State of Maine v. Johnson, No. 04-1363. The Clean Water Act lets states petition to run their own programs governing water discharge. Maine petitioned for such permission, and was eventually granted it in all areas that were not governed by tribes. Then the EPA said that the state could regulate water discharge from non-tribal lands to tribal lands, but not stuff going form tribal lands to the state. The EPA said it was concerned about the tribal members’ ability to fish. Maine wants more power to regulate. The tribes say that the EPA should note have let Maine regulate stuff flowing into tribal waters. Towns side with the state. Like most tribes in New England there are various settlement acts in place, which extinguish some claims to land. The First seems to indicate that the (southern) tribes gave up their sovereign immunity to a greater extent then other tribes did, essentially turning them into the equivalent of municipalities. The tribes say that an exception preventing the state from regulating “internal tribal matters” covers water discharge, but the First says it doesn’t because the history and usage of the term deals more with membership and tribal organization, and in those areas the state disclaimed any interest in it.
But, then it gets interesting. The First concludes that Chevron deference doesn’t apply to the EPA’s decision because these are really jurisdictional questions, and the agency seemed to be engaging in a kind of “ad hoc” balancing to determine its own jurisdiction, so the order is vacated as to the Indian-owned sites. But, the First leaves for another day the issue of how to deal with such permits when the issue if “trust” land that is ceded to the DOI, which the First says is not ripe.
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