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Tribal Environmental Law:

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Title: Tribal Environmental Law:

  • Tribal Environmental Law
  • Protection of Tribal Resources

Connie Sue Martin Marten Law Group PLLC 1191
Second Avenue, Suite 2200 Seattle, Washington
  • 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

  • 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    except those withdrawn by Congress or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
  • Tribes may adopt and enforce Tribal resource
    protection statutes

Tribal Sovereignty
  • State and federal statutes may provide role for
  • 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

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
  • 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

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

Clean Air Act
  • 42 U.S.C. 7401 et. seq.
  • 1990 amendments to CAA expanded regulatory
    authority of federally recognized Tribes over air
  • Amendments authorized EPA to treat Tribes as
    states and provide with grants and technical
    assistance to carry out functions specified in CAA

  • 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

  • Tribes may directly or indirectly enforce under
  • 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

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

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

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
    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)

Northwest Sea Farms
  • Project proponent argued that Corps regulations
    did not authorize consideration of Tribal fishing
  • 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.

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

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

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
  • 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

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
  • 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.

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
  • 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

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

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,
  • 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

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
  • United States joined the proceeding, supporting
    the position of the tribes.

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

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.

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.

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?

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

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

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

The Culvert Case
  • Inevitable that local governments and private
    landowners will eventually feel the impact of the
  • 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
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