75 Op. Att'y Gen. 220 (1986)

75 Op. Att'y Gen. 220, 242 (1986)
  The Attorney General of Alaska, addressing the question of state jurisdiction to enforce air quality regulations on reservations, concluded that there is no "legally certain" basis for state jurisdiction over pollution sources within the reservation "absent evidence of transboundary pollution." 1983 Op. Att'y Gen. Alaska No. 101. In a recent opinion of this office addressing state authority to monitor groundwater on Indian reservations, I reached a similar conclusion. 72 Op. Att'y Gen. 54 (1983). That opinion, in balancing the interests involved, determined that "the state's interest in conducting this activity does not appear to be sufficient to overcome the general rule that prohibits the exercise of state jurisdiction on Indian lands without specific congressional authorization." Id. at 59. Analogous to the Alaska opinion, I concluded as follows: "Although not settled, it is my opinion that where it can be conclusively shown that without state regulation prospecting or mining activity would contaminate groundwater moving beyond Indian lands thereby posing an immediate danger to public health, safety or the general welfare, such regulation is permissible." Id. at 61.

75 Op. Att'y Gen. 220, 242 (1986)
  The trend in reported case law and opinions appears to deny general state environmental jurisdiction within reservation boundaries, although exceptions may be recognized for on-reservation pollution sources with adverse off-reservation effects. The determination of the applicability of a given state regulation, however, will be determined on a case-by-case basis, employing the framework and general principles outlined above.

75 Op. Att'y Gen. 220, 242 (1986)
  B.   Non-Indian Lessee

75 Op. Att'y Gen. 220, 243 (1986)
  You also ask whether state environmental protection laws are applicable to a non-Indian lessee conducting mining operations on the reservation. As noted in previous sections, questions of state authority over the on-reservation activities of non-Indians require an examination of the tradition of tribal sovereignty and of the broad policies underlying relevant federal enactments. Bracker, 448 U.S. at 144-45. The determination calls "for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law." Id. at 145.

75 Op. Att'y Gen. 220, 243 (1986)
  Because the question of state environmental jurisdiction over non-Indians requires an examination of the "specific context," the following discussion, like the preceding section, will not attempt a definitive answer to your inquiry.¯12 As with the applicability of state pollution control laws to tribal mining operations, an answer to your question concerning non-Indian lessees particular to each state environmental law is beyond the scope of this opinion, whereas a general answer would be a disservice given the diversity and complexity of state and federal regulation in the area. The following discussion, therefore, will briefly discuss the pertinent federal laws and regulations, and outline the state, federal and tribal interests that may be implicated by the assertion of state environmental authority over Indian mineral leases.

75 Op. Att'y Gen. 220, 243-244 (1986)
  The relevant federal enactments and their underlying policies have to a large extent been described in previous sections of this opinion. One such enactment is the federal regulation which prohibits the state from "limiting, zoning or otherwise governing, regulating, or controlling the use or development" of trust lands leased from an Indian tribe. 25 C.F.R. 1.4(a) (1985). It would appear that state pollution control laws, through their permitting requirements, may substantially affect the use or development of property subject to the permits. Consequently, it seems that to the extent state environmental laws conflict with the provisions of section 1.4, the state regulations would be preempted by federal law.

75 Op. Att'y Gen. 220, 244 (1986)
  The other relevant federal enactment is the Indian Mineral Leasing Act of 1938. Previous sections of this opinion have established that the 1938 Act and its attendant regulations generally comprise a comprehensive federal scheme to regulate non-Indian mineral leasing of tribal lands. In the particular context of environmental protection, regulations promulgated by the Secretary of the Interior include 25 C.F.R. pt. 216, which is designed to provide procedures "to avoid, minimize, or correct damage to the environment -- land, water, and air -- and to avoid, minimize, or correct hazards to the public health and safety" which may arise from mineral development of Indian lands. 25 C.F.R. 216.1 (1985).¯13

75 Op. Att'y Gen. 220, 244 (1986)
  To those ends, the regulations provide that, in connection with every lease application, the appropriate Bureau of Indian Affairs (BIA) officer shall make a "technical examination of the prospective effects of the proposed exploration or surface mining operations upon the environment." 25 C.F.R. 216.4(a)(1) (1985).

75 Op. Att'y Gen. 220, 244 (1986)
The technical examination shall take into consideration the need for the preservation and protection of other resources, including cultural, recreational, scenic, historic, and ecological values; and control of erosion, flooding, and pollution of water; the isolation of toxic materials; the prevention of air pollution; the reclamation by revegetation, replacement of soil or by other means, of lands affected by the exploration or mining operations; the prevention of slides; the protection of fish and wildlife and their habitat; and the prevention of hazards to public health and safety.

75 Op. Att'y Gen. 220, 244-245 (1986)
  Id. Based on this technical examination, the BIA sets "general requirements which the applicant must meet for the protection of nonmineral resources"; these standards are then incorporated in the operator's mining lease. 25 C.F.R. 216.4(b) (1985). At any time the BIA may restrict or even prohibit operations if the mining cannot feasibly be conducted without lowering water quality below certain standards or causing the destruction of other resources. 25 C.F.R. 216.4(d) (1985). If the operation appears likely to lower water quality, no lease will be issued until compliance with the Federal Water Pollution Control Act is assured. 25 C.F.R. 216.4(e) (1985). In addition, operators must submit a mining plan to the United States Geological Survey's Regional Mining Supervisor, who may require the plan to include proposed measures to prevent environmental pollution. 25 C.F.R. 216.7 (1985). Specific regulations for coal mining, moreover, address such issues as disposal of spoil and waste materials, topsoil handling and protection of the hydrologic system. 25 C.F.R. 216.100 to 216.111 (1985).

75 Op. Att'y Gen. 220, 245 (1986)
  This federal regulatory scheme must be viewed in light of the goals of the 1938 Act: uniformity in the laws governing Indian mineral leases, revitalization of tribal governments and encouragement of tribal economic development. To the extent that the imposition of state pollution control laws on non-Indian lessees, by requiring lessees to comply with two sets of environmental laws, would decrease uniformity in the laws applicable to mineral leases, weaken the tribal governmental role in development of reservation resources and discourage economic development by placing increased burdens on mineral lessees, the state laws may well be preempted.

75 Op. Att'y Gen. 220, 245-246 (1986)
  In the balance of the state, federal and tribal interests involved, the state's interests are strong where, as here, the on-reservation activities may have off-reservation effects and the activities are conducted by non-Indians. The federal and tribal interests are also strong, however: they include "the tribal interest in managing the reservation environment and the federal policy of encouraging tribes to assume or at least share in management responsibility," State of Wash., Dept. of Ecology, 752 F.2d at 1472; the 1938 Indian Mineral Leasing Act goals of uniform laws, stronger tribal governments and increased tribal economic development; and the general federal Indian policy of encouraging tribal self-government and economic self-sufficiency. The authority of the state to impose a particular environmental law or regulation will require balancing these interests against the backdrop of the federal regulatory scheme for controlling environmental damage by non-Indian lessees. See e.g., Comment, The Developing Test for State Regulatory Jurisdiction in Indian Country: Application in the Context of Environmental Law, 61 Ore. L. Rev. 561, 583-84 (1982).

75 Op. Att'y Gen. 220, 246 (1986)
V.

75 Op. Att'y Gen. 220, 246 (1986)
ENVIRONMENTAL IMPACT STATEMENTS

75 Op. Att'y Gen. 220, 246 (1986)
  Your final question concerns any Environmental Impact Statement (EIS) for mining activities on the Sokaogon Reservation, whether conducted by the tribe or by a non-Indian lessee, which may be required under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. If a federal EIS is prepared pursuant to NEPA, you ask whether it would legally need to be shared with or presented to the state.

75 Op. Att'y Gen. 220, 246 (1986)
  Under a number of federal regulations, the federal agency responsible for preparing an EIS must make the document publicly available. For instance, agencies are charged with ensuring public involvement in the EIS process through various notice procedures, including specific notice to those who have requested it on an individual action. 40 C.F.R. 1506.6 (1985). Agencies are also required to solicit comments at the draft stage of the EIS process from "appropriate State and local agencies which are authorized to develop and enforce environmental standards," as well as any other agency "which has requested that it receive statements on actions of the kind proposed." 40 C.F.R. 1503.1(a)(2) (1985). Moreover, the preparing agency is required to circulate both draft and final versions of the EIS, including the entire statement to any agency which has requested it and, for the final EIS, any agency which submitted substantive comments on the draft. 40 C.F.R. 1502.19 (1985).

75 Op. Att'y Gen. 220, 246 (1986)
  Given these strictures, it is virtually certain that a federal agency preparing an EIS in connection with proposed mining operations on the Sokaogon Reservation would present the document, in both draft and final forms, to the state for comment and review. In the unlikely event that the preparing agency did not, the state need merely request the EIS under the regulations outlined above. The state thus can ensure, in either case, that it has input into the EIS process.

75 Op. Att'y Gen. 220, 246 (1986)
BCL:JDN

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-104   1 See also Hoopa Valley Tribe v. Nevins, 590 F. Supp. 198 (N.D. Cal. 1984). Relying on the preemption analysis in Bracker, the California district court invalidated a tax on the value of timber at the time of harvest as levied against non-Indian purchasers of tribal timber. The court held that neither regulatory nor revenue-raising interests of the state permitted the burden which the tax imposed on the federal regulatory scheme.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-105   2 The 1938 Act repealed all acts or parts of acts "inconsistent herewith." Act of May 11, 1938, sec. 7. The Act of May 29, 1924, 43 Stat. 244, 25 U.S.C. 398 et seq., amending an 1891 Act, authorized state and local governments to levy and collect taxes on mineral lessees of Indian lands "in the same manner as such taxes are otherwise levied and collected." 25 U.S.C. 398c. The United States Supreme Court recently concluded, however, that neither the text nor the legislative history of the 1938 Act suggests a congressional intention to permit state taxation. Consequently, the Court held, "if the tax proviso survives at all, it reaches only those leases executed under the 1891 Act and its 1924 amendment." Blackfeet Tribe, 105 S. Ct. at 2404. Any mineral lease issued today would, of course, be under the 1938 Act, and thus not subject to the tax provision of the 1924 Act.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-106   3 Allotted lands may also be leased for mining purposes pursuant to 25 U.S.C. 396 and its attendant regulations, 25 C.F.R. pt. 212 (1985). This opinion will not address mining on allotted lands, however, since it is my understanding that there are no allotted lands on the Sokaogon Reservation.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-107   4 In addition, Congress in 1982 enacted the Indian Mineral Development Act, 96 Stat. 1938, 25 U.S.C. 2101 et seq. The major purpose of the Act was to expand mineral development options available to tribes beyond the usual lease agreements and into the possibility of joint ventures and other non-lease arrangements. H.R. Rep. No. 746, 97th Cong., 2d Sess. 4, reprinted in 1982 U.S. Code Cong. & Ad. News 3465, 3466. Since you have asked only about leasing of the mining operation to non-Indians, a discussion of the 1982 Act is beyond the scope of this opinion.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-108   5 In a previous opinion of this office, in the specific context of prospecting and mining activity conducted on non-Indian lands within the reservation, I stated that "the federal government has not undertaken comprehensive regulation of mining activities, in general, or groundwater, in particular, within reservation boundaries." 72 Op. Att'y Gen. 54, 60 (1983). Given the sources cited above, that conclusion clearly does not apply to federal regulation of mineral leasing of Indian lands within reservation boundaries.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-109   6 Written authorization is issued upon approval of the bond required of the operator pursuant to section 144.86.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

  7 For somewhat dated discussions of the federal environmental statutes and the extent to which each addresses Indian tribes, see Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 474-87 (1978); Schaller, The Applicability of Environmental Statutes to Indian Lands, 2(8) Am. Indian J. 15 (1976).

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-110   8 The EPA's authority to make such a determination has been upheld by the Ninth Circuit. State of Wash., Dept. of Ecology v. U.S. E.P.A., 752 F.2d 1465 (9th Cir. 1985).

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-111   9 A number of authors have suggested that the optimal approach to on-reservation environmental protection is the assumption of full responsibility by the tribes. See Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 499 (1978); Comment, The Applicability of the Federal Pollution Acts to Indian Reservations: A Case for Tribal Self-Government, 48 U. Colo. L. Rev. 63, 93 (1976).

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-112   10 EPA Policy for Program Implementation on Indian Lands, Dec. 19, 1980, at 5, quoted in State of Wash., Dept. of Ecology, 752 F.2d at 1471.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-113   11 EPA Office of Federal Activities, Administration of Environmental Programs on Indian Lands 35 (1983), quoted in State of Wash., Dept. of Ecology, 752 F.2d at 1471 n.7.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-114   12 The exception is state jurisdiction over hazardous waste management. As noted previously, the EPA, in granting Wisconsin final authority to operate its hazardous waste management program in lieu of the federal program, specifically exempted Indian lands. 51 Fed. Reg. at 3784. Authority under RCRA "on Indian lands" was reserved to the federal agency. This retained federal jurisdiction apparently would extend to all mining activity, whether conducted by the tribe or by a non-Indian lessee, on tribal lands within the reservation boundaries.

75 Op. Att'y Gen. 220, 220 (1986) - Footnote

Destination-115   13 For an argument that federal regulations preempt state environmental regulation of mineral lessees, see Comment, The Applicability of the Federal Pollution Acts to Indian Reservations: A Case for Tribal Self-Government, 48 U. Colo. L. Rev. 63, 81, 86 (1976); Comment, The Developing Test for State Regulatory Jurisdiction in Indian Country: Application in the Context of Environmental Law, 61 Ore. L. Rev. 561, 583-84 (1982).
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