Thinking like a Mountain Environmental Regulation on Indian Reservations

Federal environmental regulatory laws generally require the Environmental Protection Agency (“EPA”) to establish standards for various sources of pollution, to enforce standards through a permitting system, and to delegate primary enforcement authority to the state. Special rules apply, however, when the regulated activity takes place within Indian country. Recent federal policies and laws increasingly permit the tribes to assume primary environmental law enforcement authority. As a result, the natural resource practitioner is presented with new challenges and opportunities that arise during the inception and development of the fledgling tribal environmental programs. The diversity and flexibility of such programs have the potential both to encourage and to frustrate those who will operate within their parameters.

I. JURISDICTION AND APPLICABLE ENVIRONMENTAL LAWS

One of the first difficulties encountered by natural resource practitioners whose clients do business on a reservation is to learn to appreciate the concept of tribal sovereignty and the attendant, complex jurisdictional rules. This difficulty was evident in recent years as increasing numbers of tribes began to impose taxes on various activities conducted on the reservation. In many cases, the new taxpayers fought the imposition of taxes because they believed the tribes did not have the authority to i