American Bar Association Toxic Tort & Environmental Law Committee Teleconference on Indian Law Hot Topics in Energy Resource Development and Litigation on Tribal Lands Moderator: Deborah C. Prosser (Chair Elect, TTEL) Kutak Rock, LLP Los Angeles, California Panelist: Richard A. Du Bey Short Cressman & Burgess PLLC Seattle, Washington March 10, :30 a.m. PST

Mr. Du Bey will focus his discussion on the specific issue of how Indian sovereignty affects the development, implementation and enforcement of Tribal environmental law, including how Tribal governments enforce environmental law within reservations, how they participate in state administrative forums to protect off reservation environmental interests, and how they participate to protect their lands and resources against cross-border contamination originating in Canada.

Tribal Environmental Law Tribes as Enforcement Agencies Protecting the Health of the Reservation Population; the Quality of the Reservation Environment and Off-Reservation Natural Resources March 10, : :30 a.m. PST Presented by: Richard A. Du Bey Short Cressman & Burgess PLLC Seattle, WA (206) American Bar Association Toxic Tort & Environmental Law Committee Teleconference on Indian Law

Overview Indian Reservations are the remaining homeland of Indian Tribes Tribes entitled to use and enjoy their reservation homeland and associated on and off-Reservation natural resources Natural resource rights have significant cultural and economic value

Civil Regulatory Authority: The Three Sovereigns Federal Government States Indian Tribes

Federal Government States Indian Tribes Civil Regulatory Authority: The Three Sovereigns

Sources of Tribal Civil Regulatory Authority Retained Inherent Sovereignty Powers Conferred by Congress through statute or treaty. Atkinson Trading Co., Inc. v. Shirley, 121 S. Ct (May 29, 2001)

Retained Inherent Sovereignty To regulate the activities of nonmembers who have entered into consensual relationships through commercial dealing, contracts, leases or other arrangements; and To exercise civil authority over conduct of nonmembers on the Reservation that directly effects the Tribe’s health, welfare, political integrity, or economic security. Montana v. United States, 450 U.S. 544 (1981)

Powers Conferred by Congress Treatment as State (TAS) designation - Indian Tribes that meet certain statutory and regulatory requirements under statues such as: –Clean Air Act –Clean Water Act

Clean Water Act 33 U.S.C. §§ 1251 et. seq. Water quality standards (WQS) protect designated uses and provide foundation for enforceable pollution control measures Tribal and federal WQS are enforceable on Indian reservation, State WQS (whether or not) approved by EPA do not apply within the Reservation Environment

Tribal WQS CWA defines “Federal Indian reservation” to mean all land within the limits of any Indian reservation... notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. 33 U.S.C. § 1377(h)(1)

Tribal WQS May be more stringent then either State or federal WQS (33 USC § 1377) Off-reservation, upstream discharge point sources must comply with Tribal WQS City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, 118 S. Ct. 410 (1997)

Treaty-Protected Resources and Entitlements Hunting and fishing rights –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-Protected Resources and Entitlements Fishery protection Treaty rights extend to protection of fisheries habitat U.S. v. Washington, 5906 F. Supp. 187 (W.D. Wash. 1980) (Boldt II)

Treaty-Protected Resources and Entitlements 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)

Treaty-Protected Resources and Entitlements Priority of water under Winters doctrine dates back to establishment of reservation; not subject to abandonment or forfeiture for non-use Tribe entitled to use water for any lawful purpose U.S. v. Anderson, 736 F.2d 1358 (9th Cir. 1984)

Case Study: Isleta Pueblo, NM Each day, the City of Albuquerque (population approx. 450,000) discharges about 55 million gallons of wastewater into the Rio Grande River The Pueblo of Isleta Indian Reservation is located 5 miles downstream from the City of Albuquerque

Case Study: Isleta Pueblo, NM Ammonia, a byproduct of human waste, was a major concern Arsenic was also a human health concern as well as its impact on the food chain Pollutants in the City’s wastewater adversely impacted the fishery and irrigated corn and squash fields

Case Study: Isleta Pueblo, NM The Pueblo established a WQS program and set strict arsenic limits to protect human health and the environment City of Albuquerque sued EPA Court ruled against the City, holding that the Isleta Pueblo had the legal authority to enforce its TWQS City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997)

Superfund 42 U.S.C. §§ 9601 et seq. (1980) Provides a Federal “Superfund” to clean up past releases of hazardous substances into the environment Creates a strict, joint and several liability scheme for site clean up; and Creates cause of action for Tribal claims for Natural Resource Damages (NRD)

Case Study: Lake Roosevelt & the Upper Columbia Lake Roosevelt created by Grand Coulee Dam in Miles between Grand Coulee Dam and US-Canada border

Area of Concern Cominco Smelter

Case Study: Lake Roosevelt & the Upper Columbia Colville Reservation west of Lake Roosevelt Spokane Reservation east of Lake Roosevelt Teck Cominco Trail, B.C., Lead and Zinc Smelter

Trail Smelter

Source of Contamination Contamination from lead-zinc smelter 16 km upstream from border Mining sites in Upper Columbia Basin (all ceased operation prior to 1942) 1992 USGS sediment study identified elevated levels of metals in sediments 1994 WA Dept. of Health issued Lake Roosevelt fish consumption advisory

Timeline 1999 – Tribe petitioned EPA for PA June 2000 – Tribe/EPA Memorandum of Agreement Sept EPA granted Tribe’s petition for Superfund Preliminary Assessment 2001 EPA conducted sampling/analysis sources of hazardous substances

Notice of Citizen Suit 2 Tribal members file Citizen’s Suit in July 2004 Court denies motion to dismiss November 2004 Appeal to 9th Circuit 9th Circuit confirms trial court decision

UPDATE LITIGATION ACTIVITIES

The Earth and myself are of one mind. The measure of the land and the measure of our bodies are the same. Himmaton Yalatkit (Joseph) Nez Perce Chief