EPA Says It Won’t Change Challenged Tribal Water Rules 12/12/2017

EPA Says It Won’t Change Challenged Tribal Water Rules

By Adam Lidgett

Law360, New York (December 11, 2017, 4:49 PM EST) — The U.S. Environmental Protection Agency said on Friday that it wouldn’t change course on any decisions challenged in a suit from the state of Maine over the agency’s tightening of water quality standards for tribal waters.

In a brief status report, the EPA said that it wouldn’t withdraw or change any of the decisions challenged in the suit after the agency had asked the court in August for a stay in the case. That additional 120-day stay was granted in August after U.S. District Judge Jon D. Levy had granted an earlier stay bid in May to give the agency the time it requested to review the policy.

The May decision followed arguments from the EPA and two tribes in Maine. The tribes had urged the court to reject the stay on the grounds that any further delay in the case would threaten both the Houlton Band of Maliseet Indians and the Penobscot Nation.

Maine’s Department of Environmental Protection had sought to impose water quality standards that are lower than what the EPA, under the former Obama administration, had said would protect the Houlton Band of Maliseet Indians’ sustenance fishing practices, and petitioned the new administration to reconsider a rule tightening standards.

Maine’s suit, first filed in 2014, sought a declaration that its environmental jurisdiction applies uniformly throughout the state, including in Native American territories, based on settlement acts from the 1980s that established a unique tribal-state relationship.

The Houlton Band of Maliseet Indians last year asked to intervene to oppose the state’s suit challenging the stricter water quality standards for tribal waters, saying that the more restrictive rules ensure the tribe can continue its fishing traditions.

“It’s obviously terrific the EPA has seen fit to hold to its water quality standards that are protective of reasonable tribal sustenance fishing rights,” Kaighn Smith Jr., an attorney for the Penobscot Nation, told Law360 on Monday. “The EPA’s original decision took into account a reasonable rate of consumption that would account for a cancer risk for tribal members. Maine has failed to do that.”

The federal government declined to comment.

Houlton Band of Maliseet Indians tribal chief Clarissa Sabattis commented only that she was pleased with the outcome and supportive of the EPA’s decision.

Representatives for the state did not immediately respond to requests for comment on Monday.

The state of Maine is represented by its Attorney General Janet T. Mills, as well as Scott W. Boak, Gerald D. Reid and Christopher C. Taub of the state attorney general’s office.

The EPA is represented by Jeffrey H. Wood, David A. Carson, Richard W. Murphy and John G. Osborn of the U.S. Department of Justice.

The Houlton Band of Maliseet Indians is represented by Graydon G. Stevens of Kelly Remmel & Zimmerman, and Cory J. Albright, Jane G. Steadman and Riyaz A. Kanji of Kanji & Katzen PLLC.

The Penobscot Nation is represented by David M. Kallin and Kaighn Smith Jr. of Drummond Woodsum.

The case is Maine et al. v. Pruitt et al., case number 1:14-cv-00264, in the U.S. District Court for the District of Maine.

–Editing by Jack Karp.