Louisiana joined a lawsuit against an EPA rule that says states should be required to consider tribal water rights when creating water protections and uses.
The state, which entered the lawsuit in June, is one of 12 other states challenging the final rule announced in May. Several Native Americans intervened and entered to defend the ruling.
The Environmental Protection Agency rule, known as the Protect Tribal Reserve Rights rule, aims to protect water quality where tribes hold rights to water and water-dependent resources, according to the EPA. The rule provides a framework for states to consider historical tribal treaties and rights when establishing water standards under the Clean Water Act.
Idaho’s attorney general office filed the lawsuit. Since its May 28 complaint, Iowa, South Dakota, North Dakota, South Carolina, Nebraska, Wyoming, Alaska, Utah, Texas, Montana and Louisiana have joined.
The states argue that the agency exceeded its authority under the Clean Water Act and that it “forces” states to protect tribal reserved rights and steps on the state’s given authority to set standards to govern the quality of water. While the EPA approves those standards, the lawsuit argues that states have the right to designate uses and set criteria to protect the uses of water.
“The EPA forces states to protect 'tribal reserved rights' —a novel concept the EPA cut out of whole cloth that means 'any rights CWA-protected aquatic and/or aquatic-dependent resources reserved by right holders, either expressly or implicitly, through Federal treaties, statutes, or Executive orders',” the lawsuit reads.
“From top to bottom, the Final Rule exceeds the EPA’s authority under the CWA. Congress did not grant the EPA authority under the CWA to protect claimed tribal rights,” the lawsuit reads.
The lawsuit argues that on top of overstepping its bounds, the EPA has created a framework with “no intelligible guidance the scope of [states] new obligations regarding “tribal reserved rights,” and that it is the federal government’s, not state’s, job to fulfill its obligations to tribes. The ruling would also disrupt the state and tribal relations by making states “evaluate and protect claimed but undefined and virtually unknowable, rights which the federal government may have reserved for the tribes.”
Tribes intervening in the lawsuit are the Bay Mills Indian Community, Confederated Salish & Kootenai Tribes of the Flathead Reservation, Fond du Lac Band of Lake Superior Chippewa, Grand Traverse Band of Ottawa and Chippewa Indians, Lac Du Flambeau Band of Lake Superior Chippewa Indians, Nez Perce Tribe, Port Camble S’Klallam Tribe, Puyallup Tribe of Indians, Quinault Indian Nation, Red Lake Band of Chippewa Indians, Sokaogon Chippewa Community and the White Earth Band of the Minnesota Chippewa Tribe.
“The Tribal Reserved Rights rule protects the rights of Tribal citizens, accorded by treaties, statutes, and other federal laws, to hunt, fish, and gather food in their usual and accustomed territories—including areas under state jurisdiction,” said National Tribal Water Council Chairman Ken Norton in the EPA announcement.