The Confederated Tribes of the Grand Ronde Community of Oregon [Ordinances]
Last amended: 2003
ORIGINALLY ADOPTED: 8-17-94
DATE AMENDED: 2-25-98
SUBJECT: Environmental Protection
RESOLUTION NUMBER: 055-94; 008-98
Environmental Protection Ordinance
Code § 651
(a) PURPOSE: To establish a policy which protects the environment of the tribe's Reservation for present and future generations; that protects and conserves endangered and threatened fish, wildlife and plant species; to establish a procedure for reviewing proposals that may adversely affect endangered and threatened fish, wildlife and plant species; and to protect the public health, safety, welfare, economy, environment and natural resources of the Tribe and the Reservation.
(1) The words "action", "decision", and "determination" mean major actions including procedural decisions. "Action" does not mean a procedural decision by itself. "Determination" includes any environmental document required by this Ordinance. "Agency" or "Tribal agency" refers to an agency, department, corporation or other unit of the Tribe.
(2) "Critical habitat", "endangered species", "wildlife", "person", "plant", "species" and "threatened species" have the same meaning as defined in Section 3 of the Federal Endangered Species Act, 16 USC § 1532, unless the context clearly requires a different meaning. As used here, "Protected Species" means both "endangered" and "threatened species".
(3) "Environment" means any surface water, ground water, drinking water supply, land surface or subsurface strata, ambient air, biota, fish or wildlife.
(4) "Pollution" shall mean the presence in the environment of sufficient quantities of pollutants as may be injurious to public health, safety or welfare, or to domestic, commercial, agricultural, or recreational uses, or to livestock, wildlife, fish or other aquatic life.
(5) "Pollutants" shall mean substances or matter, including any herbicide, insecticide, fertilizers, sewage, toxic chemicals, waste water, sediments, or oil and other petroleum distillants which pose a significant threat to the health, safety or well-being of persons or natural resources.
(c) GUIDELINES: The Council authorizes and directs to the fullest extent possible that the policies, regulations, and laws of the Tribe shall be interpreted and administered in accordance with this Ordinance; and all Tribal agencies shall include a detailed Environmental Impact Statement (EIS) in every recommendation or proposal significantly affecting the quality of the environment. The EIS shall include:
(1) the environmental impact of the proposed action;
(2) any adverse environmental effects which cannot be avoided should the proposal be implemented;
(3) alternatives to the proposed action;
(4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and
(5) any irreversible and irretrievable commitments of resources involved if the proposed action should be implemented.
(d) ANALYSIS OF SIGNIFICANT ENVIRONMENTAL IMPACTS:
(1) An EIS shall be prepared for all proposals having a probable significant adverse impact on the quality of the Reservation environment. Actions categorically exempt under Section (1) (1) (A) do not require the preparation of an EIS.
(2) An EIS is required to analyze only probable adverse environmental impacts which are significant. Beneficial environmental impacts may be discussed. The responsible official shall consult with agencies and the public to identify impacts and to limit the scope of the EIS. The subjects listed in Section (c) need not be treated as separate sections of an EIS. Discussions of significant short and long-term environmental impacts, significant irrevocable commitments of natural resources, and significant environmental impacts which cannot be mitigated should be consolidated or included.
(3) Discussion and analysis of subjects under Section (c) may be incorporated into other statements, reports or analyses prepared for or by the Tribe. The responsible official may use existing environmental or other documents if they adequately address Sections (c) and (d) . The proposal or action for which the document was prepared need not be identical to the proposed action, but must provide a reasonable basis for comparison and analyses. The official responsible for preparing the EIS shall review existing documents and determine whether the material is relevant and adequate. If needed, the Tribe may require additional information or documentation to ensure impacts have been adequately addressed.
(e) CONDITIONS OR DENIAL OF ACTION: The policies an goals in this Ordinance are supplemental to those in existing legal authorizations of all Tribal departments or agencies. Any action may be conditional or denied, provided, that in order to deny a proposal, an agency must find:
(1) The proposal would result in significant adverse impacts as identified in a final or supplemental EIS; and
(2) Reasonable mitigation measures are not sufficient to mitigate the impact. Decisions to condition or deny shall be reviewed by the Tribal Court in accordance with procedures established under the Tribal Government Procedures Ordinance.
(f) GUIDELINES FOR TRIBAL AGENCIES: The Council authorizes and directs that to the fullest extent possible, the policies, regulations and laws of the Tribe shall be interpreted and administered as set forth herein; and that all Tribal agencies shall include in every recommendation or report on proposals for legislation and major actions significantly and adversely affecting Protected Species, a Protected Species Impact Statement (PSIS) . This statement shall include:
(1) the impact of the proposed action on Protected Species;
(2) any adverse effects on Protected Species which cannot be avoided if the proposal is implemented; and
(3) alternatives to the proposed action.
(g) ANALYSIS OF SIGNIFICANT IMPACTS ON PROTECTED SPECIES
(1) A PSIS shall be prepared for proposals for major Tribal Council actions having a probable significant adverse impact on Protected Species. Actions considered exempt under Section (1) (1) (A) do not require review or a PSIS.
(2) A PSIS shall analyze only those probable adverse impacts considered significant. Beneficial impacts may be discussed. The responsible official shall consult with agencies and the public to identify impacts and shall limit the scope of the PSIS to those issues. Subjects listed in Section (f) need not be treated as separate sections of the PSIS.
(3) Discussions and analysis of subjects required by Section (f) may be incorporated into other statements, reports or analyses prepared for or by the Tribe. The responsible official may use existing environmental or other documents to satisfy the requirements of this Ordinance, if those documents adequately address considerations in Sections (f) and (g) . The proposal or action for which the document was originally prepared need not be identical to the proposed action, but must provide a reasonable basis for comparison and analyses. The official responsible for preparing the EIS shall review existing documents and determine if the material is relevant and adequate. If needed, the Tribe may require additional information or documentation to ensure impacts on Protected Species have been addressed.
(h) LISTING OF SPECIES
(1) Those wildlife and plant species listed as Protected Species shall include:
(A) Any species listed as endangered or threatened under the Federal Endangered Species Act, 16 USC § 1531, at the time a proposal is being considered by the Tribe.
(B) Species determined by the Council or the Committee established under Section (1) (1) (F) considered endangered or threatened.
(2) A decision to add or remove a fish, wildlife or plant from designation by the Tribe as a Protected Species shall be based on the best available documented and verifiable scientific information. To list a species, the Tribal Council or the Committee must find that the natural productive potential of the species is in danger due to disease, predation or other factors and that one or more of the following factors exist:
(1) Most populations are undergoing imminent or active deterioration of their range or primary habitat;
(2) Overuse for commercial, recreational, scientific or educational purposes is or is likely to occur; or
(3) Existing programs or regulations by Tribal, Federal and state agencies are inadequate to protect the species or its critical habitat.
(3) Any tribal member may request the Tribe or the Committee to add or remove a species or to change its status. Any such request shall be submitted by petition as set out under the Tribal Government Procedures Ordinance.
(4) The Council or Committee may decide not to add or may re move a species or change the status of a species if they determine the species is secure outside the Reservation and is not of cultural, scientific or commercial importance to the Tribe.
(i) ORDINANCE SUPPLEMENTAL TO OTHER TRIBAL LAW - CONDITIONS OR DENIAL OF ACTION: These policies and goals are supplemental to existing Tribal law. Any action may be conditioned or denied, provided, that in order to deny a proposal it must be found that:
(1) The proposal would result in significant adverse impacts identified in a final or supplemental impact statement; and
(2) Reasonable mitigation measures are insufficient to mitigate the impact.
(3) The decision to condition or deny an action may be re viewed by the Tribal Court in accordance with procedures established under the Tribal Government Procedures Ordinance.
(1) This Ordinance is intended to combine protection of the environment and Protected Species with specific Tribal government actions. Any judicial review of actions taken shall be combined with and subject to the same limitations as applicable to the review of specific Council actions. All actions are subject to the requirements and limitations of the Tribal Government Procedures Ordinance. This Ordinance is not intended nor creates a cause of action unrelated to a specific Council action.
(2) Judicial review of decisions made (or lacking) shall be within the time frame required to obtain judicial review of specific Council action as provided in the Tribal Government Procedures Ordinance.
(3) If a person has the right to request judicial review of an action taken pursuant to this Ordinance, and if an agency has an administrative appeal procedure, the person shall exhaust all administrative appeal procedures prior to requesting judicial review.
(k) DECISIONS TO BE ACCORDED SUBSTANTIAL WEIGHT: In actions involving judicial review on a decision of a Tribal agency, the decision of the Agency shall be given substantial weight.
(l) RULES: The Council shall, at its discretion:
(1) Adopt and establish rules for interpreting and implementing this Ordinance and provide uniform rules and guidelines to all agencies of the Tribe. All rules shall be adopted as outlined in the Tribal Government Procedures Ordinance. The rule-making powers authorized in this Ordinance shall include, but not be limited to:
(A) Categories of actions not considered to be major actions significantly affecting the environment or Protected Species. Categorical exemptions shall be limited to those not considered as significantly affecting the environment or Protected Species. The rules shall provide for certain circumstances where actions potentially exempt require review pursuant to an EIS.
(B) Rules for determining when an act of a Tribal agency is a major action significantly affecting the environment or a Protected Species for which a detailed EIS or PSIS is required.
(C) Rules and procedures to be applied to the preparation, scope and coverage of an EIS, PSIS and other documents. Rules for timing of review, comment, data collection and other information, and to provide for and determine the scope of public participation which includes the review of a draft EIS.
(D) Rules and procedures for public notification of actions taken and documents prepared.
(E) Rules for determining the obligations and powers of this Ordinance when two or more Tribal agencies are involved in the same project.
(F) Rules for establishing the Tribal Endangered or Threatened Wildlife and Plant Species Committee, which shall carry out those duties delegated by the Council.
(m) ACTIVITIES CAUSING POLLUTION. Notwithstanding any other provision of this Ordinance, no person shall discharge Pollutants in a manner which will likely result in Pollution of the Environment. This Ordinance does not apply to actions authorized by the Council or its designee during a state of emergency declared by the Council.
(1) Emergency Powers. The Council hereby authorizes the Tribal Chairperson, the Executive Officer or their designee(s) upon receipt of evidence of discharge of Pollutants into the Reservation Environment posing an imminent and substantial threat to the health, safety or welfare of Tribal members or significantly endangering livestock, wildlife, fish or other aquatic life within the reservation, to bring suit on behalf of the Tribe in Tribal Court, or any other court of competent jurisdiction, to immediately restrain any person or persons from discharging such Pollutants or to take such other action as may be lawful and necessary to enforce this ordinance.
(2) Tribal Court. The Tribal Court shall have specific authority and all other authority inherently necessary to effect the purposes of this ordinance including the following:
(a) Enjoining person(s) from engaging in any activity which will result in Pollution of the Reservation Environment;
(b) Ordering the party determined to have engaged in polluting the Reservation Environment to pay the cost of cleanup; or
(c) Ordering the party determined to have engaged in polluting the Reservation Environment to reimburse the Tribe for costs of cleanup.
(n) SEVERABILITY: If a court of competent jurisdiction finds any provision of this Ordinance to be invalid or illegal under applicable federal or tribal law, such provision shall be severed from this Ordinance. The remainder of this Ordinance shall remain in full force and effect.
I certify this to be a true copy of the Confederated Tribes of the Grand Ronde Community of Oregon Environmental Protection Ordinance.
Tribal Council Secretary