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St. Thomas Law Review

First Page

15

Document Type

Article

Abstract

Part II of the Article discusses whether there is an ambiguity in the CWA, and if so, whether the EPA should be given Chevron deference in its interpretation of the Act. After concluding that there is an ambiguity in the statute and that Chevron is applicable, this Article discusses what role, in the Chevron inquiry, should be played by the rule of statutory construction mandating that federal statutes enacted for the benefit of Indians be construed liberally with ambiguities resolved in their favor. This rule will be referred to as the Indian liberal construction rule. This Article takes the position that not only should courts use the Indian liberal construction rule in determining whether the statute is ambiguous under Chevron Step I, but more importantly, the federal agencies have a duty to take the Indian liberal construction rule into consideration when interpreting an ambiguous statute if the statute at issue was enacted for the benefit of the Indians pursuant to the trust responsibility the United States has towards Indian tribes. Therefore, if there are ambiguities the courts should hold as impermissible, under Step II of the Chevron inquiry, any agency interpretation that does not take into account the Indian liberal construction rule. Part III discusses whether the EPA's interpretation of the statute is permissible under Chevron Step II. The Article concludes that because the EPA does not claim to have taken the Indian liberal construction rule into consideration in interpreting the CWA, its analysis in reaching its decision would seem to be arbitrary and capricious and therefore impermissible under Step II of the Chevron analysis. Nevertheless, Part III asks whether the EPA would have reached the same result had it considered the Indian liberal construction rule. The Article concludes that because the EPA decided that it would evaluate tribal jurisdiction under "evolving" concept of federal common law and such federal common law seems to be evolving to the detriment of the Indians, it would have been more consistent with the Indian liberal construction rule to interpret the statute either as a confirmation of tribal authority, or a delegation of federal authority to the tribes. Part IV discusses the three issues which are likely to focus the attention of the courts in any upcoming litigation. These are: the validity of the EPA's delineation of what the controlling principle of federal common law is; the validity of the EPA's generalized findings creating a presumption of tribal jurisdiction, and; the EPA's determination that a particular tribe has enough jurisdiction to be treated as a state for the purpose of the CWA. This Article re-examines the EPA's delineation of the applicable Federal common law in light of Strate v. A-1 Contractors, the most recent Supreme Court decision in this area. Part IV also analyzes the validity of the EPA's generalized findings against the argument that the creation of a presumption of tribal jurisdiction through these findings is inconsistent with the Montana III test. Also examined is whether the creation of such presumption through generalized findings should be reviewed de novo because, since it cannot be divorced from the EPA's interpretation of the Act, it should be considered a question of law instead of a question of fact. Finally, Part IV discusses the scope of judicial review which courts should use when reviewing the specific finding that a particular tribe should be treated as a state for the purpose of the CWA.

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