Indian Environmental Law Presentation

Tribal Environmental Law: Protection of Tribal Resources

Connie Sue Martin

Bullivant Houser Bailey PC

(206) 521-6432

[email protected]

Overview

• Tribal 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

• The Culvert Case

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”

Source of Authority

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

• Reserved Rights

• Trust Responsibility

• Treaty Rights

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• Tribes retain all aspects of their sovereignty except those withdrawn by Congress or inconsistent with overriding federal interests.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

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

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

Tribal Sovereignty

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

• Government-to-Government Relationships

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 (contractual 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

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

• 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

• 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

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

• 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 Rights

• 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

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.

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)

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)

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)

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)

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)

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)

Reserved Fishing Rights

• Most of the treaties negotiated by Stephens 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. . .

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)

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)

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)

The Culvert Case

• Part of a long running dispute captioned United States v. Washington, originally filed in 1970, between Indian tribes and the State of Washington concerning Indian treaty rights under the Stevens Treaties

The Culvert Case

• The same case that spawned the historic Boldt and Boldt II decisions, named for the federal district court judge who decided them, Judge George Boldt.

The Culvert Case

• 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.”

The Culvert Case

• 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

The Culverts Case

• 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,”

The Culverts Case

• 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

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 in 2009

Summary

• Tribal 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

• Questions?