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Solid Waste Enforcement Issues

Solid Waste Enforcement Issues. Developing and Implementing Solid Waste Codes ITEP - TSWEAP USET Offices, Nashville, TN May 6-8, 2014. Jill Elise Grant Jill Grant & Associates, LLC 1319 F Street, NW, Suite 300 Washington, DC 20004 Ph. 202-821-1950 Email: jgrant@jillgrantlaw.com.

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Solid Waste Enforcement Issues

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  1. Solid Waste Enforcement Issues Developing and Implementing Solid Waste Codes ITEP - TSWEAP USET Offices, Nashville, TN May 6-8, 2014 Jill Elise Grant Jill Grant & Associates, LLC 1319 F Street, NW, Suite 300 Washington, DC 20004 Ph. 202-821-1950 Email: jgrant@jillgrantlaw.com

  2. Sources of Tribal Enforcement Authority • Federal Indian Law Principles • Inherent Sovereign Authority • Right to Exclude • Treaties • Tribal Constitution • Tribal Authorizing Statutes/Ordinances and Regulations

  3. Inherent Sovereign Authority • A tribe has inherent authority “to protect tribal self-government or to control internal relations,” Montana, 450 U.S. at 564 • Full authority over Indians • Limited civil authority over non-Indians, per the two Montana exceptions • No criminal jurisdiction over non-Indians • Right to Exclude

  4. Tribal Constitution PUEBLO 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.

  5. Tribal Constitution – Right to Exclude PUEBLO OF LAGUNA CONSTITUTION Article 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.

  6. Tribal Environmental Laws Navajo 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.

  7. Other Enforcement Actions • Seizure/Forfeiture of Property • Exclusion from Reservation • Prohibit Continued Operation of Facility

  8. Types of Administrative Orders • Injunctive Relief • Penalty • Can be combined with injunctive relief • Can be monetary or, e.g., for community service • Emergency

  9. Enforcement Process • Pre-Enforcement Stage • Discovering Violation • Identifying Violator • Issuing Notice of Violation • Enforcement • Field Citation (expedited compliance order) • Compliance Order • Lawsuit

  10. Discovering Violations • Entry/Access to property to inspect • Scheduled inspections/drive-arounds • Requesting notice from other tribal agencies/officers • Safety issues

  11. Fair, Consistent Enforcement • No exemptions, e.g. for tribal businesses • Hearings • Separate from Environmental Office or Council • Opportunity for Judicial Review • Standardized Process

  12. Preventive Measures • Public Education • General public (community meetings, events) • Other Tribal departments and personnel • Options for Disposal • Trash pick-up • Transfer stations • Recycling • Composting

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