Environmental and Natural Resource Protection


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Tribal Law For Practitioners Muckleshoot Tribal College week 2 lecture

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  • 42 U.S.C. 300j-11(b); 40 C.F.R. 142.10
  • Environmental and Natural Resource Protection

    1. 1. Week 2 Lecture: Environmental and Natural Resource Protection Tribal Law for Practitioners CHNG570-FP Connie Sue Martin (206) 521-6432 cmartin3@antioch.edu
    2. 2. Lecture Overview • Tribal Natural Resources – More than just water and fish! • Role of the Tribe – Regulator, permitting, Trustee, coordination and consultation, citizen, property owner • Source of Authority – Statute, trust obligation, treaty • Case Studies
    3. 3. Natural Resources • Air • Water – Surface Water – Ground Water • Soil • Sediments • Plants • Animals • Fish
    4. 4. Tribal Role • Enforcement Agency • Regulatory/Permitting Agency • Coordination and Consultation • Trust Beneficiary • Property Owner • “Citizen”
    5. 5. Sources of Authority • Inherent Authority • Statutory Authority – Tribal Law – State Law – Federal Law • Reserved Rights • Trust Responsibility • Treaty Rights
    6. 6. Inherent Authority - Tribal Sovereignty • Tribes retain all aspects of their sovereignty except those withdrawn by Congress or inconsistent with overriding federal interests. Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134 (1980).
    7. 7. Inherent Authority - Tribal Sovereignty • Inherent authority to exercise sovereign powers to protect health and welfare of Tribal members • Treaties, federal statutes and executive orders reserving rights of Tribes in lands, waters and natural resources
    8. 8. Inherent Authority - Tribal Sovereignty • Delegation of federal authority under environmental statutes such as CWA, CAA, CERCLA – Tribes afforded “Treatment as State” authority may implement and enforce federal environmental statutes • Tribes may adopt and enforce Tribal resource protection statutes
    9. 9. Tribal Codes • Tribal Superfund Ordinances – Colville Confederated Tribes’ Hazardous Substances Control Ordinance • Tribal Environmental Protection Ordinances – The Confederated Tribes of the Grand Ronde’s Environmental Protection Ordinance – Nisqually Tribe’s Environment and Natural Resources Code
    10. 10. Tribal Codes • Tribal Air Quality Standards – Many tribes are monitoring their air for a variety of pollutants, from ozone and particulate matter, to mercury and acid rain, as well as developing emission inventories. – Some tribes have been approved to implement CAA provisions and are developing TIPs to address violations of air quality standards; may obtain approval to run ongoing programs in the near future. – Other tribes are developing operating permit programs for both major and minor sources of air pollution on the reservation.
    11. 11. Tribal Codes • Tribal Water Quality Standards (EPA Region X) – Confederated Tribes of the Chehalis Reservation Federal Water Quality Standards Regulations for the Confederated Tribes of the Colville Reservation (40 CFR 131.35) – Confederated Tribes of the Umatilla Indian Reservation of Oregon Water Quality Standards – Confederated Tribes of the Warm Springs Indian Reservation of Oregon Water Quality Standards
    12. 12. Tribal Codes • Tribal Water Quality Standards (EPA Region X) – Kalispel Indian Community of the Kalispel Reservation Water Quality Standards – Makah Tribe Water Quality Standards for Surface Waters – Port Gamble S'Klallam Tribe Water Quality Standards Puyallup Tribe of Indians Water Quality Standards – Spokane Tribe of Indians Water Quality Standards
    13. 13. Inherent Authority - Tribal Sovereignty • State and federal statutes may provide role for Tribe – Mandatory coordination and consultation – Review and comment • Government-to-Government Relationships
    14. 14. 1984 EPA Indian Policy • Recognition of tribal governments as entities with primary authority for setting standards, making environmental policy decisions, and managing programs for reservations
    15. 15. Regulatory Authority • Tribes have criminal and civil jurisdiction over Tribal members on the Reservation • Tribes have civil jurisdiction over Trust lands and lands held in fee by Tribal members
    16. 16. Regulatory Authority • Tribes may have civil jurisdiction over non-members on the Reservation and fee land owned by non-members (express delegation, consensual relationship, or matters affecting Tribal health, welfare, and sovereignty) – Montana test
    17. 17. Regulatory Authority Derived From Federal Law • Safe Drinking Water Act (SDWA) • Clean Water Act (CWA) • Clean Air Act (CAA) • Comprehensive Environmental Response, Liability and Compensation Act (CERCLA) • Oil Pollution Act of 1990 (OPA)
    18. 18. Treatment as State Requirements • Proof that the Tribe is recognized by the Secretary of the Interior • Proof that the Tribe has a governing body capable of carrying out substantial governmental powers over defined area • Proof that the Tribe has jurisdiction over the program area and is capable of administering the program
    19. 19. EPA’s TAS Policy • EPA will not deny a tribe's TAS application. Instead, EPA works with tribes to ensure that all of the information necessary for EPA to grant a tribe's TAS application is developed and submitted. Consistent with its general policy, EPA has never disapproved a TAS application.
    20. 20. Safe Drinking Water Act • 42 U.S.C. § 300 et. seq. • First federal environmental law to authorize the administer of EPA to treat Indian Tribes as states • EPA generally will not delegate SDWA programs to states for implementation on Indian lands
    21. 21. Clean Water Act • Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et. seq. • Development of water quality standards (“WQS”) provides foundation for enforceable pollution control measures • Water quality standards promulgated by states and approved by EPA not legally enforceable on Indian reservation
    22. 22. Clean Water Act • TAS Delegations under CWA programs – water quality standards and implementation plans, CWA § 303; – water quality certification for federal permits or licenses, CWA § 401; – permitting under the National Pollutant Discharge Elimination System (NPDES) program, CWA § 402; – permitting for discharges of dredged or fill material, CWA § 404.
    23. 23. Clean Water Act • Tribes with authority under CWA § 401 are the entities from which certifications must be sought for projects requiring a federal license or permit to conduct any activity that may result in any discharge to navigable waters over which the tribe has jurisdiction.
    24. 24. Clean Water Act • Federal or Tribal WQS needed to give force and effect to CWA on reservation • More stringent Tribal WQSs may be imposed on off-reservation, upstream discharge point sources. City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied 118 S.Ct. 410 (1997)
    25. 25. Clean Air Act • 42 U.S.C. § 7401 et. seq. • 1990 amendments to CAA expanded regulatory authority of federally recognized Tribes over air pollution • Amendments authorized EPA to treat Tribes as states and provide with grants and technical assistance to carry out functions specified in CAA
    26. 26. CERCLA/SARA • Imposes liability for clean-up costs and other response and/ or remediation costs upon owners or operators of facilities and sites from which a release of hazardous substances has occurred. – Liability is strict (without regard for fault) – Liability is joint and several – Liability is based on status (owner, operator, generator, arranger, transporter)
    27. 27. CERCLA/SARA • Primary focus is the clean-up of abandoned or uncontrolled sites (not regulation of sites or facilities that have ongoing operations • Two tracks – Remediation (clean-up) – Restoration (natural resource damages)
    28. 28. CERCLA/SARA • 1986 SARA legislation expanded role of Tribes in both cleanup and natural resource damage actions. 42 U.S.C. § 9601 et. seq. • Generally, governing body of Tribe afforded substantially the same treatment as states with respect to many provisions of CERCLA
    29. 29. CERCLA/SARA • Tribes may directly or indirectly enforce under CERCLA: – Directly: carry out response and federal enforcement actions under a cooperative agreement – Indirectly: through EPA’s selection of Tribal air/water/soil/sediment standards as cleanup standards
    30. 30. Oil Pollution Prevention Act • 1990 Act authorizes federally recognized Tribes to participate in and be reimbursed for oil spill response cleanup actions, NRDAR actions • Established special procedure for Alaska Native Corps. or villages to bring damage claims (consequence of Exxon Valdez spill and litigation)
    31. 31. Natural Resource Damages • CERCLA/SARA and OPA identify Tribe as Natural Resource Trustee • Permit recovery by Tribes for injury to or loss of natural resources “belonging to, managed by, controlled by, or appertaining to” a Tribe, caused by release of hazardous substances or oil spill
    32. 32. Federal Power Act • Governs the Federal Energy Regulatory Commission’s (FERC's) licensing and relicensing of non-federal hydropower dams • Requires FERC to give equal consideration to fish and wildlife protection in its licensing decisions
    33. 33. Federal Power Act • Under Section 18, resource agencies may prescribe a facility for fish passage (such as a fish ladder or a trapping site), operation and maintenance of the facility, and any other conditions necessary to ensure effective passage
    34. 34. Federal Power Act • Under Section 10(a)(1), a project must serve the public interest in a river basin, not just the licensee's interest in power generation, and license must ensure that the project is best adapted to a comprehensive plan for improving or developing the waterway and for other beneficial public uses (irrigation, flood control, water supply, recreational)
    35. 35. Federal Power Act • Section 4(e) provides that a license issued for projects within federal lands may be issued only subject to conditions deemed necessary to protect and utilize the lands by the agency with jurisdiction over such lands. • Conditions are mandatory if FERC decides to issue license
    36. 36. Federal Power Act • Interior’s authority to impose conditions to protect the reservation extends to conditions intended to mitigate the impact of the entire project on the Tribe and its fishery. • So long as some portion of the project is on the reservation, Interior may impose any conditions it deems necessary to protect the entire reservation
    37. 37. Religious Freedom Restoration Act • Government cannot “substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless it “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
    38. 38. Religious Freedom Restoration Act • Under RFRA, a “substantial burden” is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit, or are coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.
    39. 39. Religious Freedom Restoration Act • Tribes have used RFRA to try and prevent the federal government from issuing permits or allowing uses of federal lands that would impact religious practices
    40. 40. Trust Obligation • Federal government holds title to significant portions of Reservation lands, in trust for the benefit of the Tribe • Creates a fiduciary obligation owed by the federal government to the Tribe to protect or enhance Tribal assets (economic, natural, human or cultural)
    41. 41. Trust Obligation • Imposes fiduciary standards on the conduct of the Executive, carried out through executive agencies – Act with care and loyalty – Make trust property income productive – Enforce reasonable claims on behalf of Indians – Take affirmative actions to preserve trust property
    42. 42. Trust Obligation • Any federal government action is subject to the United States’ fiduciary responsibility to Tribes. Nance v. EPA, 645 F.2d at 711 (9th Cir.), cert denied, 454 U.S. 1081 (1981)
    43. 43. Trust Obligation • Injunctive order issued enjoining construction of marina that would have eliminated a portion of one of the usual and accustomed fishing areas of Muckleshoot Indian Tribe and Suquamish Indian Tribe. Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1505 (W.D. Wash. 1988)
    44. 44. Trust Obligation • Corps of Engineers denied permit to develop fish farm in Puget Sound where net pens placed in Rosario Strait would conflict with the Lummi Nation’s fishing rights at one of its usual and accustomed fishing places. Northwest Sea Farms, Inc. v. United States Army Corps of Engineers, 931 F. Supp. 1515 (W.D. Wash. 1996)
    45. 45. Northwest Sea Farms • Project proponent argued that Corps regulations did not authorize consideration of Tribal fishing rights; • Court held that “in carrying out its fiduciary duty, it is the government’s, and subsequently the Corps’, responsibility to ensure that Indian treaty rights are given full effect.”
    46. 46. Northwest Sea Farms • “It is this fiduciary duty, rather than any express regulatory provision, which mandates that the Corps take treaty rights into consideration [when making permitting decisions].” 931 F. Supp. at 1520
    47. 47. Treaty Rights • “To the great advantage of the people of the United States. . . Congress chose treaties rather than conquests as the means to acquire vast Indian lands.” United States v. Washington, 384 F. Supp. 312, 330 (W.D. Wash. 1974)
    48. 48. Treaty Rights • A treaty between the United States and an Indian tribe is essentially a contract between two sovereign nations. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675, 99 S. Ct. 3055, 61 L.Ed.2d 823 (1979).
    49. 49. Treaty Rights • Art. VI, cl. 2 of the Constitution provides that the “Constitution . . . of the United States . . . and all Treaties made . . . Under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary Notwithstanding.”
    50. 50. Treaty Rights • Only Congress has the authority to modify or abrogate the terms of Indian treaties. United States v. Eberhardt, 789 F.2d 1354, 1361 (9th Cir. 1986)
    51. 51. Treaty Rights • Treaties did not give rights to Tribes, they preserved rights the Tribes already possessed. In exchange for ceding land and resources and relocating to reservations, Tribes were reserved the right to hunt, fish, farm, etc. in designated locations.
    52. 52. Reserved Rights • Treaties may reserve to Tribes certain rights to the use or taking of land, water, and other resources (e.g., fish, elk, plants) • Executive Orders or statutes also may reserve to Tribes certain rights to the use or taking of land, water, and other resources
    53. 53. Reserved Water Rights • “The establishment of an Indian Reservation implies a right to sufficient unappropriated water to accomplish its purpose.” Winters v. United States, 207 U.S. 564 (1908)
    54. 54. Reserved Water Rights • Priority of water right for aboriginal uses is “time immemorial.” U.S. v. Adair, 723 F.2d 1394 (9th Cir. 1983) • Priority for other uses is date of Treaty, statute or Executive Order establishing reservation. Winters v. United States, 207 U.S. 564 (1908)
    55. 55. Reserved Water Rights • Reserved water rights are not subject to abandonment or forfeiture for non-use. • Tribe is entitled to use water for any lawful purpose. U.S. v. Anderson, 736 F.2d 1358 (9th Cir. 1984)
    56. 56. Reserved Water Rights • Although typically characterized in terms of rights to surface water, federal reserved water rights apply to ground water to the extent surface water is inadequate to fulfill the purpose of the reservation. In re General Adjudication of All Rights to Use Water in the Gila River System and Source, 989 P.2d 739 (Ariz. 1999)
    57. 57. Reserved Water Rights • Reserved water right protects the water quality for intended beneficial use. United States v. Gila Valley Irrigation District, 920 F. Supp. 1444 (D. Ariz. 1996), affirmed 117 F.3d 425 (9th Cir. 1997)
    58. 58. Reserved Fishing Rights • Treaty Tribes entitled to half of harvestable surplus of salmon and steelhead in Western Washington under 1850s treaties U.S. v. Washington, 520 F.2d 676 (9th Cir. 1975) (Boldt I) • Treaty rights extend to protection of fisheries habitat. U.S. v. Washington, 590 F. Supp. 187 (W.D. Wash. 1980) (Boldt II)
    59. 59. Reserved Fishing Rights • Treaty rights may require certain instream flow be maintained outside the boundaries of an Indian reservation for the protection of fish subject to harvest under a treaty right. Kittitas Reclamation District v. Sunnyside Irrigation District, 763 F.2d 1032 (9th Cir. 1982)
    60. 60. Reserved Fishing Rights • Treaty rights may require certain instream flow be maintained outside the boundaries of an Indian reservation for the protection of fish subject to harvest under a treaty right. Kittitas Reclamation District v. Sunnyside Irrigation District, 763 F.2d 1032 (9th Cir. 1982)
    61. 61. Case Studies
    62. 62. Case Studies • Understand how the law applies to actual cases and controversies • Understand how the best laid plans may be brought to ruin, now matter how great a case is • Weighing the costs and benefits – even the ones you cannot anticipate
    63. 63. CERCLA
    64. 64. Pakootas v. Teck Cominco • Issues Faced by Colville Tribe in 1998 – Metal contamination of the bed, banks and shorelands of the Upper Columbia River, attributable to nearly a century of discharges to the river north of the Canadian border – Unknown risks to the health of tribal members and residents of the reservation – Impacts to reservation resources – Years of inaction by state and federal agencies
    65. 65. Upper Columbia River Basin
    66. 66. Complexities • 2 countries • 3 states • 2 Indian reservations • 3 federal agencies (BPA, BOR, Corps) • Competing domestic interests on the river: power, irrigation, flood control, recreation, fisheries, industry, traditional practices
    67. 67. Contaminants of Concern • Metals including: – Arsenic – Mercury – Cadmium – Copper – Lead – Zinc • Organochlorines including: – PCB’s – Dioxins – Furans
    68. 68. Teck Cominco Smelter, Trail BC ARSENIC
    69. 69. Teck Cominco Smelter, Trail BC ARSENIC COPPER
    70. 70. Teck Cominco Smelter, Trail BC ARSENIC COPPER LEAD
    71. 71. Teck Cominco Smelter, Trail BC ARSENIC COPPER LEAD ZINC
    72. 72. Teck Cominco Smelter, Trail BC ARSENIC COPPER LEAD ZINC CADMIUM
    73. 73. Teck Cominco Smelter, Trail BC ARSENIC COPPER LEAD ZINC CADMIUM MERCURY
    74. 74. The Marker: SLAG
    75. 75. The Marker: SLAG
    76. 76. Canadian Sources Teck Cominco: • Largest lead-zinc smelter in the world • Dumped several hundred tons of toxic slag into the Columbia every day for nearly 100 years Cominco 1981
    77. 77. Canadian Sources Teck Cominco: • Still exceeds water quality standards • Metals and effluent • Historic air emissions Cominco 1981
    78. 78. Canadian Sources • Tall smokestacks historically allowed toxic emissions to travel well into the U.S.
    79. 79. Potential Sources of Relief • International law • Foreign (Canadian) law • Tribal law • Domestic (US federal) law
    80. 80. International Law • Treaties • North American free trade agreement (NAFTA) • North American Agreement on Environmental Cooperation
    81. 81. International Law: Treaties • Boundary Waters Treaty • Columbia River Treaty – Treaties may form basis for submission to International Joint Commission (IJC) for investigation and monitoring – Tribes’ request would have to be submitted to the IJC by the U.S. Government – IJC can make recommendations to two nation-states (U.S. and Canada) to help them meet their commitment not to pollute
    82. 82. International Law: Treaties • Problems with IJC Submission – Tribes’ request would have to be submitted to the IJC by U.S. Government – IJC makes advisory recommendations ONLY – No enforcement mechanism – No appeal mechanism
    83. 83. The Trail Smelter Case • Sulfur dioxide emissions in period 1924 - 1926 increased from 4700 tons/month to 10,000 tons/month • Claims for damages in Stevens County, WA submitted to IJC in 1926 – IJC Determined that no damage had occurred after 1938, – Claims paid to Stevens County property owners in 1939 – IJC “ordered” implementation of control measures in 1941
    84. 84. The Trail Smelter Case • IJC did issue a key policy statement: – “No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes or to the territory of another or the property or persons therein . . .When the case is of serious consequences and the injury is established by the clear and convincing evidence . . . The dominion of Canada is responsible in international law for the conduct of the Trail Smelter. . . “
    85. 85. North American Free Trade Agreement • U.S., Canada, Mexico • Comprehensive dispute resolution mechanism – Participant nation must initiate dispute resolution process – Anticipates settlement early in process
    86. 86. North American Free Trade Agreement • NAFTA issues are primarily trade related – Investment provisions (chapter 11) – Anti-dumping (chapter 19) – Interpretation or application of NAFTA (chapter 20) – Financial services (chapter 14)
    87. 87. North American Free Trade Agreement • Environmental side agreement, North American Agreement on Environmental Cooperation – U.S., Canada, Mexico – Created Commission for Environmental Cooperation (CEC)
    88. 88. North American Free Trade Agreement • Article 1114 of NAFTA provides for consultation with CEC where there is an allegation of a waiver or derogation from environmental measure as encouragement to establish, acquire, expand or retain investment
    89. 89. North American Free Trade Agreement • Secretariat of CEC accepts petition asserting that a participating gov’t is failing to enforce its environmental law effectively • Petition may be submitted by private individual or non-gov’tal organization • If petition is accepted, CEC develops factual record on matter
    90. 90. North American Free Trade Agreement • Once record is complete, Council of Environmental Ministers may, by two- thirds vote, make final factual record publicly available
    91. 91. North American Free Trade Agreement • If no settlement reached, dispute heard by independent panel of arbitrators • Panel makes findings based on expert reports and submissions of interested nations • Panel issues non-binding recommendations • Initiating nation may impose trade sanctions if harm not abated
    92. 92. North American Free Trade Agreement • No enforcement mechanism • Relies on public scrutiny to coerce non-complying government to enforce its environmental laws
    93. 93. BC Hydro • Submitted to CEC by a coalition – BC Aboriginal Fisheries Comm. – BC Wildlife Federation – Trail Wildlife Assoc. – Steelhead Society – Trout Unlimited – Sierra Club – Pacific Coast Fed. Of Fishermen – Institute for Fisheries Resources
    94. 94. BC Hydro • Submitted 4/2/97 • 4/4/97 “unofficial” reply of concerned governmental party: – “These kinds of things take place from time to time in the environmental community. The best attitude one should take . . . is to completely ignore them.” – “Disturbed by the “intrusion” of the trilateral body into BC’s affairs”
    95. 95. BC Hydro • 4/4/97 “unofficial” reply of concerned governmental party: – Attacked “the propensity that some people have to want to go into other people’s backyards and tell them how they should behave,” calling it “somewhat offensive.” – “We don’t make a habit of doing that within the United States and I don’t know why some people feel they have to do it here.”
    96. 96. BC Hydro • Official response of concerned gov’t party 7/21/97 • Council voted to establish factual record 6/24/98 • Draft factual record submitted to council 3/28/00 • Comments from nations 5/11/00 • Council voted to make public 6/11/00
    97. 97. Conclusions re: International Law • Drawn-out, long-term process • Process-oriented more than results- oriented • No enforcement mechanism • Limited utility in most circumstances
    98. 98. Canadian Law • Canadian Environmental Protection Act – Pollution prevention as preferred means of environmental protection • Fisheries Act – Enforcement actions to prevent harm to fish and fish habitat – Regulate discharge of deleterious substances • Freedom of Information and Protection of Privacy Act (FOIPPA)
    99. 99. Canadian Law • Federal, Provincial and Territorial governments share responsibility for protection and management of environment • Environment Canada (EC) has lead responsibility for environmental protection – Enforcement of air, water and toxics regulations under 1999 revisions to CEPA – Regulation of effluents under pollution prevention provisions of Fisheries Act
    100. 100. Canadian Law • Provinces and territories – Responsible for evaluating, authorizing and verifying industrial activities • Regulate use of ground/surface water • Regulate generation, transfer and disposal of solid and liquid waste – Responsible for managing wildlife within respective boundaries
    101. 101. Canadian Law • Regulatory enforcement – Discretion of the government – Provincial environmental ministries industry- friendly – Regulators may be former employees of entities they now regulate – No trust relationship with tribes
    102. 102. Canadian Law • Private litigation – Must establish violation of Canadian law – Costly – Time-consuming – Hometown advantage to Canadian entity – “Company town” effect pervades province – Teck Cominco’s take-no-prisoners approach to dealing with critics
    103. 103. Tribal Law • Regulatory issues – Reservation boundaries constitute exterior bounds of legislative authority • Jurisdictional issues – Nevada v. Hicks – US v. Montana • Enforcement of judgments
    104. 104. Tribal Law • Nevada v. Hicks prohibits suit in Tribal court against Canadian entity alleging state and federal claims • A judgment based on Tribal law claims would be unenforceable in federal court or Canada
    105. 105. Domestic (US) Law • Federal law – NEPA – CWA – CERCLA • Questions – Who to sue? – Where to sue? – How to commence (notice, service) – Can we get an enforceable judgment?
    106. 106. Federal Law • NEPA – Requires an EIS for major federal actions that significantly affect the quality of the human environment – Subject to judicial review under the administrative procedure act
    107. 107. NEPA • EIS conducted for system operating plan (SOP) • EIS failed to consider – Results of USGS sediment studies of Lake Roosevelt – Fugitive emissions of contaminants during dust storms caused by draw-downs
    108. 108. Clean Water Act • Sets up a system of water quality standards (WQS), discharge limitations, and a permit process • Noncompliance with WQS subjects permittee to enforcement action and citizen suits
    109. 109. Clean Water Act • National Wildlife Federation v. Army Corps of Engineers : Corps must address compliance with CWA in 1995, 1998 RODs for dam operations on the Snake River • Federal dam operators must insure that operations do not violate state and Tribal WQS
    110. 110. CERCLA • Strict liability statute • Joint and several liability • “Status” liability – Current and former owners – Current and former operators – Arrangers – Transporters
    111. 111. CERCLA • EPA enforcement mechanisms: – Issue cleanup order – Clean up site and institute cost recovery action • Cost recovery by private parties – §107(a)(4)(b) private cost recovery actions – §113(f) contribution actions • Citizen Suits – §310(a)(1) and (2)
    112. 112. CERCLA • Preliminary Assessment – Any person may petition the EPA to conduct a preliminary assessment of a site or sites affected by a release or threatened release of hazardous substances under §105(d) – Investigation may lead to listing decision, enforcement
    113. 113. CERCLA • Natural Resource Damage Assessment & Restoration – United States, states and Tribes are natural resource trustees – Recover damages for harm to natural resources owned by, managed by, appertain to or (in case of Tribes) held in trust for Trustee – Does not have to be a site listed on NPL
    114. 114. Natural Resource Damage Claim • Problems presented by Upper Columbia River – Scope of potential site – Resistance to timing – Trustee who is also a PRP
    115. 115. CERCLA Strategy • Organize Trustees, begin NRDA process • Politely ask EPA and/or Ecology to investigate • Get site listed on NPL – EPA will identify and establish liability of PRPs – Statute of limitations problems will be cured with listing – Superfund-financed cleanup
    116. 116. CERCLA Strategy • Petition for a preliminary assessment of entire river from Grand Coulee Dam to Canadian Border under §105(d) • Force EPA to investigate • Get EPA to take enforcement action – Issued Unilateral Administrative Order to Teck Cominco in December 2003
    117. 117. CERCLA Strategy • What do you do when nothing happens? • Who do we sue? – EPA? • §310(a)(2): Failure to perform a non-discretionary duty under CERCLA • Prosecutorial discretion – Teck Cominco? • §310(a)(1): against any person alleged to be in violation of any . . . order . . .
    118. 118. Modified CERCLA Strategy • File a Citizen Suit to compel Teck Cominco to comply with UAO • Attorney fees to prevailing citizen • Penalties to United States Treasury • DOJ intervenes and prosecutes case
    119. 119. Modified CERCLA Strategy • File a Citizen Suit to compel Teck Cominco to comply with UAO • Attorney fees to prevailing citizen • Penalties to United States Treasury • State intervenes • Spokane Tribe supports
    120. 120. Unexpected Complications • Amicus Parties • Diplomacy • Politics • Court: “What about the U.S.? What does it have to say?”
    121. 121. Problems • What do you mean, we can’t enforce an order granting injunctive relief? • The appeal – Expense – Maintaining relationships over the course of time, despite turnover • Parties • Attorneys – Maintaining momentum, political will
    122. 122. Outcome • Pakootas and Michel prevailed at District Court, affirmed by 9th Circuit Court of Appeals – Teck and EPA reach agreement • Teck petitioned for certiorari • Remanded to District Court – Fee award – Tribe cannot be liable under CERCLA
    123. 123. Yakama v. United States • Hanford Nuclear Reservation Natural Resource Damage litigation • Yakama Tribe filed suit against U.S., DOE, and DOD seeking past and future response costs, a declaratory judgment of liability for NRD assessment costs, natural resource damages, and an order compelling the US to adequately assess the risk posed to tribal members
    124. 124. Yakama v. United States • State of Washington and the Nez Perce Tribe intervened, followed in July 2006 by the state of Oregon and the Umatilla Tribe. • At issue: whether NRD Trustees could collect costs of NRD assessments as they accrued, like a cost recovery action
    125. 125. Yakama v. United States • Answer: YES. natural resource trustee may secure a declaratory judgment of liability for injury assessment costs after the first assessment dollar has been spent, and thereafter periodically recover costs incurred as the assessment proceeds.
    126. 126. Yakama v. United States • Significance? – NRD Trustees can force PRPs to finance the costs of assessment, instead of bearing the costs until after a trial. Tactical advantage to Trustees. – Another example of a Tribe acting where the federal government has failed to
    127. 127. U.S. v. Newmont USA Limited • Midnite Uranium Mine Superfund site on Spokane Indian Reservation • Involves Tribal trust land as well as individual allotments • U.S. conducted removal action and remedial investigation, sued PRPs to recover costs
    128. 128. U.S. v. Newmont USA Limited • PRPs counterclaimed against allotment owners and against U.S. based on trust status of property, BIA approval of leases • U.S. argued it only held “bare title” to the land as trustee for the Spokane Tribe and individual tribal members, did not possess traditional property interest nor sufficient “indicia of ownership,” to give rise to owner liability under CERCLA.
    129. 129. U.S. v. Newmont USA Limited • “When the court asks the “key question” in the “indicia of ownership” analysis – ‘whether the fiduciary could have affected the disposal of the hazardous wastes on the subject property,’ . . . the answer must be ‘yes,’ the United States had the authority to prevent the very contamination for which it brings this action.”
    130. 130. U.S. v. Newmont USA Limited • Key to Court’s ownership analysis – federal government’s involvement in the mining leases and its exercise of the authority over the land provided in the leases and codified in statute and regulation; – the fiduciary obligations of the United States arising from its general trust responsibilities and the more specific responsibilities owed to the Tribe under the Indian Mineral Leasing Act and its implementing regulations.
    131. 131. U.S. v. Newmont USA Limited • Significance: first case in which the United States has been held liable as an “owner” under CERCLA when acting in its capacity as a trustee of leased Indian lands.
    132. 132. FPA
    133. 133. Klamath • Historically, Klamath Basin was the third most productive salmon river system on the west coast. • Runs contributed to substantial commercial, recreational, subsistence, and Tribal subsistence harvests. • Dams have blocked or impeded access to approximately 400 miles of historic habitats since 1918.
    134. 134. Klamath • Tribal members have traced the decline in the river’s chinook salmon, lamprey eel and candlefish populations to the dramatic decline in water quality on the Klamath in recent years caused by the dams.
    135. 135. Klamath • Tribes throughout the Klamath basin have treaty rights to fish salmon, but lower basin tribes have had to drastically reduce their catch to protect the salmon runs, and upper basin tribes have not seen salmon in their waters for nearly 100 years.
    136. 136. Klamath • Relicensing of Klamath River Dams commenced 2001 • NMFS and FWS issued FPA Section 18 fishways prescriptions requiring fish passage on all dams, Section 4(e) conditions that would increase river flows • PacifiCorp claims will cost $28 million more per year than projected revenue to comply
    137. 137. Klamath • Fish passage past the Klamath Project would restore hundreds of miles of significant habitat in the Klamath Basin for four anadromous species, three listed species, and several resident species of economically and ecologically important fish.
    138. 138. Klamath • Members of the Hoopa Valley, Yurok, Karuk, Quartz Valley, Winnemem Wintu and Miwok Tribes, recreational anglers, commercial fishermen, and environmental activists came together to oppose PacifiCorp’s application for a Section 401 clean water permit needed to relicense its dams. • Advocating removal of dams
    139. 139. Klamath • Competing interests in Klamath Basin – Power • PacifiCorp’s profits • Oregon and California ratepayers – Water for irrigation – Water for recreational uses – Treaty rights – Reserved water rights – Salmon
    140. 140. Klamath • Settlement pits those competing interests against one another • Tribal interests are not aligned – sticking point is whether tribal water rights should be “sold” • PR campaign paints Tribes in bad light
    141. 141. RFRA
    142. 142. Navajo Nation v. U.S. • San Francisco Peaks are the most sacred place of both the Navajo and the Hopi and the tribes’ religions have revolved around the Peaks for centuries. • Tribes’ religious practices require pure natural resources from the Peaks, including, in particular, spring water.
    143. 143. Navajo Nation v. U.S. • The Arizona Snowbowl is a privately- owned ski area situated in the Coconino National Forest, on the Peaks, operated under a 777-acre Forest Service Special Use Permit. • Located in a desert, inconsistent annual snowfall which has led to a sporadic operating seasons and corresponding fluctuations in annual visitation.
    144. 144. Navajo Nation v. U.S. • Forest Service approved Snowbowl expansion in 2005 which included proposal to make artificial snow using treated sewage effluent from Flagstaff. • Depending on volume of natural snowfall in a given season, substantially more than 100 million gallons of effluent could be deposited on the Peaks over the course of the ski season.
    145. 145. Navajo Nation v. U.S. • Tribes sued Forest Service under RFRA – use of reclaimed water would prevent them from performing particular ceremonies, because resources from the Peaks would be too contaminated for sacramental use; – practices require a connection to the mountain and/or a belief in the mountain’s purity, both of which would be undermined by the contamination
    146. 146. Navajo Nation v. U.S. • Tribes prevailed at 9th Circuit, called decision a “landmark ruling” and a “victory for religious freedom, environmental justice, & cultural survival.” • An attorney for the tribes noted the significance of the decision as a basis for other tribes, across the country, to help protect religious and culturally significant sites.
    147. 147. Navajo Nation v. U.S. • Snowbowl sought rehearing en banc, court REVERSED – RFRA comes into play only when the government forces people to violate their beliefs under the threat of punishment, or forces people to choose between following the tenets of their religions or receiving a government benefit, neither condition was demonstrated by the tribes
    148. 148. Navajo Nation v. U.S. – Tribes can continue to access the San Francisco Peaks for prayers, ceremonies and other activities despite the presence of recycled snow – artificial snow merely impacts the tribes' "feelings" about their religion and the "fervor" in which tribal members practice their religion. • Supreme Court denied certiorari
    149. 149. Snoqualmie Tribe v. FERC • Puget Sound Energy relicensing of Snoqualmie River under FPA • Tribe challenged FERC's renewal of license for a power plant at the sacred Snoqualmie Falls on grounds it violated RFRA
    150. 150. Snoqualmie Tribe v. FERC • Relying on Navajo Nation v. U.S., 9th Circuit held that FERC did not violate the religious rights of the Tribe • operation of the power plant won't cause tribal members to violate their religious beliefs or bar them from accessing the site
    151. 151. Treaty Rights
    152. 152. Stevens Treaties • In less than one year between 1854 and 1855 Isaac I. Stevens “negotiated” eleven different treaties, each with several tribes, at various places distant from each other. – Treaty of Medicine Creek (1854) – Treaty of Point Elliott (January 22, 1855)
    153. 153. Stevens Treaties • Written in English • Translated by a U.S. interpreter using Chinook Jargon, which was unknown to some Tribal Representatives • Jargon had only about 300 words, capable of conveying only rudimentary concepts
    154. 154. Stevens Treaties • Most of the treaties negotiated by Stevens contain this language: – The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory, and of erecting temporary houses for the purposes of curing. . .
    155. 155. U.S. v. Washington • Long running dispute originally filed in 1970, between Indian tribes and the State of Washington concerning Indian treaty rights under the Stevens Treaties • Spawned the historic Boldt and Boldt II decisions, named for the federal district court judge who decided them, Judge George Boldt.
    156. 156. U.S. v. Washington • Boldt (1974): The fishing clause in six of the Stevens Treaties entitled the tribes to a specific allocation of the salmon and steelhead trout in the treaty area. • On appeal, Supreme Court affirmed, holding that the tribes were entitled to the lesser of 50% of the “harvestable” fish or a sufficient quantity to provide them with a “moderate standard of living.”
    157. 157. U.S. v. Washington • Boldt II (1980): inherent in the tribes’ treaty right to fish was the right to have treaty fish protected from environmental degradation; imposed a duty on the state to refrain from degrading fish habitat to an extent that would deprive the tribes of their “moderate living needs” • Vacated by 9th Circuit on appeal
    158. 158. U.S. v. Washington • Ninth Circuit affirmed the conclusion that the state and tribes each had an obligation “to take reasonable steps commensurate with their resources and abilities to preserve and enhance the fishery when their projects threaten then- existing levels,”
    159. 159. U.S. v. Washington • Declaratory judgment not appropriate yet because court was not presented with specific act or omission of state’s that violated duty of preservation and enhancement of the fishery for which a remedy could be fashioned
    160. 160. Court’s Ongoing Jurisdiction • District court retained jurisdiction over the case, ongoing active case with subproceedings to resolve disputes over exercise of treaty rights • Does not include inter-tribal disputes over allocation of resources • Different dispute resolution procedures for fin fish and shellfish
    161. 161. The Culvert Case • In 2001, the tribes filed a Request for Determination, seeking a determination that state was violating treaties by maintaining culverts that blocked or hindered fish passage which left the tribes unable to sustain themselves by fishing • United States joined the proceeding, supporting the position of the tribes.
    162. 162. The Culvert Case • State’s position: – no evidence that blocked culverts diminished the number of fish that were available to the tribes – tribes were seeking “an implied servitude” that would burden all property – public and private – with a prohibition against impairing the Tribes’ ability to earn a ‘moderate living’ from fishing”
    163. 163. The Culvert Case • State’s position: – “The Tribes’ claim, carried to its logical conclusion, [will] give them a right to … control all future land management decisions in the United States v. Washington case area.”
    164. 164. The Culvert Case • The decision on liability (2007): – State’s own motion conceded that many of the culverts owned or maintained by the state block fish passage. – Tribes had “produced evidence of greatly diminished fish runs,” and while there may be other contributing causes, “the conclusion is inescapable … those blocked culverts are responsible for the diminishment.”
    165. 165. The Culvert Case • The decision on liability (2007): – Fundamental question: Does the tribes’ treaty-based right of taking fish impose a duty upon the state to refrain from diminishing fish runs by constructing or maintaining culverts that block fish passage?
    166. 166. The Culvert Case • The decision on liability (2007): – Answer: Yes. • Duty does not create a broad equitable environmental servitude, or affirmative obligation to take all possible steps to protect fish runs. • Duty is “a narrow directive to refrain from impeding fish in one specific manner” that “arises directly from the right of taking fish that was assured to the Tribes in the Treaties …”
    167. 167. The Culvert Case • The decision on liability (2007): – State currently owns and operates 1200 culverts that violate its duty, further proceedings required “to determine an appropriate remedy.”
    168. 168. The Culvert Case • Potential far-reaching impacts – Counties are responsible for about 54,000 miles of roadway, and cities are responsible for an additional 16,000 miles. – Privately-owned roads with culverts may lie between upstream, state-owned culverts and the sea.
    169. 169. The Culvert Case • Inevitable that local governments and private landowners will eventually feel the impact of the decision. – Local governments may find themselves required to clean out, repair, or replace culverts that block fish access as condition of state/federal transportation funding
    170. 170. The Culvert Case – Proponents of new developments that require state or federal action in the form of permitting decisions may be forced to address fish passage to obtain permits – Road design standards, enforced at the local level by building inspectors, could be modified to require fish-friendly culverts to prevent future fish passage issues
    171. 171. The Culvert Case • Court sent the parties to settlement negotiations after the summary judgment order to work out a remedy • Parties were unsuccessful in settlement negotiations, unable to agree on a timeframe for repairing the 1200 culverts presently blocking culverts or status of future culverts • Remedy trial set for November, 2009
    172. 172. Wrap-Up • Tribal Natural Resources – More than just water and fish! • Role of the Tribe – Regulator, permitting, Trustee, coordination and consultation, citizen, property owner • Source of Authority – Statute, trust obligation, treaty • Case Studies
    173. 173. Wrap-Up • In light of the cases we’ve looked at, what role do you believe is the best one for a Tribe to play? Is it the regulator? The “citizen”? The beneficiary of the federal government’s trust responsibility? • Is the best one the same for every situation? • Consider Navajo Nation and Snoqualmie – was the cost of disclosing sacred practices worth it?
    174. 174. Wrap-Up • How useful was the law as a means of addressing the concerns of the Tribal government in Pakootas? In Navajo or Snoqualmie? In US v WA? • Is money (via judgment or settlement) ever sufficient to right a wrong done to a Tribe when it involves natural resources? Consider Klamath. Contrast with the Sioux Tribe and the Black Hills.