Tribal Environmental Law:

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• Tribal Environmental Law
• Protection of Tribal Resources

Connie Sue Martin Marten Law Group PLLC 1191
Second Avenue, Suite 2200 Seattle, Washington
98101 cmartin_at_martenlaw.com
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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

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Resources

• Air
• Water
• Surface Water
• Ground Water
• Soil
• Sediments
• Plants
• Animals
• Fish

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Tribal Role

• Enforcement Agency
• Regulatory/Permitting Agency
• Coordination and Consultation
• Trust Beneficiary
• Property Owner
• Citizen

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Source of Authority

• Statutory Authority
• Tribal Law
• State Law
• Federal Law
• Reserved Rights
• Trust Responsibility
• Treaty Rights

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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  except those withdrawn by Congress or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).

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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

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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

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Tribal Sovereignty

• State and federal statutes may provide role for
  Tribe
• Mandatory coordination and consultation
• Review and comment
• Government-to-Government Relationships

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Regulatory Authority

• Tribes have criminal and civil jurisdiction over
  Tribal members on the Reservation
• Tribes have civil jurisdiction over Trust lands
  and lands held in fee by Tribal members

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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

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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)

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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

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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

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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

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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)

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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

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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

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CERCLA/SARA

• Tribes may directly or indirectly enforce under
  CERCLA
• Directly carry out response and federal
  enforcement actions under a cooperative agreement
• Indirectly through EPAs selection of Tribal
  air/water/soil/sediment standards as cleanup
  standards

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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)

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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

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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)

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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

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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)

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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)

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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
  Nations 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)

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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 governments, and subsequently
  the Corps, responsibility to ensure that Indian
  treaty rights are given full effect.

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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

29
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)

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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 Assn,
  443 U.S. 658, 675, 99 S. Ct. 3055, 61 L.Ed.2d 823
  (1979).

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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.

32
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.

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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

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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.

35
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)

36
Reserved Rights

• Treaties may reserve to Tribes certain rights to
  the use or taking of land, water, and other
  resources
• Executive Orders or statutes also may reserve to
  Tribes certain rights to the use or taking of
  land, water, and other resources

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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)

38
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)

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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)

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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)

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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)

42
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. . .

43
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)

44
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)

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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)

46
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

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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.

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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.

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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

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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,
• Declaratory judgment not appropriate yet because
  court was not presented with specific act or
  omission of states that violated duty of
  preservation and enhancement of the fishery for
  which a remedy could be fashioned

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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.

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The Culvert Case

• States 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

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The Culvert Case

• States 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.

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The Culvert Case

• The decision (2007)
• States 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.

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The Culvert Case

• The decision (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?

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The Culvert Case

• The decision (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

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The Culvert Case

• The decision (2007)
• State currently owns and operates culverts that
  violate its duty, further proceedings required
  to determine an appropriate remedy.
• Parties are now in settlement negotiations,
  shooting for agreement by this spring, after
  legislative session tackles issue of how the
  state will pay for culvert repairs

58
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.

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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

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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