TITLE
14 - ENVIRONMENT AND NATURAL RESOURCES
SUBCHAPTER I - ENVIRONMENTAL INFRACTIONS
Section 14.01 - General Provisions
14.01.01 Purpose
The Nisqually
Indian Tribe adopts this Environmental Infractions Ordinance as a mechanism
for handling environmental infractions that occur within the jurisdiction
of the Nisqually Indian Tribe. The infractions enumerated in this code
are wrongful acts which negatively affect the health, welfare and integrity
of the Nisqually Indian Tribe. This ordinance provides for the Tribe
to regulate acts harmful to the environment and to impose penalties
for such acts.
Historical and Statutory Notes
1. This
Subchapter enacted October 9, 1997.
2. The
word "code" changed to "subchapter," "section"
changed to "subsection," and "ordinance" changed
to "subchapter" throughout this Title to establish consistency
with the 2003 Tribal Code Formatting Amendments.
3. "Adopt"
changed to "adopts" in 2003 Code Formatting Amendments.
14.01.02 Jurisdiction
Jurisdiction
shall extend over all lands and waters of the Nisqually Indian Tribe
as defined herein and over all persons whether Indian or non-Indian.
14.01.03 Severability
If any
provision or application of this ordinance is determined by court review
to be invalid, such determination does not render such provision inapplicable
to other persons or circumstances nor invalidate any other provision
of this ordinance.
14.01.04 Sovereign Immunity
The sovereign
immunity of the Nisqually Indian Tribe shall in no manner be waived
by this ordinance.
Section
14.02 - Definitions
14.02.01 Definition
(a) Buffer
Zone means that area which surrounds and protects Tribal waters
and wetlands from adverse impacts to their function and value. Unless
otherwise established in this section, the buffer zone shall include
those lands extending landward for two hundred feet in all directions
as measured on a horizontal plane from the ordinary high water mark
of any water body, or from the edge of a wetland. When a stream buffer
overlaps a wetland buffer then the buffer requirement which best protects
Tribal resources will be applied.
(i)
The following buffer requirements are established for streams and
wetlands:
(A)
Class 1 Streams - 200 feet.
(B)
Class 2 Streams - 50 feet.
(C)
Critical Value Freshwater Wetlands - 200 feet.
(D)
High Value Wetlands - 100 feet.
(E)
Moderate Value Wetlands - 50 feet.
(ii)
The following activities are prohibited within a buffer zone:
(A)
Excavation, dredging or filling (without the express written approval
of the Tribal Council);
(B)
Pasturing livestock;
(C) Pesticide application;
(D)
Construction of an on-site sewage system;
(E)
Timber or firewood cutting.
(b)
Committee - The Nisqually Environmental Committee.
(c) Court
- The Nisqually Tribal Court.
(d) Cultural
Resource means any material remains of human life or activities
which are of cultural or archaeological interest. This shall include
all sites, objects, structures, artifacts, implements, plants, animals,
and locations of cultural or archaeological interest, whether previously
recorded or still unrecognized, including, but not limited to, those
pertaining to historic or prehistoric American Indian or aboriginal
burials, campsites, dwellings, and their habitation sites, including,
but not limited to, rock shelters and caves, their artifacts and implements
of culture such as projectile points, arrowheads, skeletal remains,
grave goods, basketry, pestles, mauls, and grinding stones, knives,
scrapers, rock carvings and paintings, and other implements and artifacts
of any material.
(e)
Day means a twenty-four (24) hour period which shall be from
12: 00 a. m. to 11: 59: 59 p. m. in the Pacific Time zone of the United
States.
(f)
Flood Plain means the following:
(i)
100-year flood plain - All lands which are subject to a one
percent or greater chance of flooding in any year shall be considered
to be within the 100-year flood plain.
(ii)
500-year flood plain - All lands which are subject to a 0.2
percent or greater chance of flooding in any year shall be considered
to be within the 500-year flood plain.
(g)
Forest Product means any product derived from the forest including,
but not limited to, timber, cedar, Christmas trees, bark, cones, foliage,
firewood, seeds, beargrass, mushrooms and seedlings.
(h)
Hazardous Substance means any pollutant, or combination of
pollutants, which because of its quantity, concentration, or physical,
chemical or infectious characteristics, may, when released into the
environment, present substantial danger to the public health or welfare,
or to the environment. "Hazardous Substance" includes, but
is not limited to, any substance which would be considered a hazardous
substance under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), 42 U. S. C. § 9601 (14).
(i)
Motor Vehicle includes, but is not limited to, any automobile,
truck, farm machinery, boat, motorcycle, snowmobile or other all-terrain
vehicle.
(j)
On-site Sewage System means an integrated arrangement of components
for a residence, building, industrial establishment or other place
not connected to a public sewer system which:
(i)
Convey, store, treat, and/ or provide subsurface soil treatment
and disposal on the property where it originates, upon adjacent
property or nearby property; and
(ii)
Includes piping, treatment devices, other accessories, and soil
underlying the disposal component of the initial and reserve areas.
(k)
Ordinary High Water Mark means the mark on all water bodies
which will be found by examining the bed, banks and beaches and ascertaining
where the presence and actions of waters are so common and usual and
so long continued in all ordinary years as to mark upon the soil a
character distinct from that of the abutting upland; provided that
in any area where the ordinary high water mark cannot be found, the
ordinary high water mark shall be the line of mean high water.
(l)
Person means an individual, corporation, partnership, association,
state, or political subdivision thereof, federal agency, state agency,
municipality, commission or interstate body.
(m)
Pollutant means any substance which causes pollution including,
but not limited to, dredged spoil, dirt, slurry, solid waste, incinerator
residue, sewage, sewage sludge, garbage, trash, dead animals, chemical
waste, pesticide, biological nutrient, biological material, radioactive
material, heat, wrecked or discarded equipment, oil, battery acid,
gasoline, paint, solvents, rock, sand, sediment or any industrial,
municipal, or agricultural waste.
(n)
Pollution - Any change in the physical, chemical or biological
properties of air, water or soil that can adversely affect the health,
survival or activities of humans and other living organisms.
(o)
Probable Cause - When an apparent set of facts are found to
exist which would cause a prudent and cautious person to believe that
the accused person committed a particular infraction or that evidence
of an infraction would be found on the premise or person to be searched.
(p)
Sensitive Areas include wellhead protection zones, surface
waters such as lakes, ponds, seasonal and perennial streams, springs,
wetlands, and their shorelines and buffer zones; saltwater shorelines,
beaches and bluffs; slopes over 30% or otherwise subject to slope
instability, potential landslide or significant erosion; special soil
types including hydric soils, soils unsuitable for building foundations
and road beds; flood plains; cemeteries; and essential habitat for
animals and/ or plants considered culturally important to the Tribe.
(q)
Sewage means any urine, feces, and the water carrying human
wastes, including kitchen, bath and laundry wastes from residences,
buildings, industrial establishments or other places. For the purposes
of this code, "sewage" is generally synonymous with domestic
wastewater.
(r)
Shorelands means those lands extending landward for two hundred
feet in all directions as measured on a horizontal plane from the
ordinary high water mark.
(s)
Stream means any area where surface waters have sufficient
flow to produce a defined channel or bed. A channel or bed does not
have to contain water year-round to indicate the presence of a stream.
A "stream" does not include artificial water courses unless
they are used to convey streams that occurred naturally prior to construction
of the artificial water course. Streams shall be divided into the
following categories:
(i)
Class 1 Stream "Class 1 stream" means all streams
that flow year-round during years of normal rainfall or, if intermittent,
are used by salmonids.
(ii)
Class 2 Stream "Class 2 stream" means all streams
that are intermittent or ephemeral during years of normal rainfall
and are not used by salmonids.
(t)
Toxic Pollutant means those pollutants, or combinations of
pollutants, including disease-causing agents, which after discharge,
spill, or release and upon exposure, ingestion, inhalation or assimilation
into any organism, either directly from the environment or indirectly
by ingestion through food chains, will, on the basis of information
available to EPA and/ or the Nisqually Natural Resources Department,
cause death, disease, behavioral abnormalities, cancer, genetic mutations,
physiological malfunctions (including malfunctions in reproduction)
or physical deformations, in such organisms or their offspring.
(u)
Tribal Lands - All lands, wetlands and tidelands over which
the Nisqually Indian Tribe may legally assert jurisdiction; including,
but not limited to, the following:
(i)
All lands, wetlands and tidelands included or intended to be included
within the boundaries of the Nisqually Indian Reservation as set
out in its Constitution and by the government of the United States
under the 1854 Treaty of Medicine Creek, (10 Stat. 1132); and
(ii)
All lands, wetlands or tidelands outside the exterior boundaries
of the reservation which are held in fee by the Nisqually Tribe
or held in trust by the United States government for the benefit
of the Nisqually Tribe.
(v)
Tribal Waters means all streams, lakes, ponds, marshes, salt
water, watercourses, waterways, wells, springs, reservoirs, aquifers,
irrigation systems, drainage systems, and all other bodies or accumulations
of water, surface and underground, natural or artificial, public or
private, which are contained within, flow through, or border upon
Nisqually Tribal Lands.
(w)
Tribe means the Nisqually Indian Tribe.
(x) Wetlands
means those areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas. Wetlands
shall be divided into the following categories:
(i)
Critical Value Wetlands - Those wetlands which meet any
one of the following criteria:
(A) The presence of species (plant, animal or fish) listed by
the Tribe or other resource management agency as threatened or
endangered, or the presence of critical habitat for those species.
(B)
Regionally rare and unique native wetland communities.
(C)
Wetlands having direct impact on the protection of Tribal fisheries
as identified by the Nisqually Natural Resources Department.
(D)
Wetlands having cultural and/ or spiritual significance to Nisqually
Tribal members.
(E)
Irreplaceable wetland systems performing critical ecological functions.
(F)
Wetlands having exceptional habitat value and diversity as defined
by the following characteristics: (a) those wetlands equal to
or greater than 5 acres in size and having three or more wetland
classes, one of which is open water; or (b) wetlands having 40
to 60 percent permanent open water in dispersed patches with two
or more wetland classes and connected to another habitat area,
either upland or aquatic, via a stream or vegetated corridor.
(ii)
High Value Wetlands - All wetlands which do not meet the
criteria for "Critical Value Wetlands," but fulfill any
of the following criteria:
(A) Wetlands having documented habitat recognized by the Nisqually
Tribe or other resource management agencies, for sensitive or
priority plant, animal or fish species.
(B)
Wetlands with significant functions which can not be adequately
replicated through creation or restoration efforts.
(C)
Riparian Wetlands.
(iii)
Moderate Value Wetlands - Those wetlands which are of minimum
habitat value, are suitable for restoration and enhancement efforts
and satisfy no "critical" or "high" value criteria.
These wetlands may be characterized by the following features:
(A) Monotypical vegetation of similar age class;
(B)
Hydrologically isolated systems lacking special habitat features
(snags, open water component, nesting habitat, large woody debris,
etc.);
(C) Areas which are highly disturbed by human interference and/
or contaminated by waste disposal.
(y)
Wetland Classes - For the purpose of categorizing wetlands,
the following shall be considered wetland classes:
(i)
Forested (30% cover over 20 feet high);
(ii)
Scrub-shrub (30% cover by woody vegetation under 20 feet high);
(iii)
Emergent (marshes);
(iv)
Open water;
(v)
Scrub-shrub Emergent (combination of Scrub-shrub and Emergent).
(z)
Wood Cutting is defined as the cutting of standing or downed
timber for any purpose.
Section
14.03 - Permitting Procedures
14.03.01 Express Written Approval of the Tribe
When this
Ordinance requires a person to receive the express written approval
of the Tribe, the person seeking permission to engage in the activity
shall seek said permission as follows:
(a)
The person shall provide a copy of a written request to the Tribal
Council, the Natural Resources Department and the Environmental Committee.
(b)
The request shall contain:
(i)
The name and address of the person seeking approval;
(ii)
A detailed description of the activity including the time and place
which the activity will occur;
(iii)
A detailed description of the actual and/ or potential damage to
the environment resulting directly or indirectly from the activity;
and
(iv)
A description of the efforts that will be made to mitigate damage
to the environment.
(c)
The Natural Resources Department and the Environmental Committee shall
provide the Tribal Council with a recommendation as to whether the
request should be granted. The recommendation shall include all information
the Committee has considered in making its recommendation.
(d)
The Tribal Council shall review the request, the recommendations from
the Natural Resources Department and the Environmental Committee and
determine if there is sufficient information on which to base a decision.
(e)
The Tribal Council may grant the request, deny the request or require
that the applicant provide additional information.
(f)
The Tribal Council decision shall be final.
14.03.02 Permits Issued by Environmental Committee or Natural Resources
Department
When this
Ordinance requires a person to receive a permit from the Environmental
Committee or the Natural Resources Department:
(a)
The person shall provide a written application for a permit to the
appropriate permitting authority. In the event that this ordinance
requires a permit from the Environmental Committee and the Environmental
Committee has been dissolved, the person shall seek said permit from
the Natural Resources Department.
(b)
The application shall contain:
(i)
The name and address of the person seeking a permit;
(ii)
A detailed description of the activity including the time and place
which the activity will occur;
(iii)
A detailed description of the actual and/ or potential damage to
the environment resulting directly or indirectly from the activity;
and
(iv)
A description of the efforts that will be made to mitigate damage
to the environment.
(c)
If the permitting authority determines that the activity will have
no significant impact on the environment, it shall issue a permit.
(d)
If the permitting authority determines that the activity has the potential
to significantly impact the environment, it shall forward the application
along with its recommendation to the Tribal Council who shall then
make the decision as to whether the permit should be issued.
(e)
Any person denied a permit by a permitting authority may appeal the
decision to the Tribal Council.
(f)
The decision of the Tribal Council shall be final.
14.03.03 "Significantly Affecting the Environment"
The determination
of whether an activity will significantly affect the environment shall
be made in the context of Nisqually Tribal culture and values. Factors
to be taken into consideration in evaluating a request or application
for significant effects on the environment include:
(a)
Whether the activity will adversely affect the quantity and quality
of the fish and shellfish resources of the Tribe;
(b)
Whether the activity will adversely affect wildlife and other natural
resources of the Tribe including water quality and quantity;
(c)
Unique or sensitive characteristics of the geographic or hydrologic
area in which the activity will take place;
(d)
Whether the activity may adversely affect an endangered or threatened
species or its habitat;
(e)
Whether the activity may cause loss or destruction of cultural, historical
or scientific resources;
(f)
Whether the activity affects the health and safety of the Nisqually
Tribal community;
(g) Whether
the effects of the activity are uncertain or involve unique or unknown
risks;
(h) Whether
the activity may establish a precedent for future actions with significant
effects;
(i) The
level of Tribal community support or opposition;
(j) Whether
the activity is related to other actions with individually insignificant
but cumulatively significant impacts. If it is reasonable to anticipate
a cumulatively significant impact on the environment, the activity
is significant.
(k)
Whether the activity threatens a violation of federal, state, or local
law or requirement or interlocal cooperation agreement to which the
Nisqually Tribe is a party, imposed for the protection of the environment.
(l)
Whether the activity would violate the Constitution of the Nisqually
Indian Tribe or any other law or policy of the Tribe.
Section
14.04 - Classification of Penalties
14.04.01 Classification of Penalties
Infractions
under this Subchapter shall carry the penalties set forth in this section:
Class
A: A fine not less than $500 but not to exceed $5,000.
Class
B: A fine not to exceed $5,000.
Class
C: A fine not to exceed $1,000.
Section
14.05 - Cultural Resources
14.05.01 Notification of Tribal Council
Any person
who fails to notify the Tribal Council and the Nisqually Historical
Committee when a cultural resource has been located or unearthed has
committed a class C infraction.
14.05.02 Failure to Halt Construction
Any person
who fails to halt construction on any site where a cultural resource
has been located or unearthed has committed a class B infraction.
14.05.03 Digging/ Excavation/ Removal
No person
shall, without the express written approval of the Tribal Council, remove
any artifacts or any other materials, including soil, sand and gravel,
from a cultural resource. Any person who removes or allows the removal
of artifacts or any other materials from a cultural resource without
the express written approval of the Tribal Council has committed a class
A infraction.
14.05.04 Destruction of Cultural Resource
Any person
who injures, defaces or destroys any cultural resource has committed
a class A infraction.
Section
14.06 - Excavation/ Dredging/ Filling
14.06.01 Waters/ Wetlands/ Shorelines
No person
shall excavate, dredge, fill, drain or alter the watercourse of any
waters, wetlands or shorelines, of the Tribe without the express written
approval of the Tribal Council and all permits required by federal law.
Any person
who excavates, dredges, fills, drains or alters the watercourse of any
waters, wetlands or shorelines, of the Tribe without the express written
approval of the Tribal Council and/ or without any permit required by
the federal government has committed a class A infraction.
14.06.02 Tribal Lands
No person
shall excavate, mine, drain, build roads or engage in any other earth
removal or disposition project on Tribal lands without the express written
approval of the Tribal Council and all permits required by federal law.
Any person
who excavates, mines, drains, builds roads or engages in any other earth
removal or disposition project on Tribal lands without the express written
approval of the Tribal Council and/ or without any permit required by
the federal government has committed a class A infraction.
Excavation
and earth removal in any cemetery for burial purposes are exempt from
this subsection.
14.06.03 Steep Slopes
No person
shall develop or excavate on any slope exceeding 30% without the express
written approval of the Tribal Council and certification in writing
from a licensed Professional Engineer that all reasonable precautions
have been taken to ensure foundation stability and the prevention of
mass soil movement or soil erosion.
Any person
who develops or excavates on any slope exceeding 30% without the express
written approval of the Tribal Council and/ or without the required
certification from a licensed Professional Engineer has committed a
class A infraction.
14.06.04 Use of Fill Material
Any person
who uses fill material to accommodate any development activity without
certification from a licensed Professional Engineer that such fill will
not alter or prohibit the natural flow of surface or ground water has
committed a class A infraction.
14.06.05 Earth or Construction Debris
(a) Any
person who allows earth or construction debris to enter waters, wetlands
or tidelands of the Tribe, or any waters of the United States, has
committed a class A infraction.
(b)
Any person who buries or disposes of construction debris at any place
other than an approved off-site station or landfill has committed
a class A infraction.
Section
14.07 - Fires
14.07.01 Burning Prohibited Substances
Any person
who sets on fire, or willfully, or as the result of negligence, allows
to be burned, any dead animals, asphalt, petroleum products, paints,
rubber products, plastics or any substance other than paper or natural
vegetation on any lands of the Tribe has committed a class B infraction.
Fires
set for religious or cultural purposes are exempt from this subsection.
14.07.02 Burning Without a Permit
Any person
who sets, or willfully, or as the result of negligence, allows to be
burned, any fire, without a permit from the Planning Department has
committed a class B infraction.
The following
activities are exempted from this provision provided that only one fire
is burned at a time and that the burning does not take place on the
tidelands:
(a)
Fires consisting solely of charcoal, propane, natural gas or wood
used solely for the preparation of food;
(b)
Fires for religious or cultural ceremonies;
(c) Fires
no larger than four feet in diameter and three feet in height for
campfires in designated fire pits; and,
(d)
Fires containing only paper, untreated timber, leaves, clippings,
prunings or other gardening refuse which:
(i)
Are no larger than four feet in diameter and three feet in height
or are contained in a barrel used for burning;
(ii)
Are burned during daylight hours, during periods of calm to very
light winds;
(iii)
Are burned on bare soil, green grass or other similar areas free
of combustible material; and,
(iv)
Are burned by a person in his or her own yard and may be reached
by a garden hose.
14.07.03 Burning on Shorelines
Any person
who sets, or willfully, or as the result of negligence, allows to be
burned, any fire upon the shorelines has committed a class B infraction.
Fires
used for Tribal member fishing are exempted from this provision provided
that they are no larger than four feet in diameter and three feet in
height.
14.07.04 Leaving a Fire Unattended
Any person
who sets, or allows to be set, any fire and then leaves the fire, unattended
by a person capable of extinguishing the fire, has committed a class
C infraction.
14.07.05 Burning During Air Pollution Episode
Any person
who sets, or willfully, or as the result of negligence, allows to be
burned, any fire, during any time period established by the Tribe or
other agency, including Thurston County, as an air pollution episode
or period of impaired air quality has committed a class B infraction.
Fires
set for religious or cultural purposes are exempt from this subsection.
Burning during an air pollution episode is also exempt from this subsection
if it occurs for heating purposes and is the person's only source of
heat.
14.07.06 Burning at Location Designated a Fire Hazard
Any person
who sets, or willfully, or as the result of negligence, allows to be
burned, any fire, at any location or during any time that the Tribe
has designated a fire hazard because of dry conditions or other emergency
situations requiring no outdoor burning has committed a class B infraction.
14.07.07 Failure to Report
Any person
who knows that a fire is endangering life or property and fails to give
prompt report to Tribal law enforcement has committed a class B infraction.
14.07.08 Failure to Control
Any person
who knows that a fire is endangering life or property and fails to take
reasonable measure to put out or control the fire if he knows he is
under an official, contractual, or other legal duty to prevent or combat
the fire, or if the fire was started, lawfully or unlawfully, by him
or with his assent, or on property in his custody or control, has committed
a class B infraction.
Section
14.08 - Livestock
14.08.01 Pasturing Livestock within Buffer Zone
Any person
who pastures, or willfully, or as the result of negligence, allows to
be pastured, any livestock on or within any buffer zone has committed
a class B infraction.
Section
14.09 - Motorized Vehicles
14.09.01 Unauthorized Use of Motor Vehicles
Any person
who operates, parks or allows the operation or parking of any motor
vehicle upon Tribal lands except upon roads, trails, or parking areas
specifically designated by the Tribe as allowing such operation or parking
has committed a class C infraction.
14.09.02 Abandoned Vehicles
Any person
who abandons a vehicle on or within Tribal lands or water has committed
a class C infraction.
A vehicle
shall be considered abandoned by its registered owner if it has been
left in a location other than the owner's driveway for a period of two
weeks or longer.
Section
14.10 - Pesticides
14.10.01 Pesticide Application
Any person
who applies, or allows to be applied to any lands or waters of the Tribe
any rodenticide, insecticide, herbicide, fungicide, algaecide, or any
other pesticides no matter the application procedure without a permit
from the Environmental Committee has committed a class B infraction.
The household
use of pesticides is exempted from this subsection provided that they
are applied according to label restrictions and are applied with best
management practices.
14.10.02 Application within Buffer Zone
Any person
who applies, or allows to be applied any rodenticide, insecticide, herbicide,
fungicide, algaecide or any other pesticides no matter the application
procedure, on or within any buffer zone has committed a class B infraction.
14.10.03 Pesticide Storage
Any person
who possesses any rodenticide, insecticide, herbicide, fungicide, algaecide
or any other pesticides and who negligently fails to store such pesticide
in such a manner so as to prevent it from spilling, spreading or being
ingested by any person or animal has committed a class B infraction.
Section
14.11 - Sewage Disposal
14.11.01 Failure to Connect to Sewage System
Any person
who owns or is legally responsible for a residence, place of business
or other building where persons congregate, reside or are employed who
does not have the structure connected to either an on-site sewage system
or a public sewage system has committed a Class B infraction.
14.11.02 Discharging Sewage to Water or upon the Ground
Any person
who owns or is legally responsible for a residence, place of business
or other building where persons congregate, reside or are employed who
allows sewage generated from the use of said structure to be discharged
to surface water, ground water, or upon the surface of the ground has
committed a Class B infraction.
14.11.03 Failure to Pump On-site Sewage System
Any person
who owns or is legally responsible for the maintenance of an on-site
sewage system who fails to pump the septic system once every five years
has committed a class C infraction.
14.11.04 Failure to Repair On-site Sewage System
Any person
who owns or is legally responsible for the maintenance of an on-site
sewage system, who knows, or, in the exercise of due diligence, should
have known, that the on-site sewage system is failing to function properly
and fails to promptly repair any leak, breakage or damage to the on-site
sewage system has committed a class B infraction.
14.11.05 Failure to Comply with Federal Requirement
(a) Any
person who owns or is legally responsible for a residence, place of
business or other building where persons congregate, reside or are
employed who fails to comply with all federal requirements relating
to sewage and/ or wastewater disposal has committed a class B infraction.
(b)
Any person who constructs, or allows to be constructed, an on-site
sewage system which does not comply with applicable federal standards
has committed a class B infraction.
14.11.06 Construction of On-site Sewage System within Buffer Zone
Any person
who constructs, or maintains an on-site sewage system on or within any
buffer zone has committed a class A infraction.
Section
14.12 - Spills
14.12.01 Spill of Hazardous Substance or Toxic Pollutant
Any person
engaged in any operation or activity which results in a spill, discharge,
or release of any hazardous substance or toxic pollutant onto the lands
or waters of the Tribe, or the waters of the United States, or within
any building wherein persons may be exposed to such substance or toxic
pollutant, has committed a class A infraction.
14.12.02 Spill of Pollutant
Any person
engaged in any operation or activity which results in a spill, discharge,
or release of any pollutant onto the lands or waters of the Tribe, or
the waters of the United States, has committed a class B infraction.
14.12.03 Failure to Notify
Any person
engaged in any operation or activity which results in a spill, discharge,
or release of any substance which may cause pollution of the lands or
waters of the Tribe, or the waters of the United States, who fails to
notify the Natural Resources Department Director or his or her designee
as soon as reasonably possible has committed a class B infraction.
14.12.04 Reparation
Any person
engaged in any operation or activity which results in a spill, discharge,
or release of any substance which may cause pollution of the lands or
waters of the Tribe, or the waters of the United States, who fails to
clean up the spilled substance and/ or repair the damage caused by the
spill as quickly as reasonably possible and using the best available
technology has committed a class B infraction.
14.12.05 Negligence
Any person
who negligently conducts any operation or activity which results in
a spill, discharge, or release of any substance which may cause pollution
of the lands and waters of the Tribe, or the waters of the United States,
has committed a class B infraction.
14.12.06 Willful Misconduct/ Reckless Disregard
Any person
who, through willful misconduct, or as a result of reckless disregard,
conducts any operation or activity which results in a spill, discharge,
or release of any substance which may cause pollution of the lands and
waters of the Tribe, or the waters of the United States, has committed
a class A infraction.
Section
14.13 - Tribal Resources
14.13.01 Vandalism/ Destruction of Lands
It is
the policy of the Tribe to maintain the natural beauty of the rocks,
cliffs and other objects of nature on Tribal lands.
Any person
who defaces or destroys the natural beauty of the rocks, cliffs or other
objects of nature upon or within the lands of the Tribe has committed
a class B infraction.
14.13.02 Unauthorized Use of Lands
No person,
other than members of the Nisqually Indian Tribe, shall go upon Tribal
land for the purpose of collecting driftwood, plant life, forest products,
souvenirs, sand or gravel.
Anyone
not a member of the Nisqually Indian Tribe who goes upon the lands of
the Tribe for the purpose of collecting artifacts, driftwood, plant
life, forest products, souvenirs, sand or gravel has committed a class
B infraction. Such person shall also be deemed guilty of trespass and
may be prosecuted under the appropriate federal statute.
14.13.03 Unauthorized Removal of Tribal Resources
No person,
other than members of the Nisqually Indian Tribe, shall remove any sands,
rock, mineral, plant life, marine growth, driftwood, souvenirs or other
product of the land.
Any non-Tribal
member who takes from the lands of the Tribe any sands, rock, mineral,
plant life, marine growth, driftwood, souvenirs or other product of
the land has committed a class B infraction.
14.13.04 Unauthorized Access to Water
Anyone
not a member of the Nisqually Indian Tribe who goes upon Tribal lands
for the purpose of tying boats or rafts, building boat ramps, or other
structures, or to use the lands for access to the water, or for any
other reason has committed a class B infraction. Such person shall also
be deemed guilty of trespass and may be prosecuted under the appropriate
federal statute.
14.13.05 Depletion of Tribal Water Resources
Any person
who willfully or as a result of negligence allows a Tribal water resource
to be depleted without the express written approval of the Nisqually
Utilities Committee has committed a class A infraction.
Use of
water in conformance with the requirements of the Nisqually Public Utilities
Ordinance shall not be considered a depletion of Tribal water.
14.13.06 Introduction of Fish or Aquatic Organisms
Any person
who introduces, or willfully, or as the result of negligence, allows
to be introduced any non-native fish or other aquatic organisms, or
the body parts of such fish or other organisms into the waters, wetlands,
or marshes of the Tribe or into the waters of the United States, without
the express written approval of the Nisqually Natural Resource Department,
has committed a class B infraction.
14.13.07 Forfeiture of Illegally Possessed Resources
Any sands,
rock, mineral, marine growth, driftwood, wildlife, game, fish, shellfish,
forest products, or souvenirs or other product of the land which has
been obtained in violation of this ordinance shall be forfeited to the
Tribe and may be seized by the Tribal law enforcement authorities. No
property rights shall exist in any resource which is possessed in violation
of this ordinance.
Section
14.14 - Waste Disposal/ Dumping
14.14.01 Toxic or Hazardous Substances
Any person
who disposes of, or causes to be released, any toxic pollutant, radioactive
waste or other hazardous substance on or within any Tribal land or Tribal
water, or within any building wherein persons may be exposed to such
substance or toxic pollutant, has committed a class A infraction.
14.14.02 Pollutants
No person
shall dispose of or cause to be released any pollutant on or within
any Tribal land or water without the express written approval of the
Tribal Council.
Any person
who disposes of, or causes to be released any pollutant on or within
any Tribal land or water without the express written approval of the
Tribal Council has committed a class B infraction.
14.14.03 Littering
Any person
who intentionally places, throws, deposits or otherwise disposes of
any rubbish, trash, cars, tires, household appliances, or other garbage
anywhere other than in containers or areas designated for disposal of
such items, within any Tribal land or Tribal water has committed a class
B infraction.
A presumption
that a person has littered is created when three pieces of litter identifying
the person are found at the site where the litter has been left.
Section
14.15 - Wood Cutting
14.15.01 Cutting, Removing or Selling Timber without a Permit
No person
shall cut, remove or sell any standing timber without a permit from
the Natural Resources Department and all other permits required by federal
law. A permit from the Natural Resources Department shall not be required
if the timber poses a danger, is blocking walkways or roadways, or is
on property owned by the person.
Any person
who cuts, removes or sells any standing timber without the required
permit(s) has committed a class B infraction.
14.15.02 Cutting, Removing or Selling Firewood
Firewood
cutting shall be limited to the cutting of dead, downed trees. No person
shall cut, remove or sell any firewood without a permit from the Nisqually
Natural Resources Department unless such wood poses a danger, is blocking
walkways or roadways or is on property owned by the person.
Any person
who cuts firewood without the required permit has committed a class
B infraction.
14.15.03 Cutting Wood in Sensitive Areas
Any person
who cuts any standing or fallen trees in a sensitive area as defined
by this ordinance without the express written approval of the Tribal
Council has committed a class B infraction.
14.15.04 Forfeiture of Illegally Possessed Wood
Any standing
or downed timber or driftwood which has been cut, sold, or removed from
any lands of the Tribe without a permit, or in violation of the terms
of a permit from the Tribe, shall be forfeited to the Tribe and may
be seized by the Tribal law enforcement authorities. No property rights
shall exist in any wood which is possessed in violation of this ordinance.
Section
14.16 --Enforcement Procedures
14.16.01 Who May Enforce
The provisions
of this ordinance shall be enforced by Tribal law enforcement officers,
other authorized law enforcement officers or by other persons or groups
designated by the Tribe.
Off-duty
Tribal law enforcement officers are authorized to enforce any provisions
of this ordinance.
14.16.02 Duty to Report/ Abate Danger
Any person
witnessing a violation of this ordinance which has the potential to
endanger the health or safety of any person has a duty to report such
violation to Tribal law enforcement officers or any other designated
Tribal official. When such a report has been made, law enforcement shall
take action to abate the danger as quickly as reasonably possible. Abating
the danger to the community shall take priority over any other law enforcement
action, including gathering evidence for the prosecution of a criminal
offense.
14.16.03 Power of Enforcement
Any person
authorized to enforce this ordinance shall issue a notice of violation:
(a) When
it occurs in the enforcement authorities' presence; or,
(b) When
the enforcement authority investigating a report of an infraction
finds probable cause to believe that a violation of this ordinance
has been committed.
14.16.04 Searches with a Warrant
The Tribal
Court may issue a warrant and direct a search to be made in any place
or premises wherein it is alleged that any items taken contrary to this
ordinance are concealed or kept. Such warrant shall be issued pursuant
to the rules of criminal procedure for the Nisqually Tribal Court.
14.16.05 Seizure of Items Taken or Used in Violation of this Ordinance
(a) Upon
issuance of a citation, the enforcement authority may seize all items
which he or she has probable cause to believe have been taken by the
alleged violator contrary to the provisions of this subchapter.
(b)
An enforcement authority may, in addition, seize any litter, pesticide,
pollutant, or toxic or hazardous substance which he or she has reasonable
grounds to believe have been used, disposed of, or released in violation
of this subchapter.
(c)
An enforcement authority who has seized any item pursuant to this
section shall prepare a written inventory of all items seized which
shall be signed by the enforcement authority and the alleged violator.
A copy of the inventory shall be given to the alleged violator, and
another copy filed with the Tribal Court.
(d)
The arresting officer shall, as soon as possible, sell all perishable
items having market value which have been seized from the alleged
violator. The perishable items shall be sold at the nearest market
at the then prevailing price at the market selected. All proceeds
from the sale shall be immediately deposited in a special account
at the Tribal Office. The alleged violator shall receive a copy of
the sales receipt. The proceeds from the sale of seized perishable
items shall be held until disposed of pursuant to order of the Tribal
Court.
(e) All
items, other than perishable items, seized pursuant to this section
shall, as soon as practicable, be brought to the Tribal Office or
other place designated by the Nisqually Indian Tribe for the storage
of seized property. Seized property shall be stored in such a manner
as to minimize further damage to it and shall be held at the owner's
risk until returned or sold as provided in subsection 14.18.05.
14.16.06 Notice of Violation
The Tribe
through its enforcement authorities shall give a written notice to any
violators of this subchapter. The notice of violation shall:
(a)
Specify the nature of the violation, the location of the violation,
and the section(s) of this ordinance being violated;
(b) Set
a date for hearing before the Tribal Court which shall be no sooner
than ten (10) days after service of the notice;
(c)
Notify the violator that if the violator does not appear before the
Tribal Court on the date set for hearing, the court may declare the
defendant to be in default and award any appropriate relief to the
complainant as provided by this ordinance.
14.16.07 Person Receiving Notice - Identification and Detention
(a) A
person who is to receive a notice of violation under subsection 14.16.06
is required to produce reasonable identification, including a driver's
license or indenticard.
(b)
A person who is unable or unwilling to reasonably identify himself
or herself to an enforcement authority may be detained for a period
of time no longer than is reasonably necessary to identify the person
for purposes of issuing a notice of violation.
14.16.08 Service of Notice
The notice
of violation shall be served upon the defendant in the following manner:
(a) By
delivering a copy personally to the defendant or the defendant's authorized
representative, or to any member of the defendant's family residing
with the defendant who is eighteen (18) years of age or older; or,
(b)
By delivering a copy to the defendant's place of business and leaving
it with a secretary or other person authorized to accept service.
(c) If,
after reasonable effort is made, the defendant can not be personally
served, service may be made by sending a copy of the notice to the
defendant's last known address by certified mail, return receipt requested,
and sending an additional copy by regular mail.
An affidavit
of service filed with the Tribal Court shall constitute proof of service
of the notice of violation. If service is made in the manner described
in subsection (c), the affidavit must describe the efforts that were
made to personally serve the defendant.
14.16.09 Cease and Desist Orders
(a) If
the Tribe or its authorized representative determines, with or without
a hearing, that there exists a violation of any provision of this
ordinance, the Tribe may issue a cease and desist order. Such order
shall set forth the provision alleged to be violated, the facts alleged
to constitute the violation, and the time by which acts or practices
complained of must be terminated.
(b)
The order shall be served in the manner provided in subsection 14.16.08.
(c) A
Cease and Desist Order does not preclude the Tribe from seeking civil
penalties and/ or damages.
14.16.10 Clean-up Orders
(a) The
Tribe or its authorized representative may issue orders to any person
to clean up any hazardous or toxic substance, pollutant, refuse or
garbage which he, or his employee, or his agent has accidentally or
purposely dumped, spilled, or otherwise deposited in, on or within
any lands, wetlands, tidelands, or waters within the jurisdiction
of the Tribe. A Cleanup Order may require that the best available
technology be used to restore the polluted area as near as possible
to its original condition.
(b) The
order shall be served in the manner provided in subsection 14.16.08.
(c) A
Cleanup Order does not preclude the Tribe from conducting its own
cleanup activities, seeking civil penalties and/ or seeking damages.
14.16.11 Request for Court Order
In the
event any person fails to comply with a cease and desist or cleanup
order that has not been temporarily suspended pending administrative
or judicial review, the Tribe may request the tribal prosecutor to bring,
and if so requested it shall be his duty to bring, an action in Tribal
Court for a temporary restraining order, or a preliminary or permanent
injunction to prevent any further or continued violation of such order.
The Tribe may also request a court order prohibiting the person from
obtaining any further permits or licenses issued by the Tribe.
14.16.12 Appeal of Cease and Desist Order or Cleanup Order
Any Cease
and Desist Order or Cleanup Order may be appealed to the Tribal Court.
The appealing party shall serve a notice of the hearing on the party
who issued the order in the manner provided in subsection 14.16.08.
Section
14.17 - Court Procedures
14.17.01 Rights of Parties
Any party
to a hearing held pursuant to this ordinance has the following rights:
(a) The
right to be represented by counsel, but at his or her own expense;
(b) The
opportunity to subpoena witnesses;
(c) The
opportunity to introduce, examine and cross-examine witnesses;
(d) The
opportunity to discover, offer and inspect evidence; and,
(e) The
opportunity to explain any mitigating circumstances surrounding the
violation.
14.17.02 No Right to Jury Trial
There
is no right to a jury trial in proceedings held pursuant to this subchapter.
Such proceedings shall be heard by the Court without a jury.
14.17.03 Hearing
After
consideration of the evidence and arguments presented, the Court shall
determine whether or not a violation of this ordinance has been committed.
If the Court has established, by a preponderance of the evidence, that
a violation has been committed, the Court shall enter an order accordingly.
If the Court does not establish that a violation of this subchapter
has been committed it may overturn any cease and desist orders, cleanup
orders, restraining orders or injunctions that have been issued.
14.17.04 Appeals
Any party
may appeal any final order made by the Court pursuant to this ordinance.
All appeals shall be governed by the rules for appeal in other civil
cases.
Section
14.18 - Power of the Court
14.18.01 Power of the Court - Generally
If the
Court finds by a preponderance of the evidence that a violation of this
ordinance has been committed, it may require the violator to pay a civil
penalty in an amount not to exceed the maximum penalty allowed for the
infraction. It may also order any other remedies provided for by this
ordinance.
14.18.02 Guideline for Assessing Penalties
Factors
the Court should take into consideration when determining the appropriate
civil penalty for a violator of this ordinance are:
(a)
Whether the violator has previously appeared before the Court because
of a violation of this ordinance;
(b)
Whether the violator has established a pattern of repeated violations
of this ordinance;
(c) Whether
the violator has committed similar environmental violations in other
jurisdictions;
(d) Whether
the violator has attempted to repair the damage caused by the violation;
(e) The
extent of the violator's resources and the needs of his or her dependents,
if any;
(f) The
extent to which the violation has damaged the environmental or cultural
resources of the Tribe and the extent to which such damage may be
repaired;
(g)
Whether natural or cultural resources damaged by the violator are
irreplaceable.
14.18.03 Continuing Violations
Any violation
which continues for more than one day will be considered a continuing
violation. A separate violation is deemed to have occurred and a separate
penalty may be assessed for each day in which the violation continues.
14.18.04 Community Service
Upon a
showing of financial hardship, the court may sentence a violator to
perform community service hours in lieu of payment of a fine imposed.
Each hour of community service shall reduce the fine by the amount of
federal minimum wage at the time of sentencing. Adequate supervision
must be available before community service hours are imposed.
14.18.05 Disposition of Seized Property
(a) The
Court shall determine the disposition of property seized under subsection
14.16.05 at the hearing held on the notice of violation.
(b)
If the Court determines that the owner of the seized property did
not violate the provisions of this subchapter, the Court shall order
the property, and/ or the proceeds from the sale of perishables returned
to the person from whom it was seized.
(c)
If the Court finds that a violation of this subchapter has been committed,
the Court may order that any seized property lawfully owned by the
alleged violator, or any proceeds therefrom, remain in the possession
of the Nisqually Indian Tribe until the violator has paid the penalty
assessed. If the violator does not pay the penalty within thirty (30)
days, the Tribe may hold an auction for the purpose of selling the
property. Notice of the auction must be posted at the Tribal Center
and mailed to the violator at the violator's last known address at
least ten (10) days prior to the auction.
(d)
Proceeds from an auction held pursuant to subsection (3) shall be
disbursed in the following order:
(i)
To pay the costs associated with the auction;
(ii)
To be applied to the penalty owed to the Tribe as the result of
the violation;
(iii)
Any remaining moneys shall be held for the benefit of the violator
for a period of six (6) months, after which they shall become the
property of the Tribe.
(e)
All items taken by the alleged violator contrary to the provisions
of this ordinance, or any proceeds therefrom, shall become the property
of the Tribe.
14.18.06 Restraining Orders and Injunctions
(a) In
addition to any civil penalty imposed, the Court may also issue a
temporary restraining order, preliminary injunction, or permanent
injunction to prevent any further or continued violation of this ordinance.
(b)
Any violation of a restraining order or injunction shall be in addition
to said above penalties and subject to punishment for failure to comply.
14.18.07 Penalties for Failure to Comply
Any person
who violates any provision of any permit issued by the Tribe or fails
to comply with any temporary restraining order, preliminary injunction,
or permanent injunction issued by the Tribal Court or any final cease
and desist order or cleanup order issued by the Tribe shall be subject
to a civil penalty of not more than five thousand dollars ($ 5,000)
per day for each day during which such violation occurs. Said penalty
shall be in addition to any penalty assessed for the underlying infraction.
14.18.08 Costs of Cleanup/ Actual Damages
In addition
to the civil penalties imposed in this ordinance, any person who commits
an environmental infraction must:
(a)
Pay the cost of any necessary cleanup, restoration or reclamation
caused by the violation, as ordered by the Tribal Court or by any
administrative body with jurisdiction; and
(b)
Pay any actual damages for injury to property, life or resources of
any person, corporation, public body or Tribal entity.
14.18.09 Joint and Several Liability
If more
than one person is found by the Court to have contributed to a violation
of this ordinance which has resulted in damages or which requires cleanup,
restoration or reclamation, such persons shall be jointly and severally
liable for such damages, cleanup, restoration or reclamation and shall
have a cause of action for contribution from the other responsible parties.
14.18.10 Attorney's Fees and Costs
In addition
to the civil penalties imposed by this ordinance, the Court may order
any violator to pay the attorney's fees and costs incurred by the Tribe
in enforcing the ordinance.
TITLE
14 - ENVIRONMENT AND NATURAL RESOURCES
SUBCHAPTER
II - FISHING
Section
14.19 General Provisions
14.19.01 Intent
This subchapter
shall establish the general provisions governing the exercise of fishing
rights reserved by and secured to the Nisqually Indian Tribe by the
Treaty of Medicine Creek.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.19.02 Exercise of Fishing Rights
No person
shall exercise or assist in the exercise of any fishing right reserved
by or secured to the Nisqually Indian Tribe except in accordance with
this subchapter and Annual Regulations hereafter approved by the Nisqually
Tribal Business Committee and Emergency Regulations adopted by the Nisqually
Fish Commission.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.19.03 Definition
For the
purpose of this subchapter:
(a) "Exercise
or assist in the exercise of any fishing right" means to handle
or operate any boat or other vessel used in fishing, to handle or
operate any net, device used in the operation of any net, or any other
gear used in fishing; or to use a treaty fisherman or other Indian
identification card in fishing or in the sale, trading or peddling
of fish.
(b)
"Enrolled members of the Nisqually Indian Tribe" means those
persons whose names appear on the membership roll of the Nisqually
Indian Community as approved by the Secretary of the Interior or his
or her designee.
(c)
An "authorized assistant" means any person who:
(i)
Is the spouse of an enrolled member of the Nisqually Indian Tribe;
or
(ii)
Is a treaty Indian of the Nisqually Indian Tribe or another treaty
tribe with fishing rights in the same usual and accustomed places.
(d)
"Spouse" means one's marriage partner: a husband or wife.
Historical
and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.19.04 Presumption
For the
purposes of enforcement of this subchapter, any person fishing or assisting
in fishing in an area open only to tribal fishermen, or with nets or
other gear available only to tribal fishermen, or with a boat plaque
or identification card bearing numbers that are or appear to be assigned
to the Nisqually Indian
Tribe
or its members shall be presumed to be "exercising or assisting
in the exercise of a fishing right" reserved or secured to the
Nisqually Indian Tribe.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.19.05 Violation of Regulations
For the
purposes of enforcement of this Subchapter, violation of any provision
of the Annual Fishing Regulations, Emergency Regulations or Sportfishing
Regulations shall be considered a violation of this Subchapter.
Historical
and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.19.06 Jurisdiction
(a)
The jurisdiction of the Nisqually Indian Tribe shall extend to all
usual and accustomed fishing areas reserved by and secured to the
Nisqually Nation by the Treaty of Medicine Creek.
(b)
Within the exterior boundaries of the Nisqually Indian Reservation,
the Nisqually Indian Tribe shall retain the exclusive right to the
fishery resource; regulation and control of all fish habitat; and
exclusive jurisdiction over all individuals, agencies and entities
in all fishery-related activities.
(c)
Within those usual and accustomed fishing areas outside the exterior
boundaries of the Nisqually Indian Reservation, the Nisqually Indian
Tribe shall exercise jurisdiction over all members of the Nisqually
Indian Tribe and over all persons operating or purporting to operate
under Tribal authority in the taking of fish.
(d)
Concurrent jurisdiction shall be exercised in those areas recognized
as the usual and accustomed fishing areas of the Nisqually Indian
Tribe as well as of other tribes having established treaty reserved
rights. Cross deputization of tribal law enforcement officers between
Medicine Creek Treaty Tribes or with State or Federal law enforcement
agencies may be effected upon agreement of the participating governing
bodies.
(e)
General restrictions of the contents of this Section to identifiable
areas are not to be construed as a relinquishment of the right of
the Nisqually Indian Tribe to pursue its treaty protected fishing
rights now or in the future in all usual and accustomed areas.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
Section
14.20 - Right to Fish
14.20.01 Who May Exercise the Tribal Right to Fish
(a)
The Nisqually Indian Tribe's right to fish in its usual and accustomed
fishing places may be exercised by enrolled members or their authorized
assistants, fishing in accordance with the provisions of this Section
and any regulations adopted in accordance with this Section.
(b) An
enrolled member of the Nisqually Indian Tribe may be assisted in the
exercise of Nisqually Tribal fishing rights by an "authorized
assistant" as provided under the rulings of the Courts in United
States v. Washington, 384 F. Supp 312 at 412 (W. D. Wash. 1974),
affirmed 520 F. 2d 676 (C. A. 9 1975) cert. denied 423
U. S. 1086 (1976).
(i)
No enrolled member may be assisted by more than one authorized assistant
during any fishing season.
(ii)
An authorized assistant may assist only one enrolled member during
any fishing season.
(c) Within
the boundaries of the Nisqually Indian Reservation enrolled members
shall have the exclusive right to fish except as herein provided:
(i)
An enrolled member may secure the assistance of his or her spouse.
Such spouse may fish for the enrolled member without the enrolled
member present on the boat.
(ii)
An enrolled member may not be assisted by anyone other than his
or her spouse while fishing within the exterior boundaries of the
Nisqually Reservation.
(d) Within
the Nisqually Tribe's off-reservation usual and accustomed fishing
places, enrolled members of the Nisqually Tribe shall have the exclusive
right to exercise Nisqually Tribal fishing rights, except as hereafter
provided:
(i)
An enrolled member may secure the assistance of his or her spouse.
(A)
For fishing places in the Nisqually River and in McAllister Creek,
such spouse may fish for the enrolled member without the enrolled
member present on the boat.
(B) For fishing in all other usual and accustomed fishing places
of the Nisqually Tribe, including all marine waters, creeks, rivers
or lakes (other than the Nisqually River or McAllister Creek),
both the enrolled member and the spouse must be present on the
boat while it is engaged in the exercise of any fishing rights
of the Nisqually Indian Tribe.
(ii)
An enrolled member may secure the assistance of an "authorized
assistant" (as defined in subsection 14.19.03( c)) other than
his or her spouse. Both the enrolled member and such authorized
assistant must be present on the boat while it is engaged in the
exercise of fishing rights of the Nisqually Indian Tribe.
(iii)
Where an enrolled member presents a written statement showing that
undue hardship would result from requiring the enrolled member and
the spouse or other authorized assistant both to be on board the
boat, the Nisqually Tribal Fish Commission may grant special written
permission for the authorized assistant to fish without the enrolled
member present on the boat. Such special permission shall be signified
in writing and signed by at least three members of the Nisqually
Fish Commission. The writing shall be kept with other records of
tribal fishermen and authorized assistants at the tribal office
and a copy shall be provided to the enrolled member. Such special
permission must be for a specified time, not to exceed one year
at a time.
(e) No
person shall exercise such fishing rights who is not yet eighteen
(18) years of age; except as herein provided:
(i)
An individual not yet eighteen (18) years of age may fish pursuant
to this Section when the parent or guardian of said individual submits
a written document to the Tribal office stating acceptance of full
responsibility for the actions of individuals not yet eighteen (18)
years of age.
(ii)
An individual not yet eighteen (18) years of age shall not secure
the assistance of any person other than his or her spouse in exercising
treaty fishing rights.
(f)
No person shall exercise or assist in the exercise of the fishing
rights reserved by or secured to the Nisqually Indian Tribe if such
person has, in the same fishing year, exercised the fishing rights
of another treaty tribe.
(g) Enrolled
members and authorized assistants shall use only vessels purchased
or owned by Nisqually Tribal members, spouses of Nisqually Tribal
members, authorized assistants, or the Nisqually Tribe, while exercising
any fishing rights of the Nisqually Indian Tribe. For purposes of
this Section, a lease or rental shall not be considered owned or purchased
by the tribal member or authorized assistant.
(h)
By special Emergency Regulation, the Nisqually Fish Commission may
permit biologists or other scientists, fishery managers or special
observers on board a vessel used in a tribally authorized fishery
for a designated period of time and under such terms and conditions
as the Nisqually Fish Commission may specify in the Emergency Regulation.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
Section
14.21 - Identification
14.21.01 Identification Cards and Boat Plaques
(a)
All fishing identification cards and boat plaques issued by the Nisqually
Indian Tribe shall be the property of the Nisqually Indian Tribe.
All expired fishing identification cards shall be returned to the
Fisheries Secretary upon application for a new fishing identification
card.
(b)
Prior to exercising their fishing rights, fishermen qualifying under
subsection 14.20.01 of this Section shall annually obtain the following
required fishing identification card:
(i)
A treaty fisherman identification card issued by the Nisqually Fish
Commission bearing the Bureau of Indian Affairs serial number, the
picture of the enrolled member and bearing on the back an expiration
date showing that said card is valid only through June 30 of the
year following the date it was issued.
(ii)
For spouses of an enrolled member, a treaty fisherman identification
card issued by the Nisqually Fish Commission bearing the words "spouse
card," the Bureau Of Indian Affairs serial number of the enrolled
member, a picture of the spouse, and bearing an expiration date
showing that said card is valid only through June 30 of the year
following the date it was issued;
(iii)
A new treaty fisherman identification card of a new color shall
be issued each year for that year's fishing season; and
(iv)
A boat plaque issued by the Nisqually Fish Commission bearing the
same Bureau of Indian Affairs serial number as is shown on the treaty
fisherman identification card.
(c)
Such fishing identification card shall be in the possession of the
fisherman when engaged in fishing activities, or when transporting
or selling fish.
(i)
It shall be unlawful for any treaty fisherman or authorized assistant
to allow any other person to use or possess such fishing identification
card or boat plaque at any time.
(ii)
It shall be the responsibility of the Holder (enrolled member or
authorized assistant) to protect the use of a fishing identification
card or boat plaque. Lost or stolen documents that are required
for the exercise of fishing rights must be reported immediately
to the Fisheries Secretary.
(d) If
an enrolled member or authorized assistant accidentally loses his
or her treaty fisherman identification card or boat plaque and reports
it immediately (within seven calendar days), with an explanation of
the circumstances of the loss, the enrolled member or authorized assistant
may, upon payment of a fee established by the Annual Fishing Regulations
have a replacement card issued by the Nisqually Fish Commission. No
card may be replaced more than once each fishing season.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
14.21.02 Issuance of Identification Cards
(a) Tribal
fishing identification cards shall be issued annually at a fee established
by the Annual Fishing Regulations in accordance with the following
schedule:
Enrolled
Members............................................................................................
$10.00 minimum
Authorized Assistants ......................................................................................
$10.00 minimum
Enrolled Members (Under 18) .........................................................................
$10.00 minimum
Replacement Identification Card ......................................................................
$20.00 minimum
Replacement Boat Plaque...................................................................................$20.00
minimum
Subsistence & Ceremonial Permit...............................................................................
No Charge
(b) At
least one month before the beginning of that year's fishing season,
the Tribal Fisheries Office shall give notice that Tribal fishing
identification cards will be issued.
(i)
The Notice shall include the times, place and dates where enrolled
members may secure the fishing identification card.
(ii)
Such Notice shall be posted at the Nisqually Tribal Center, the
Fisheries Office, and such other community locations as the tribal
Fish Commission may designate.
(iii)
Notice shall be mailed to each enrolled member eighteen (18) years
of age or older at his or her last known address.
(c) Spouses
exercising the fishing rights of enrolled members shall be issued
a fishing identification card with the Bureau of Indian Affairs serial
number of the enrolled member.
(d) Enrolled
individuals not yet eighteen (18) years of age who exercise fishing
rights under the full responsibility of their parent or guardian shall
be issued a fishing identification card with an authorization form
with signatures of both parties on file in the Fisheries Office.
(e) Individuals
exercising the fishing rights of an enrolled member by acting as an
"authorized assistant" (other than a spouse) shall not be
issued a tribal fishing identification card unless and until a written
agreement establishing monetary benefit to the member and duration
of agreement has been signed by the authorized assistant and the member
and a copy provided to the tribal Fisheries Office.
(f) Fees
collected under the schedule listed under paragraph (a) of this subsection
incorporated within this subchapter shall be deposited in a properly
identified account and expended for the purpose of fulfilling the
requirements of this subchapter and for such other purposes as hereafter
determined by the Nisqually Business Committee in concurrence with
the Nisqually Fish Commission.
Historical
and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
Section
14.22 - Taxes
14.22.01 Tribal Fish Tax
(a) A
tribal fish tax established in the Annual Fishing Regulations in the
amount of $0.02 minimum on each dollar is hereby imposed on the sale
of all fish caught by enrolled members or authorized assistants. The
annual rate of tax is to be established by the Nisqually Fish Commission
and approved by the Nisqually Business Committee.
(b)
The tribal fish tax shall be collected by the licensed fish buyer
buying the fish caught by the enrolled member or authorized assistant.
Such fish buyer shall remit promptly (within seven calendar days)
to the Nisqually Indian Tribe the amount of the tribal tax collected.
(c) It
is the responsibility of each enrolled member and authorized assistant
to ensure that the amount of tribal tax collected is marked on the
Treaty Indian Fish Receiving Ticket. If the amount of tribal fish
tax due is not marked on the fish ticket, it shall be presumed that
the fish buyer did not collect it and the amount due shall be collected
by the Tribe from the fisherman. No new or replacement treaty fisherman
identification card shall be issued unless and until all such taxes
due and not collected by the fish buyer have been paid to the Nisqually
Indian Tribe by the fisherman.
(d) All
tribal fish taxes shall be placed in a special Tribal Fish Tax Account
and shall not be co-mingled with other tribal funds. Such fish tax
funds shall be expended in concurrence with the Nisqually Fish Commission
and approval of the Nisqually Business Committee for expenses and
activities related to the Tribe's treaty fishing rights and fishery
resources.
Historical and Statutory Notes
This section
amended in 1991. Originally created by Ordinance 1-1981.
Section
14.23 - Regulatory Framework
14.23.01 Annual Fishing Regulations
(a) The
Nisqually Fish Commission shall draft Annual Fishing Regulations to
be effective from July 1 of the year adopted through June 30 of the
succeeding year.