The topic of issuing permits and who has the jurisdiction to do so on the original 1855 Mille Lacs Band of Ojibwe Reservation was one among several topics readers submitted to the Messenger earlier this year when we committed to address concerns that may arise if the courts rule in favor of the Band’s boundary definition to include the 61,000 acres of the lower half of Lake Mille Lacs.
This topic was brought to the forefront due to a stormwater permitting renewal issue in which the property owner with property located within the original reservation was told by the Minnesota Pollution Control Agency (MPCA) that they would be required to request a permit from the U.S. Environmental Protection Agency (EPA) because their “property was located on a reservation.”
The MPCA website states: “If the project is located in a Tribal Reservation, you will need to obtain permit coverage from the U.S. Environmental Protection Agency.”
During a Mille Lacs County Board of Commissioners meeting on Tuesday, June 16, the topic was addressed. Randy Thompson, the hired attorney for Mille Lacs County who represents the County in the boundary lawsuit by the Mille Lacs Band of Ojibwe, spoke to the issue at the meeting.
“The issue that was brought to my attention was that a private company in the three northern townships received an email from the MPCA advising that their stormwater permit was expiring and they needed to apply, not to MPCA for their stormwater permit, but to the federal environmental protection agency on the basis that the MPCA does not have jurisdiction on the reservation, and apparently that is reflecting the change in position taken by Minnesota Attorney General Keith Ellison and Gov. Walz regarding the existence of the 1855 Reservation,” said Thompson.
He went on to say that the federal government through the M-Opinion (the opinion released in 2016 by the U.S. Department of the Interior) takes the position that the 1855 Reservation still exists.
Prior to Gov. Walz’s administration, the State of Minnesota had taken the position that the 1855 Reservation had been dissolved. However, early this year, Ellison and Walz announced a change in the more than 150-year long held opinion, siding with the Mille Lacs Band.
Thompson went on to say at the June 16 meeting that the County asked in October of last year to meet with Gov. Walz to discuss issues of mutual concern, with the Governor declining the invite.
“For the attorney general and Governor to change position without communicating with the County, especially when the County has expended a great deal of time and effort to research the issue ... information we would have certainly been willing to share with the attorney general and the Governor, underlies the view that this is a political rather than a well-reasoned legal decision,” said Thompson. He added that the MPCA, prior to the Walz administration, had opposed efforts by the EPA to regulate activity within the 1855 Reservation.
“Obviously, the citizens are concerned about what they should do and where they can turn to for relief,” noted Thompson. “The County is involved in a lawsuit that should determine this boundary issue, but in the meantime, what are private citizens to do?”
Thompson suggested three options for property owners in this situation. The first choice, he said, is to acquiesce, which he didn’t recommend. The second suggestion was to file a lawsuit against the MPCA or wait until there is an enforcement by the EPA. He added this could come at a big expense, however. The third option he laid out, stating it was the best choice in his opinion, was for private companies and citizens to apply for their permit with the MPCA, wait until the MPCA refers them to the EPA and file for a permit to the EPA under protest.
“This is what the Band has done with county building permits for a number of years … obtaining permits under protest to preserve their position that they don’t agree that the county has jurisdiction,” said Thompson. “In the same way, by applying for an EPA [permit] under protest, they (a property owner) would be taking the position that they don’t agree that the EPA has jurisdiction, but they also won’t be found in violation of the law or involved with a lawsuit with the EPA.”
Thompson said he is aware of one business that has received such a communication from the MPCA and expects there will be more.
“This is part of the reason why the determination of the boundary issue is so fundamentally important to the citizens of this county,” stated Thompson.
Thompson also stated the Mille Lacs Band had previously applied for “same as State” status under the Clean Water Act, meaning that a tribe, if granted treatment same as a state, can enforce federal environmental law or regulations but that the MPCA opposed this request, and it was not granted. “It appears to be a situation in which eventually the Band will again seek treatment ‘same as State’ and will be regulating authority whether it’s underground storage tank or stormwater permits, etc.,” said Thompson.
Mille Lacs Band’s position
The Mille Lacs Band of Ojibwe Government Affairs also issued a statement regarding permitting jurisdiction stating that the Band acknowledges that the EPA is the appropriate permitting agency.
They added in regards to the assertion of a future “same as State” recognition, “The Band applied for treatment as a state for the UIC program about 30 years ago but then agreed to defer to EPA regulation. It (the Band) has not applied for treatment as a state for any regulatory program since then and has no plans to do so.”
Marc Slonim, Attorney for the Mille Lacs Band, added that the Band’s treatment as a state application for the UIC program was approved. Despite that, the Band entered into a memorandum of understanding with EPA and MPCA providing for EPA regulation. “That MOU has been in place for two or three decades, and no one has been harmed by it,” he said.
Slonim added that this change in permitting does not harm any landowner and also contested the County’s assertion that the State has taken a consistent position on the reservation boundary for 150 years.
“Attorney General Ellison brought needed clarity to inconsistent and ad hoc positions that resulted from political pressure applied by the County and its allies over three decades, a step he took only after being sued by the County Attorney and Sheriff,” said Slonim referring to Court File No. 62-CV-19-8709.
The Messenger reached out to the MPCA asking if a directive was given by Gov. Walz’s administration regarding the distribution of permits. Darin Broton, senior advisor and director of communications responded, “The State of Minnesota recognizes the 61,000-acre reservation boundary of the Mille Lacs Band of Ojibwe. Decisions regarding environmental permits on tribal lands are the jurisdiction of the EPA. When the Attorney General clarified the state’s position, which aligns with the federal government’s longstanding recognition, the MPCA attempted to contact the 27 entities with construction stormwater permits within the boundary. If their construction project was complete, the permittee could choose to terminate the permit. If their project was not complete, the MPCA informed the permittee that they would need to contact the EPA for a permit. Nineteen of 27 permit holders were successfully contacted.”
Though not exhaustive, MPCA issues permits for septic systems (>10,000 GPD), wetlands/water quality (Section 401 Clean Water Act) and National Pollutant Discharge Elimination System (i.e. stormwater, the permit in question in this case). The Minnesota Department of Natural Resources (a state agency) issues permits such as public waters work permits and irrigation wells, along with some other water use/withdrawal activities. The Minnesota Department of Health issues water-supply well permits.
The County issues permits such as septic permits (<10,000 GPD), wetlands permits (Wetland Conservation Act), land use permits (including shoreland, floodplain, etc.), and building permits.
Federally, permits such as wetlands (Section 404 Clean Water Act) and class V injection well permits (a specific type of sewage/non sewage treatment system) are issued.
The EPA was contacted by the Messenger and posed a number of questions. When asked about criteria the EPA uses to determine the existence of a reservation, an EPA spokesperson responded stating, “The term “reservation” is defined at 18 U.S.C. 1151(a). EPA’s longstanding approach is to apply the term “reservation” consistent with that statutory law and any relevant treaties, executive orders, other federal statutes, and case law. Where there are questions regarding a reservation boundary, EPA may consult with relevant stakeholders, including tribes, states, local governments, and other federal agencies, to ensure appropriate implementation of programs under federal environmental statutes. Region 5 EPA directly implements federal programs within Indian reservations in Minnesota, including Mille Lacs reservation.”
When asked to give advice to property owners, the spokesperson said, “The EPA is always willing to discuss permitting with the applicant, states, local governments, and tribes to help ensure an understanding of the proposed project and the appropriate permits needed as well as the process to obtain such permits.”
When asked what involvement an applicable tribe has in such permitting, the spokesperson responded, “Where EPA is the permit issuing authority, it is EPA that renders the permitting decision. EPA engages in tribal consultation where an agency action or decision may affect tribal interests, which can include EPA’s issuance of a permit, but this does not necessitate any formal tribal ‘sign-off.’ EPA’s policy on consultation and coordination with Indian tribes establishes guidelines for the consultation process. Where applicable, EPA considers input received from tribes during the consultation process and explains how their input was considered in EPA’s final action. This feedback is generally provided through formal written communication.”