American Bar Association
Section of Administrative Law and Regulatory Practice
2003 Midyear Meeting
Administrative Law, Tribal Law and the Environment
Friday, February 7, 2003
Seattle Convention Center
Meeting Room 204, Level 2
10:00 a.m. – 12:00 p.m.
Co-Sponsored by the Section of Environment, Energy and Resources and Standing Committee on Environmental Law
Program Chair:
Professor Wendy Wagner is the nation's leading authority on the use of science by environmental policy-makers. She received a Masters of Environmental Studies in 1984 and her law degree in 1987, both from Yale, where she was Senior Editor of the Yale Law Journal and Managing Editor of the Yale Journal of Regulation. Before entering teaching, she practiced for four years, first as an Honors Attorney in the Enforcement Division of the Department of Justice's Environment and Natural Resources Division, and then as Pollution Control Coordinator with the Department of Agriculture's Office of the General Counsel. Prior to joining the faculty at the University of Texas, Professor Wagner taught at Case Western Law School, where she established herself as a prolific scholar. Among her many articles, "The Science Charade in Toxic Risk Regulation" (Columbia Law Review, 1995) was chosen as one of the five best environmental law articles of the year and reprinted in the Land Use and Environmental Law Review. She is currently one of seven lawyers serving on the American Bar Association's National Conference of Lawyers and Scientists. J.D. 1987, MES 1984, Yale; BA 1982, Hanover College
Moderator:
Polly L. McNeill is an environmental/land use attorney, focusing on the areas of permits and administrative law, particularly related to land use and the State Environmental Policy Act, and hazardous and solid waste matters. Experience: Polly’s practice ranges from general land use permitting matters for commercial and industrial facilities, to specific land use issues related to recycling, solid waste and hazardous waste activities. Her work includes all aspects of environmental documentation and analysis under the Washington State Environmental Policy Act, including preparing environmental documentation and as well as litigating related administrative and judicial appeals. She has significant experience dealing with unique problems associated with contaminated property, and has negotiated cleanups, contractual allocations of risk, and prospective purchaser agreements under both federal and state laws. Ms. McNeill has expertise in federal, state and local wetlands regulations, and the Shoreline Management Act. In addition to practicing in state and federal courts, she has experience working with many local jurisdictions and most state regulatory agencies, including the Department of Ecology, the Washington Utilities and Transportation Commission, and the Department of Natural Resources. Education: The College of Idaho (B.A., magna cum laude, 1976); Warnborough College, Oxford, England (Post-graduate studies); University of Washington Law School (J.D., with honors, 1987; Associate Editor-in-Chief, Washington Law Review). Memberships: American Bar Association (Section on Natural Resources, Energy and Environmental Law); Washington State Bar Association (Environmental and Land Use Law Section); University of Washington Alumni Board (President, 2001-2003); Greater Seattle Chamber of Commerce; Association of Washington Business (Land Use Committee Chair, 1996-2000).
Panelists:
Robert Anderson is an Assistant Professor of Law and Director of the Native American Law Center. He is a graduate of the University of Minnesota Law School. For twelve years he was a Senior Staff Attorney for the Native American Rights Fund in Boulder, Colorado and Anchorage, Alaska. He litigated major cases involving Native American sovereignty, hunting and fishing rights, and natural resources. From 1995-2001 he served as an appointee of Interior Secretary Bruce Babbitt where he provided legal and policy advice on a wide variety of Indian law and natural resource issues. He teaches Indian law, public land law, and first year property. He is an enrolled member of the Minnesota Chippewa Tribe (Bois Forte Band). B.A.1980, Bemidji State University; J.D. 1983, University of Minnesota
Richard A. Du Bey is Chair of the Environmental and Natural Resources Section and practices primarily in the areas of environmental, land use, natural resources, energy, federal and tribal law. He counsels private and public sector clients in regulatory negotiations, environmental risk management, hazardous waste cleanup, and natural resource damage matters, energy project development, permitting and compliance. He served for four years as Assistant Regional Counsel for the Seattle office of the U.S. Environmental Protection Agency (Region 10) and in 1980 entered private practice. He is a member of the Bar in Massachusetts and Washington. Professional Associations & Publications: From 1978 through 2000, Mr. Du Bey served as a member of the Adjunct Faculty to the University of Washington with the Institute for Environmental Studies, the Educational Outreach Program and the Graduate Environmental Management MBA Program at the Business School. He also serves as Legal Advisor to the Pacific Northwest Pollution Prevention Research Center (1997-02). Member, Natural Resources, Energy and Environmental Law and Indian Law Sections of the American Bar Association Member, ABA-SONREEL Brownfields Task Force Member, Environmental and Land Use Law Section and Indian Law Section (Founder and First Chair) of the Washington State Bar Association. Member, Environmental Law and Management Education Committee Member, Washington Environmental Industries Association
Associate member, Washington Public Ports Association Member, Department of Ecology Underground Storage Tank Advisory Committee Member, U.S. EPA Pacific Northwest Hazardous Waste Advisory Council Co-author, "Closing the Circle: Tribal Implementation of the Superfund Program in the Reservation Environment," Journal of Natural Resources & Environmental Law (1994) Co-author, "The Assertion of Natural Resource Damage Claims by Indian Tribal Trustees," Environmental Claims Journal (1991) Co-author, "Protection of the Reservation Environment: Hazardous Waste Management on Indian Lands," Environmental Law (1988) Author, "Control of Oil Transport in the Coastal Zone: A Look at Puget Sound," Oregon Law Review (1977)
Civic Activities: Member, Board of Trustees and Member Issues Identification Committee, Washington Research Council (1997-99) President, Lakeridge Heights Homeowners Association (1998-00) President, Herzl-Ner Tamid Conservative Congregation (2000-01) Member, Board of Directors, Mercer Island Boys & Girls Club (1993-00) Secretary, Evergreen Chapter, 82nd Airborne Association (1990-92) Education: University of Washington School of Law, LL.M. (Law and Marine Affairs), 1976 New England School of Law, J.D., 1975 University of Miami, B.B.A., 1968
Joe Mentor, Jr. is the Principal Member of the Mentor Law Group, PLLC in Seattle, Washington. Joe concentrates his law practice in the areas of water resources, land use, natural resources development and Indian law. Joe began his professional career in 1982 as Judicial Law Clerk for Washington Supreme Court Justice James M. Dolliver. From 1983-87, he served as Legislative Counsel to U.S. Senator Daniel J. Evans for energy and natural resource and Indian Affairs issues. From 1987-89, Mr. Mentor served as Minority Chief Counsel and Staff Director for the U.S. Senate Select Committee on Indian Affairs. He received the Outstanding Congressional Staff Award for the 99th Congress from the American Rivers Conservation Council for his work on the Electric Consumers Protection Act and the Columbia Gorge National Scenic Area Act. Throughout his career, Mr. Mentor has worked extensively with public agencies, Indian tribes and private companies to achieve their legislative, policy, business and environmental compliance objectives. He was a Principal with Lasher Holzapfel Sperry & Ebberson, PLLC prior to forming the Mentor Law Group. Representative clients include Trendwest Resorts, Inc. (a subsidiary of JELD-WEN, Inc.), Oki Developments, Inc., Seattle Pacific University, the Columbia Basin Fish and Wildlife Authority and the Hood Canal Coordinating Council. Mr. Mentor has extensive experience working on legislative issues both at the federal and state levels. He was a primary draftsman for the Columbia River Gorge National Scenic Area Act, the Washington Wilderness Act and amendments to the Federal Power Act, the Clean Air Act and numerous laws applicable to federally-recognized Indian tribes. Mr. Mentor advises private and public sector clients on funding issues and water-related legislation before the Washington State Legislature. He has testified before the Washington Utilities and Transportation Commission and various legislative committees on several occasions regarding energy deregulation and water-related issues. Mr. Mentor is a member of the Washington Department of Ecology’s Water Resources Advisory Committee and the agency’s advisory committees on municipal water rights and in-stream flows and wetlands banking. He also serves as a member of the Government Affairs Council of the Associated General Contractors of Washington. Mr. Mentor has been qualified to present expert opinion testimony on water law in Kittitas County and federal Indian law in San Juan County. He has written and lectured extensively on energy, natural resources and Indian law. He has published feature articles in the Washington Law Review, the American Indian Law Review, the Proceedings of the American Fisheries Society and the Environment and Land Use Newsletter of the Washington State Bar Association (WSBA). Mr. Mentor has lectured at seminars on water law, Federal hydroelectric and timber policies, Indian law, fisheries and other environmental issues sponsored by the American Fisheries Society, Law Seminars International, the National Business Institute, the Pacific Northwest Public Power Association, the University of Washington Law School Foundation and the WSBA. He has served as chairman or co-chairman of seminars on land use, natural resources and real estate development. Mr. Mentor received his J.D. from Washington and Lee University in 1982 and his B.A. from the University of Puget Sound in 1979. He is a member of the Washington Bar Association and has been admitted to practice before the U.S. Supreme Court, the U.S. Claims Court and the U.S. District Court for the Western District of Washington. Mr. Mentor currently serves as an associate director of the Laird Norton Company and a director of the Washington Chapter, American Water Resources Association.
William H. Rodgers, Jr. is Stimson-Bullitt Professor of Environmental Law at the University Washington. Professor Rodgers began teaching at the law school in 1967, spent seven years at Georgetown University Law School, and returned to the UW in 1979. He visited at the University of Hawaii and the University of Florida. This fall he will visit at Arizona State University. Professor Rodgers has specialized in natural resource law and now teaches environmental law, law and biology, public land law, resource management, and property. He is admitted to the Bar in New York, Washington, and the District of Columbia, and has served as an attorney for various environmental and Indian Law cases. B.A. 1961, Harvard; L.L.B. 1965, Columbia University.
Patti Stone is a Water Quality Coordinator for the Confederated Tribes of the Colville Indian Reservation. Since 1997, her focus has been on environmental issues of the Columbia and Okanogan Rivers, both international waters. From 1982 to 1996 she was involved in the development of tribal fish and wildlife management programs for her Tribe. A member of the Tribes, Patti is a graduate of Eastern Washington University. She is an adult student of traditional and contemporary basketry and enjoys kayaking on the Columbia River.
SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE
2003 MIDYEAR MEETING
·
Co-Sponsored by the Washington State Bar Association Section of Administrative Law
Chair: Kathryn Braeman
Friday, February 7
“ADMINISTRATIVE LAW, TRIBAL LAW AND THE ENVIRONMENT”
10:00 a.m. – 12:00 p.m. · Convention Center · Meeting Room 204, Level 2
Co-Sponsors: Section of Environment, Energy, and Resources and Standing Committee on Environmental Law
Program Chair: Wendy Wagner, Joe A. Worsham Centennial Professor of Law, University of Texas School of Law, Austin, Texas
PRESENTATION OUTLINE
Introduction
Polly McNeill, Summit Law Group Seattle, Washington
Native American Law – General Principles
Robert Anderson, J.D., Professor of Law and Director of Native American Law Center, University of Washington School of Law
An overview of the principles of sovereign governance and identification of primary points of contact between tribal, state and federal governments.
Overlay Of Environmental Laws
William H. Rodgers, Jr., LL.B., Stimson-Bullit Professor of Environmental Law, University of Washington School of Law
A description of key federal environmental laws, and how they apply in Indian Country, with an emphasis on hazardous waste statutes (i.e., CERCLA).
Developing Body Of Tribal Administrative Law
Dean B. Suagee, Professor of Law and Director of the First Nations Environmental Law Program, Vermont School of Law
An argument supporting reliance on the expanding body of tribal administrative codes and procedures as a means of assuring adequate public participation and fairness for non-Indians dealing with environmental issues in Indian Country, and suggesting the utility of a model administrative code for adoption by various tribes.
Intersection Of Tribal, State And Federal Governments Illustrated
Patti Stone, Water Quality Coordinator, Office of Environmental Trust, Confederated Tribes of the Colville Reservation
A presentation of the factual and legal issues hypothetically and actually arising out of contaminated conditions in the Columbia River Basin, with a tribal perspective on the challenge of coordinating with non-tribal governments in a complex, but typical jurisdictional context.
Natural Resource Damage Perspectives
Richard A. Du Bey, J.D., LL.M., Short, Cressman & Burgess
A discussion of the unique perspectives and priorities of a tribal trustee charged under CERCLA with recovering natural resource damages within its usual and customary lands.
Negotiation With Tribes In The Absence Of Clear Rules
Joe Mentor, Jr., J.D., Mentor Law Group
Case histories of negotiating environmental matters with tribes in the absence of clear administrative codes and ambiguous tribal governance structures.
Indian Reserved Water Rights
& Habitat Protection Issues
Professor Robert T. Anderson
University of Washington School of Law
1100 N.E. Campus Parkway
Seattle, WA 98105
206/685-2861
American Bar Association
Mid-Year Meeting
Administrative Law Section
Seattle, Washington
February 7, 2003
I. Federal and Indian Reserved Water Rights
Introduction
The landmark case involving reserved water rights in general, and Indian reserved water rights in particular, is Winters v. United States, 207 U.S. 564 (1908). In Winters, the Court construed an agreement (confirmed by Congress) between the Indians of the Fort Belknap Reservation and the United States, which established the Fort Belknap Reservation in Montana. Act of May 1, 1888 ch. 213, 25 Stat. 113 (1889). In the agreement, the Indians surrendered most of their larger reservation and retained the Fort Belknap Indian reservation.
The case arose over a dispute between non-Indian settlers and the Indians over the use of the waters of the Milk River for irrigation purposes. The non-Indians claimed paramount rights to use the water based on state law that followed the prior appropriation doctrine. In evaluating the rights of the Indians, the Court noted: