exceptional. There is no question that White took his additional responsibilities to report on surface pollution problems seriously and discharged them in a professionally respected manner.

    Beasley was notified in February 1995, by a member of the OTC, of complaints by BIA employees and mineral lease operators regarding White. Later that month the OTC EPA committee met to discuss personnel issues, including the complaints against White. Further discussion of the complaints against White took place at the March meeting of the OTC EPA committee. Following that meeting the committee prepared and sent to Beasley a memorandum dated March 15, 1995, instructing her to fire White. White was then called to a meeting with Beasley and Marti Bills (Bills), the personnel director for the Osage Nation, and informed of his termination. Beasley testified that she did not conduct her own investigation into the matter and had no choice but to carry out the termination.

    The grounds recited in the March 15th memorandum of termination were "serious misconduct" and "disloyalty." The memorandum referenced complaints by George Neff of R & N Oil Company, by Paul Hopkins of Marmac Resource Company, by Bill Lynn of Lamamco and by Burl Goad (Goad), as related to the committee by Wakon Redcorn. When Beasley informed White of his termination, she also advised him of his right to invoke the Tribe's grievance procedures. The grievance procedure consisted of a hearing before Beasley and Bills with an appeal to the OTC's EPA committee. White took advantage of the grievance procedure and had a hearing with Beasley and Bills. By letter of April 6, 1995, the termination was upheld. White did not appeal the decision to the OTC's EPA committee.

    The letter of April 6 did not recite any additional grounds for White's dismissal. Although Beasley indicated that in the course of her investigation she uncovered additional grounds for the termination, it is clear from the record that the termination was not motivated by any newly discovered evidence. R. D. and O. at 9.

    The employee protection provision of SDWA provides:

No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has --

    (A) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this

subchapter or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State,

    (B) testified or is about to testify in any such proceeding, or

    (C) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this subchapter.

42 U.S.C. §300j-9(i)(1).

    The question for review is whether White proved by a preponderance of the evidence that the OTC discriminated against him for engaging in activity protected by the SDWA's whistleblower provision. Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11-12, aff'd sub nom. Bechtel Corp. v. U.S. Dep't of Labor, 78 F.3d 352 (8th Cir. 1996). The OTC does not seriously contest the fact that White, in his everyday activities, engaged in protected activity under subsection (C). The very essence of White's job was to monitor and report compliance with the SDWA to a government agency, the EPA. The reports filed by White triggered the SDWA enforcement process at EPA. Reporting violations in the course of one's regular duties is protected activity. Jopson v. Omega Nuclear Diagnostics, Case No. 93-ERA-54, Sec. Dec., Aug. 21, 1995 slip op. at 3. White was clearly discharged by the OTC. Therefore, White has established that he engaged in protected activity and that an adverse action was taken against him.

stated reasons, disloyalty and misconduct, for dismissing White strongly supports the ALJ's finding of pretext.

    The OTC's first complaint of disloyalty and misconduct is contained in a letter dated March 5, 1995 from George Neff (Neff), of R & N Oil Company, to the Osage Mineral Council. Complainant's Exhibit (CX) 2. Neff was a leaseholder on the Osage estate and had been cited for serious violations by White and Sanborn. Neff's company lost a substantial sum of money because of an EPA enforcement action initiated by White. CX 7 and 8. In the letter, which apparently was solicited by the OTC, Neff first thanks the Tribe for the opportunity to assist in the employment dispute with White and then writes:

Your concern for the freedom of operation by the producers in Osage County is very admirable and to ensure their operation are not hindered by the actions of an overzealous EPA employee.

Later in the letter Neff notes his concern, which he had earlier relayed to White, that "EPA was creating many undo hardships on the independent producers . . . ."

    In comparison, the letter's complaints about White's alleged misconduct and disloyalty are, to put it generously, trivial. The essence of those complaints was that White was not particularly friendly, bordering on rude, during his inspection of Neff's well site. Neff further complains that White displayed disloyalty by remarking to him that the recently constituted Osage National Council might more vigorously enforce environmental law than the old Tribal Council. Other evidence in the record cited by the ALJ and available to the OTC put into serious question the completeness and accuracy of Neff's account of White's conduct. The fact that the OTC took these statements of an individual, who clearly had his own ax to grind with White and the EPA, at face value, and acted upon them with haste, strongly supports the ALJ's finding of pretext. R. D. and O. at 41.

    Neff's letter of complaint provides no legal basis upon which a reasonable employer would dismiss a competent employee, and the complaints from Paul Hopkins (Hopkins) of Marmac Resource Company are even flimsier. The gist of Hopkin's complaint is that some of the gauges on wells that White inspected were broken or reinstalled facing the wrong direction. There was no evidence that this was a widespread, costly or serious problem. The letter relied on by the OTC was very short on specifics and did little to establish White's responsibility for the alleged problem. CX 3. As evidenced by the letter which was sent to Sanborn and "cc'd" to the OTC, the dispute was basically between Marmac Resources and the EPA. The OTC's action in relying on this letter in dismissing White, without even investigating its accuracy, buttresses the finding of pretext.

    Next, the OTC cited an alleged instance of White aggressively and vocally confronting Bill Lynn (Lynn) of Lamamco, another leaseholder. This accusation was set out in the March 15th termination memorandum from the OTC to Beasley. CX 13. According to the memo's account of this event, White accused Lynn of advocating running full out production with no controls for protecting the environment. Such confrontational methods by tribal employees, the memo concludes, brings "disrepute to the tribal organization." The Board notes that strained relations between regulators and producers are to be expected. A reasonable person must assume that some tension will exist. In this case the pretextual nature of the OTC's claim is persuasively established by Lynn's testimony that the confrontation never occurred. T. 245-253.

    The remaining instance of alleged misconduct hardly merits comment. The allegation is based on uninvestigated hearsay. For the record, the essence of the complaint is that White told Goad, an agricultural leaseholder on the estate, that he was responsible for cleaning up trash and other debris found in the gullies on his leased property. By informing Goad of his legal duty, White supposedly unnecessarily frightened Goad.

    Neither individually, nor collectively, do the complaints of misconduct and disloyalty provide a believable basis for White's termination. The ALJ's finding of pretext is, therefore, well supported by the record. The pretextual nature of the OTC's stated reasons for discharging White, and the temporal proximity between White's protected activity and OTC's termination decision, constitute sufficient evidence for White to show that he was discharged in violation of the SDWA. In addition, the discriminatory motivation behind the OTC's action is clearly shown by Neff's letter of March 5. In that letter Neff complains bitterly of White's conscientious and vigorous enforcement of the SDWA. It was White's dogged enforcement of the SDWA that distinguished him from the other investigators and singled him out for dismissal in contravention of the employee protection provisions of the law. The Board is convinced of the correctness of the ALJ findings in this regard. R. D. and O. at 41.

    A. TRIBAL IMMUNITY

    Before this Board can find in favor of White, we must grapple with the claim of sovereign immunity raised by the OTC. As the duly elected government of the Osage Nation, the OTC has standing to claim sovereign immunity. Fletcher v. the United States of America, No. 95-5208 (10th Cir. June 10, 1997). It is well settled that Indian Tribes possess the common law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Equally well settled is that the immunity that Indian Tribes enjoy is subject to the superior and plenary control of Congress. Id. at 58. Any waiver of that immunity by Congress cannot be implied but must be unequivocally expressed. Id.

    The issue for the Board then is whether the SDWA contains an express waiver of the OTC's sovereign immunity. We begin our analysis by noting that the SDWA is not silent with regard to its coverage of Indian Tribes. The SDWA's Section 1401, 42 U.S.C. §300f(10), defines "municipality" to include "an Indian Tribe." "Municipality" is in turn included in the definition of "person," under 42 U.S.C. §300f(12), which establishes the parameters of the Act's coverage. Congress, reflecting the national concern for safe drinking water and aware that the conditions that determine the quality of the nation's drinking water supply cannot be confined within traditional governmental boundaries, intended comprehensive national coverage. As the Circuit Court remarked in Phillips Petroleum Company v. United States Environmental Protection Agency, 803 F.2d 545, 553 (10th Cir. 1986):

It is readily apparent from the legislative history that the underground drinking water provisions of the SDWA apply throughout the country, border to border, ocean to ocean.

To find that Congress did not appreciate the full consequence of extending coverage to Indian Tribes would mean, as the Tenth Circuit noted, that Congress intended to leave "vast areas of the nation devoid of protection from groundwater contamination." Id. at 555. The Board finds the Tenth Circuit's reasoning in Phillips persuasive and joins in its judgment that the SDWA covers Indian lands.

    Our analysis does not end here because the Board must still decide whether the SDWA authorizes private whistleblower suits against Indian Tribes. See Oklahoma Tax Commission v. Potawomi Indian, 498 U.S. 505, 509 (1991). On this point the Board finds the Eighth Circuit's decision in Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), very instructive. The issue before the court in Blue Legs was whether language in the Resource Conservation and Recovery Act of 1976 (RCRA), Pub. L. No. 94-580, 90 Stat. 2795, codified at 42 U.S.C. §§6901 et seq., which is in relevant part remarkably similar to the language of the SDWA, authorized suits against Indian Tribes for violations of the RCRA. The Eighth Circuit employed the following logic to find such authorization:

Under the RCRA, citizens are permitted to bring compliance suits "against any person (including (a) the United States and (b) any other governmental instrumentality or agency * * *) who is alleged to be in violation * * *." 42 U.S.C. § 6972 (a)(1)(A) n.2. "Person" is subsequently defined to include municipalities. 42 U.S.C. § 6903(15). Municipalities include "an Indian tribe or authorized tribal organization * * *." 42 U.S.C. § 6903(13)(A). See also House Report, supra note 1, at 37, USCAN 6275

(specific examples of harm to be avoided, including Indian children playing in dumps on reservations); State of Washington Dep't of Ecology v. E.P.A., 752 F.2d 1465, 1469-71 (1985) (RCRA applies to Indian tribes). It thus seems clear that the text and history of the RCRA clearly indicates congressional intent to abrogate the Tribe's sovereign immunity with respect to the violations of the RCRA. (Footnote omitted.)

867 F.2d at 1097.

    Under the SDWA, "any employee who believes that he has been discharged or otherwise discriminated against by any person" may file a complaint with the Department of Labor (emphasis added). 42 U.S.C. §900j-9(i)(2)(A). As noted above, for the purposes of the SDWA, Indian Tribes are persons. Like the Eighth Circuit in Blue Legs, the Board is constrained by the language actually employed by Congress. The OTC would have the Board find that Congress intended, but did not expressly state, that Indians are persons for some purposes of the SDWA, but not for others. Congress does not convey meaning by creative telepathy. Nor will the Board assume Congressional inattention on such an important matter.

    Respondent relies on Phillips to argue that the SDWA is ambiguous in several respects. It is true that Tenth Circuit found that the Act was ambiguous in its use of the term "State." Phillips Petroleum, supr at 803 F.2d 554. The Tenth Circuit resolved that ambiguity against the Tribe, finding EPA jurisdiction over the Osage Mineral Reserve. Id. at 553. Ambiguity in one section of a statute, however, does not suggest, let alone establish, ambiguity in other provisions of the same statute. The Board does not quarrel with the OTC's contention that Congress could have chosen a more direct route in expressly waiving the Tribe's immunity. Why Congress chose to use the definitional provisions rather than separately address the sovereign immunity issue is a question to which the Board does not have an answer. But that does not matter, because the language Congress did use clearly defines tribal organizations under the SDWA as "persons" that are subject to suit for violations of the Act's whistleblower protection provisions. Therefore the Board rejects the OTC's claim of sovereign immunity.

    B. EXHAUSTION OF TRIBAL REMEDIES

    The OTC urges the Board to find that White was required to exhaust his tribal remedies before filing his claim with the Department of Labor. We agree that tribal courts are presumed to have civil jurisdiction over the actions of non-tribal members on reservation lands absent the affirmative limitation of federal treaties and statutes. Iowa Mutual Ins. Co. v. Laplante, 480 U.S. 9, 15 (1987). Our examination of the SDWA leads us to conclude that exhaustion of tribal remedies is not required under that statute. The SDWA invests exclusive jurisdiction in the Department of Labor for violations of its whistleblower protection provisions.

    As the Fifth Circuit has noted, the remedy provided by the SDWA is entirely independent of any other remedy. Greenwald v. City of North Miami Beach, Florida, 587 F.2d 779, 781 (5th Cir. 1979). The SDWA does not require the exhaustion of state or local remedies prior to the filing of a complaint with the Department of Labor. Id. at 781. The SDWA contemplates prompt investigation and enforcement by the Department of Labor in order to assure that aggrieved employees are able to enjoy the protections of the statute. Delay in employment matters can result in the loss of the benefits that the statute seeks to secure. To require exhaustion would disturb the statutory remedies that Congress so carefully crafted. Our decision in this regard is in accord with Blue Legs v. United States Bureau of Indian Affairs, supra at 1097, 1098, which addressed the application of exhaustion in the context of the RCRA, a similar environmental protection statute.

    C. TRIBAL TRUST FUNDS

    Lastly, the OTC challenges the ALJ's R. D. and O. on the ground that it seeks impermissibly to assess a monetary judgment against funds held in trust for individual Osage tribal members by the United States. The Board disagrees. The R. D. and O. is silent with regard to what funds shall be used to satisfy the judgement. The Board expects the OTC to comply with our order using funds that are lawfully available for satisfaction of White's legal claim. Jurisdiction for enforcement of the Board's orders is vested in the United States District Court in which the violation was found to occur. 42 U.S.C. §300j-9(i)(4).

    D. DAMAGES

    Under the SDWA, the Secretary of Labor may award, in addition to reinstatement, back pay and compensatory damages and where appropriate, exemplary damages. 42 U.S.C. §300j-9(i)(2)(B)(ii). Pursuant to this authority, the ALJ awarded White $60,000 in punitive damages. The ALJ considered punitive damages appropriate in light of his finding of "blatant and obvious discrimination" against White. R. D. and O. at 42. Without disagreeing with the ALJ's characterization of the OTC's misconduct in this case, the Board believes in this instance that the purposes of the Act can be served without resort to punitive measures. The Board finds that the OTC was wrongly operating under the assumption that it was not subject to the employee protection provisions under the SDWA. Therefore, the OTC may have felt no need to conform its conduct to the requirements of that portion of the statute. The OTC is now on notice that it must comply. Because the Board fully expects future OTC compliance, we do not believe punitive damages are necessary in this case to deter further violations. Punishing the Osage Nation for the acts of a few of its agents would, in this case, serve no additional purpose. Consequently, the ALJ's recommendation of punitive damages is rejected.

    The Board adopts the ALJ's general recommendation as to Complainant's entitlement to reinstatement, back pay, compensatory damages, fees and expenses. This matter, however, must be remanded to the ALJ to determine the precise amount of back pay, fees and costs incurred to date.

    IT IS HEREBY ORDERED that the Osage Tribal Council reinstate White to his former position with back pay from the time of his termination until his reinstatement and provide him with such other benefits as he would have been entitled to had he not been terminated, subject to his obligation to mitigate damages.

    IT IS FURTHER ORDERED that the Osage Tribal Council pay White compensatory damages in the amount of $40,000.

    IT IS FURTHER ORDERED that the Osage Tribal Council shall expunge from White's personnel records all references to his unlawful termination.

    IT IS FURTHER ORDERED that the Osage Tribal Council reimburse White for costs and expenses, including attorney's fees, reasonably incurred in connection with the bringing of this complaint.

   IT IS FURTHER ORDERED that this matter be remanded to the ALJ for such proceedings as are necessary to determine the precise amount of back pay, attorney's fees and costs to which Complainant is entitled.

    SO ORDERED.

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member

      JOYCE D. MILLER
      Alternate Member