kerry Clough, Sadie

Hoskie, Elizabeth Bell, Jim Havard, David LaRoche

Application of "the Montana test"

Robert Springer, Leigh Price, Tom Speicher, Rich

McAllister,Phil Robinson, Tom Hooven, Betty West,

Rosanna Hoffmann, Danita Yocom, Rupert Thomas, Phil

Metzger, Elizabeth Bell, Tom Wall, Jim Havard

Stakeholder involvement

Sadie ~oskie, Kerry Clough, Joe Ryan, Jim Havaro

Evaluating tribal applications to receive grants in the same

manner as a state

Ben Harrison, Rich McAllister, Jim Havard, Leslie

Darman, Samantha Fairchild, Nina Dale, Maureen Ross
MEMORANDUM

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SUBJECT:

FROM:

TO:

Administrative Records for EPA Determinations on Tribal

Eligibility for R~lat~ pr~grams '

Robert Perciasep PLI-~iAA Assistant Adminis~ra r ~r~h~ional Indian Program

Jonathan Z. Cannon t-,L, J .: . General Counsel ~U~('

Regional Administra ors

Regional Counsels

This memorandum describes the procedures that the regional

offices are to follow in establishing and maintaining

administrative records for EPA determinations on tribal

applications for eligibility to run regulatory programs.'

Because of the large number of determinations on tribal

applications for regulatory programs expected over the coming

years, and because these determinations can be complex and often

are controversial, 'regional offices are to follow these

procedures to ensure that the technical, policy, and legal bases

for EPA's decisions are articulated in supporting records that

are maintained in. an orderly fashion. In addition, we ask that

regional offices establish a training mechanism to ensure that

the guidance and procedures are followed.

"'

This memorandum addresses EPA determinations on tribal

applications for eligibility to run regulatory programs under all

rec_evant statutes; it does not address EPA determinations on

tribal grant applications. Although the scope of this memorandum

is limited to EPA determinations on tribal eligibility

applications for regulatory programs, the procedures and guidance

outlined below may be valuable for ensuring sound and defensible

decisions regarding other Agency actions affecting environmental

programs in Indian country (~, PSD redesignations, sitespecific rulemaki~gs under RCRA).

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We believe that following the procedures outlined below will

foster quality decision-making by the Agency and facilitate the

public's understanding of EPA's actions. Moreover, in any

litigation challenging EPA's decisions, the administrative record

serves as the basis for a reviewing court to determine whether

the Agency's action complies with the Administrative Procedure

Act -- .L.st.., whether the action is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law." 5

U.S.C. § 706(2) (A).

In deciding whether an ~gency decision is "arbitrary or

capricious," the courts generally will be limited to reviewing

the Agency's administrative record. Except in very rare

circumstances, such review does not allow for testimony or afterthe-fact explanations of the Agency's decision. Gaps in the

record, including the omission of relevant factual material or

the failure to articulate crucial steps in the Agency's

reasoning, can result in a finding that the Agency has not

complied with the Administrative Procedure Act, causing the court

to remand and/or invalidate the Agency's action.

To ensure that the administrative record for EPA's decisions

is developed in an orderly fashion, each Region is to establish a

system for creating and maintaining an official docket for each

determination on a tribal application for eligibility to run a

regulatory program. A docket is a single repository for

documents that comprise the record for an EPA action. The docket

is organized chronologically and by type of document (~,

correspondence, technical documents); and is updated with new

record material as it is generated. Each document is assigned an

identification number, and access to the docket is monitored to

ensure that documents are not lost or misplaced. The documents

are listed in an index as they are received or generated. While

maintaining a formal docket involves some level of effort, we

find that the resources needed to maintain a docketing system are

more than justified because it enables· the Agency to identify for

decision-makers, the public, and the courts the bases for the

Agency's decisions. Moreover, the Agency would need to compile

an index to all information relied upon by the Agency in-any

event where EPA's action is the subject of litigation.

Section I, below, summarizes the general contents of an

adffiinistrative record and discusses specific elements of an

administrative record for tribal regulatory program eligibility

decisions. Section II contains procedures regarding the

establishment of dockets for such decisions in the regional offices. Z

2 This memorandum does not address any requirements

regarding the retention of documents under the Agency's records

retention schedules.

2
I. Overview of the Administrative Record

The Administrative Record Generally

Below is a general discussion of the elements of an

administrative record.

o The record is a set of documents relied upon by the Agency

for its decision. It generally will contain all of the

factual material relevant to the Agency's decision, relevant

guidance used by the Agency, any comments/correspondence

from outside parties and Agency responses, and EPA's

.explanation of how it arrived at its decision.

o The record generally should not contain internal documents

reflecting the deliberations of the Agency (~, briefing

documents, legal memoranda, drafts of documents).3 If an

internal document contains both factual and privileged

information, and the factual information is not otherwise in

the record, we can redact the privileged information and

include the document in the record.

o Any documents prepared by EPA that are to be part of the

administrative record should be dated and signed (if

appropriate) .

o The record may only include documents that are in existence

at the time the Agency makes its decision. In any

litigation challenging EPA's action, after-the-fact

explanations or justifications of EPA's decisions are not

permitted except in very rare circumstances. Therefore, all

documentation needed to support the decision must be

completed when EPA takes its action.

Elements of an Administrative Record on a Tribal Regulatory

Program Eligibility Determination

Below is a list and discussion of the specific types of

material that should be included in the administrative record for

a determination on a tribal regulatory program application.

o The tribe's application and any post-application information

submitted by the tribe.

o All other relevant correspondence between EPA and the tribe.

3 These documents may, however, be subject to Agency retention schedules.

3
o Any letters from EPA transmitting the tribe's application to

appropriate governmental entities (~, adjacent states,

tribes and federal agencies).

o .Any comments or competing claims of jurisdiction received

from appropriate governmental entities. Any other comments

received on the application from outside of EPA.

o EPA's response to any comments.

o In cases where EPA consults with the Department of the

Interior regarding its decision, any non-privileged record

of such consultation.

o A decision document signed by the regional official

delegated authority to make the decision providing a full

explanation of the basis for the regional office's final

determination. The Agency's decision document needs to

clearly set forth the Agency's process and the data that

supported the Agency's decision. The decision document

needs to clearly layout the Agency's determination with

regard to each of the treatment in the same manner as a

state criteria spelled out in EPA regulations (~, federal

recognition, government with substantial powers and duties,

jurisdiction, and capability).

o If the determination involves a finding of tribal

jurisdiction over the activities of non-Indians on fee

lands, the decision document should include a detailed,

reservation-specific discussion of existing or potential

impacts from such activities on the health, welfare,

economic security or political integrity of the tribe (see

EPA's Montana-test guidance, dated March 19, 1998).

o EPA's 1984 Indian Policy and any other Agency policy

documents or Agency guidance that may be relevant to the

determination.

o Non-deliberative documents reflecting any required

concurrences.

o Any other non-deliberative materials relevant to the

Agency's determination. "

II. Establishing and Maintaining a Docket

Each region is to establish a docketing system for

determinations on tribal applications for eligibility to run

regulatory programs. Below is guidance on the operation of a

docketing system. The guidance includes information regarding

the general procedures that characterize the operation of a

docket. It also contains a discussion of specific issues

4
relating to dockets for EPA tribal regulatory program eligibility

determinations.

General Docketing Procedures

o Each regional office should identify a location for the

docket and personnel that are responsible for overseeing and.

maintaining the docketing process.

o Any relevant materials should be forwarded to the docket

from Agency personnel as soon as they are available in final

form.

o Docket personnel should enter a copy of each document into

the docket, indicating the date on which it was entered into

the docket and a number identifying the document.

o An updated index to the docket should be maintained at all

times.

o When in use for reading or copying, documents in the docket

should be checked out to the individual using the documents

to ensure that documents are not lost or misplaced. Records

should be kept of any outside party that visits the docket.

o In general, documents relied upon by the Agency must

themselves be placed in the docket. However, where a

document is readily available to the public (~, through

public libraries) a reference to the document (~, a copy

of the title page and table of contents) may be placed in

the docket in lieu of an actual copy.

Issues Specific to Tribal Eligibility Determination Dockets

o The docket should include the tribal application and all

supplementary material submitted by the tribe to support the

tribe's application.

o The docket should include all correspondence between EPA and

outside parties regarding the tribe's application.

o As comments are received by the Agency, a copy should be

placed into the docket as soon as possible. If comments are

received after the close of the comment period, they should

be placed in the docket in a separate section entitled

"Comments received after the close of the comment period."4

, It is the Agency's policy to respond to late comments

whenever possible. Any decision not to respond to late comments ~hould only be made after consultation with the Office of

5
o The docket should include any responses to comments prepared

by the Agency.

o The decision document explaining the basis for the Agency'~

decision, along with any other non-deliberative materials

relevant to the Agency's decision should be placed in the

docket as soon as they are final.

o Non-deliberative documents reflecting any required

concurrences should be placed in the docket.

o As noted previously, record documents cannot be generated or

modified after EPA takes its action.

o Regions may want to consider establishing a "generic" tribal

eligibility determination docket that would include

documents (such as EPA's 1984 Indian Policy) that the

regional office will rely ~pon in any ·tribal eligibility

determination rather than including such documents in the

docket for each determination.

We hope that this memorandum will assist the Regions in

making decisions on tribal eligibility for regulatory programs

and in improving EPA's technical, policy, and legal bases for all

such decisions.

Regional Counsel.

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ATTACHMENT C

MONTANA-TEST GUIDANCE

Making Pactual Determinations under the Montana Test:

Tribal Civil Regulatory Authority over Nonmember Activities on

Pee Lands

NOTICE

The following guidance is intended only for EPA managers and

staff in the analysis of tribal assertions of civil

regulatory jurisdiction over nonmember activities on fee

lands within a tribe's reservation. Specifically, the

guidance is intended to assist in the collection and

analysis of factual information related to the question of

whether or not the activities of nonmembers on reservation

fee lands may have serious and substantial effects on the

"political integrity, the economic security, or the health

or welfare of the tribe." Montana v. United States, 450

U.S. 544, 566 (1981). Because of the importance of EPA's

determinations in this area, it is very important that all

readily-obtainable factual information be available to EPA

managers in order to make properly-informed decisions.

The following guidance should be viewed as offering

suggestions only. The guidance is based upon the experience

of the Agency to date and offers suggestions on questions- to

ask and various types of information that, if available, may

be helpful to the Agency in making jurisdictional

determinations. The guidance does not establish any

requirements. In particular, it does-not establish any

requirement that any specific information or category of

information listed here is necessary in order to determine

that nonmember activities either do or do not have ~he

impacts on the tribe necessary to warrant tribal regulation

of those activities. The determination of the SUfficiency

of information is a matter of the expert and professional

judgment of the decision-maker based on the facts of the

particular application, and cannot be reduced to guidance of

this nature.
Background

In their applications for eligibility to implement a number

of EPA programs, tribes must demonstrate that they have

sufficierit jurisdiction to enforce tribal laws over the areas

covered in the application, including, where appropriate, civil

regulatory jurisdiction over nonmember activities that may occur

on any nonmember-owned fee lands located on a tribe's

reservation. The Supreme Court has set forth a -legal test for

determining whether a tribe has jurisdiction over nonmember

activities on fee lands, called the "Montana Test."

The Montana Test establishes that a tribe may "exercise

civil authority over the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or has

some direct effect on the political integrity, the economic

security, or the health or welfare of the tribe." Montana

v. United States, 450 U.S. 544, 566 (1981).

In 1991, EPA decided that it would apply a more rigorous

formulation of the Montana Test by establishing an "operating rule~ that requires tribes seeking eligibility to set water

quality standards governing the activities of nonmembers on fee

lands to show that the effects are "serious and substantial."'

At the same time, EPA published its finding that the behaviors

regulated under the Clean Water Act (CWA) tend to have serious

and substantial effects on human health and welfare (and, thus,

the CWA regulates them). EPA also announced that it would

require tribes seeking eligibility to set water quality standards

governing the activities of nonmembers on fee lands to provide

facts, on a case-by-case basis, demonstrating that water _ pollution from nonmember fee_ land sources has or may have serious

and substantial effects on the health or welfare of tribal

members under the particular conditions of the tribe's

reservation.

1 EPA noted in 1991 that "[t]he choice of an Agency

operating rule containing this standard i2 taken solely as a

matter of prudence-in light of judicial uncertainty and does not

reflect an Agency endorsement of this standard ~.~ Since

1991, however, the Supreme Court has reaffirmed Montana's impacts

test in 1993 (Bourland) and again in 1997 (Strate), both times

quoting the Montana impacts test verbatim without addressing the

need for "serious~ or "substantial" impacts. While it appears

that the Montana Test does not require "serious and substantial~

impacts, for the time being, as a matter of prudence, EPA will

continue to look to see whether such impacts exist when

evaluating tribal authority under the Montana Test.

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- The Agency now has several years of experience in reviewing

tribal applications for EPA programs that involve an assertion of

tribal jurisdiction over nonmember activities on fee lands. The

Agency's experience shows that it is important for the Agency to

be consistent in its application of the Montana Test. To help

ensure national consistency in the Agency's process for making

determinations under the Montana Test, the following factors

should be considered. .

Guidance

-

-

A. What types or categories of facts may be relevant to a

dete%3ldnation of whether pollution generated on nODJllember

fee lands may have a deleterious effect on tribal health or

welfare or the tribe's political integrity or economic

security? The following questions should be considered:

(1) Is pollution being produced on nonmember fee lands,

or may it be/is it likely to be produced? Are there

facts showing that pollution is presently being

produced on nonmember fee lands within the reservation?

If no pollution is presently being produced,~are there

circumstances showing that new pollution sources may be

established in the future that may have impacts on

tribal health, welfare, political ir.t~grity, or

economic security? The threat of such impacts is a

reasonable basis for a tribal government to establish

controls intended to prevent harm from occurring in the

first place. Thus, any information regarding present

or potential pollution sources on nonmember fee lands

should be considered.

(2) Are tribal members or resources exposed, or may

they be/are they likely to be exposed to the pollution?

Are there facts showing, not only that pollution is

occurring or may occur, but that tribal members may be

exposed to the pollution? For example, such exposure

can occur if pollution is carried from nonmember lands

due to the ambient nature of air and water. Tribal

members may be exposed to the pollution when they are

on nonmember fee lands. Pollution can also be carried

through the food chain or drinking water supplies. Any

facts relating to the means by which tribal members are

or might be exposed to pollution should be considered.

Are there facts showing that resources upon which

tribal members depend (~, air, water, plants and

animals) are or may be exposed to pollution?

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(3) Does the exposure to 'the pollutants affect or have

the potential to affect tribal politics, economics,

health or welfare? Are there facts or studies

supporting a showing that, if exposed to the pollutants

generated on nonmember fee lands, tribal members may

suffer deleterious effects on their "political

integrity, economic security or health or welfare?"

Effects on "political integrity" and "economic

security" may occur when tribal members, or species or

resources on which tribal members depend, are exposed.

For example, the tribe may depend economically upon the

consumption or commercial sale of fish, and protection

of the fish resource depends upon effective protection

of the resource habitat. Are the impacts to tribal

members serious and substantial?

B. Do the factR relating to a Montana Test analysis differ from

program to program or under different environmental

statutes? Yes. Again, the purpose of this guidance is

simply to suggest questions to ask and possible areas to

investigate to ensure that as many of the relevant facts are

before the EPA decision-maker as are-reasonably available.

The types of pollutants may vary from program to program.

Similarly, the route of exposure often may vary from program

to program.

C. Bow detailed should the Montana Test analysis be? Any

factual data readily available to the tribe~, EPA and any

other commenters, such as state or local governments,

businesses and private citizens, might be considered. One

approach would be to use the information provided in the

tribal application, and information provided by external

commenters and by an EPA review of the literature and

relevant information in Agency files. In order to base

Montana-Test decisions on as much relevant information as is

reasonably available, Agency staff should do the best job

that can reasonably be done in thoroughly substantiating

their recommendations with available facts and studies. A

"best reasonable effort" would not ordinarily require EPA

Regions to carry out or contract for original research.

D. Should Montana-Test determinations address how regulation of

nonmember water-polluting activities is necessary to

effective tribal "self-governance?" This issue arises as a

result of a discussion of impacts on self-government by the

Supreme Court in it's 1997 decision in Strate v. A-I

Contractors. The Agency determined in its 1984 EPA Indian

Policy that "the principle of Indian self-government"

appropriately includes such governmental functions as

"setting standards, making environmental policy decisions

and ... carrying out program responsibilities affecting Indian

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reservations, their environments, and the health and welfare

of the reservation populace." The tribal governments' views

on this issue are particularly important. It will greatly

assist the Agency in making Montana-Test determinations if

the applicant tribal government would also give its

reasoning and basis (including any supporting facts) for

concluding that effective self-government includes enabling

the tribe to carry out the program for which it is applying.

E. Should EPA consider a tribe's treaty rights or other similar

rights embodied in statutes or executive orders in making

its dete~tions? The applicant tribe may have signed a

treaty with the United States in which the United States has

guaranteed rights that are clearly tied to tribal pOlitics,

economics, health or welfare. While this information does

not in and of itself demonstrate that nonmember activities

may impact the tribal interests recognized in the Montana.

Test, it may be relevant to the analysis of whether there

are impacts that are serious and substantial and a threat to

effective self-government.

P. At what point should Regional management and staff seek

input and advice from Headquarters in making Montana Test

determinations? National Program Offices, the Office of

General Counsel and the American Indian Environmental Office

can all·provide important assistance and advice, based upon

the Agency's experience in addressing the issues encountered

in evaluating tribal assertions of civil regulatory

authority over nonmember activities. This body of Agency

experience is constantly growing, and informed by new

federal court decisions applying the Montana Test. In order

to benefit from the most current and relevant information,

Regions should coordinate closely with Headquarters' offices

and seek Headquarters concurrence on applications raising

nationally-significant issues. This coordination should

begin as early in the process as possible, such as upon

notice that a tribe is interested in pursuing regulatory

authority over nonmembers on fee lands, and no later than

when individual tribal applications are received in-the

Regional Office.

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