Appeals from the United States District Courtfor the District of MontanaCharles C. Lovell, District Judge, PresidingArgued and SubmittedSeptember 8, 1997--Seattle, WashingtonFiled March 3, 1998Before: Mary M. Schroeder and Robert R. Beezer, CircuitJudges and William W Schwarzer,* District Judge.Opinion by Judge SchroederSUMMARY
______________________COUNSEL Harley Harris, Assistant Attorney General, Helena, Montana,for the plaintiffs-appellants.Kevin Washburn, Department of Justice, Washington, D.C.,for the defendants-appellees.Daniel Decker, Marion Yoder, and John Carter, Tribal LegalDepartment, Confederated Salish and Kootenai Tribes of theFlathead Nation, Pablo, Montana, for the tribal-appellees.Arthur Lazarus, Jr., Sonosky, Chambers, Sachse & Enderson,Washington, D.C., amicus curiae for Assiniboine and SiouxTribes of the Fort Peck Reservation, Montana.Jon Metropoulos, Helena, Montana, for the plaintiffs-intervenors-appellants.Jeanne S. Whiteing, Whiteing & Thompson, Boulder, Colo-rado, amicus curiae for Blackfeet Tribe.Sam W. Maynes, Maynes, Bradford, Shipps & Sheftel,Durango, Colorado, amicus curiae for Southern Ute IndianTribe.Hans Walker, Jr., Hobbs, Straus, Dean & Walker, Washing-ton, D.C., amicus curiae for Three Affiliated Tribes of theFort Berthold Reservation, North Dakota.Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank,Montana, amicus curiae for Montana Association of Counties.Thomas L. Dosch and John S. Greene, Assistant AttorneysGeneral for the State of Wisconsin as amici curiae for appel-lants.Jeffrey R. Cutter, Lyon, Weigand & Gustafson, Yakima,Washington, amicus curiae for Yakima Reservation IrrigationDistrict.
_____________________________OPINION SCHROEDER, Circuit Judge:This case is a facial challenge to regulations the Environ-mental Protection Agency (EPA) promulgated pursuant toS 518(e) of the Clean Water Act, 33 U.S.C.S 1377 (Supp.1997). That section authorizes EPA to permit Indian tribes "tobe treated as a state" (TAS) for purposes of promulgatingwater quality standards (WQS) pursuant to S 303 of the Act.33 U.S.C. S 1313 (1986). The plaintiffs-appellants, collec-tively referred to as "Montana," include state and municipalentities who own fee interests in land located within theboundaries of the Flathead Indian Reservation. The Reserva-tion is occupied by the Confederated Salish and KootenaiTribes. The Tribes, along with EPA officials, are thedefendants-appellees.Montana filed this action attacking EPA's decision to grantTAS status to the Tribes to promulgate WQS that apply to allsources of pollutant emissions within boundaries of the Reser-vation, regardless of whether the sources are located on landowned by members or non-members of the Tribe. Montanamaintained that the regulations permit tribes to exerciseauthority over non-members that is broader than the inherenttribal powers recognized as necessary to self-governance. SeeBrendale v. Confederated Tribes and Bands of the YakimaIndian Nation,
492 U.S. 408
, 109 S. Ct. 2994 (1989);Montana v. United States,
450 U.S. 544
, 101 S. Ct. 1245(1981).In addition, Flathead Irrigation District and related entities("the Intervenors") have sought to intervene as of right in theaction although their uses of the land are not sources of emis-sions regulated by the Clean Water Act.The district court granted summary judgment to the defen-dants, and denied intervention by the Intervenors because theylacked any discernible interest in the subject matter of the liti-gation as required by Rule 24 of the Federal Rules of CivilProcedure. Montana and the Intervenors have each filed a sep-arate appeal. We affirm in both.BACKGROUNDThe Clean Water ActThe Clean Water Act (CWA) prohibits discharges from apoint source of any pollutant into waters unless the emissiondischarge complies with the Act's requirements. See 33U.S.C. S 1311(a). For most discharges, such compliance isachieved by obtaining and adhering to the terms of a NationalPollutant Discharge Elimination System (NPDES) permit. See33 U.S.C. S 1342. NPDES permits are issued by EPA or, inthose jurisdictions in which EPA has authorized a stateagency to administer the NPDES program, by a state agencysubject to EPA review. See 33 U.S.C. S 1342(b).Under the NPDES program, each state must adopt WQS forits waters. See 33 U.S.C. S 1313. These standards are subjectto review and approval by EPA. See 33 U.S.C.S 1313(a)-(c).Once WQS have been adopted, EPA will issue an NPDESpermit only if the relevant state certifies that any dischargesunder the proposed permit will be consistent with its WQS.See 33 U.S.C. S 1341(a).In 1987, Congress added S 518(e) to the CWA whichauthorized EPA to permit tribes "to be treated as a state"(TAS) for purposes of promulgating WQS. 33 U.S.C.S 1377(e). The relevant language of the provision is set forthin the margin.1EPA issued a final rule in 1991 implementing the provisionby setting forth the standards for processing tribal requests forTAS status and concomitant authority to institute WQS. SeeEnvironmental Protection Agency, 56 Fed. Reg. 64,876(1991) (codified at 40 C.F.R. S 131.8(b)(3)) (hereinafter FinalRule). The Final Rule was promulgated after notice and com-ment, during which Montana voiced its objections to the ruleas too broad. Conversely, some tribal interests, represented inthis case by amici briefs, took the position that the authoritywas too narrow, and that Congress had in effect delegated thepower to the tribes to promulgate WQS. EPA rejected bothextremes and promulgated the regulations here at issue: 1. The tribe must be federally recognized and exer- cising governmental authority; 2. The tribe must have a governing body carrying out "substantial governmental duties and powers;" 3. The water quality standards program which the tribe seeks to administer must "pertain to the management and protection of water resources," which are "within the borders of an Indian reservation;" 4. The Indian tribe is reasonably expected to be capable of carrying out the functions of an effec- tive water quality standards program in a man- ner consistent with the terms and purposes of the Clean Water Act and regulations.40 C.F.R. 131.8(a).The third requirement, with which we are principally con-cerned, is intended to reflect the scope of a tribe's "inherentpower," a concept developed by the Supreme Court to definewhen tribes may engage in nonconsensual regulation of activ-ities of non-members. See Montana,
450 U.S. at 565
-66, 101S. Ct. at 1258; United States v. Wheeler,
435 U.S. 313
, 322,98 S. Ct. 1079, 1085-86 (1978).To demonstrate authority over the activities of non-members on non-Indian fee lands, EPA requires a tribe toshow that the regulated activities affect "the political integ-rity, the economic security, or the health or welfare of thetribe." Final Rule, 56 Fed. Reg. at 64,877 (quoting Montana,
450 U.S. at 566
, 101 S. Ct. at 1258). The potential impacts ofregulated activities on the tribe must be "serious andsubstantial." Id. at 64,878.EPA believes that tribes will normally be able to demon-strate that the impacts of regulated activities are serious andsubstantial due to "generalized findings" on the relationshipbetween water quality and human health and welfare. See id.Nonetheless, under the Final Rule EPA will make a case-specific determination on the scope of each tribal applicant'sauthority. See id. Because EPA's generalized findings will beincorporated into the analysis of tribal authority, the factualshowing required under S 131.8 is limited to the tribe's asser-tion that (1) there are waters within the reservation used bythe tribe, (2) the waters and critical habitat are subject to pro-tection under CWA, and (3) impairment of waters would havea serious and substantial effect on the health and welfare ofthe tribe. See id. at 64,879.Once the tribe meets this initial burden, EPA will, in lightof the facts presented by the tribe and the generalized statu-tory and factual findings regarding the importance of reserva-tion water quality, presume that there has been an adequateshowing of tribal jurisdiction over fee lands. See id. Unlessthe party objecting demonstrates the tribe's lack of jurisdic-tion, the EPA will determine there is inherent authority. Seeid.THE FLATHEAD RESERVATION APPLICATION ANDAPPROVAL FOR TAS STATUSIn 1992, the Tribes applied for TAS status with respect toall surface waters within the Flathead Indian Reservation. TheFlathead Indian Reservation in Montana is marked by at leasttwo important characteristics that have shaped this litigation.First, its dominant topical feature is Flathead Lake, a largelake that, with its tributaries, provides water for domestic,industrial, and agricultural uses on the lands within the Reser-vation boundaries. Second, the land within those boundariesreflects a pattern of mixed ownership and control betweentribal and non-tribal entities. These non-tribal entities includethe state, the county, and several municipalities that engage inregulated discharges on the Reservation pursuant to existingNPDES permits.In their application for TAS status, the Tribes identifiedseveral facilities on fee lands within the Reservation that havethe potential to impair water quality and beneficial uses oftribal waters. These include feedlots, dairies, mine tailings,auto wrecking yards and dumps, construction activities andlandfills. Other actual or potential point sources includewastewater treatment facilities, commercial fish ponds andhatcheries, slaughterhouses, hydroelectric facilities and woodprocessing plants.Montana opposed granting the Tribes TAS status to theextent such status would extend to reservation lands and sur-face waters owned in fee by non-members of the Tribes. TheEPA director approved the Tribes' application after determin-ing that the Tribes possessed inherent authority over non-members on fee lands. Montana then filed this action.The Montana Appeal and the Scope of Inherent Authority[1] In general, absent express authorization by federal stat-ute or treaty, Indian tribes lack civil authority over the con-duct of non-members on non-Indian land within a reservation.See Montana,
450 U.S. at 564
, 101 S. Ct. at 1258. See alsoStrate v. A-1 Contractors, 117 S. Ct. 1404, 1409 (1997) (reaf-firming). The Court in Montana noted, however, that in cer-tain circumstances, even where Congress has not expresslyauthorized it, Indian tribes retain inherent sovereign power toexercise civil jurisdiction over non-Indians on fee lands. SeeMontana,
450 U.S. at 566
, 101 S. Ct. at 1258. The first excep-tion to the general rule relates to non-members who enter con-sensual relationships with the tribe or its members. See id. at565, 101 S. Ct. at 1258. The second exception concerns con-duct that "threatens or has some direct effect on the politicalintegrity, the economic security, or the health or welfare ofthe tribe." Id. at 556, 101 S. Ct. at 1258.Although the Supreme Court has applied the Montana rulein subsequent cases, the Court's 1989 fractured decision inBrendale,
492 U.S. 408
, 109 S. Ct. 2994, left some confusionas to what the correct standard should be. Brendale involvedthe authority of tribes to zone non-Indian fee land. Althoughthe Justices disagreed over how to apply Montana's secondexception in that context, a majority of the Justices nonethe-less agreed that the Montana rule controlled. Id. Later, inStrate, a unified court reaffirmed the vitality of Montana. InStrate, which was after the district court decision in this case,the Court stressed that there must be a nexus between the reg-ulated activity and tribal self-governance in order for the sec-ond Montana exception to apply. See Strate, 117 S. Ct. at1416.Montana's position in the district court and in this court hasbeen that EPA got the scope of inherent authority wrong, andthat the Tribes should be able to engage in nonconsensual reg-ulation of non-tribal entities only when all state or federalremedies to alleviate threats to the welfare of the tribe havebeen exhausted and have proved fruitless. Their brief reliesheavily upon the opinions of Justices Stevens and White inBrendale to argue that the Brendale decision effectively repu-diated the Montana standard. That standard, in appellants'view, had erroneously equated tribal sovereignty with localgovernment police power.We agree with appellants insofar as they contend that thescope of inherent tribal authority is a question of law forwhich EPA is entitled to no deference. EPA's decision toadopt inherent tribal authority as the standard intended byCongress may well be viewed in a deferential light becausethe statute's language and legislative history were not entirelyclear. See Chevron U.S.A., Inc. v. Natural Resources DefenseCouncil, Inc.,
467 U.S. 837
, 843-44, 104 S. Ct. 2778, 2782-83(1984). EPA's delineation of the scope of that standard, how-ever, has nothing to do with its own expertise or with anyneed to fill interstitial gaps in the statute committed to its reg-ulation. Therefore, EPA's delineation of the scope of tribalinherent authority is not entitled to deference.We cannot agree with appellants, however, that EPA hascommitted any material mistakes of law in its delineation ofthe scope of inherent tribal authority. Rather, the agency tooka cautious view by incorporating both Justice White's andJustice Stevens' admonitions in Brendale that, to support theexercise of inherent authority, the potential impact of regu-lated activities must be serious and substantial. See FinalRule, 56 Fed. Reg. at 64,878; Brendale,
492 U.S. at 431
, 109S. Ct. at 3008 (White, J.); id.,
492 U.S. at 447
, 109 S. Ct. at3016 (Stevens, J.). Moreover, in Justices Stevens' andWhite's opinions, upon which Montana relies, there is no sug-gestion that inherent authority exists only when no other gov-ernment can act.Indeed the EPA decision appears to adumbrate the SupremeCourt's holding in Strate, 117 S. Ct. 1404, that the exerciseof tribal jurisdiction over non-tribal members engaged in traf-fic accident litigation was not necessary to the self-governance of the tribe. We therefore disagree with appellantsthat Brendale overruled Montana. The Strate decision reaf-firms the vitality of Montana; Brendale did not repudiate it.[2] EPA's decision, applying its standards in this case,found that the activities of the non-members posed such seri-ous and substantial threats to Tribal health and welfare thatTribal regulation was essential. We have previously recog-nized that threats to water rights may invoke inherent tribalauthority over non-Indians. "A tribe retains the inherentpower to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conductthreatens or has some direct effect on the health and welfareof the tribe. This includes conduct that involves the tribe'swater rights." Colville Confederated Tribes v. Walton, 647F.2d 42, 52 (1981) (internal citations omitted, emphasisadded). Colville also supports EPA's generalized finding thatdue to the mobile nature of pollutants in surface water itwould in practice be very difficult to separate the effects ofwater quality impairment on non-Indian fee land from impair-ment on the tribal portions of the reservation:"A water sys-tem is a unitary resource. The actions of one user have animmediate and direct effect on other users." Id. In contrast, the tribes in Strate reserved no right to exercisecontrol over the federal right-of-way maintained by the state.See Strate, 117 S. Ct. at 1414. Furthermore, the conduct ofusers of a small stretch of highway has no potential to affectthe health and welfare of a tribe in any way approaching thethreat inherent in impairment of the quality of the principalwater source.Our decision is also fully consistent with the only other cir-cuit opinion that has yet considered the issue of tribal author-ity to set water quality standards. City of Albuquerque v.Browner, 97 F.3d 415 (10th Cir. 1996). In that case, the tribehad promulgated WQS that were more stringent than federalstandards. The city contended that the tribal standards couldnot be more stringent than federal standards. The courtrejected the contention, observing that the authority to estab-lish such standards "is in accord with powers inherent inIndian tribal sovereignty." Id. at 423.[3] Accordingly, we affirm the district court's decision thatEPA's regulations pursuant to which the Tribe's TAS author-ity was granted are valid as reflecting appropriate delineationand application of inherent Tribal regulatory authority overnon-consenting non-members.THE INTERVENORS' APPEAL[4] The Intervenors consist of the Flathead Joint Board ofControl, two irrigation districts, and four individual irrigatorswho own land in fee situated within the boundaries of theReservation. None of the proposed intervenors, however,holds an NPDES permit that may potentially be modified dueto any change in WQS imposed by the Tribes.To prevail on a motion to intervene as of right, the interve-nor must (1) make a timely motion, (2) claim a "significantlyprotectable" interest in the property that is the subject of theaction, (3) demonstrate impairment of its ability to protect thatinterest, and (4) prove that the interest is inadequately repre-sented by the parties to the action. See Sierra Club v. EPA,995 F.2d 1478, 1481 (9th Cir. 1993).The district court held that because the Intervenors do nothold NPDES permits, the transfer of the right to establishWQS from the state to the Tribes "will have no immediate orany foreseeable, demonstrable effect upon the proposedintervenors." In their briefs to this court, the Intervenorsattempt to state a broader interest in the enforcement processby suggesting that the imposition of standards promulgated bythe Tribes would violate their civil rights by subjecting themto tribal jurisdiction. They also argue that EPA approval oftribal WQS would depress the value of their property.[5] Because the Intervenors hold no NPDES permits theycould not be subject to NPDES enforcement proceedings.Moreover, TAS status does not confer enforcement authorityon the Tribes; it only enables the Tribes to set the standards.Even if the Tribes applied for enforcement authority, theNPDES permits would still be issued by EPA and enforced infederal, not tribal, courts. Finally, even assuming that EPA'sapproval of the tribal WQS program might affect propertyvalues, such a speculative and purely economic interest doesnot create a protectable interest in litigation concerning a stat-ute that regulates environmental, not economic, interests. SeePortland Audubon Soc'y v. Hodel, 866 F.2d 302, 309 (9th Cir.1989) (an adverse economic impact does not create a signifi-cant protectable interest in litigation under the National Envi-ronmental Policy Act; see also Sierra Club, 995 F.2d at 1485-86 (city that holds permit under CWA has a protectable inter-est in CWA litigation that might affect a city's discharge frompermitted operations).CONCLUSIONThe district court correctly entered summary judgment infavor of the defendants on the underlying challenge to thegrant of TAS status to the Tribes, and it also correctly deniedthe Intervenors' application to intervene as of right. Its judg-ment is AFFIRMED.
___________________________FOOTNOTES *Honorable William W Schwarzer, Senior United States District Judgefor the Northern District of California, sitting by designation.1 The Administrator is authorized to treat an Indian tribe as a State forpurposes of subchapter II . . . to the degree necessary to carry out theobjectives to this section, but only if --(1) the Indian tribe has a governing body carrying out substantial gov-ernmental duties and powers;(2) the functions to be exercised by the Indian tribe pertain to the man-agement and protection of water resources which are held by an Indiantribe, held by the United States in trust for Indians, held by a member ofan Indian tribe if such property interest is subject to a trust restriction onalienation, or otherwise within the borders of an Indian reservation; and(3) the Indian tribe is reasonably expected to be capable, in the Admin-istrator's judgment, of carrying out the functions to be exercised in a man-ner consistent with the terms and purposes of this chapter and of allapplicable regulations.