environmental and natural resource protection

Week 2 Lecture: Environmental and Natural Resource Protection

Tribal Law for PractitionersCHNG570-FP

Connie Sue Martin

(206) 521-6432

cmartin3@antioch.edu

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

Natural Resources

• Air• Water

– Surface Water– Ground Water

• Soil• Sediments• Plants• Animals• Fish

Tribal Role

• Enforcement Agency

• Regulatory/Permitting Agency

• Coordination and Consultation

• Trust Beneficiary

• Property Owner

• “Citizen”

Sources of Authority

• Inherent Authority

• Statutory Authority– Tribal Law– State Law– Federal Law

• Reserved Rights

• Trust Responsibility

• Treaty Rights

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• Tribes retain all aspects of their sovereignty except those withdrawn by Congress or inconsistent with overriding federal interests.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).

• 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

• 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

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

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.

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

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

• State and federal statutes may provide role for Tribe – Mandatory coordination and consultation– Review and comment

• Government-to-Government Relationships

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

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

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

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)

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

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.

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

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

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.

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.

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)

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

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)

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)

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

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

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)

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

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

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

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)

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

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

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.”

• 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.

• 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

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)

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

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)

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)

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)

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.”

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

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)

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).

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.”

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)

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.

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

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)

• 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)

• 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)

• 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)

• 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)

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)

• 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)

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

CERCLA

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

Upper Columbia River Basin

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

Contaminants of Concern

• Metals including:– Arsenic– Mercury– Cadmium– Copper– Lead – Zinc

• Organochlorines including:– PCB’s– Dioxins– Furans

Teck Cominco Smelter, Trail BC

ARSENIC

ARSENICCOPPER

ARSENICCOPPERLEAD

CADMIUM

ARSENICCOPPERLEAD

CADMIUM

MERCURY

The Marker: SLAG

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

Canadian Sources

Teck Cominco:• Still exceeds water

quality standards

• Metals and effluent

• Historic air emissions

Cominco 1981

Canadian Sources

• Tall smokestacks historically allowed toxic emissions to travel well into the U.S.

Potential Sources of Relief

• International law• Foreign (Canadian) law• Tribal law• Domestic (US federal) law

International Law

• Treaties• North American free trade

agreement (NAFTA)• North American Agreement on

Environmental Cooperation

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

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

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

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. . . “

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

• 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)

• Environmental side agreement, North American Agreement on Environmental Cooperation – U.S., Canada, Mexico– Created Commission for

Environmental Cooperation (CEC)

• 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

• 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

• Once record is complete, Council of Environmental Ministers may, by two-thirds vote, make final factual record publicly available

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

• No enforcement mechanism• Relies on public scrutiny to

coerce non-complying government to enforce its environmental laws

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

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”

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.”

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

Conclusions re: International Law

• Drawn-out, long-term process• Process-oriented more than results-

oriented• No enforcement mechanism• Limited utility in most circumstances

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)

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

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

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

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

Tribal Law

• Regulatory issues– Reservation boundaries constitute

exterior bounds of legislative authority

• Jurisdictional issues– Nevada v. Hicks– US v. Montana

• Enforcement of judgments

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

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?

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

• 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

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

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

CERCLA

• Strict liability statute • Joint and several liability• “Status” liability

– Current and former owners– Current and former operators– Arrangers– Transporters

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)

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

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

Natural Resource Damage Claim

• Problems presented by Upper Columbia River – Scope of potential site – Resistance to timing– Trustee who is also a PRP

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

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

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 . . .

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

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

Unexpected Complications

• Amicus Parties

• Diplomacy

• Politics

• Court: “What about the U.S.? What does it have to say?”

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

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

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

• 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

• 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.

• 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

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

• 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.

• “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.”

• 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.

• 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.

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.

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.

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.

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

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.

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

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

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

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.

• 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.

• 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.

• 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

• 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.

• 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

– 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

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

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

Treaty Rights

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)

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

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. . .

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.

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.”

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

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,”

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

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

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.

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”

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.”

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.”

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?

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 …”

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.”

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.

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

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

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

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

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?

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.

environmental and natural resource protection

rights of tribes

cercla tribes

state authority

federal statutes

federal interests

natural resources code

tribe regulator

minor sources of air

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