JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)


prepared and presented by
M. Julia Hook
Dorsey & Whitney LLP
a seminar of the Rocky Mountain Mineral Law Foundation
Denver, Colorado

November 17-18, 1999

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Over the last thirty years, Congress has enacted a number of natural resources and environmental statutes that include potential delegations of regulatory authority to states, and more recently, to Indian tribes. Many of the federal statutes in question establish comprehensive regulatory schemes to govern one or more aspects of environmental protection or natural resources development, and then allow a State (or a Tribe) to assume "primacy" over the regulatory program within the borders of that State (or on the particular Tribe's lands).1 These federal regulatory schemes are not limited to activities, conditions or development on federal lands within a State, but rather extend to all lands within the State's borders.2

Of course, when Congress enacts a comprehensive environmental or natural resources development regulatory program, it is preempting the ability of states and tribes to legislate in those areas covered by the statute. Thus, on the one hand, Congress is terminating the authority of the states and tribes to legislate in a

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selected area, while on the other hand, it is offering those same states and tribes the ability to be the primary regulator of the federally-enacted program if the states or tribes meet certain conditions set forth in the statute.3 Because the analysis of federal delegations to states is somewhat different from that of federal delegations to tribes, they are covered separately in this paper.

Federal Delegations to States: Background

In order to gain primacy status under a particular federal statute, a State is generally required4 to enact legislation that mirrors the federal statute. As a general rule, the state statutory scheme does not have to be an exact replica of the federal statute, but it is required to be at least as stringent as the federal statute. Where Congress enacts a statute authorizing state primacy, Congress is in essence offering states a delegation of federal authority if they meet certain conditions. Why does Congress make such an offer rather than simply regulating the activities or conditions at the federal level? The two most common reasons are (1) political reality, or (2) adherence to a political philosophy that state regulation and implementation are more efficient than their federal counterparts.

Depending on the political climate in the United State at the time of a particular statute's enactment, federal legislators who are elected by citizens of a particular State may think that those who have sent them to Congress prefer, or at least will be more accepting of, state regulation — especially in potentially controversial areas such as environmental protection and natural resources development. It is also possible that without offering states a role in the enforcement of a particular regulatory program, Congress might not have the political support necessary to enact and fund the program in the first place. In such a situation, offering states a role in regulating the activities and conditions in question becomes the quid pro quo for the enactment of the desired legislation.

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It is clear that over the last twenty years, there has been an ever-increasing number of federal legislators who champion the idea that, with a few obvious exceptions such as national defense, state regulation is always better than federal regulation. While these legislators may be willing (albeit often reluctantly) to preempt the ability of states to operate in a particular arena, they appear to believe that states should be the primary regulators of certain types of federal programs, including those relating to the environment and natural resources development. Many of these legislators appear to think that: (1) state bureaucracies are always more efficient than their federal counterparts; (2) state bureaucracies are closer to the problems, more familiar with them, and, thus, better able to handle them; (3) allowing states to have primacy will result in a savings to the federal taxpayers, and, because of the efficiencies of state bureaucracies, to the state taxpayers; (4) in conducting regulatory activities, state bureaucracies are better able to take into account local or regional conditions, and craft more creative responses and solutions to problems; (5) state bureaucracies and state expertise already exist in certain areas of regulation, and primacy prevents the federal government from duplicating that which what already exists; (6) state primacy will result in decision-making at a level of government that is more accountable to the people; (7) state primacy will result in greater participation by each State's citizens in the regulatory process; and (8) state bureaucracies are more accountable to the people than their federal counterparts.5

Whatever rationale is used to structure a particular federal environmental or natural resources development statute, the fact is that current federal statutes affecting these areas almost always include opportunities for state participation (at the very least) or primacy in the regulatory processes established by the statutes.

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Federal Delegations to Indian Tribes: Background

Indian tribes hold a position vis a vis the federal government that is often compared to that of states. While the comparison is convenient, it is not exact and may in certain circumstances be misleading. States (or the citizens of the states) are the original source of the federal government's powers, occasioned by their approval of the United States Constitution. Thus, traditionally, the federal government has been described as a government of enumerated (and limited) powers, with the remaining organic powers of government resting in the states. While the concept of a limited federal government has eroded steadily since the Civil War (and more rapidly since the 1930s), and while many people no longer think of the federal government as a government of limited powers, even today when Congress enacts a statute, it includes a preamble section that sets forth the specific power or powers pursuant to which the legislation is being enacted.6 7

In contrast, Indian tribes have a dual status, unique in the United States — they are both sovereigns and wards subject to the protection of the federal government. Also in contrast to states and their citizens, neither Indian tribes nor their members are the source of any of the powers held by the federal government.

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Indian tribes have often been described as "domestic dependent nations,"8 a phrase that recognizes that prior to the European colonization of the present-day United States, tribes were independent nations, each possessing all of the attributes of inherent sovereignty.9

However, over time, some of the inherent governmental powers originally possessed by tribes were abrogated or extinguished by treaty, or by state or congressional action, express or implied, and today, the source of a Tribe's governmental powers can generally be said to be threefold: (1) inherent tribal sovereignty (to the degree not previously abrogated or extinguished); (2) express grants of power to the Tribe contained in treaties between that Tribe and the United States; and (3) express delegations of power to that Tribe by the United States Congress. Since treaties between Indian tribes and the United States more often than not abrogated the tribes' inherent governmental powers without containing any offsetting grants of governmental power to the tribes, it is fair to say that most governmental powers exercised by a particular Indian Tribe today derive from that Tribe's10 non-abrogated inherent sovereignty, and from express delegations of power from Congress.

Over the past thirty years, Indian Tribes have become increasingly cognizant of the power of their remaining inherent sovereignty, and increasingly eager to be the primary governmental authority regulating both natural resource development and environmental conditions and activities within their reservations. At the same time, the federal government has become increasingly supportive of the tribal position. Thus, since the late 1970s, more and more federal natural resource development and environmental statutes have included a role for tribes in their enforcement, and, some statutes have treated tribes as states. Thus, in addition to their inherent sovereignty, the federal government is offering delegations of power

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to tribes who meet certain conditions. While these federal delegations of power may currently not be as broad as those made to states, the presumption is that over time the tribes' role under various environmental and natural resources development statutes will increase until it mirrors the state role.

Conflicts Between Federal Delegations to States and Federal Delegations to Indian Tribes: Background

When a federal environmental or natural resources development statute authorizes Indian tribes to be treated as states,11 and, thus, perhaps to be granted the opportunity to regulate conditions and activities on lands within the exterior boundaries of their reservations (and under certain conditions, outside the boundaries of such reservations), the stage is set for a potential conflict between Indian tribes and the states and their citizens. A State and its citizens may challenge a Tribe's inherent authority to govern within "Indian Country",12 especially with respect to the persons and property of citizens of the State who are not also members of...

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