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

75 Op. Att'y Gen. 220, 237 (1986)
  Consequently, the following sections will provide no definite answer, either as to pollution control laws in general or, with a few exceptions, as to specific environmental statutes. The sections instead will discuss the available published law on the topic, and address general principles and guidelines to be employed in deciding on the applicability of any particular environmental law.

75 Op. Att'y Gen. 220, 237 (1986)
  A.   Sokaogon Tribe

75 Op. Att'y Gen. 220, 237-238 (1986)
  In previous opinions, I have addressed the applicability of certain state environmental laws to Indian tribes and reservations. OAG 51-78 (unpublished, dated July 31, 1978); 72 Op. Att'y Gen. 54 (1983). In the earlier of these opinions, which addressed the on-reservation applicability of the Wisconsin Pollution Discharge Elimination System (WPDES), chapter 147, I concluded that the state was "without authority to issue WPDES permits" to Indian tribes or tribal organizations operating on reservations and Indian lands in Wisconsin. OAG 51-78 at 1, 3. I based my opinion on the fact that the Wisconsin Legislature did not include Indian tribes or organizations within the definition of persons covered by chapter 147, whereas the equivalent Federal Water Pollution Control Act (FWPCA) expressly extended its scope to both tribes and tribal organizations. Id. at 2-3. This failure plainly to include tribes, in my opinion, represented a deliberate legislative decision. Id. at 2-4. I noted also that the federal Environmental Protection Agency currently was issuing permits to tribal dischargers pursuant to federal law, id. at 4, as a means of ensuring that on-reservation dischargers adhered to federal environmental standards.

75 Op. Att'y Gen. 220, 238 (1986)
  I am not aware of any factor that would cause me to alter my existing opinion. Neither the federal nor state definition of persons covered has been changed; the federal statute still includes tribes and tribal organizations, while the state law still excludes them. Had the state Legislature wished to amend the state law to expressly cover Indian tribes, it certainly could have done so. Consequently, it remains my opinion that chapter 147 is not applicable to a tribal mining operation on the reservation.

75 Op. Att'y Gen. 220, 238 (1986)
  An identical analysis would be applicable to hazardous waste regulations, since the federal Resource Conservation and Recovery Act (RCRA) expressly includes Indian tribes and organizations, 42 U.S.C. 6903(13) and 6903(15), while the equivalent state Hazardous Waste Management Act does not. Secs. 144.61(9) and 144.01(6), Stats. It is not necessary to reach this analysis, however, because an express federal pronouncement preempts Wisconsin's hazardous waste jurisdiction on Indian reservations. In granting Wisconsin final authority to operate its hazardous waste management program in lieu of the federal program, the Environmental Protection Agency (EPA) specifically stated: "Wisconsin is not authorized to operate the RCRA program on Indian lands, and this authority will remain with the U.S. EPA." 51 Fed. Reg. 3783, 3784 (1986).¯8 The state Hazardous Waste Management Act, sections 144.60 to 144.74, therefore, is not applicable to tribal mining operations on the reservation.

75 Op. Att'y Gen. 220, 238-239 (1986)
  The analysis employed for the water pollution control regulations does not appear to be applicable to other sets of paired state and federal environmental laws, because unlike FWPCA, other federal environmental statutes do not apply expressly to tribes and tribal organizations. Nor do there appear to be specific federal pronouncements concerning state environmental jurisdiction in any area other than hazardous waste management. Where neither the FWPCA analysis nor a specific federal statement of preemption is applicable, state jurisdiction to impose environmental regulations on tribal activities is determined according to the same principles as jurisdiction to impose the mining permit process. While it is beyond the scope of this opinion specifically to apply those principles to the range of state environmental laws, the following general discussion may prove helpful.

75 Op. Att'y Gen. 220, 239 (1986)
  An analysis of the applicability of a particular state environmental regulation to tribal mining operations would begin with the "backdrop" of tribal sovereignty. As noted in the mining permit process discussion, regulations such as pollution control laws and the mining permit process involve the regulation of Indian use of Indian trust lands, a situation in which the territorial component of tribal sovereignty forms a significant element of the "backdrop." Of significance also is the tradition of self-government which the Tribe exercises in the area of pollution control. While I am not aware of any tribal environmental protection laws at this time, the existence or development of such regulations, coupled with effective enforcement mechanisms, would weigh heavily against the applicability of state environmental laws.¯9 See, e.g., Webster, 114 Wis. 2d at 434-35.

75 Op. Att'y Gen. 220, 239 (1986)
  The other component of the "backdrop" of tribal sovereignty is the balance of state, federal and tribal interests. In the area of environmental protection, those interests are particularly strong on all sides.

75 Op. Att'y Gen. 220, 239-240 (1986)
  On one side of the balance of interests are those of the state. As the Ninth Circuit stated in the context of asserted state jurisdiction over hazardous waste: "We recognize the vital interest of the State of Washington in effective hazardous waste management throughout the state, including on Indian lands." State of Wash., Dept. of Ecology v. U.S. E.P.A., 752 F.2d 1465, 1472 (9th Cir. 1985). The substantial character of the state's interest stems from the transboundary nature of pollution, and its migratory impact outside the reservation. See, e.g., Comment, Developing Test for State Regulatory Jurisdiction in Indian Country: Application in the Context of Environment Law, 61 Ore. L. Rev. 561, 564, 582 (1982). The United States Supreme Court has recognized the importance to the state of adverse "spillover" effects of on-reservation conduct or activities. Rice, 463 U.S. at 724. "A state's regulatory interest will be particularly substantial if the state can point to off-reservation effects that necessitate state intervention." Mescalero Apache Tribe, 462 U.S. at 336.

75 Op. Att'y Gen. 220, 240 (1986)
  On the other hand, the federal and tribal interests are also compelling. Despite the potential for spillover, a tribal mining operation constitutes "on-reservation conduct involving only Indians," a situation in which "the federal interest in encouraging tribal self-government is at its strongest." Bracker, 448 U.S. at 144. In the context of hazardous waste management, the Ninth Circuit posited the interests involved as "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 court noted that "[t]he federal government has a policy of encouraging tribal self-government in environmental matters," a policy reflected both in federal environmental statutes giving tribes "a measure of control over policymaking or program administration or both" and in the policies and practices of the EPA. Id. at 1471 (footnote omitted). See also, Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 474-87 (1978). More specifically, the court cites to EPA policy documents which advocate "an enhanced role for tribal government in relevant decision-making and implementation of Federal environmental programs on Indian reservations,"¯10 and which charge EPA to "endeavor where appropriate to give tribal governments the primary role in environmental program management and decision-making relative to Indian lands."¯11

75 Op. Att'y Gen. 220, 240-241 (1986)
  The "backdrop" of tribal sovereignty, consisting of the elements discussed above, informs the question whether the federal government has preempted state jurisdiction to impose a given environmental law. Factors which may be significant to the preemption analysis include the EPA policy statements quoted above and the authority of EPA, under certain federal statutes, to permit tribes the primary responsibility for environmental protection within reservation borders. See Nance v. EPA, 645 F.2d 701, 714 (9th Cir 1981) (Indian tribes can set on-reservation air quality goals, independent of the states, under the Clean Air Act). Two additional factors, however, may be of more importance to the preemption analysis.

75 Op. Att'y Gen. 220, 241 (1986)
  The first of these is that Congress has not expressly authorized the imposition of state pollution control laws within reservation boundaries. The general grant of state civil jurisdiction, Pub. L. No. 280, did not authorize the applicability of state regulations, such as environmental laws, to Indian uses of reservation lands. Bryan, 426 U.S. at 378-79, 390; Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 489 (1978). Neither do the federal environmental statutes confer jurisdiction over reservation lands upon the states. State of Wash., Dept. of Ecology, 752 F.2d at 1467-68; see also Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 474-87 (1978).

75 Op. Att'y Gen. 220, 241 (1986)
  The second factor of importance is the retained authority of EPA to enforce adherence to federal environmental standards. As a rule, federal environmental statutes are generally applicable within reservation borders. Some of the federal environmental laws, such as RCRA and FWPCA, expressly include Indian tribes. See State of Wash., Dept. of Ecology, 752 F.2d at 1466-67; OAG 51-78 (unpublished, dated July 31, 1978). Other federal laws are applicable under the general rubric that federal statutes of a general nature apply to Indians and Indian tribes as to any other persons. Will, Indian Lands Environment--Who Should Protect It?, 18 Natural Res. J. 465, 468 (1978), citing Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960). Consequently, as the Ninth Circuit has noted, an absence of state environmental jurisdiction "does not leave a vacuum in which [pollutants] go unregulated. EPA remains responsible for ensuring that the federal standards are met on the reservations." State of Wash., Dept. of Ecology, 752 F.2d at 1472.

75 Op. Att'y Gen. 220, 241-242 (1986)
  The few authorities which have considered the applicability of particular state environmental laws within reservation borders have concluded that the state, at most, has environmental jurisdiction only in limited circumstances. The Ninth Circuit upheld EPA's conclusion that under RCRA, the federal hazardous waste management statute, states have no jurisdiction over Indian lands. Id. at 1469, 1472. See also 51 Fed. Reg. at 3784. Despite the "vital interest" of the state in hazardous waste management, the court reasoned that "the tribal interest in managing the reservation environment and the federal policy of encouraging tribes to assume or at least share in management responsibility are controlling." Id. at 1472. See also Nance, 645 F.2d at 714 (under the Clean Air Act, tribes possess "the same degree of autonomy to determine the quality of their air as was granted to the states."); Smith and Guenther, Environmental Law: Protecting Clean Air: The Authority of Indian Governments to Regulate Reservation Airsheds, 9 Am. Indian L. Rev. 83 (1981).

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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