## United States 

## Department ofthe Interior

l1 RfI'LY REFER TO


# Avi

# S Gar

## bow General 

### Counsel OfFICE OF

## THE SOLICITOR Washington 

# DC202 10



## JAN 

# 30 2015



### United States 

### Environmental Protection 

## Agency 1200 Pennsylvania 

## Ave 

# NW Washington 

# DC 20460 

# Re Maine's

# WQS and Tribal Fishing Rights 

### of

## Maine Tribes


### Dear

# Mr Garbow The State 

### ofMaine has submitted proposals to the 

### Environmental Protection 

## Agency



# EPA to 

### implement Water Quality Standards 

# WQS within waters set aside forfedera lly 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 ofthe 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 

### ofthe 

### Maine 

## tribesthe 

### Penobscot 

## Nation the 

### Passamaquoddy Tribe the 

### Houlton 

## Band ofMaliseet Indians and the 

### Aroostook 

## Band of 

# Micmacs have federallyprotected tribal fi shing rights 

### These fi shing rights should 

### be taken into account in evaluating the 

### adequacy of

# WQS in 

## Maine 

## 1 Overview ofTribal Fishing Rights in 

### Maine Indian 

### Waters 

## As you are well 

## aware the four federa lly recognized Indian tribes in the State 

### ofMaine are subject to a 

### unique statutory fran1ework established 

### by the state 

### law Act to 

### Implement the 

### Maine Indian 

### Claims Settlement 

### Maine Implementing

# Act 2 the 

### statelaw 

## Micmac Settlement 

## Act3 the federal 

### Maine Indian 

### Claims Settlement 

### Act 

# MICSA4 and the

1

## We note that the exact boundaries ofat least some Indian lands and territories in Maine remain in dispute For example the United States has intervened in a lawsuit fi led by the Penobscot Nation against Maine claiming that the Penobscot Reservation includes waters in the Main Stemofthe Penobscot River See Order on Pending Motions in Penobscot Nalion v Mills I 

### 12

## cv00254 

## GZS 

# D Maine Feb 

## 4 20 

### 14 granting 

### US motion to intervene It is beyond the scope ofthis letter to precisely identify all Maine Indian Waters The location ofMaine Indian Waters foreach Tribe would have to be defined based on all applicable law including statutory language applicable property law doctrine and lands reserved by treaty and retained by the tribes pursuant to statute 

## We do not elaborate here on the question ofwhether the Maine tribes have additional fishing rights outside of Indian lands and terri tories 2 30

# MRS 620 I elseq 3 30

# MRS 7201 elseq 4 25 

# US

# C 1721 etseqfederal 

### Aroostook 

## Band of

## Micmacs Settlement Act5 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 

## members7 

### Because ofdifferences in their history 

### and applicable statutory 

### language the fishing rights 

### ofthe 

### two Southern 

## Tribesthe 

### Passamaquoddy Tribe 

### and the 

### Penobscot Indian 

## Nation derive 

### from different legal sources than the fishing rights 

### ofthe 

### Northern 

## Tribesthe 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 

### ofthe 

### Passamaquoddy Tribe 

### and Penobscot Indian 

### Nation in their Reservation waters8 are expressly reserved9 fishing rights the 

## Maine Implementing Act

5

# PL 102171 105 Stat 1143 

## 1991 6 In 

## MICSA Congress formallyconfirmed the federal recognition ofthe Penobscot Nation the Passamaquoddy Tribe and the Houlton Band ofMaliseet Indians 25

# US

# C 1725

# i Federal recognition was extended to the Aroostook Band ofMicmacs eleven years later with the enactment 

### ofP

# L 102171 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

# US

# C 479al 

# a providing for listing offederally recognized tribes that are all entitled to services provided by the United States to Indians because oftheir status as 

### Indians 7 Notably several standalone provisions in Maine law recognize and arguably encourage the continuing centrality offishing to the traditions and health ofMaine tribes First the State ofMaine recognizes and facilitates fishing as a central part of tribal culture by issuing permits to tribal members to fish in Maine waters atno cost 12

# MRS I

### 0853

# 8 Second the State has enacted legislation providing forspecial treatment oftribal 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

# MRS 6302

# A Concerns ofthe tribes with the process by which this language was adopted and objections to the definition ofsustenance are explained in a recent report by the Maine Tribal State Commission 

## Me Indian TribalState 

## Comm'n Assessment ofthe Intergovernmental Saltwater Fisheries Conflict between Passamaquoddy and the State ofMaine June 

### 17

## 2014 available at 

### http

## www mitscorgldocuments 148 

### 2014 1

# 02MITSCbook 

# WEB pdf Commission Saltwater Fisheries 

### Report 8

### 30

# MRS 6203

# 5 defming Passamaquoddy Indian Reservation as those lands reserved to the Passamaquoddy Tribe by agreement with the State ofMassachusetts dated September 

### 19 1794 except for lands transferred by the Tribe after these treaties but before enactment ofthe 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 byagreement with the States ofMassachusetts and 

### Maine except for islands transferred by the Tribe after these treaties but before the enactment ofthe Maine Implementing Act and with the addition ofother specifically enumerated parcels Legislative history confmns 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 ofstate 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 

## toLD 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

# 4s 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 

### ofPenobscot Nation and Passamaquoddy 

## members to take fish for their individual 

### sustenance within their reservations free 

### of state regulation 10



### These statutorily

### acknowledged fishing rights are rooted in treaty guarantees11 that 

### were upheld through the Settlement 

### Acts 

## The Passamaquoddy Tribe's 

### 1794 treaty 

### with the State 

### ofMassachusetts 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 

### offishing 

### on both branches 

### ofthe river 

### Schoodic without hindrance 

### or molestation 12 

### 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 

## nonmembers onlythe 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 

### ofthe 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 

### ofthe individual 

## members ofthe 

### 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 ClaimsSettlement 

### Act characterizing fishing rights as an exampleofnatural resources considered expressly retained sovereign activities 

# HR Rep 

## No 961353 at p 15 

## 1980 10 This reading is established by language in 30

# MRS 6207

# 4 Notwithstanding any rule or regulation promulgated by the commission orany other law of the State the members of the Passamaquoddy Tribe and the Penobscot Nation 

### may take fish within the boundaries oftheir respective Indian reservations for their individual sustenance subject to the limitations ofsubsection 6 providing for the State to limit tribal fishing if necessary to protect the stock offish State regulation is allowed only in the case of conservation necessity as laid out in the Maine Implementing Act at

### 30

# MRS 6207

# 6

11 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

# wwwmainegov Iegislawlibconstl820 pdf Note that per Art

# X Sec 

# 7 the text quoted here is omitted from printed copies ofthe 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 12 The text ofthe treaty is available at

### http

# wwwwabanaki

## com1794 treaty

### htm 13 See 

## e

# g Alaska Pacific Fisheries v 

# US 248 

# US 78 

## 8689 

### 1918 holding that where Congress set aside lands for the Metlakahtla Indians a fishing tribe it impliedlyreserved fishing rights in the adjacent waters 14

### 30

# MRS 6207

# I

3regulation 

### of certain waters 

### by the 

### Maine Indian 

### TribalState 

## Commission 15 

## Thus through the 

## Maine Implementing 

## Act the State has recognized the 

### Southern Tribes sustenance fishing rights within their territories and the 

### importance offish 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 

## minimwn the notion 

### oftribal 

### members taking fish to nourish 

### and sustain 

### themselves 

## Moreover the Indian 

### law canons ofconstruction require that 

### ambiguous terms in statutes 

### must be construed 

### mostfavorably 

### towards tribal interests 16 

## Where fishing rights oftraditionaJ 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 

### oftaking fish 17 

### The term sustenance in section 

## 6207

# 4 ofthe 

## Maine Implementing Act should thus 

### be construed broadly18 to incorporate at least the right 

### of tribal 

### members to take sufficient fi sh to nourish 

### and sustain 

## them 19 

### with no specific quantitative limits other than the conservation necessity limit that the statutory language specifically places 

### on the tribal fishing right20 

## When interpreting the 

### scope ofthe 

### Maine tribes fishing right as the tribes 

### would understand 

## them 

## EPA should consider that the tribes ability to fi 

### sh

## was and continues to 

## be essential to their livelihood 

### and culture


### The sources 

### ofthe fi shing rights 

### ofMaine's Northern Tribes are different in that they are not discussed explicitly in the Settlement 

### Acts 

## However express 

### language in a statute or

15 The Commission is an intergovernmental body made up ofmembers appointed by the Tribes and the State 30

# MRS 62 

### 12 30

# MRS 6207

# 3 authorizes the Commission to promulgate fi shing rules and regulations within specified waters on oradjoining the Penobscot Nation's and Passamaquoddy Tribe's territories taking into account the needs or desires ofthe tribes to establish fishery practices for the sustenance ofthe tribes or to contribute to the economic independence ofthe tribes 16 Rincon Band ofLuiseno Mission Indians ofRincon Reservation v Schwarzenegger 602 

## F3d I

### 019 I032 9th Cir20 I

# 0 See also Montana 

### v Blackfeet Tribe 47 1

# US 759 766 

### 1985 Statutes are to be construed liberally in favor ofthe Indians with ambiguous provisions interpreted to their benefit The Indian canons ofconstruction have been held to apply to interpretation ofthe Settlement Acts See infra note 48 and accompanying text 17 Washington v 

### Wash State Commercial Passenger Fishing Vessel Ass 

## n 443

# US 658 676 678 

## 1979
18 Tribes have argued that in addition to fi shing for individual consumption the definition of sustenance traditionally incorporated two othercomponents bmterand exchange Commission Saltwater Fisheries Report supra note

# 7 at 

### p 

## 2223 19

## A study prepared for 

### EPA in collaboration with the Maine Tribes discusses what level offish consumption is representative ofsustenance fishing 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 

### http

# wwwepa

### gov region I govttribespdfs

## DITCApdf 20 This statutory provision establishing a rightofthe 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 14 

### 10 1416 9th Cir 

### 1990 describing findings that court must make in order to uphold regulation oftreaty rights to take fish including that States must consider the protection ofthe treaty right to take fi sh as an objective 

## coequal with the conservation ofthe fish runs for other 

## uses United States 

### v Washington 384 

## F Supp 3 

### 12 40 I 

# WO Wash 1974 Neither the Indians nor the 

### non Indians 

### may fish in a manner so as to destroy the resource orto preempt it tota ll

# y

4treaty is not necessary to establish the existence 

### ofa tribal fishing right 21 Tribal fishing rights are implied

### through an analysis 

### ofthe 

### purpose ofthese land 

### settlements to create a 

### permanent land 

## baseand 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 

### oftribal 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 

### ofthe 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

## law22

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 trust23 

### In 

## Maine a right to fish is a right included 

### by general principles 

### of

## law when riparian lands are 

### acquired 24 

### and this language thus confirms that 

### Maine's legislature recognized the right 

### ofthe 

### Maine tribes to 

### engage in fishing 

### on their reservation 

### and trust

21 The hunting and fishing rights that were held to survive termination ofthe Tribe's status as a federally recognized tribe in the seminal case Menominee Tribe ofIndians 

### v United States were created by treaty language providing that tribal land would be held as Indian lands are 

### held 391 

# US 404,405 06 

## 1968 See also United States v 

### Dion 416 

# US 734,738 

### 1986 explaining that 

# as 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 regulatoryjurisdiction is not incompatible with a tribal fishing right the existence ofstate laws dealing with tribal fishing in 

### Maine see supra note 

# 7 reinforces that the State acknowledges the importance oftribal fishing rights Carole 

# E Goldberg et 

### al AMERICAN INDIAN 

## LAW NATIVE NATIONS 

### AND THE FEDERAL SYSTEM I 

### 17778 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 ofthe Joint Select Committee on Indian Land Claims Relating 

### toLD 2037 

### An Act to provide for Implementation of the Settlement ofClaims by Indians in the State ofMaine and to Create the Passamaquoddy Indian Territory and Penobscot Indian Territory at

## p

# 3 para 

### 14 23 See 25

# US

# C 1724

# d4 providing for land ornatural resources to be acquired by the United States to be held in trust for the benefit ofthe Houlton 

# Band 30

# MRS 6205

# A providing for acquisition of

Houlton Band Trust 

## Land P

# L 1

## 02171 105 Stat 1143 

### 5 providing for acquisition 

# ofAroostook Band Trust

## Lands 30

# MRS 7202

# 2 defining Aroostook Band Trust 

## Land 24The right ofriparian 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 ormiddle ofmost streams Wilson Son 

### v Harrisburg 107 

## Me 207 211 191

# 0 With respect to the rights ofthe riparian proprietor in floatable and 

### non tidal streams it is the settled lawofthis State that he owns the bed ofthe river to the middle ofthe 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 ofthe Supreme Judicial Court by the House ofRepresentatives 118 

## Me 503 507 

### 1919 noting that 

### the riparian proprietor has the right to take fish from the water over his

### own 

## land

5lands alike 

## when these lands are riparian to fishable 

### waters 

# On the 

### Northern Tribes trust lands this right is subject to reasonable State 

### regulation 5



### Even more importantly 

## however the 

### Northern Tribes26 

### have 

## more than the right 

### ofa 

### 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 ofthe 

### most important functions the 

### United States performs for tribes Trust lands provide a 

### permanent land 

### base protecting these lands against loss27 

### and providing territory 

### over which tribes

# may exercise 

### governmental authority albeit subject to the constraints 

### imposed by the Settlement 

## Acts28 Trust lands also protect 

### and sustain tribal culture 

### and 

## ways of life including tribal sustenance fishing

25The Settlement Acts provide that State law applies to the trust lands ofthe Northern Tribes 

# We describe this as a right 

## ofreasonable 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 ofholding this land base in trust In section 

### 1725

# aofMICSA Congress approved 30

# MRS 6204 ofthe Maine Implementing Act regarding the application ofstate 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

# US

# C 1725

# a reads Except as provided in section 

### 1727

# e dealing with Indian Child Welfare Act definitions and section 

### 1724

# d4 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 ofthe State the laws ofthe State and the civil and criminal jurisdiction of the courts ofthe 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 ofthe 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 ofthese lands have fishing rights confirmed through other statutory language see supra notes 

## 1415 and accompanying text 27 For the Houlton Band ofMaliseet Indians 30

# MRS 6205

# A3 describes restraints against alienation ofthese trust lands The same language applying to the trust land ofthe Aroostook 

### Band ofMicmacs is found at

### 30

# MRS 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 ofthe Aroostook Micmac made a living as migratory hunters trappers fishers and gatherers until the 19th century 

### Today without a tribal subsistence base oftheir

## own most Micmacs in Northern Maine occupy a niche at the lowest level ofthe social 

### order 

# S Rep 

# No 102136 at

# 5 9 

### 1991 quoting testimony of

### Dr Harold 

# EL Prins 28 Even for the Northern Tribes the Maine Implementing Act recognizes that the tribes 

### may retain certain aspects ofgovernmental authority over tribal 

### members For example 30

# MRS 6209

# C I 

# 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 ofimprisonment does notexceed one year and the 

### maximum potential fme 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 

### memberofthe Houlton Band of Maliseet Indians



### 6practices 

### which fosters tribal selfdetermination 29 

### The legislative history for

# MICSA supports the 

### view that 

### one of

# Conresss purposes in providing 

## Maine tribes with a land base 

## was to preserve their culture 0 

### The connection 

### between fishing rights 

### and land 

### ownership is particularly 

### emphasized in the Settlement 

## Acts the 

## Maine Implementing Act defines the land 

### orother 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 andfishing 

### rights 31 

## The exercise 

### ofthese fishing rights 

### by Tribes is fully consistent with the Settlement 

## Acts32

In 

# sum the Federal 

### Government as the 

### owner ofthe trust lands for the benefit 

### ofthe Tribes has 

### a substantial interest in providing all 

## Maine tribes including the 

### Northern Tribes with a functional land base that ensures the continuation 

### oftheir sustenance practices and cultural activities 33 

# 2 Tribal Fishing Rights Include the Subsidiary 

### Right to Sufficient 

### Water Quality to 

### Render the Rights 

### Meaningful

In 

## Maine 

# EPA must determine 

## how tribal fishing rights intersect 

### with 

## EPA's authority 

### under the 

### Clean Water Act to 

### approve ordisapprove 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 ofpermanent 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

29See 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 selfdetermination and reaches the core of the Federal trust responsibility 30 Sen 

### Rep 

# No 96957 at 17 Nothing in the settlement provides for acculturation nor is it the intent of Congress to disturb the cultural integrity ofthe Indian people of

# Maine Several ofthe Maine tribes submittedcomments to the 

## EPA about Maine's 

# WQS describing the centrality offishing to their cultures 31 30

# MRS 6203

# 3 Emphasis

### added 

## MICSA includes this defmition almost verbatim at 25

# US

# C 1722

# b 25

# USC 1724

# d authorizes the Secretary to expend the land acquisition fund for the purpose ofacquiring land or natural resources for the Houlton Band ofMaliseet Indians Emphasis added Section 

# 5a ofthe Aroostook Band ofMicmacs Settlement Act 

# P

# L 102171 provides similarly that the Secretary is authorized to expend the Land Acquisition Fund for the purposes ofacquiring land or natural resources for the 

## Band and defines natural resources to include fishing rights at section 

# 34 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 ofa tribal fishing right does not affect orpreempt Maine's regulatoryjurisdiction as described in 25

# US

# C 1725

# h

33 See supra note 30 and accompanying text 34 198

# us 371,384 

## 1905


# 7Similarly in Kittitas 

### Reclamation District 

# v Sunnyside Valley Irrigation District the 

### Ninth Circuit held that a tribe's fishing right could 

### be protected 

### by

# enoining water withdrawals that 

### would destroy 

### salmon eggs before they could 

### hatch 5 In 

## Grand Traverse 

## Band ofOttawa 

## 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 oftreaty fishing vessels at municipal 

### marinasbecause 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 similarholdings 

### from other courts 

### examining the question 

### ofwhether 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 

### ofwater 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 justas surely as they suffer

### from inadequate quantity 

### ofwater to support fish40

35 763 

# F2d 1032 

### 103435 9th Cir 

## 1985 36 141 

# F3d 635,639 40 6th Cir

## 1989
37 443

# us 658 679 

## 1979 38 Minnesota 

### v Clark 282

# N

# W2d 902,909 

### Minn 

## 1979 39 723 

# F2d 1394 

### 1409 10 9th Cir 

## 1983 See also ColvilleConfederated Tribes v Walton 641 

# F2d 

## 42 4

# 748 9th Cir

### 1981 implying reservation ofwater to preserve tribe's replacement fishing 

### grounds Winters 

### v United States 201 

# US 564 576 

### 1908 express reservation ofland for reservation impliedly reserved sufficient water from the river to fulfill the purposes ofthe reservation Arizona v California 373 

# US 546,598 601 

### 1963 creation ofreservation implied intent to reserve sufficient water to satisfy

resent and future 

### needs 0 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 

### ofWashington 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 

### ofculverts that has 

### reduced the quantity 

### ofquality 

### ofsalmon habitat prevented access to 

### spawning grounds reduced salmon production 

### and diminished the 

## number ofsalmon available for harvest 43 

### The court issued a 

### permanent injunction forcing the State to renovate its culvert 

### system44 

### 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 

### ofwater 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 

### ofthe tribe'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 

# Habitat 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 ofwater 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 ofWashington 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 

# WOWash 1980 Phase 

### II The court explained that the existence ofan environmentally acceptable habitat is essential to the survival ofthe fish without which the expressly reserved right to take fish would be meaningless and valueless 

# d at 

### 205 That decision was vacated on procedural grounds United States 

### v Washington 759 

# F2d 1353 1357 9th Cir

### 1985 en bane requiring plaintiffs to allege specific environmental harms before any declaratory judgment could issue noting that 

### i t serves neither the needs ofthe parties nor the interests ofthe public for thejudiciary to employ the declaratoryjudgment frocedure to announce legal rules imprecise in definition and uncertain in 

### dimension 2 In United States 

### v Washington 2007 

# US Dist 

### LEXIS 61850 

## 3738 

# WO Wash 

## Aug 22 2007 the district court held in favor ofthe federal and tribal plaintiffs 43 United States v Washington 2013 

# US Dist LEXIS 48850,75 

# WOWash 2013 44 

# d at

## 7879 45 920 

# FSupp 1444 1454 56 

# D Ariz

## 1996 aff'd 117

# F3d425 9th Cir

## 1997


## 9quality is fundamental to the protection 

### oftribal rights to 

### selfdetermination 46 

### Given the importance 

### offishing to 

### Maine tribes protection 

### ofwater 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 

## summaryfundamental 

## long standing tenets 

### of federal Indian 

### law support the interpretation 

### oftribal 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 

### ofTribal 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 

# AsEPA noted in that decision the First Circuit has held that the Indian 

### law canons ofconstruction 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 

### underthe 

### Clean Water Act49 it 

### would require the state to address the tribes uses forsustenance fishing consistent 

### with the requirements 

### ofthe 

# CW

# A 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

46See Bugenig v Hoopa Valley Tribe 229 

### F3d 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 91 

# F3d 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 48 Penobscot Nation 

### v Fellencer 164 

# F3d 

### 706 709 I st Cir

### 1999 internal quotation marks omitted 49The 

### EPA specifically cited the provision codified at 33 

# USC 1342

# d

so 68 

### Fed Reg at65,068

Sl The First Circuit reviewing this 

### EPA decision in Maine 

### v Johnson found that 

### EPA's analysis ofthe relationship between fishing rights and water quality was not ripe for consideration 498 

# F3d 

## 37 48 1st Cir

### 2007 The current relationship ofthe United States to 

### Maine tribes and the EPA's continued authority under the Clean Water Act to review Maine's exercise ofceded powers present quite different



### 10Secretary Jewell has recently reaffirmed the federal trust responsibility to tribes Consistent 

### with the principles 

### of Secretarial Order 

### 3335 on Reaffirmation 

### ofthe 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 similarlyrecognized rights are 

### protected 52 In addition consultation is a critically important part 

### ofthe 

### 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 fishing rights53 

# 4 Conclusion 

## The Maine tribes rely

### on clean 

### water and in particular 

### on waterofa 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 oftheir cultures 

### and a diminution in their ability to take fish at sustenance levels results in 

### a loss 

### offood 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 

### ofa sufficient level to 

### keep the fish edible 

### so that tribal 

## members can safelytake the fish for their 

### sustenance 

## The right 

### of all four tribes to take fish is 

## wellfounded under State as well as Federal 

### law as discussed in this letter 

## Thank you for 

### your attention to these matters 

### ofgreat 

### importance to the 

## Maine tribes I appreciate the opportunity to submitthese 

### views for 

### yourconsideration Sincerely

questions from the ones decided in the case 

# We 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

## S03335 trustresponsibilityAugust2014 pdf 53 See generally Executive Order 1317 5 on Consultation and Coordination with Indian Tribal Governments 

## Nov 

# 62000

11