Tribal Law For Practitioners Muckleshoot Tribal College week 2 lecture

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. 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. Natural Resources
• Air
• Water
– Surface Water
– Ground Water
• Soil
• Sediments
• Plants
• Animals
• Fish

4. Tribal Role
• Enforcement Agency
• Regulatory/Permitting Agency
• Coordination and Consultation
• Trust Beneficiary
• Property Owner
• “Citizen”

5. Sources of Authority
• Inherent Authority
• Statutory Authority
– Tribal Law
– State Law
– Federal Law
• Reserved Rights
• Trust Responsibility
• Treaty Rights

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sovereignty except those withdrawn by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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Case Studies

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. CERCLA

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. Upper Columbia River Basin

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. Contaminants of Concern
• Metals including:
– Arsenic
– Mercury
– Cadmium
– Copper
– Lead
– Zinc
• Organochlorines
including:
– PCB’s
– Dioxins
– Furans

68. Teck Cominco Smelter, Trail BC
ARSENIC

69. Teck Cominco Smelter, Trail BC
ARSENIC
COPPER

70. Teck Cominco Smelter, Trail BC
ARSENIC
COPPER
LEAD

71. Teck Cominco Smelter, Trail BC
ARSENIC
COPPER
LEAD
ZINC

72. Teck Cominco Smelter, Trail BC
ARSENIC
COPPER
LEAD
ZINC
CADMIUM

73. Teck Cominco Smelter, Trail BC
ARSENIC
COPPER
LEAD
ZINC
CADMIUM
MERCURY

74. The Marker: SLAG

75. The Marker: SLAG

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. Canadian Sources
Teck Cominco:
• Still exceeds water
quality standards
• Metals and effluent
• Historic air emissions
Cominco 1981

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

79. Potential Sources of Relief
• International law
• Foreign (Canadian) law
• Tribal law
• Domestic (US federal) law

80. International Law
• Treaties
• North American free trade agreement
(NAFTA)
• North American Agreement on
Environmental Cooperation

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. North American Free Trade Agreement
• No enforcement mechanism
• Relies on public scrutiny to coerce
non-complying government to
enforce its environmental laws

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. 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. 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. 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. Conclusions re: International Law
• Drawn-out, long-term process
• Process-oriented more than results-
oriented
• No enforcement mechanism
• Limited utility in most circumstances

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. 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. 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. 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. 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. Tribal Law
• Regulatory issues
– Reservation boundaries constitute exterior
bounds of legislative authority
• Jurisdictional issues
– Nevada v. Hicks
– US v. Montana
• Enforcement of judgments

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. 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. 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. 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. 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. 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. CERCLA
• Strict liability statute
• Joint and several liability
• “Status” liability
– Current and former owners
– Current and former operators
– Arrangers
– Transporters

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

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. 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. 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. 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. 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. Unexpected Complications
• Amicus Parties
• Diplomacy
• Politics
• Court: “What about the U.S.? What does
it have to say?”

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. FPA

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. 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. 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. 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. 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. 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. 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. 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. RFRA

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. 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. 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. 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. 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. 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. 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. 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. 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. Treaty Rights

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.