TSTS
- Treatment Similar To States policy, gives Indian tribes control
over private property. TSTS
is the acronym for “Treatment Similar To States”. Under
TSTS, the U.S. Environmental Protection Agency (EPA)
is currently setting up for Indian tribal governments a status known
as “Treatment Similar To States.” TSTS
gives Indian tribes jurisdiction over both air AND water quality,
Superfund cleanup, and pesticide use on ALL lands (including
privately-owned properties). TSTS gives
Indian tribes jurisdiction over ALL private, non-Indian owned and
operated businesses (including agriculture), and over ALL citizens,
including non-tribal U.S., citizens (both
members and non-member U.S. citizens) who live, work, or travel
within the historic borders of Indian reservations. Under
TSTS water quality statutes, this means anywhere upstream on rivers
flowing through reservations. For
air quality, this means within a 50-mile radius
of reservation borders or Indian Country -- which is
defined in the broadest possible terms -- often including lands sold
to non-Indian citizens before 1900 and owned in good faith by
millions of non-tribal taxpaying landowners for generations. This
dangerous policy was formerly known as “Treatment As States”
(TAS) but is now officially referred to as TSTS. Founded
in 1970, EPA is responsible for protecting the environment and human
health. The Agency enforces federally-enacted air, water, and land
use/waste disposal related laws and ensures that designated public
health and environmental standards are met.
The EPA became operational in concert with Congressional
enactment of: The
Clean Air Act [CAA]
passed in 1977 The
Clean Water Act [CWA] passed in 1972 The
Safe Drinking Water Act [SDWA] passed In 1974 The
Federal Insecticide, Fungicide, and Rodendicide Act [FIFRA] The
Comprehensive Environmental Response, Compensation, and Liability
Act [CERCLA or Superfund] passed in 1980 By
passing these bills, Congress empowered the EPA with implementation,
administration, regulatory, and enforcement authority over the above
pieces of legislation, within the various states of the United
States. Congress,
did not, however, delegate jurisdictional
authority to the EPA. Congress
recognized that these Acts did not include federally recognized
Indian tribes. Congress
proceeded to fix that gap in the 1990s by amending the above Acts,
beginning with changes to the Clean Air Act. Since
all states must comply with mandated Congressional Acts administered
through the EPA, common sense correctly dictated that Congress
enable the EPA to administer smaller, customized program
implementation of these Acts on lands held in "trust" or
"restricted fee" or otherwise under the control of the
respective Indian tribes. Thirteen
tribes in Oklahoma have applied for TSTS authority. This would mean
tribal regulatory control over more than half of that state. Not
only are the impacts on agriculture there gutting, but also bad for
other businesses, including the oil and gas industry. There are 39
tribes in Oklahoma alone. Tribes
currently have TSTS applications pending in dozens of other states
across the nation. This
situation is not without remedy. TSTS
can be changed by congressional action, Executive Order, agency
rulemaking authority, as well as by being federal court order. TSTS
problems are being experienced in a number of states across America.
(See listing at this button at http://www.propertyrightsresearch.org/
of states with Indian tribes). The
EPA’s actual written policy on TSTS is narrow in scope and takes
into account local concerns. In a December 12, 1991, federal
regulation publication, EPA states: "Whether
a tribe has jurisdiction over non-members will be determined
case-by-case, based on factual findings."
But the EPA has, in fact, seldom attempted to follow its own
case-by-case, localized policy! Instead, EPA has taken the principle
of TSTS and painted it with a very broad brush. The
Clean Air Act (at Section 301), the Clean Water Act (at Section
518), and the Safe Drinking Water Act (at Section 1451) are the
statutory locations of TSTS. There is nothing, however, in the
language of these sections that authorizes EPA's TSTS programs to remove,
substitute or replace current local environmental programs
operating in the respective states.
To the contrary, there is clear language in the SDWA Act that
says: "It is the
policy of Congress that the authority of each state to allocate
quantities of water within its jurisdiction shall not be superseded,
abrogated, or otherwise impaired by this Act.” The
EPA’s TSTS policy is of great concern because it gives Indian
tribes regulatory jurisdiction over water and air quality, Superfund
cleanup, and pesticide use on ALL lands (including privately-owned
lands), over ALL businesses (including ALL non-tribally owned or
operated businesses), and over ALL citizens (both tribal members and
ALL non-member U.S. citizens) who live, work, or travel across the
historic borders of “Indian Country” or within 50 miles of
Indian reservations. For water quality, of course, this means
anywhere upstream of tribal lands. For air quality, of course,
tribal jurisdiction extends 50 miles beyond Indian trust land
boundaries. A
legal challenge to TSTS was initiated by several states, resulting
in a clear ruling found in District of Columbia Circuit case decided
on October 30, 2001, State
of Michigan v. EPA (U.S. Court of Appeals, No. 99-1151) to
which EPA formally published compliance with the Court's ruling on
June 3, 2002. (Consolidated with 99-1152, 99-1153, 99-1154, and
99-1155) The
Court ruled that EPA either stands in the jurisdictional
"shoes" of a State or the “shoes” of an Indian tribe
-- but that EPA has no jurisdictional "shoes" of its own.
The
Court was extremely clear in stating that when there arises a
jurisdictional "question" [as to whether a given parcel or
land area is to be governed by a State or by a Tribe] the
jurisdictional question must be decided first,
before the EPA can determine appropriate air, water, cleanup, or
pesticide program activities. One
example of EPA’s refusal to follow congressional intent and court
rulings on their misguided TSTS policy is the Michigan
v. EPA ruling, issued on October 30, 2001. EPA Court
compliance was filed on June 3, 2002.
But between the date the Court ruled and the date the EPA
filed notice of Court compliance (on March 15, 2002), EPA Region 10
published its "Proposed Tribal Air Rules" -- granting 47
tribes in Idaho, Oregon and Washington, jurisdiction over "all
lands" within reservation boundaries -- clearly contradicting
the Court's instruction as to lands of "questionable"
jurisdiction. The
EPA’s TSTS policy violates Executive Orders on Federalism by the
intentional removal of State authority within Indian reservation
borders. A
national legal and legislative effort is now urgently needed to hold
the EPA accountable to the actual intent of Congress when it
authorized EPA with regulatory authority on Indian reservations. Congress
did not delegate jurisdictional authority for EPA to empower Indian
tribal governments with authority over State public or privately
owned properties or over citizens who are not enrolled members of
that particular federally recognized Indian tribe. This
issue deserves your immediate attention! The
ability of Indian tribes to be used by the EPA to overwhelm both a
state and local government’s authority to protect and regulate its
environment and resources is a huge wrong. When
Congress amended major environmental laws to apply also to Indian
reservations, there was no Congressional intent to remove any
State’s authority to protect its citizens, regulate local
businesses, or to regulate natural resources within sovereign state
borders. This often secretly negotiated TSTS policy between Indian
tribes and the EPA, is causing an escalation of unnecessary
divisiveness in a growing number of states, including Idaho,
Minnesota, Nebraska, Oklahoma, South Dakota, Washington, and
Wisconsin. Americans are gradually losing our constitutionally
guaranteed right to self-government. The
Pawnee Nation was approved for TSTS authority in Oklahoma in May
2004 to administer tribal water
quality standards and 401 certification programs on their tribal
trust lands, which could give that Tribe regulatory authority
over more than half the State’s land base. Tribal
governments in other states who have been awarded TSTS by the EPA
have set very strict environmental standards that landowners and
industry are finding difficult to achieve.
There is grave concern over how the Pawnee's standards will affect
production in agriculture, the oil and gas industry, and other
businesses. An
example is the Isleta Pueblo Tribe in New Mexico, which set a water
quality standard for arsenic of 0.0175 parts per billion, about
3,000 times more stringent than the Safe Drinking Water Act standard
at that time of 50 parts per billion. In
1999, it was estimated the cost for Albuquerque to comply with the
downstream arsenic standard established by the Isleta Pueblo would
be $250-$300 million dollars. Albuquerque challenged the standard in
court, but lost. (Although lawyers familiar with the case say it had
been negotiated away before it went to trial). To
date, Albuquerque has spent $60 million to build a wastewater
treatment facility that would meet tribal nitrogen and ammonia
standards. Albuquerque has not yet begun to comply with the tribal
arsenic standards. Tribes can also ignore existing state
agricultural stormwater exemptions. The EPA Region 7
is currently assuming TSTS status for Indian tribes in Nebraska.
Thurston County, Nebraska, is entirely an historic Indian
reservation, in which two tribes reside within county borders. Due
to Acts of Congress, non-Indian United States citizens own over 70%
of the historic reservation land. Until recent years, the State of
Nebraska had authority over environmental programs on non-Indian
land. In the last three years, EPA has determined that the State of
Nebraska “lacks authority to regulate activities on Indian
lands” and that “EPA will administer the programs on Indian
lands if a State (or Indian tribe) does not seek or have authority
to regulate activities on Indian lands.” In April 2001,
EPA Region 7 determined that the State of Nebraska did not have the
authority to issue national Pollutant Discharge Elimination System
Permits. In 2002, Region 7 began assisting both tribes to gain
primacy over regulating FIFRA, pesticide use, in all areas of the
historic reservations. In 2003, EPA began requiring that EPA, rather
than the Corps of Engineers issue 401 permits, in order to seek
comments from the tribes before bridge or culvert work could be
completed in the County. In the last five years, EPA Region 7 has
granted the two Indian tribes in Thurston County 4.4 million dollars
for environmental programs. Currently, EPA regulates environmental
activities on behalf of the tribes and intends to turn that
authority over to the tribes when the tribes are ready to assume
that responsibility. Region 7 no longer considers the State of
Nebraska a ‘principal’ form of government in Thurston County. TSTS
represents a direct threat to private property rights because a
tribal government -- in which non-Indian businesses and property
owners have no voice or vote -- will regulate non-Indian businesses.
TSTS actually removes the
governing authority for municipalities, counties, and states with
regard to the health and well being of hundreds of thousands of
non-enrolled U.S. citizens who own property or operate businesses
within range of "Indian Country" checkerboarded across
America. TSTS
is a clearly unconstitutional policy that treats Indian tribes as
superior to, not similar to, state governments. TSTS is a very real
threat to state sovereignty and local self-government. No
federal policy should remove any citizen's participatory involvement
and constitutional right to a republican form of government.
The
EPA’s “Treatment Similar To States” (TSTS) Policy