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IN RFPLY REFER'ro:


## JAN 3 0 2015
Avi S. Garbow General Counsel United States Envirorunental Protectioii Ageiicy 1200 Pennsylvania Ave N W Washington, D.C. 20460

Re: Maine's WQS and "I

, ribal F ishing Rights of Maine Tribes

Dear Mr. Garbow:



### The State of Maine has submitted proposals to the Environmental Protection Agency (EPA) to implement Water Quality Standards (WQS) within waters set aside for federally recognized tribes under applicable state and Federal law for uses including sustenance fishing (hereinafter described as Maine Indian Waters). ' To assist in your review of Maine's proposals, you have asked for the Department of the Interior's views regarding tribal fishing rights in Maine and particularly the relationship between tribal fishing rights and water quality. We have reviewed applicable law and, for the reasons explained below, conclude that all four of the Maine tribes—the Penobscot Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians, and the Aroostook Band of Micmacs—have federally-protected tribal fishing rights. These fishing rights should be taken into account in evaluating the adequacy of WQS in Maine.

1. Overview of Tribal Fishing Rights in Maine Indian Waters

As you are well aware, the four federally recognized Indian tribes in the State of Maine are subject to a unique statutory framework established by the state-law Act to Implemcnt the Maine Indian Claims Settlement ("Maine Implementing Act"), 2 the state-law Micillac Settlement Act, 3 the federal Maine Indian Claims Settlement Act ("MICSA"), 4 and thc

t We note that the exact boundaries of at least some Indian lands and territories in Maine remain in dispute. For example, the United States has intervened in a lawsuit filed by the Penobscot Nation against Maine claiming that the Penobscot Reservation includes waters in the Main Stem of the Penobscot River. See Order on Pending Motions in Penobscot Nation v. Mills, 1:12-cv-00254-GZS (D. Maine Feb. 4, 2014) (granting US motion to intervene) . It is beyond the scope of this letter to precisely identify all Maine Indian Waters. The location of Maine Indian Waters for each Ti

- ibe would have to be defined based on all applicable law, including statutory language, applicable property law docti

- ine, and lands reserved by treaty and retained by the tribes pursuant to statute. We do not elaborate het•e on the question of whether the Maine tribes have additional fishing rights outside of Indian lands and territories.

2 30 M.R.S. §§ 6201 et seq.

3 30 M.R.S. §§ 7201 et seq.

4 25 U.S.C. §§ 1721 et seq.

### federal Aroostook Band of Micmacs Settlement Act 5(collectively the "Settlement

Acts"). 6

There is no dispute that the four Maine tribes have historically engaged in fishing in Maine waters and that fishing is an important cultural and economic activity for Maine tribal members. 7 Because of differences in their history and applicable statutory language, the fishing rights of the two Southern Tribes the Passamaquoddy Tribe and the Penobscot Indian Nation— derive from different legal sources than the fishing rights of the Northern Tribes—the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs. But all Maine tribes possess fishing rights that EPA should consider when analyzing proposed water quality standards in Maine.

The fishing rights of the Passamaquoddy Tribe and Penobscot Indian Nation in their Reservation waters g are expressly reserved 9 fishing rights: the Maine Implementing Act

5 P.L. 102-171, 105 Stat. 1143 (1991).

6 In MICSA, Congress formally conftrmed the federal recognition of the Penobscot Nation, the Passamaquoddy Tribe and the Houlton Band of Maliseet Indians. 25 U.S.C. § 1725(i). Federal recognition was extended to the Aroostook Band of Micmacs eleven years later with the enactment of P.L. 102-171 (Sec. 6(a)), so now these four Maine tribes are recognized as eligible for the rights and benefits of Indian tribal status. See generally 25 U.S.C. § 479a-1(a) (providing for listing of federally recognized tribes that are all entitled to "services provided by the United States to Indians because of their status as Indians"). ' Notably, several standalone provisions in Maine law recognize and arguably encourage the continuing centrality of fishing to the traditions and health of Maine tribes. First, the State of Maine recognizes and facilitates fishing as a central part of tribal culture by issuing permits to tribal members to fish in Maine waters at no cost. 12 M.R.S. § 10853(8). Second, the State has enacted legislation providing for special treatment of tribal members engaged in fishing for marine organisms, exempting them from many state permitting requirements and providing a broad exemption for many tribal sustenance and ceremonial uses. 12 M.R.S. § 6302-A. Concerns of the tribes with the process by which this language was adopted and objections to the definition of sustenance are explained in a recent report by the Maine Tribal-State Commission. Me. Indian Tribal-State Comm'n, Assessment of the Intergovernmental Saltwater Fisheries Conflict between Passamaquoddy and the State of Maine (June 17, 2014), available at http://www.mitsc.org/documents/148_2014-10-2MITSCbook-WEB.pdf ("Commission Saltwater Fisheries Report").

g 30 M.R.S. § 6203(5) (defming Passamaquoddy Indian Reservation as "those lands reserved to the Passamaquoddy Tribe by agreement with the State of Massachusetts dated September 19, 1794" except for lands transferred by the Tribe after these treaties but before enactment of the Maine Implementing Act, and with certain additional specifications); § 6203(8) (defining Penobscot Indian Reservation as "the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine" except for islands transferred by the Tribe after these treaties but before the enactment of the Maine Implementing Act and with the addition of other specifically enumerated parcels). Legislative history confirms that the Reservations include riparian and littoral rights under State law or treaties: The boundaries of the Reservations are limited to those areas described in the bill, but include any riparian or littoral rights expressly reserved by the original treaties with Massachusetts or by operation of state law. State of Maine, Maine legislature, Joint Select Committee on the Indian Land Claims, Report of the Joint Select Committee on Indian Land Claims Relating to LD 2037 "An Act to provide for Implementation of the Settlement of Claims by Indians in the State of Maine and to Create the Passamaquoddy Indian Territory and Penobscot Indian Territory," at p. 3, para. 14.

9 A reserved right is a right that has been retained since aboriginal times. Section 6207(4)'s sustenance fishing right applies within these Reservations retained by the Southern Tribes first under treaties and now under the Settlement Acts, see supra note 8, since aboriginal times. Congress used an apt phrase that

2

### acknowledges the right of Penobscot Nation and Passamaquoddy members to "take

fish

... 

### for their individual sustenance" within their reservations free of state regulation. I 

### o

These statutorily-acknowledged fishing rights are rooted in treaty guarantees l l that were upheld through the Settlement Acts. The Passamaquoddy Tribe's 1794 treaty with the State of Massachusetts explicitly reserves a Passamaquoddy fishing right in the St. Croix River (then known as the Schoodic River): the treaty guarantees "to said Indians the privilege of fishing on both branches of the river Schoodic without hindrance or molestation." 1 2 The Penobscot treaties of 1818 (with Massachusetts) and 1820 (with Maine) do not expressly mention fishing rights because they did not cede the Penobscot River, explicitly retaining islands and granting to non-members only the right to "pass and repass" the River. The Penobscot Nation had historically relied on fishing, and the islands mentioned in the Treaty would have been of little value if they were not accompanied by fishing grounds. 13

The Maine Implementing Act further provides for tribal sustenance fishing in certain ponds on lands located outside the Southern Tribes' reservations, but held in trust by the United States as part of the Indian territories established under the Settlement Acts. The Southern Tribes have exclusive authority to enact ordinances regulating the taking of fish on ponds of less than ten acres in their trust lands which "may include special provisions for the sustenance of the individual members of the Passamaquoddy Tribe or the Penobscot Nation." 14 The Maine Implementing Act also includes special provisions for

captures the reserved right concept in the legislative history for the Federal Maine Indian Claims Settlement Act, characterizing fishing rights as an example of natural resources considered "expressly retained sovereign activities." H.R. Rep. No. 96-1353 at p 15 (1980).

' o This reading is established by language in 30 M.R.S. § 6207(4): Notwithstanding any rule or regulation promulgated by the commission or any other law of the State, the members of the Passamaquoddy Tribe and the Penobscot Nation may take fish, within the boundaries of their respective Indian reservations, for their individual sustenance subject to the limitations of subsection 6[providing for the State to limit tribal fishing if necessary to protect the stock of fish]. State regulation is allowed only in the case of conservation necessity, as laid out in the Maine Implementing Act at 30 M.R.S. § 6207(6). " These treaties were State treaties, negotiated not with the United States but with the Commonwealth of Massachusetts; Maine later adopted the responsibility to implement these treaties in its state constitution. See Maine Constitution, Art. X, Sec. 5: The new State shall, as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obligations of this Commonwealth, towards the Indians within said District of Maine, whether the same arise from treaties, or otherwise. Available at http://www.maine.gov/legis/lawlib/const1820.pdf . (Note that per Art. X, Sec. 7, the text quoted here is omitted from printed copies of the Maine Constitution, but still remains in force and effect.). The Settlement Acts preempt any contrary language in the treaties, but the legislative history discussed in
supra note 8 explains that expressly reserved riparian rights under the treaties were retained under the Settlement Acts.

' Z The text of the treaty is available at http://www.wabanaki.com/1794_treaty.htm.

13 See, e.g., Alaska Pacifrc Fisheries v. U.S., 248 U.S. 78, 86-89 (1918) (holding that where Congress set aside lands for the Metlakahtla Indians, a fishing tribe, it impliedly reserved fishing rights in the adjacent waters).
14 30 M.R.S. § 6207(1).



### K

### regulation of certain waters by the Maine Indian Tribal-State Commission. i s Thus, through the Maine Implementing Act, the State has recognized the Southern Tribes' sustenance fishing rights within their territories, and the importance of fish to tribal members' diet.

Although the term "sustenance" is not defined in the Settlement Acts, it is reasonable to conclude that the term encompasses, at a minimum, the notion of tribal members taking fish to nourish and sustain themselves. Moreover, the Indian law canons of construction require that ambiguous terms in statutes must be construed "most favorably towards tribal interests." 16 Where fishing rights of traditional fishing tribes are concerned, this rule of liberal construction applies with special force: one court has held that treaties must be construed "in the sense in which they would naturally be understood by the Indians

.... 

### especially the reference to the right of taking fish." 17 The term "sustenance" in section 6207(4) of the Maine Implementing Act should thus be construed broadly 18 to incorporate at least the right of tribal members to take sufficient fish to nourish and sustain tliem, 19 with no specific quantitative limits other than the conservation necessity limit that the statutory language specifically places on the tribal fishing right. 20 When interpreting the scope of the Maine tribes' fishing right as the tribes would understand them, EPA should consider that the tribes' ability to fish was, and continues to be, essential to their livelihood and culture.

The sources of the fishing rights of Maine's Northern Tribes are different in that they are not discussed explicitly in the Settlement Acts. However, express language in a statute or

15The Commission is an intergoverninental body made up of inembers appointed by the Tribes and the State. 30 M.R.S. § 6212. 30 M.R.S. § 6207(3) authorizes the Commission to promulgate fishing rules and regulations within specified waters on or adjoining the Penobscot Nation's and Passamaquoddy Tribe's territories, taking into account the "needs or desires of the tribes to establish fishery practices for the sustenance of the tribes or to contribute to the economic independence of the tribes."

16 Rincon Band of Luiseno Mission Indians of Rincon Reservation v. Schwarzenegger, 602 F.3d 1019, 1032 (9th Cir. 2010). See also Montana v. Blackfeet Ti-ibe, 471 U.S. 759, 766 (1985) ("Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."). The Indian canons of construction have been held to apply to interpretation of the Settlement Acts. See infra note 48 and accompanying text.
17 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676, 678 (1979).

' g Tribes have argued that in addition to fishing fol• individual consumption, the definition of sustenance traditionally incorporated two otliei - components: barter and exchange. Commission Saltwater Fisheries Report, supra note 7, at p. 22-23

19A study prepared for EPA in collaboration with the Maine Tribes discusses what level of fish consumption is representative of sustenance fshing in Maine Indian waters. Harper, Barbara and Darren Ranco, Wabanaki Traditional Cultural Lifeways Exposure Scenario, prepared for EPA in collaboration with the Maine Tribes, July 9, 2009, available at hitp://www.epa.gov/regionl/jzovt/tribes/pdfs/DITCA.Rdf

. 20 This statutory provision establishing a right of the State to regulate in limited situations of conservation necessity is consistent with the federal common law rule. See United States v. Oregon, 769 F.2d 1410, 1416 (9th Cir. 1990) (describing findings that court must make in order to uphold regulation of treaty rights to take fish, including that "States must consider the protection of the treaty right to take fish ... as an objective co-equal with the conservation of the fish runs for other uses"); United States v. Washington, 384 F. Supp. 312, 401 (W.D. Wash. 1974) ("Neither the Indians nor the non-Indians may fish in a iilanner so as to destroy the resource or to preempt it totally.").



### El

### treaty is not necessary to establish the existence of a tribal fishing right. 21 Tribal fishing

rights are implied through an analysis of the purpose of these land settlements—to create a permanent land base—and the trust property interests created pursuant to the Acts. As described below, these fishing rights are also rooted in state common law on the right of riparian owners to fish on their properties in addition to the Settlement Acts and federal common law on the importance and durability of tribal fishing rights.

The fundamental requirement for a fishing right is access to fishable waters, and legislative history for the Maine Implementing Act specifically addresses the issue of the tribes' access to waters in connection with their trust lands:

Any lands acquired by purchase or trade may include riparian or littoral rights to the extent they are conveyed by the selling party or included by general principles of law. 22

This language allows for riparian rights to attach to the tribal trust lands held by the United States for the Northern Tribes, which are acquired by purchase and then put into
trust. 23In Maine, a right to fish is a right "included by general principles of law" when riparian lands are acquired 5 24 and this language thus confirms that Maine's legislature recognized the right of the Maine tribes to engage in fishing on their reservation and trust

21 The hunting and fishing rights that were held to survive termination of the Tribe's status as a federally recognized tribe in the seminal case Menominee Tribe of Indians v. United States were created by treaty language providing that tribal land would be "held as Indian lands are held." 391 U.S. 404, 405-06 (1968). See also United States v. Dion, 476 U.S. 734, 738 (1986) (explaining that "[a]s a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress," and that these rights need not be expressly mentioned in the treaty). State regulatory jurisdiction is not incompatible with a tribal fishing right; the existence of state laws dealing with tribal fishing in Maine, see supra note 7, reinforces that the State acknowledges the importance of tribal fishing rights. Carole E. Goldberg et al., AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM 1177-78 (6th ed. 2010) ("It is important to see that jurisdictional protections supplement rather than displace tribal property rights to hunt and fish.").
22 State of Maine, Maine legislature, Joint Select Committee on the Indian Land Claims, Report of the Joint Select Committee on Indian Land Claims Relating to LD 2037 "An Act to provide for Implementation of the Settlement of Claims by Indians in the State of Maine and to Create the Passamaquoddy Indian Territory and Penobscot Indian Territory," at p. 3, para. 14.
23 See 25 U.S.C. § 1724(d)(4) (providing for "land or natural resources to be acquired by the United States to be held in trust for the benefit of the Houlton Band"); 30 M.R.S. § 6205-A (providing for acquisition of "Houlton Band Trust Land"; P.L. 102-171, 105 Stat. 1143, § 5(providing for acquisition of "Aroostook Band Trust Lands"); 30 M.R.S. § 7202(2) (defining Aroostook Band Trust Land).
24 The right of riparian landowners to fish is predicated on both State and federal common law. Based on the default Maine property rule, owners of riparian land also own out to the thread, or middle, of most
streams. Wilson & Son v. Harrisburg, 107 Me. 207, 211 (1910) ("With respect to the rights of the riparian proprietor in floatable and non-tidal streams, it is the settled law of this State that he owns the bed of the river to the middle of the stream and all but the public right of passage."). Riparian property owners have the right to fish on their lands. See Answers to Questions Propounded to the Justices of the Supreme Judicial Court by the House of Representatives, 118 Me. 503, 507 (1919) (noting that "[t]he riparian proprietor has the right to take fish from the water over his own land").

5

### lands alike when these lands are riparian to fishable waters. On the Northern Tribes' trust

lands, this right is subject to reasonable State regulation. 25

Even more importantly, however, the Northern Tribes 26 have more than the right of a Maine citizen to fish — they have the right to do so on lands set aside and held in trust for them. The establishment of trust land is one of the most important functions the United States performs for tribes. Trust lands provide a permanent land base, protecting these lands against loss, 27and providing territory over which tribes may exercise governmental authority, albeit subject to the constraints imposed by the Settlement Acts. 28 Trust lands also protect and sustain tribal culture and ways of life, including tribal sustenance fishing

25 The Settlement Acts provide that State law applies to the trust lands of the Northern Tribes. We describe this as a right of "reasonable regulation" because the Settlement Acts did not contemplate and should not be read to allow State law that is discriminatory against tribes or not consistent with the Settlement Acts, including the federal purpose of holding this land base in trust. In section 1725(a) of MICSA, Congress approved 30 M.R.S. § 6204 of the Maine Implementing Act regarding the application of state law to Indian lands, specifying that Maine civil and criminal law would generally apply to these lands. While conferring civil and criminal jurisdiction on the State of Maine over the Northern Tribes' trust lands, nothing in section 1725 abrogates federal authority to protect these tribal trust lands. 25 U.S.C. § 1725(a) reads: Except as provided in section 1727(e) [dealing with Indian Child Welfare Act definitions] and section 1724(d)(4) [regarding acquisition of land and natural resources for the Houlton Band of Maliseet Indians] of this title, all Indians, Indian nations, or tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe, the Penobscot Nation, and their members, and any lands or natural resources owned by any such Indian, Indian nation, tribe or band of Indians and any lands or natural resources held in trust by the United States, or by any other person or entity, for any such Indian, Indian nation, tribe, or band of Indians shall be subject to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State, to the same extent as any other person or land therein.
26 This discussion is aimed at the Northern Tribes, but we note that some of the Southern Tribes' Territories include lands held in trust that would have fishing rights based on this same trust land focused analysis. Some, but not all, of these lands have fishing rights confirmed through other statutory language, see supra notes 14-15 and accompanying text.

27 For the Houlton Band of Maliseet Indians, 30 M.R.S. § 6205-A(3) describes restraints against alienation of these trust lands. The same language applying to the trust land of the Aroostook Band of Micmacs,is found at 30 M.R.S. § 7204(3). With respect to the Micmacs, legislative history is even plainer that Congress intended the trust lands to provide a land base for subsistence purposes: "The ancestors of the Aroostook Micmac made a living as migratory hunters, trappers, fishers and gatherers until the 19' h century ....Today, without a tribal subsistence base of their own, most Micmacs in Northern Maine occupy a niche at the lowest level of the social order." S. Rep. No. 102-136 at 5, 9 (199 1) (quoting testimony of Dr. Harold E.L. Prins).

28 Even for the Northern Tribes, the Maine Implementing Act recognizes that the tribes may retain certain aspects of governmental authority over tribal members. For example, 30 M.R.S. §6209-C(1)(a) provides: The Houlton Band of Maliseet Indians has the right to exercise exclusive jurisdiction, separate and distinct from the State, over. ...[c]riminal offenses for which the maximum potential term of imprisonment does not exceed one year and the maximum potential fine does not exceed $5,000 and that are committed on the Houlton Band Jurisdiction Land by a member of the Houlton Band of Maliseet Indians, except when committed against a person who is not a member of the Houlton Band of Maliseet Indians or against the property of a person who is not a member of the Houlton Band of Maliseet Indians.



### 0

### practices, which fosters tribal self-determination. 29 The legislative history for MICSA

supports the view that one of Con



## ~ ress's purposes in providing Maine t 

## ri bes with a l 

## an d base was to prese 

## rv e their culture. ° The connection between fishing rights and land ownership is particularly emphasized in the Settlement Acts: the Maine Implementing Act defines the "land or other natural resources" to be purchased with federal funds and placed into trust as "any real property or other natural resources, or any interest in or right involving any real property or other natural resources, including, but without limitation, minerals and mineral rights, timber and timber rights, water and water rights and hunting and fishing rights." 31 The exercise of these fishing rights by Tribes is fully consistent with the Settlement Acts. 32

In sum, the Federal Government as the owner of the trust lands for the benefit of the Tribes has a substantial interest in providing all Maine tribes, including the Northern Tribes, with a functional land base that ensures the continuation of their sustenance practices and cultural activities. 33

2. Tribal Fishing Riahts Include the Subsidiary Right to Sufficient Water Qualitx to Render the Ri&ts Meaningful.



### In Maine, EPA must determine how tribal fishing rights intersect with EPA's authority under the Clean Water Act to approve or disapprove State WQS. We are not aware of any case law addressing an identical situation to the one raised by Maine's proposed WQS. However, Federal courts have acknowledged the importance of permanent, enforceable fishing rights for tribes and have interpreted these rights expansively.

Tribal fishing rights encompass subsidiary rights that are not explicitly included in treaty or statutory language but are nonetheless necessary to render them meaningful. For example, in the 1905 case United States v. Winans, the Supreme Court held that a tribe must be allowed to cross private property to access traditional fishing grounds. 34

29 See Final Rule, Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed. Reg. 67928, 67929 (November 13, 2013) (noting in Background section that taking land into trust serves the "goals of protecting and restoring tribal homelands and promoting tribal self-determination" and "reaches the core of the Federal trust responsibility"). 30 Sen. Rep. No. 96-957, at 17 ("Nothing in the settlement provides for acculturation, nor is it the intent of Congress to disturb the cultural integrity of the Indian people of Maine."). Several of the Maine tribes submitted comments to the EPA about Maine's WQS describing the centrality of fishing to their cultures.

31 30 M.R.S. § 6203(3) (Emphasis added). MICSA includes this definition almost verbatim at 25 U.S.C. § 1722(b). 25 U.S.C. § 1724(d) authorizes the Secretary to "expend ... the land acquisition fund for the purpose of acquiring land or natural resources for the .... Houlton Band of Maliseet Indians." Emphasis added. Section 5(a) of the Aroostook Band of Micmacs Settlement Act, P.L. 102-171, provides similarly that the Secretary is authorized "to expend ... the Land Acquisition Fund for the purposes of acquiring land or natural resources for the Band" and defines natural resources to include fishing rights at section 3(4). 32 Recognizing that Maine tribes have a tribal fishing right would not impinge upon Maine's right to regulate such a fishing right. The existence of a tribal fishing right does not affect or preempt Maine's regulatory jurisdiction as described in 25 U.S.C. § 1725(h). 33 See supra note 30 and accompanying text.

34 198 U.S. 371, 384 (1905).

VA

### Similarly in Kittitas Reclamation District v. Sunnyside Valley Irrigation District, the

Ninth Circuit held that a tribe's fishing right could be protected by en



## ~ oining water withdrawals that would destroy salmon eggs before they could hatch. 5In Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resources, the Sixth Circuit found that the treaty right to fish commercially in the Great Lakes includes a right to temporary mooring of treaty fishing vessels at municipal marinas because without such mooring the Indians could not fish commercially. 36 While the issues presented by diminished water quality in Maine are different from the issues presented by inadequate access to fishing places or the need to protect fish populations, the result for tribes if water quality in Maine Indian Waters is not protected is the same: Indian tribes will not be able to fish for their sustenance healthfully.

The rules in the cases identified above are all variations on the fundamental holding of Washington v. Washington State Commercial Passenger Fishing Vessel Association that tribes with reserved fishing rights are entitled to something more tangible then "merely the chance ... occasionally to dip their nets into the territorial waters." 37 The holding of Washington, while specific to the treaty language at issue in that case, is consistent with similar holdings from other courts examining the question of whether a tribal fishing right implicitly contains within it the right to additional protections to render the fishing right meaningful. For example, in holding that a Tribe's hunting and fishing rights persisted, the Minnesota Supreme Court explained that "[c]ertainly, it would be incongruous to construe the treaty as denying the Indians their very means of existence while purporting to grant them a home." 38

In the context of water quantity, courts have recognized that tribal fishing rights include the subsidiary right to water flow sufficient to maintain fish health and reproduction in order to effectuate the fishing right. In United States v. Adair, the Ninth Circuit held that the tribe's fishing right implicitly reserved sufficient waters to "secure to the Tribe a continuation of its traditional ... fishing lifestyle." 39 The logic that supports the tribe's right to water quantity adequate to support a lifestyle based on fishing in Adair supports a conclusion that EPA should take tribal fishing rights into account when reviewing Maine's water quality standards. If water quality diminishes to the point where the fish are no longer safe to eat or able to reproduce, tribal fishing rights will suffer a diminution just as surely as they suffer from inadequate quantity of water to support fish. ao

35 763 F.2d 1032, 1034-35 (9th Cir. 1985). 36 141 F.3d 635, 63940 (6th Cir. 1989).

37 443 U.S. 658, 679 (1979).

38 Minnesota v. Clark, 282 N.W.2d 902, 909 (Minn. 1979). 39 723 F.2d 1394, 1409-10 (9th Cir. 1983). See also Colville Confederated Tribes v. Walton, 647 F.2d 42, 4748 (9th Cir. 1981) (implying reservation of water to preserve tribe's replacement fishing grounds); Winters v. United States, 207 U.S. 564, 576 (1908) (express reservation of land for reservation impliedly reserved sufficient water from the river to fulfill the purposes of the reservation); Arizona v. California, 373 U.S. 546, 598-601 (1963) (creation of reservation implied intent to reserve sufficient water to satisfy Eresent and future needs). ° The leading federal Indian law treatise explains:



### 8

### Ongoing litigation in Washington State involving questions about the extent to which

tribal fishing rights encompass associated rights to protection for fish habitat also informs our analysis. 41 The tribes and the United States have argued that tribal fishing rights impose a duty on the state of Washington to refrain from building or maintaining road culverts that directly block fish passage both to and from breeding areas and therefore significantly and directly kill fish, diminish fish populations, and diminish habitat. 42 In 2013, the court adopted this analysis, concluding that the tribes' treaty based fishing right had been "impermissibly infringed" through the construction and operation of culverts that "has reduced the quantity of quality of salmon habitat, prevented access to spawning grounds, reduced salmon production ... and diminished the number of salmon available for harvest." 43The court issued a permanent injunction forcing the State to renovate its culvert system. 44 The decision is currently on appeal, but the district court's reasoning is consistent with the view that tribal fishing rights can be protected under the Clean Water Act.

When diminished water quality has hindered tribal uses of water outside the fishing context, courts have held for tribes and found that a right to put water to use for a particular purpose must include a subsidiary right to water quality sufficient to permit the protected water use to continue. In an Arizona case, 

### United States v. Gila Valley Irrigation District, farmers with a more junior right whose properties were located upstream from a reservation were required to take steps to decrease the salinity of thetribe's water so that "the Tribe receives water sufficient for cultivating moderately saltsensitive crops." 45 Other courts have noted that in some situations protecting water

Fulfilling the purposes of Indian reservations depends on the tribes receiving water of adequate quality as well as sufficient quantity. . . . . [H]abitat protection is an integral component of the reserved [fishing] right. In order to protect the fishery habitat, tribes should have a right not only to a sufficient amount of water, but also to water that is of adequate quality.
COHEN's HANDBOOK OF FEDERAL INDIAN LAW § 19.03 [9], at 1236 (Nell Jessup Newton ed., 2012) (footnotes and citations omitted).

41 The United States District Court for the Western District of Washington court held that several Washington State tribes' treaty fishing rights "implicitly incorporated the right to have the fishery habitat protected from manmade despoliation." United States v. Washington, 506 F. Supp. 187, 203 (W.D. Wash. 1980) (Phase lI). The court explained that "the existence of an environmentally-acceptable habitat is essential to the survival of the fish, without which the expressly-reserved right to take fish would be meaningless and valueless." Id. at 205. That decision was vacated on procedural grounds. Unfted States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) (requiring plaintiffs to allege specific environmental harms before any declaratory judgment could issue, noting that "[i]t serves neither the needs of the parties



### ... nor the interests of the public for the judiciary to employ the declaratory judgment 

# r rocedure to announce legal rules imprecise in definition and uncertain in dimension"). In United States v. Washington, 2007 U.S. Dist. LEXIS 61850, 37-38 (W.D. Wash. Aug. 22, 2007), the district court held in favor of the federal and tribal plaintiffs.
43 United States v. Washington, 2013 U.S. Dist. LEXIS 48850, 75 (W.D. Wash. 2013).

44 Id. at 78-79. as 920 F. Supp. 1444, 1454-56 (D. Ariz. 1996), affd, 117 F. 3d 425 (9th Cir. 1997).



### 0

### quality is fundamental to the protection of tribal rights to self-determination. 46 Given the

importance of fishing to Maine tribes, protection of water quality sufficient to enable the tribes to continue to fish and to consume the fish they are able to catch is comparable to protecting water quality to allow the tribe in the Gila Valley case to continue to grow
crops.

In summary, fundamental, long-standing tenets of federal Indian law support the interpretation of tribal fishing rights to include the right to sufficient water quality to effectuate the fishing right. Case law supports the view that water quality cannot be impaired to the point that fish have trouble reproducing without violating a tribal fishing right; similarly water quality cannot be diminished to the point that consuming fish threatens human health without violating a tribal fishing right. A tribal right to fish depends on a subsidiary right to fish populations safe for human consumption. If third parties are free to directly and significantly pollute the waters and contaminate available fish, thereby making them inedible or edible only in small quantities, the right to fish is rendered meaningless. To satisfy a tribal fishing right to continue culturally important fishing practices, fish cannot be too contaminated for consumption at sustenance levels.

3. The Trust Relationship Counsels Protection of Tribal Fishing Rights in Maine

EPA has already recognized that Maine tribes' fishing rights should be considered in regulating water quality in a 2003 decision regarding Maine's authority to issue permits under the Clean Water Act. 47 As EPA noted in that decision, the First Circuit has held that the Indian law canons of construction obliging courts to construe statutes which diminish the "the sovereign rights of Indian tribes ... strictly" apply to the Maine tribes and that the requirement that ambiguity be interpreted in favor of tribes is "rooted in the unique trust relationship between the United States and Indians." 48

In its decision, EPA announced that when reviewing proposed permits under the Clean Water Act 49 it would "require the state to address the tribes' uses [for sustenance fishing] consistent with the requirements of the CWA." 50 EPA's 2003 analysis of tribal fishing rights and federal review authority under the Clean Water Act was cogent and the agency should follow through on this policy in reviewing Maine's WQS. 51

46 See Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210, 1222 (9th Cir. 2000) ("[I]t is difficult to imagine how serious threats to water quality could not have profound implications for tribal self-government."); City of Albuquerque v. Browner, 97 F.3d. 415, 423 (lOth Cir. 1996) (upholding tribal water quality standards that were more stringent than federal standards and observing that the authority to establish such high standards "is in accord with powers inherent in Indian tribal sovereignty").

4768 Fed. Reg. 65052, 65068 (Nov. 18, 2003).

48Penobscot Nation v. Fellencer, 164 F.3d 706, 709 ( l st Cir. 1999) (internal quotation marks omitted).

49 The EPA specifically cited the provision codified at 33 U.S.C. § 1342(d). so 68 Fed. Reg. at 65,068.

51 The First Circuit, reviewing this EPA decision in Maine v. Johnson, found that EPA's analysis of the relationship between fishing rights and water quality was not ripe for consideration. 498 F.3d 37, 48 (lst Cir. 2007) ("The current relationship of the United States to [Maine] tribes, and the EPA's continued authority under the Clean Water Act to review Maine's exercise of ceded powers, present quite different

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### Secretary Jewell has recently reaffirmed the federal trust responsibility to tribes.

Consistent with the principles of Secretarial Order 3335 on Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes, federal agencies should "[e]nsure to the maximum extent possible that trust and restricted fee lands, trust resources, and treaty and similarly recognized rights are protected." 52 In addition, consultation is a critically important part of the United States' government to government relationship with tribes, and the EPA should continue to fully consult with tribes regarding decisions that have implications for trust resources, including fshing rights. s3

4. Conclusion

The Maine tribes rely on clean water, and in particular, on water of a quality sufficient to allow the tribes to engage meaningfully in fishing in Maine Indian Waters. Maine tribes rely on fish as a dietary staple and vital component of their cultures, and a diminution in their ability to take fish at sustenance levels results in a loss of food as well as a threat to their ability to carry on their traditions.

The Maine tribes have fishing rights connected to the lands set aside for them under federal and state statutes. Further, these fishing rights would be rendered meaningless if they did not also imply a right to water quality of a sufficient level to keep the fish edible so that tribal members can safely take the fish for their sustenance. The right of all four tribes to take fish is well-founded under State as well as Federal law as discussed in this letter.

Thank you for your attention to these matters of great importance to the Maine tribes. I appreciate the opportunity to submit these views for your consideration.

Sincerely, 

# lW

ompkin Solicitor

questions [from the ones decided in the case]. ...[W]e take no view today as to the ultimate resolution of these potential issues.").
52 Secretarial Order 3335 (August 20, 2014), Sec. 5, Principle 2, available at http://www.usbr.gov/native/policy/SO-3335_trustresponsibility_August2014.pdf. 53 See generally, Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2000).



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