04-13-84
JICARILLA APACHE
TRIBAL CODE
TITLE 14
ENVIRONMENTAL PROTECTION
TITLE 14
ENVIRONMENTAL PROTECTION
TABLE OF CONTENTS
Chapter 1. General Provisions.
SECTION 1. Purpose
SECTION 2. Administration.
SECTION 3. Effective Date.
SECTION 4. Repeal.
SECTION 5. Business Or Operator's Permit.
SECTION 6. Definitions.
Chapter 2. Compliance And Enforcement Procedures.
SECTION 1. Non-Compliance.
SECTION 2. Orders To Cease Activity.
SECTION 3. Enforcement By United States.
Chapter 3. Remedies and Penalties.
SECTION 1. Remedies.
SECTION 2. Civil Penalties.
Chapter 4. Regulations.
SECTION 1. Regulations.
Chapter 5. Activities Other Than Oil And Gas Operations.
SECTION 1. Scope.
SECTION 2. Determination By The Trial Council.
SECTION 3. Statement To Be Submitted.
Chapter 6. Oil And Gas Activities.
SECTION 1. Purpose.
SECTION 2. Scope.
SECTION 3. Planning.
SECTION 4. Plans Of Development.
Chapter 7. Appeals.
SECTION 1. Appeals.
Chapter 8. Severability.
TITLE 14
ENVIRONMENTAL PROTECTION
Chapter 1. General Provisions.
SECTION 1. Purpose. The purpose of this Title is to insure that
proper and meaningful consideration of environmental, cultural,
historical, and ecological factors is made by any person, the BIA or
the Tribal Council prior to its approval of activities on the Jicarilla
Apache Reservation which may significantly affect that environment in
whole or in part.
SECTION 2. Administration. The Tribal Council shall assign a person
or agency to carry out the day-to-day functions under this Title.
SECTION 3. Effective Date. This Title became effective on April 13,
1984, the date of approval by the Area Director of the Bureau of Indian
Affairs, the authorized representative of the Secretary of the
Interior. It was enacted by the Jicarilla Apache Tribal Council as
Ordinance No. 84-0-235, the "Jicarilla Apache Environmental Protection
Ordinance," on January 20, 1984.
SECTION 4. Repeal. Environmental Protection Ordinance No. 78-0-53,
enacted August 15, 1977, is hereby repealed as of the effective date
hereof.
SECTION 5. Business or Operator's Permit. Every person seeking
Tribal Council action hereunder shall obtain a Business or Operator's
Permit from the Tribe if so required by the Ordinances of the Tribe or
federal laws or regulations. Any violation of this Title shall be
grounds for suspension or revocation of a person's Business or
Operator's Permit.
SECTION 6. Definitions.
(A) Activity. Any industrial or commercial development project,
any development project involving the disturbance of more than one (1)
acre of land surface, any development activity in a part of the
Reservation designated environmentally sensitive, or any research
project, other than activity connected with oil and gas operations.
(B) Applicant. The person requesting a permit to conduct
activities on the Reservation which are regulated by this Title, other
than oil and gas activity.
(C) Operator's Permit. An Operator's Permit issued by the Tribe
required by the Ordinances of the Tribe.
(D) Council. The elected governing body of the Jicarilla Apache
Tribe.
(E) Development project. Any activity which directly or
indirectly seeks to develop, use or modify Reservation resources.
(F) Environmentally sensitive area. A part of the Reservation
considered by the Council to be so subject to environmental disturbance
as to warrant special rules to govern resource development.
(G) Federal regulations. Regulations adopted by an agency of the
United States government and published as a part of the Code of Federal
Regulations.
(H) Non-compliance. Any neglect, failure or refusal to do or
perform an act set forth in this Title.
(I) Oil and gas activity. Any activity on tribal lands engaged
in pursuant to leases entered into under the Indian Mineral Leasing Act
of 1938, 25 U.S.C. SECTIONS 396a-396g; land subject to development
contracts issued pursuant to the Indian Mineral Development Act of
1982, P.L. 97-382, 25 U.S.C. SECTIONS 2101-2108; or activities
undertaken solely by the Tribe.
(J) Oil and gas lessee. A person holding rights to explore,
develop or operate on tribal lands for oil and gas under a lease issued
pursuant to the Indian Mineral Leasing Act of 1938, supra, or the Indian
Mineral Development Act of 1982, supra.
(K) Oil and gas contractor. A contractor with the Tribe under
contract negotiated pursuant to the Indian Mineral Development Act of
1982, supra; under joint exploration and development contract entered
into with the Tribe prior to the effective date of the 1982 Act; or
under contract to conduct activities on land operated by the Tribe
outside of these Acts.
(L) Permit holder. The holder of a tribal environmental permit
issued under this Title, except for oil and gas exploration and
development.
(M) Person. Any individual, partnership, firm, public or private
corporation, association, trust, estate, political subdivision or
agency, or any other legal entity or its legal representatives, agents,
or assigns.
(N) Pollutant. Any substance or energy entering the environment
as a direct or indirect result of human activity which alters or has
the potential to alter the physical, chemical, biological, cultural or
aesthetic properties of the environment.
(O) Research project. A project or study conducted to gain
knowledge about Reservation resources.
(P) Reservation. The Jicarilla Apache Reservation.
(Q) Reservation environment. The functioning system composed of
all living and non-living entities and objects within the boundaries of
the Reservation together with their interactions and the inputs to and
outputs of that system.
(R) Reservation resources. The physical and biological resources
of the Tribe within the boundaries of the Reservation, including but
not limited to land, water, air, minerals, cultural or historical sites
and objects, animal and plant life, and aesthetic values.
(S) Secretary. The Secretary of the Interior of the United
States of America or his authorized delegate.
(T) State regulations. Regulations formally adopted by an agency
of the State of New Mexico.
(U) Superintendent. The Superintendent of the Jicarilla Agency,
BIA.
(V) Tribe. The Jicarilla Apache Tribe.
(W) Tribal environmental permit. A permit issued by the Tribe
pursuant to this Environmental Protection Title to carry out an action
covered by this Title.
(X) Violation. Breach of any right, duty, requirement or
provision of this Environmental Protection Title.
Chapter 2. Compliance and Enforcement Procedures.
SECTION 1. Non-Compliance. Any person who fails to comply with any
provision of this Title shall be subject to the penalties and other
protective actions set forth herein. In the event of non-compliance,
the person or agency designated by the Council to be responsible for
enforcement shall serve the violator, in person or by mail, with a
notice of non-compliance which shall specify non-compliance with the
provisions of this Title or the terms of the plan of development
submitted pursuant to this Title and shall specify the action which
must be taken to correct such non-compliance, as well as the time
limits within which such action shall be taken.
SECTION 2. Orders to Cease Activity. In the event of non-compliance
with this Title, with any notice of non-compliance, or with any
applicable federal law or regulation, the person or agency designated
by the Council to be responsible for enforcement may order the
cessation of such activity without additional notice to the violator if
the non-compliance is not cured in five (5) calendar days. If deemed
necessary, after the five (5) day period of non-compliance, vehicles
and equipment may be impounded, or access restricted to an area or site
until the non-compliance is cured. The violator shall be served, in
the case of violation of this Title, with a statement of the reasons
for the cessation order, and the actions needed to be taken before the
order will be lifted. A copy of this cessation order and the statement
of reasons for the order shall be delivered to the President of the
Tribe and to the Superintendent.
SECTION 3. Enforcement By United States. The Secretary of the
Interior, or his authorized delegate, including the Superintendent,
Jicarilla Agency, Dulce, New Mexico, along with officials of the Bureau
of Land Management, or agents or employees of these officials, are
hereby requested and authorized to enforce the provisions of this Title
and take any enforcement action authorized by this Title or federal
laws or regulations which do not interfere with action being taken by
the Tribe.
Chapter 3. Remedies and Penalties.
SECTION 1. Remedies. In the event a violator fails to take action
in accordance with the notice of non-compliance or cessation order
served on him, pursuant hereto, the person or agency in charge of
enforcement may continue its cessation actions or impoundment of
vehicles and equipment; may request the Secretary to serve notice of
intent to cancel the lease or mineral agreement, specifying the basis
for notice; may request the Secretary to proceed as provided in the
federal regulations, and to assess penalties as provided by these
federal regulations; may assess civil penalties as set forth in SECTION
2 herein; and may take any other action deemed appropriate.
SECTION 2. Civil Penalties. In addition to the penalties provided
by federal regulations, the violator shall pay to the Tribe a civil
penalty of up to $5,000 per day for each day of such violation or
continued violation of an order of non-compliance if such penalties
are assessed by the person or agency designated by the Council to be
responsible for enforcement of this Title. The person or agency in
charge of enforcement shall serve the violator, in person or by mail,
with a notice of assessment of penalties which shall be due and payable
to the Tribe within twenty (20) days of this notice. Failure to pay
any penalties imposed shall be considered an additional violation of
this Title.
Chapter 4. Regulations.
SECTION 1. Regulations. The Council shall establish regulations for
the administration of this Title which shall be posted in one (1) or
more public places on the Reservation and published in the Jicarilla
Apache Chieftain. Such regulations shall provide for a process for
Council approval of proposed activities, contact with land assignment
holders, and permit issuance.
Chapter 5. Activities Other Than Oil and Gas Operations.
SECTION 1. Scope. This Chapter 5 shall be applicable to any person
conducting activities on the Reservation or bringing before the Tribal
Council, for its approval, any plan or activity to be performed upon
the Reservation which may significantly affect the environment of the
Jicarilla Apache Reservation, excepting oil and gas operations, which
are covered under Chapter 6 hereof.
SECTION 2. Determination By The Tribal Council. Every proponent of
an activity upon the Reservation, excepting oil and gas activity,
appearing before the Tribal Council to gain its approval of a proposal
shall include in the presentation of the proposal a statement outlining
the environmental consequences of the activity. Should the Tribal
Council feel that the activity may have a significant environmental
effect, it shall require that a written statement be filed with the
Tribal Council in accordance with SECTION 3 herein. The Tribal Council
hereby reserves the power to delegate the function of reviewing the
written statement for comments to aid the Tribal Council in its
determination of the environmental consequences of the proposed
activity.
A determination by the Tribal Council that a proposed activity may
have a significant environmental effect shall be final.
SECTION 3. Statement To Be Submitted.
(A) In the event a written statement is required by the Tribal
Council, it shall be submitted to the Tribal Council for review at
least two (2) weeks prior to the Tribal Council meeting at which final
approval of the proposed activity is sought.
(B) The written statement shall include the following inventory
data as may be deemed pertinent by the Tribal Council or other
authority delegated by the Council:
(1) A detailed baseline inventory of all plant and animal life
observed in the area affected by the proposed activity.
(2) A discussion of the water quality and quantity in the area,
including but not limited to, chemical and radiological analyses in
selected wells and surface water courses, groundwater levels in
selected wells, sediment transport, soil erosion and surface runoff
indicators.
(3) A discussion of the air quality in the area, including but
not limited to, background radiation study in selected areas, and a
suspended particulate matter evaluation.
(4) A discussion of the soil properties in the area, including
but not limited to, soil characteristics with respect to suitability
for roads, cuts and fills and pipeline cover, background radiation in
soils by topography and vegetation, slope porosity, permeability and
capillarity, texture, density and stratification.
(5) An assessment of the cultural properties and uses of the
area, including but not limited to:
(a) Inventory of historic, religious and archaeological sites.
(b) Inventory of unique physical features and scenic features.
(c) Number of people living and working within the area.
(d) Inventory of the present land use within the area,
including but not limited to, precipitation, air movement, temperatures
and seasonal variation.
(6) An assessment of the general climatic conditions of the
area, including but not limited to, precipitation, air movement,
temperatures and seasonal variation.
(C) The written statement shall include considerations as to how
the proposed activity will affect the inventoried area. To this end,
the statement shall include an assessment of both the beneficial and
detrimental impacts of the proposed activity upon the following, if
applicable:
(1) Social, political and economic structure of the area, both
present and future.
(2) Cultural structure of the area, past, present and future.
(3) Physical characteristics of the area, both present and
future, and including geographic, topographic, geologic, meteorlogic
and hydrologic effects.
(4) Land use and water use within the area, both present and
future.
(5) Resources of the area, including but not limited to,
depletion, short and long term implications, possibility of recovery,
recycling or restoration, and affect upon regional resource
development, especially with regard to the Jicarilla Apache
Reservation.
(D) If applicable, specific consideration shall be included
regarding possible detrimental impacts on the above five (5) area
because of the following:
(1) Hazardous materials used in the proposed activity.
(2) Airborne emissions and effluents both in the construction
and operational phases of the activity.
(3) Solid waste disposal, both in the construction and
operational phases of the activity.
(4) Noise emissions, both in the construction and operational
phases of the activity.
(5) Any other uncontrolled emissions or discharges, both in the
construction and operational phases of the activity.
(E) The written statement shall include a discussion of all
alternatives to the proposed activity, including both the short and
long term benefits and detriments of each alternative, any adverse
environmental and/or ecological impacts which cannot be avoided, and
any irreversible and irretrievable commitments of resources.
(F) Non-classified baseline data and other environmental data
previously prepared for the Tribe, may be made available to the
applicant on request to the person or agency designated by the Tribal
Council.
Chapter 6. Oil and Gas Activities.
SECTION 1. Purpose. This Chapter is designed to insure that proper
consideration of environmental and ecological factors, and long-range
planning is given by the Council prior to its approval of oil and gas
leasing, contracting or operations on the Reservation. This Chapter
shall further insure that all oil and gas operations on the Reservation
shall be carried out in an environmentally sound manner, and that a
procedure for enforcing such compliance shall be provided.
SECTION 2. Scope. This Chapter shall be applicable to any person
conducting oil and gas operations on the Reservation, including those
who bring before the Council for its approval any proposed oil and gas
development plan or activity to be performed on the Reservation which
may significantly affect the environment of the Jicarilla Apache
Reservation. Federal agencies preparing environmental assessments or
environmental impact statements pursuant to the National Environmental
Policy Act and regulations issued pursuant to the authority thereof are
requested to cooperate in fulfilling the requirements of this Title as
well as those of federal laws and regulations. Federal agencies are
further requested to designate the Tribe as a cooperating agency
whenever such designation is consistent with regulations issued
pursuant to the National Environmental Policy Act.
SECTION 3. Planning. Prior to any operation on lands leased for oil
and gas pursuant to the Indian Mineral Leasing Act of 1938, 25 U.S.C.
SECTIONS 396a-396g, lands subject to development contracts pursuant to
the Indian Mineral Development Act of 1982, P.L. 97-382, 25 U.S.C.
SECTIONS 2101-2108, or operations conducted solely by the Tribe, the
lessee, sublessee, assignee, contractor, subcontractor or operator, or
agents or successors thereof, shall comply with applicable provisions
of the National Environmental Policy Act 42 U.S.C. SECTIONS 4321-4347,
applicable regulations promulgated by the Council on Environmental
Quality, 40 C.F.R. 1508.9, Environmental Quality Handbook, 30 BIAM
Supp.; National Historic Preservation Act, 16 U.S.C. SECTIONS 470, et
seq., and regulations promulgated thereunder, 36 C.F.R. Parts 60, 63 and
800; and the Archaeological and Historic Preservation Act, 16 U.S.C.
SECTIONS 469a-1, et. seq. Copies of all draft environmental
assessments, environmental impact statements, and reports required
under the above statutes and regulations, shall be provided to the
Council or the agency or the official delegated by the Tribal Council
to review these documents, at least thirty (30) days prior to final
review of the documents by the Secretary. A copy of all final
environmental assessments, environmental impact statements or other
similar requests shall be filed with the Tribe, regardless of by whom
these documents were prepared.
SECTION 4. Plan of Development.
(A) In addition to the environmental assessments and studies
required by statutes and federal regulations, each lessee, sublessee,
assignee, contractor, subcontractor or operator, or agents or
successors thereof, as the case may be, shall file with the Tribe, with
a copy to the Superintendent, a plan of development which shall
indicate well locations, drilling schedule, pipeline locations, road
locations and locations of other surface removal activity which shall
be coordinated with development of adjacent tracts so that duplication
of roads, pipelines and other clearing will be avoided. The Tribe may
require that lessees, sublessees, assignees, contractors,
subcontractors, interest holders or operators, or agents or successors
thereof, holding leases or contracts adjacent to lands being developed
be required to plan road, pipeline and other clearing in conjunction
with plans for development presented to the Council in accordance with
this paragraph whether or not such persons or entities intend immediate
development.
(B) It is an objective of this Chapter that lessee, sublessees,
assignees, contractors, subcontractors, operators, or agents or
successors thereof, and other holding leases or contracts for oil and
gas development on the Reservation, or interests therein or rights
thereto, develop the properties which they hold diligently and in
accordance with approved drilling schedules.
(C) The lessee or contractor, or any other person submitting a
development plan, may be required to appear before the Council or any
other person or agency designated by the Council to review the plan of
development required by this Section.
(D) The plan of development to be submitted under SECTION 4(A)
above shall, when approved by the Council, be considered as an
additional stipulation of the lease or contract involved, and the
lessee, sublessee, assignee, contractor, subcontractor or operator, or
agents or successors thereof, shall comply with the conditions thereof
unless waived by the Council. Upon approval of the plan or proposed
activity, the Council shall authorize issuance of a Tribal
Environmental Permit with such conditions and mitigation measures as
the Council deems appropriate. The permit holder shall be subject to
all provisions of this Title, including enforcement.
Chapter 7. Appeals.
SECTION 1. Appeals. Any person aggrieved by any action taken by a
tribal official or person or agency designated by the Council to be
responsible for enforcement of this Title, may appeal to the Council.
An appeal shall not stay any order to cease activity, impound vehicles
or equipment and/or restrict access to the site of any operation, or
pay penalties unless a stay is granted by the Council.
(A) Any penalties paid by a person in violation of an order of
non-compliance may be rebated by order of the Tribal Council upon
hearing an appeal taken under this Section.
(B) The Tribal Council may affirm or reverse any decision of a
tribal officer or person or agency designated to be responsible for
enforcement of this Title, or issue such other orders or take such
action as it deems appropriate.
(C) The Tribal Council may allow such presentations, evidence or
arguments as it deems appropriate.
(D) A decision of the Tribal Council shall be final.
Chapter 8. Severability.
If any part or application of this Title is held invalid, the
remainder of the Title, or its application to other situations or
persons, shall not be affected.
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