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Golden Gate University Law Review

Authors

Andrea K. Leisy

Abstract

This Comment briefly describes the background of federal Indian law in the United States, including the jurisdictional disputes between federal, state, and tribal interests. Part II also describes the EPA's Indian Policy to further illustrate the legal doctrines and policies that help shape current judicial opinions. Part III examines Albuquerque v. Browner, in which the Tenth Circuit upheld the EPA's approval of water quality standards for the Pueblo of Isleta, an Indian tribe whose reservation is located downstream from Albuquerque's wastewater treatment plant on the Rio Grande River. This section illustrates the EPA's proper interpretation of the CWA, within the context of inherent tribal sovereignty, and subsequent EPA regulations that may force upstream polluters to comply with a downstream tribe's water quality standards. Part IV discusses Albuquerque, the Ninth Circuit's more recent decision in Montana v. EPA, and the effects of tribal environmental regulation of non-member activities on non-Indian fee land located either within or outside Indian reservations. Montana is the only other appellate court decision addressing the issue of EPA authorization empowering Indian tribes to establish water quality standards. Part V critiques the emerging trend of decisions upholding the EPA's approval and enforcement of more stringent tribal water quality standards on upstream polluters as well as non-members on fee land within a reservation. Part VI concludes that the EPA reasonably interpreted the plain language of the CWA and Supreme Court precedent when implementing their regulations to determine when tribes should be permitted, under Section 1377(e), to promulgate water quality standards.

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