Solid Waste Enforcement Issues

Developing and Implementing Solid Waste Codes

ITEP - TSWEAPUSET Offices, Nashville, TN

May 6-8, 2014Jill Elise Grant Jill Grant & Associates, LLC1319 F Street, NW, Suite 300Washington, DC 20004Ph. 202-821-1950Email: jgrant@jillgrantlaw.com

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Sources of Tribal Enforcement AuthorityFederal Indian Law Principles

Inherent Sovereign AuthorityRight to Exclude

TreatiesTribal ConstitutionTribal Authorizing Statutes/Ordinances and

Regulations

Inherent Sovereign Authority

A tribe has inherent authority “to protect tribal self-government or to control internal relations,” Montana, 450 U.S. at 564Full authority over IndiansLimited civil authority over non-Indians, per

the two Montana exceptions No criminal jurisdiction over non-Indians

Right to Exclude

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Tribal ConstitutionPUEBLO OF LAGUNA CONSTITUTION

Article I. – Jurisdiction Sec. 2. All members of the Pueblo . . . And all other persons permitted to reside on the . . . Pueblo, and all persons who enter upon the lands of the Pueblo, shall be governed by this Constitution, ordinances, customs, traditions and applicable laws.

Article IV. – The Pueblo Council and Its Powers Sec. 2(e) To establish and enforce ordinances governing the conduct . . . of residents of the Pueblo.(k) To promote and protect the pubic health and welfare of the members and other residents of the Pueblo.

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Tribal Constitution – Right to Exclude

PUEBLO OF LAGUNA CONSTITUTIONArticle I. – Jurisdiction

Sec. 3. Any non-member who violates the Pueblo Constitution, ordinances, customs, traditions, and applicable laws protecting the lands or people of the Pueblo may be excluded from Pueblo lands in accordance with ordinances of the Pueblo, which shall provide for due process.

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Tribal Environmental LawsNavajo Nation Solid Waste Act

Sec. 152. General Enforcement Authority

A. In General. Whenever, on the basis of any information available to the Director, the Director finds that any person has violated, or is in violation of, any requirement or prohibition of this Chapter, the regulations promulgated under this Chapter, or permits, orders, plans, variances, or fees issued or approved pursuant to this Chapter, the Director may:

1. Issue and serve on such person an order requiring the person to comply with each requirement or prohibition, pursuant to the provisions of this Section;

2. Issue and serve on such person an administrative penalty order in accordance with Sec. 154 of this Chapter;

3. Bring a civil action in accordance with Sec. 153(A) of this Chapter; and/or

4. Bring a criminal action in accordance with Sec. 153(B) of this Chapter.

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Other Enforcement ActionsSeizure/Forfeiture of PropertyExclusion from ReservationProhibit Continued Operation of Facility

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Types of Administrative OrdersInjunctive ReliefPenalty

Can be combined with injunctive reliefCan be monetary or, e.g., for community

serviceEmergency

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Enforcement ProcessPre-Enforcement Stage

Discovering ViolationIdentifying ViolatorIssuing Notice of Violation

EnforcementField Citation (expedited compliance order)Compliance OrderLawsuit

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Discovering ViolationsEntry/Access to property to inspectScheduled inspections/drive-aroundsRequesting notice from other tribal

agencies/officersSafety issues

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Fair, Consistent EnforcementNo exemptions, e.g. for tribal businessesHearings

Separate from Environmental Office or Council

Opportunity for Judicial ReviewStandardized Process

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Preventive MeasuresPublic Education

General public (community meetings, events)Other Tribal departments and personnel

Options for DisposalTrash pick-upTransfer stationsRecyclingComposting

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