American Bar Association Toxic Tort & Environmental Law Committee Teleconference on Indian Law

1. Hot Topics in Energy ResourceDevelopment and Litigationon Tribal Lands American Bar AssociationToxic Tort & Environmental Law CommitteeTeleconference on Indian Law March 10, 200910-11:30 a.m. PST Moderator: Deborah C. Prosser(Chair Elect, TTEL)Kutak Rock, LLPLos Angeles, California Panelist: Richard A. Du BeyShort Cressman & Burgess PLLCSeattle, Washington 638360.1

2. 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.

3. March 10, 200910:00 - 11:30 a.m. PST American Bar AssociationToxic Tort & Environmental Law CommitteeTeleconference on Indian Law Tribal Environmental Law Tribes as Enforcement Agencies Protectingthe Health of the Reservation Population;the Quality of the Reservation Environment andOff-Reservation Natural Resources Presented by: Richard A. Du Bey Short Cressman & Burgess PLLC Seattle, WA (206) 682-3333 rdubey@scblaw.com 638360.1

4. 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 638360.1

5. Civil Regulatory Authority:The Three Sovereigns Federal Government States Indian Tribes 638360.1

6. Civil Regulatory Authority:The Three Sovereigns Federal Government States Indian Tribes 638360.1

7. 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) 638360.1

8. 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) 638360.1

9. 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 638360.1

10. Clean Water Act33 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 638360.1

11. 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) 638360.1

12. 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) 638360.1

13. 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) 638360.1

14. 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) 638360.1

15. 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) 638360.1

16. 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) 638360.1

17. 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 638360.1

18. 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 638360.1

19. 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) 638360.1

20. Superfund42 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) 638360.1

21. 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 638360.1

23. Area of Concern Cominco Smelter

24. 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 638360.1

25. Trail Smelter 638360.1

26. Source of Contamination • Contamination from lead-zinc smelter16 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 638360.1

27. 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 638360.1

28. 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 638360.1

29. UPDATE LITIGATION ACTIVITIES

30. 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