Identifying and Maximizing Opportunities for Tribal Environmental Protection
1. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Covering All the Bases:
Identifying & Maximizing
Opportunities for Tribal Resource
Protection
Connie Sue Martin Schwabe Williamson & Wyatt
July 9, 2015
2. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Role
• As Sovereign
– Legislator
– Permitting Agency/Regulator
– Enforcement Agency
– Recipient of Delegated Authority/Status
• As Trust Beneficiary
– Participant in Meaningful Consultation
3. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Role
• As Resource Owner
– Water Rights
– Mineral Rights
– Rights of Way Agreements
– Leasing
• As “Citizen”
– Public Comment
– Citizen Suits
4. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Resource Protection by Tribe as
Sovereign
5. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Jurisdiction
• “[T]ribes do not, as a general matter,
possess authority over non-Indians who
come within their borders․” Plains
Commerce, 554 U.S. at 328 (citing
Montana v. United States, 450 U.S. 544
(1981))
6. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Jurisdiction
• “As a general rule, tribes do not have
jurisdiction, either legislative or
adjudicative, over nonmembers, and tribal
courts are not courts of general
jurisdiction.” Philip Morris USA, Inc. v.
King Mountain Tobacco Co., 569 F.3d 932,
939 (9th Cir.2009).
7. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Jurisdiction
• “This general rule restricts tribal authority
over nonmember activities taking place on
the reservation, and is particularly strong
when the nonmember's activity occurs on
land owned in fee simple by non-Indians—
what [the Supreme Court has] called ‘non-
Indian fee land.” ’ Plains Commerce, 554
U.S. at 328.
8. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Jurisdiction
• Montana v. United States, 450 U.S. 544
(1981)
– Established the general rule that tribes do not
have inherent authority over nonmembers'
activities on non-Indian fee lands within a
reservation; however
– Montana also established two exceptions
which would support tribal jurisdiction.
9. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Jurisdiction
• Montana exceptions:
– regulate the activities of nonmembers who
enter consensual relationships with tribe or
with its members through commercial dealing,
contracts, leases or other arrangements
– regulate the conduct of non-Indians where that
conduct threatens or has a direct effect on the
political integrity, economic security, or the
health or welfare of the tribe
10. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Sovereign: Legislator
11. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Legislation
• The primary means of protecting Tribal
lands from the negative effects of
development are through land use
planning and environmental regulation.
– Land use planning is concerned primarily
with actual use of the land, while
environmental regulation is concerned with
controlling the environmental damage
resulting from use of the land.
12. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Legislation
• Tribal Land Use Planning and Controls
– Comprehensive Planning
• Ensuring compatible uses of tribal land
– Tribal Zoning and Land Use Codes
• How a particular parcel can be used
• Where particular uses can be located (or
prohibited)
13. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Legislation
• Tribal Environmental Codes
– Environmental Review
– Water Quality Standards
– Sediment Quality Standards
– Solid Waste Management
– Air Programs
– Cleanup Standards
14. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Legislation
• The Navajo Nation Environmental
Protection Agency has fairly
comprehensive environmental review and
protection codes and regulations.
15. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Sovereign: Regulator
16. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
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
17. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• Tribes with jurisdiction over persons or
land may regulate those persons or
activities conducted on that land.
• The Cherokee Nation regulates traditional
areas of environmental concern, such as
solid waste and underground storage
tanks, toxic and hazardous substance
control, and water quality.
18. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• Fort Berthold Reservation in North Dakota
– North Dakota is the nation’s No. 2 oil producer
– Reservation alone produces more than
300,000 barrels daily.
• The west segment of the reservation is
busiest region for drilling — 9 out of 77 oil
rigs operating right now in North Dakota
were drilling on the reservation
19. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
20. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• The West Segment Regulatory
Commission was first established in
January, 2015 “regulate, monitor and
register all companies, vehicles and
manpower providing work and business
within the boundaries of the West
Segment” of the million-acre reservation.
21. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• The West Segment Regulatory
Commission is a Tribal nonprofit
organization approved by the Three
Affiliated Tribes Tribal Business Council
– Sent 3,000 letters to oil companies requiring
them to attend a mandatory informational
meeting in Mandaree, where one of the six
tribal divisions is headquartered.
22. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• The Commission will conduct background
checks and drugs tests on workers,
enforce safe driving rules, test soil and
water quality and monitor development
such as “man camps.”
23. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Regulatory Authority
• All workers and companies that do
business in the West Segment will need to
register with the commission starting June
30, get photo ID cards and radio-frequency
identification tags to allow for vehicle
tracking (to combat illegal dumping).
24. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Sovereign: Enforcement
25. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Enforcement
• Tribes afforded “Treatment as State”
authority may implement and enforce
federal environmental statutes
• Tribes may adopt and enforce Tribal
resource protection statutes
26. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Enforcement
• This week, the EPA and the Navajo Nation
EPA each entered orders on consent with
the tribe’s utility authority, under which the
utility authority agreed to bring its
wastewater treatment facility in Window
Rock, Arizona, into compliance with the
federal Clean Water Act and the Navajo
Nation Clean Water Act.
27. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Enforcement
28. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Enforcement
• The Navajo EPA entered into its Agreed
Order on Consent pursuant to NNCWA, in
order to ensure continued oversight by
NNEPA and compliance with the NNCWA.
• The EPA entered into its Administrative
Order on Consent pursuant to the CWA.
29. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Sovereign: Delegation
of Status or Authority
30. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Delegations of Status or Authority
• Tribes have been delegated federal
authority, status under environmental
statutes such as CWA, CAA, CERCLA
– Tribes afforded “Treatment as State” authority
may implement and enforce federal
environmental statutes
– CERCLA was amended in 1986 to grant
Tribes a status similar to that of states
31. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Tribes have specific roles under CERCLA arising
from particular statutory provisions.
– Tribes are interested sovereign governments entitled
to notice and consultation at specified steps in cleanup
– Tribes may, themselves, be Lead or Support Agency
– Tribal law may be an “applicable or relevant and
appropriate requirement” (ARAR)
– Tribes are Natural Resource Trustees for assessing
and restoring injured Tribal natural resources
– Tribes and tribal members are stakeholders
32. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• CERCLA requires the EPA to afford Indian
Tribes substantially the same treatment as it
does to States in the implementation of the
Superfund program, including: notification of
releases, consultation on remedial action, access
to information, and roles and responsibilities
under the National Contingency Plan (NCP).
CERCLA §126, 42 U.S.C. §9626.
33. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• §121(f)(1) of CERCLA, and 40 CFR §300.500 of
the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), when read
with §126, require EPA to ensure “substantial
and meaningful involvement” of States and
Tribes in Superfund response actions.
34. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Some aspects of a Tribe’s role under CERCLA
are distinct from a State’s role:
– Tribal interest in resources otherwise “irretrievably
committed” under a federal permit may bar permit
defense to CERCLA liability
• Irretrievable commitment of natural resources must have been
consistent with federal government’s fiduciary responsibility to
Tribe
– Additional 2 years for statute of limitations
35. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Tribes may have jurisdiction/authority/interests
on-site at a cleanup that lies in whole or in part
on a reservation or tribal trust land;
• Tribes may have interests off-site, as well:
– Off-reservation reserved treaty rights
– Historical/cultural/sacred sites
36. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Tribes may directly or indirectly enforce
under CERCLA:
– Directly: carry out response and federal
enforcement actions under a cooperative
agreement
– Indirectly: through EPA’s selection of
Tribal air/water/soil/sediment standards as
cleanup standards
37. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• §104(d)(1) authorizes EPA to enter into
Cooperative Agreements with States or Indian
Tribal governments to carry out response actions
authorized in §104, if the State or governing
body of the Tribe is deemed capable.
38. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Under §104, EPA may provide the necessary
funds to States or the governing bodies of Tribes
either to conduct response actions as the lead
agency (40 CFR 35.6100 and 35.6110), or to
defray the cost of their involvement as a support
agency during an EPA-lead response.
39. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Under a 2012 Cooperative Agreement for
Remedial Action between the EPA and the
Quapaw Tribe, the Tribe completed the
remediation of the Catholic 40 site.
– The first Remedial Action implemented by an
Indian tribe in the history of the Superfund
Program.
40. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Applicable or Relevant and Appropriate
Requirements (ARARs) are standards that
CERCLA cleanups must attain unless
waived
– Legally applicable to the hazardous
substance (or pollutant or contaminant)
concerned, or
– Relevant and appropriate under the
circumstances of the release.
41. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Compliance with ARARs is a threshold
requirement for remedy selection
• Tribal codes and standards may be
ARARs
42. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• In addition to coordination and consultation
with Tribe as Lead or Support Agency for
response, Response agency must also
notify, coordinate and consult with Tribe as
Natural Resource Trustee. CERCLA
§104(b)(2).
43. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
Points in the process for
notification/coordination/ consultation with
trustees:
– Site discovery
– Site assessment
– Remedial planning
– Remediation
– Post-remediation
44. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• 5-Year Reviews: Under CERCLA §
121(c), whenever hazardous substances
remain on site as part of a remedy above
levels that allow for “unlimited use and
unrestricted exposure,” EPA must conduct
a review of the protectiveness of the
remedy every 5 years
45. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Where a State or a Tribe conducts a clean-
up using its own legal authorities (e.g., a
Tribal enforcement action under a Tribal
CERCLA-equivalent Superfund
Ordinance), the remedy is not selected
under CERCLA § 121 and is not subject to
5-year review requirement
46. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Elements of a 5-Year Review
– Notice to Interested Parties
– Community Involvement
– Data Evaluation
• Review of Existing Documents
• Site Inspection
• Interviews
– 5-Year Review Report
47. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Review should determine whether remedy
at site is or upon completion will be
protective of human health and
environment
48. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• Review examines 3 questions
– Is the remedy functioning as intended?
– Are the assumptions used at time of remedy
selection still valid?
– Is there any other information that could call
the protectiveness of remedy into question?
49. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• In determining whether the assumptions
used at the time of the remedy selection
still valid, consider:
– changes in ROD’s ARARs, TBCs
– newly promulgated standards
– changes in physical site conditions
– changes in toxicity factors for COCs
50. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribal Status Under CERCLA
• St. Regis Paper Company Superfund Site
51. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Resource Protection by Tribe as
Trust Beneficiary
52. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• Virtually every law enacted by Congress
during the past 40 years involving Indians
and tribes has cited to, and found its
support in, the federal government's trust
obligations.
53. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• Imposes fiduciary standards on the
conduct of the Executive, carried out
through executive agencies
– Act with care and loyalty
– Make trust property income productive
– Enforce reasonable claims on behalf of
Indians
– Take affirmative actions to preserve trust
property
54. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• Any federal government action is subject to
the United States’ fiduciary responsibility to
Tribes. Nance v. EPA, 645 F.2d at 711 (9th
Cir.), cert denied, 454 U.S. 1081 (1981).
• Each agency defines the scope of its trust
responsibility to Indian tribes.
55. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• In recent years, the U.S. Supreme Court
has narrowed the concept of what duty is
owed by the fiduciary to only those duties
expressly articulated by statute or
regulation.
56. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• “[A]n Indian tribe cannot force the
government to take a specific action unless
a treaty, statute or agreement imposes,
expressly or by implication, that duty.”
Gros Ventre Tribe v. United States, 469
F.3d 801, 810 (9th Cir. 2006).
57. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Trust Responsibility
• Unless a particular statute creates specific
obligations owed to tribes by the federal
government that are distinct from the
obligations owed to everyone, then the
government’s compliance with the law is
sufficient to satisfy its trust obligation to
tribes.
58. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• Statutes, Executive Orders, and
Secretarial Orders create specific
obligations of federal agencies to consult
with tribes.
59. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• Executive Order 13175, “Consultation and
Coordination with Indian Tribal
Governments”
– Directs federal agencies to respect tribal self-
government and sovereignty, tribal rights, and
tribal responsibilities whenever they formulate
policies “significantly or uniquely affecting
Indian tribal governments.”
60. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
– The Executive Order applies to all federal
agencies other than those considered
independent federal agencies, encouraging
“meaningful and timely” consultation with
tribes, and consideration of compliance costs
imposed on tribal governments when
developing policies or regulations that may
affect Indian tribes.
61. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• Consultation must be meaningful in order
to satisfy an agency’s obligation:
– “Permitting the submission of views after (an
administrative decision has been made) is no
substitute for the right of interested persons to
make their views known to the agency in time
to influence the (administrative) process in a
meaningful way.” Oglala Sioux Tribe of
Indians v. Andrus, 603 F.2d 707, 720 (8th Cir.
S.D. 1979).
62. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• Some federal courts have granted
injunctive relief and stopped a project (at
least temporarily) for failure to consult.
• Klamath Tribes v. United States - USFS failed
to consult with the Klamath Tribes before
engaging in timber sales from tribal lands in
violation of the federal government’s trust duty
“to avoid adverse effects on treaty resources.”
63. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
– District court granted preliminary injunction,
barred timber sales until USFS engaged in
meaningful consultation with tribes to address
impacts to treaty resources. 1996 WL 924509
at *8.
64. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• In the fall of 2013, the Nez Perce Tribe
obtained an injunction to stop the transport
of a General Electric-owned water
evaporator to the Canadian tar sands and
future “megaload” shipments along north
Idaho's scenic Highway 12, based in part
on the USFS’s failure to consult.
65. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Consultation
• Oregon-based shipping company Omega
Morgan planned to haul nine similar loads
through Highway 12 — a narrow, two-lane
roadway weaving through the Nez Perce
Reservation and Clearwater-Lochsa Wild
and Scenic River Corridor. Nez Perce v.
United States Forest Service, Idaho District
Court Case 1:13-cv-00348-CWD .
66. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Resource Protection by Tribe as
Resource Owner
67. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• If you own the resource, you can control its
use
– Water rights, mineral rights
– Limitations in leases – e.g., Cherokee
agricultural leases prohibit the use of chicken
litter
– Rights-of-Way Agreements – require
compliance with Tribal environmental
protections
68. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• In March, 2013, after a 38-year
adjudication process, the state of Oregon
found that the Klamath Tribes’ water rights
dated to “time immemorial.”
• The Klamath Tribes have the most senior
rights to the majority of the water flowing
into Upper Klamath Lake.
69. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
70. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• Shortly thereafter, the Klamath Tribes
called their senior water right in order to
protect their treaty rights, sustain their
hunting and fishing grounds, and protect
two species of suckers traditionally
harvested by the tribes that are on the
endangered species list.
71. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• Tribes holding mineral rights or oil and gas
interests can determine whether, when,
and how its resources are extracted.
– The Indian Mineral Development Act allows
tribes to adopt terms that reflect their own
interests
72. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• Title V of the Energy Policy Act of 2005
establishes a process by which a tribe can
obtain a Tribal Energy Resource
Agreement (TERA) granting authority to
the tribe to review, approve, and manage
leases, business agreements, and rights-
of-way for energy development on tribal
lands, without the approval of DOI.
73. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• Tribes can impose conditions in rights-of-
way agreements that protect resources
from risks associated with the use of the
right-of-way
– Spill response equipment for oil pipeline
– Fees/bonds for remediation or reclamation
– Agreement to be bound by tribal
environmental codes
74. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as Resource Owner
• Tribal property owner can include terms in
its lease agreements in order to protect
tribal resources
– Cherokee Nation leases of its fee and trust
agricultural lands include provisions such as
prohibiting the use of chicken litter anywhere
on their units to protect water quality.
75. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Resource Protection by Tribe as
“Citizen”
76. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as “Citizen”
• Tribes and tribal members may be stakeholders
under federal environmental statutes, like the
rest of the public.
– Public notice and comment on proposed
actions
– Can petition for Preliminary Assessment
(CERCLA)
– Can file citizen suits (individual members only
under CERCLA)
77. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Tribe as “Citizen”
• Pakootas v. Teck Cominco Metals, Ltd.,
Eastern District of Washington Case No.
2:04-cv-00256
– Citizen suit brought by two tribal members to
enforce a unilateral administrative order issued
by EPA against a Canadian lead-zinc smelter for
releases in the Columbia River south of the
Canada-US border
78. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Key Factors
• What is the project/proposed use/site?
• Where is it located?
• What is the ownership status of the land?
• What is the Tribe’s objective?
• What is the Tribe’s role?
79. www.schwabe.com
Bend, OR | Eugene, OR | Portland, OR | Salem, OR | Seattle, WA | Vancouver, WA | Washington D.C.
Questions?
Connie Sue Martin
Schwabe Williamson & Wyatt
1420 5th Ave., Suite 3400
Seattle, WA 98101
(206) 407-1556
csmartin@schwabe.com