American Bar Association
Toxic Tort & Environmental Law Committee
Teleconference on Indian Law
Hot Topics in Energy Resource
Development and Litigation
on Tribal Lands
March 10, 2009
10-11:30 a.m. PST
Moderator: Deborah C. Prosser
(Chair Elect, TTEL)
Kutak Rock, LLP
Los Angeles, California
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Panelist: Richard A. Du Bey
Short Cressman & Burgess PLLC
Seattle, Washington
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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.
American Bar Association
Toxic Tort & Environmental Law Committee
Teleconference on Indian Law
March 10, 2009
10:00 - 11:30 a.m. PST
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
Presented by:
Richard A. Du Bey
Short Cressman & Burgess PLLC
Seattle, WA
(206) 682-3333
rdubey@scblaw.com
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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
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Civil Regulatory Authority:
The Three Sovereigns
Federal
Government
Indian
Tribes
States
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Civil Regulatory Authority:
The Three Sovereigns
Federal
Government
Indian
Tribes
States
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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. 1825
(May 29, 2001)
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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)
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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
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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
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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)
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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)
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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)
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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)
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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)
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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)
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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
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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
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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)
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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)
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Case Study: Lake Roosevelt & the
Upper Columbia
• Lake Roosevelt created by Grand Coulee
Dam in 1942
• 150 Miles between Grand Coulee Dam and
US-Canada border
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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
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Trail Smelter
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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
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Timeline
• 1999 – Tribe petitioned EPA for PA
• June 2000 – Tribe/EPA Memorandum of
Agreement
• Sept. 2000 - EPA granted Tribe’s
petition for Superfund Preliminary
Assessment
• 2001 EPA conducted sampling/analysis
sources of hazardous substances
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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
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• 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