identifying and maximizing opportunities for tribal environmental protection

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Tribal Role

• As Sovereign– Legislator– Permitting Agency/Regulator– Enforcement Agency– Recipient of Delegated Authority/Status

• As Trust Beneficiary– Participant in Meaningful Consultation

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Tribal Role

• As Resource Owner– Water Rights– Mineral Rights– Rights of Way Agreements– Leasing

• As “Citizen”– Public Comment– Citizen Suits

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Resource Protection by Tribe as Sovereign

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Jurisdiction

• “[T]ribes do not, as a general matter, possess authority over non-Indians who come within their borders ” ․ Plains Commerce, 554 U.S. at 328 (citing Montana v. United States, 450 U.S. 544 (1981))

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Jurisdiction

• “As a general rule, tribes do not have jurisdiction, either legislative or adjudicative, over nonmembers, and tribal courts are not courts of general jurisdiction.” Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 939 (9th Cir.2009).

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Jurisdiction

• “This general rule restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember's activity occurs on land owned in fee simple by non-Indians—what [the Supreme Court has] called ‘non-Indian fee land.” ’ Plains Commerce, 554 U.S. at 328.

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Jurisdiction

• Montana v. United States, 450 U.S. 544 (1981)– Established the general rule that tribes do not

have inherent authority over nonmembers' activities on non-Indian fee lands within a reservation; however

– Montana also established two exceptions which would support tribal jurisdiction.

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Jurisdiction

• Montana exceptions:– regulate the activities of nonmembers who

enter consensual relationships with tribe or with its members through commercial dealing, contracts, leases or other arrangements

– regulate the conduct of non-Indians where that conduct threatens or has a direct effect on the political integrity, economic security, or the health or welfare of the tribe

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Tribe as Sovereign: Legislator

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Legislation• The primary means of protecting Tribal

lands from the negative effects of development are through land use planning and environmental regulation.– Land use planning is concerned primarily

with actual use of the land, while environmental regulation is concerned with controlling the environmental damage resulting from use of the land.

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Legislation

• Tribal Land Use Planning and Controls– Comprehensive Planning

• Ensuring compatible uses of tribal land– Tribal Zoning and Land Use Codes

• How a particular parcel can be used• Where particular uses can be located (or

prohibited)

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Legislation

• Tribal Environmental Codes– Environmental Review– Water Quality Standards– Sediment Quality Standards– Solid Waste Management – Air Programs– Cleanup Standards

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Legislation• The Navajo Nation Environmental

Protection Agency has fairly comprehensive environmental review and protection codes and regulations.

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Tribe as Sovereign: Regulator

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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

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• Tribes with jurisdiction over persons or land may regulate those persons or activities conducted on that land.

• The Cherokee Nation regulates traditional areas of environmental concern, such as solid waste and underground storage tanks, toxic and hazardous substance control, and water quality.

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• Fort Berthold Reservation in North Dakota– North Dakota is the nation’s No. 2 oil producer – Reservation alone produces more than

300,000 barrels daily.• The west segment of the reservation is

busiest region for drilling — 9 out of 77 oil rigs operating right now in North Dakota were drilling on the reservation

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• The West Segment Regulatory Commission was first established in January, 2015 “regulate, monitor and register all companies, vehicles and manpower providing work and business within the boundaries of the West Segment” of the million-acre reservation.

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• The West Segment Regulatory Commission is a Tribal nonprofit organization approved by the Three Affiliated Tribes Tribal Business Council– Sent 3,000 letters to oil companies requiring

them to attend a mandatory informational meeting in Mandaree, where one of the six tribal divisions is headquartered.

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• The Commission will conduct background checks and drugs tests on workers, enforce safe driving rules, test soil and water quality and monitor development such as “man camps.”

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• All workers and companies that do business in the West Segment will need to register with the commission starting June 30, get photo ID cards and radio-frequency identification tags to allow for vehicle tracking (to combat illegal dumping).

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Tribe as Sovereign: Enforcement

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Enforcement

• Tribes afforded “Treatment as State” authority may implement and enforce federal environmental statutes

• Tribes may adopt and enforce Tribal resource protection statutes

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Enforcement

• This week, the EPA and the Navajo Nation EPA each entered orders on consent with the tribe’s utility authority, under which the utility authority agreed to bring its wastewater treatment facility in Window Rock, Arizona, into compliance with the federal Clean Water Act and the Navajo Nation Clean Water Act.

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Enforcement

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Enforcement

• The Navajo EPA entered into its Agreed Order on Consent pursuant to NNCWA, in order to ensure continued oversight by NNEPA and compliance with the NNCWA.

• The EPA entered into its Administrative Order on Consent pursuant to the CWA.

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Tribe as Sovereign: Delegation of Status or Authority

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Delegations of Status or Authority

• Tribes have been delegated federal authority, status under environmental statutes such as CWA, CAA, CERCLA – Tribes afforded “Treatment as State” authority

may implement and enforce federal environmental statutes

– CERCLA was amended in 1986 to grant Tribes a status similar to that of states

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Tribal Status Under CERCLA • Tribes have specific roles under CERCLA arising

from particular statutory provisions.– Tribes are interested sovereign governments entitled

to notice and consultation at specified steps in cleanup– Tribes may, themselves, be Lead or Support Agency – Tribal law may be an “applicable or relevant and

appropriate requirement” (ARAR) – Tribes are Natural Resource Trustees for assessing

and restoring injured Tribal natural resources– Tribes and tribal members are stakeholders

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Tribal Status Under CERCLA • CERCLA requires the EPA to afford Indian Tribes

substantially the same treatment as it does to States in the implementation of the Superfund program, including: notification of releases, consultation on remedial action, access to information, and roles and responsibilities under the National Contingency Plan (NCP). CERCLA §126, 42 U.S.C. §9626.

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Tribal Status Under CERCLA • §121(f)(1) of CERCLA, and 40 CFR §300.500 of

the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), when read with §126, require EPA to ensure “substantial and meaningful involvement” of States and Tribes in Superfund response actions.

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Tribal Status Under CERCLA • Some aspects of a Tribe’s role under CERCLA

are distinct from a State’s role:– Tribal interest in resources otherwise “irretrievably

committed” under a federal permit may bar permit defense to CERCLA liability• Irretrievable commitment of natural resources must have

been consistent with federal government’s fiduciary responsibility to Tribe

– Additional 2 years for statute of limitations

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Tribal Status Under CERCLA • Tribes may have jurisdiction/authority/interests

on-site at a cleanup that lies in whole or in part on a reservation or tribal trust land;

• Tribes may have interests off-site, as well:– Off-reservation reserved treaty rights– Historical/cultural/sacred sites

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Tribal Status Under CERCLA• 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

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Tribal Status Under CERCLA • §104(d)(1) authorizes EPA to enter into

Cooperative Agreements with States or Indian Tribal governments to carry out response actions authorized in §104, if the State or governing body of the Tribe is deemed capable.

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Tribal Status Under CERCLA • Under §104, EPA may provide the necessary

funds to States or the governing bodies of Tribes either to conduct response actions as the lead agency (40 CFR 35.6100 and 35.6110), or to defray the cost of their involvement as a support agency during an EPA-lead response.

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Tribal Status Under CERCLA

• Under a 2012 Cooperative Agreement for Remedial Action between the EPA and the Quapaw Tribe, the Tribe completed the remediation of the Catholic 40 site.– The first Remedial Action implemented by an

Indian tribe in the history of the Superfund Program.

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• Applicable or Relevant and Appropriate Requirements (ARARs) are standards that CERCLA cleanups must attain unless waived– Legally applicable to the hazardous

substance (or pollutant or contaminant) concerned, or

– Relevant and appropriate under the circumstances of the release.

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• Compliance with ARARs is a threshold requirement for remedy selection

• Tribal codes and standards may be ARARs

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• In addition to coordination and consultation with Tribe as Lead or Support Agency for response, Response agency must also notify, coordinate and consult with Tribe as Natural Resource Trustee. CERCLA §104(b)(2).

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Points in the process for notification/coordination/ consultation with trustees:

– Site discovery– Site assessment– Remedial planning– Remediation– Post-remediation

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• 5-Year Reviews: Under CERCLA § 121(c), whenever hazardous substances remain on site as part of a remedy above levels that allow for “unlimited use and unrestricted exposure,” EPA must conduct a review of the protectiveness of the remedy every 5 years

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• Where a State or a Tribe conducts a clean-up using its own legal authorities (e.g., a Tribal enforcement action under a Tribal CERCLA-equivalent Superfund Ordinance), the remedy is not selected under CERCLA § 121 and is not subject to 5-year review requirement

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• Elements of a 5-Year Review– Notice to Interested Parties– Community Involvement– Data Evaluation

• Review of Existing Documents• Site Inspection• Interviews

– 5-Year Review Report

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• Review should determine whether remedy at site is or upon completion will be protective of human health and environment

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• Review examines 3 questions– Is the remedy functioning as intended?– Are the assumptions used at time of remedy

selection still valid?– Is there any other information that could call

the protectiveness of remedy into question?

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• In determining whether the assumptions used at the time of the remedy selection still valid, consider: – changes in ROD’s ARARs, TBCs– newly promulgated standards– changes in physical site conditions– changes in toxicity factors for COCs

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• St. Regis Paper Company Superfund Site

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Resource Protection by Tribe as Trust Beneficiary

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Trust Responsibility

• Virtually every law enacted by Congress during the past 40 years involving Indians and tribes has cited to, and found its support in, the federal government's trust obligations.

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Trust Responsibility• 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

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Trust Responsibility• 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).

• Each agency defines the scope of its trust responsibility to Indian tribes.

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Trust Responsibility• In recent years, the U.S. Supreme Court

has narrowed the concept of what duty is owed by the fiduciary to only those duties expressly articulated by statute or regulation.

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Trust Responsibility• “[A]n Indian tribe cannot force the

government to take a specific action unless a treaty, statute or agreement imposes, expressly or by implication, that duty.” Gros Ventre Tribe v. United States, 469 F.3d 801, 810 (9th Cir. 2006).

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Trust Responsibility• Unless a particular statute creates specific

obligations owed to tribes by the federal government that are distinct from the obligations owed to everyone, then the government’s compliance with the law is sufficient to satisfy its trust obligation to tribes.

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Consultation

• Statutes, Executive Orders, and Secretarial Orders create specific obligations of federal agencies to consult with tribes.

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Consultation• Executive Order 13175, “Consultation and

Coordination with Indian Tribal Governments”– Directs federal agencies to respect tribal self-

government and sovereignty, tribal rights, and tribal responsibilities whenever they formulate policies “significantly or uniquely affecting Indian tribal governments.”

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Consultation– The Executive Order applies to all federal

agencies other than those considered independent federal agencies, encouraging “meaningful and timely” consultation with tribes, and consideration of compliance costs imposed on tribal governments when developing policies or regulations that may affect Indian tribes.

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Consultation• Consultation must be meaningful in order

to satisfy an agency’s obligation:– “Permitting the submission of views after (an

administrative decision has been made) is no substitute for the right of interested persons to make their views known to the agency in time to influence the (administrative) process in a meaningful way.” Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 720 (8th Cir. S.D. 1979).

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Consultation

• Some federal courts have granted injunctive relief and stopped a project (at least temporarily) for failure to consult. • Klamath Tribes v. United States - USFS failed

to consult with the Klamath Tribes before engaging in timber sales from tribal lands in violation of the federal government’s trust duty “to avoid adverse effects on treaty resources.”

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Consultation– District court granted preliminary injunction,

barred timber sales until USFS engaged in meaningful consultation with tribes to address impacts to treaty resources. 1996 WL 924509 at *8.

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Consultation

• In the fall of 2013, the Nez Perce Tribe obtained an injunction to stop the transport of a General Electric-owned water evaporator to the Canadian tar sands and future “megaload” shipments along north Idaho's scenic Highway 12, based in part on the USFS’s failure to consult.

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Consultation

• Oregon-based shipping company Omega Morgan planned to haul nine similar loads through Highway 12 — a narrow, two-lane roadway weaving through the Nez Perce Reservation and Clearwater-Lochsa Wild and Scenic River Corridor. Nez Perce v. United States Forest Service, Idaho District Court Case 1:13-cv-00348-CWD .

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Resource Protection by Tribe as Resource Owner

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Tribe as Resource Owner

• If you own the resource, you can control its use– Water rights, mineral rights– Limitations in leases – e.g., Cherokee

agricultural leases prohibit the use of chicken litter

– Rights-of-Way Agreements – require compliance with Tribal environmental protections

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• In March, 2013, after a 38-year adjudication process, the state of Oregon found that the Klamath Tribes’ water rights dated to “time immemorial.”

• The Klamath Tribes have the most senior rights to the majority of the water flowing into Upper Klamath Lake.

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• Shortly thereafter, the Klamath Tribes called their senior water right in order to protect their treaty rights, sustain their hunting and fishing grounds, and protect two species of suckers traditionally harvested by the tribes that are on the endangered species list.

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• Tribes holding mineral rights or oil and gas interests can determine whether, when, and how its resources are extracted.– The Indian Mineral Development Act allows

tribes to adopt terms that reflect their own interests

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• Title V of the Energy Policy Act of 2005 establishes a process by which a tribe can obtain a Tribal Energy Resource Agreement (TERA) granting authority to the tribe to review, approve, and manage leases, business agreements, and rights-of-way for energy development on tribal lands, without the approval of DOI.

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• Tribes can impose conditions in rights-of-way agreements that protect resources from risks associated with the use of the right-of-way– Spill response equipment for oil pipeline– Fees/bonds for remediation or reclamation– Agreement to be bound by tribal

environmental codes

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• Tribal property owner can include terms in its lease agreements in order to protect tribal resources– Cherokee Nation leases of its fee and trust

agricultural lands include provisions such as prohibiting the use of chicken litter anywhere on their units to protect water quality.

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Resource Protection by Tribe as “Citizen”

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Tribe as “Citizen” • Tribes and tribal members may be stakeholders

under federal environmental statutes, like the rest of the public. – Public notice and comment on proposed

actions– Can petition for Preliminary Assessment

(CERCLA)– Can file citizen suits (individual members only

under CERCLA)

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Tribe as “Citizen”• Pakootas v. Teck Cominco Metals, Ltd.,

Eastern District of Washington Case No. 2:04-cv-00256 – Citizen suit brought by two tribal members to

enforce a unilateral administrative order issued by EPA against a Canadian lead-zinc smelter for releases in the Columbia River south of the Canada-US border

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Key Factors

• What is the project/proposed use/site?• Where is it located?• What is the ownership status of the land?• What is the Tribe’s objective?• What is the Tribe’s role?

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Questions?

Connie Sue MartinSchwabe Williamson & Wyatt

1420 5th Ave., Suite 3400Seattle, WA 98101

(206) [email protected]