Title ENV — Environment

Chapter ENV.01 — Fish And Wildlife Ordinance

Legislative History

1. Conservation Code was adopted by Tribal Council at a meeting held November 14, 1978 (Resolution No. 0637). BIA - Great Lakes Agency approved November 17, 1978.

2. Letter to Tribal Chairman from Acting Superintendent of Great Lakes Agency with approval of the Code and Field Solicitor's comments to the Area Director dated February 15, 1979.

3. Resolution No. 0641, adopted January 29, 1979.

4. Resolution No. 0746, adopted May 2, 1981.

5. Resolution No. 0766-1, adopted August 8, 1981.

6. Resolution No. 1026, adopted June 16, 1987.

7. Resolution No. 1127, adopted February 7, 1989.

8. Amended by Council motion of Council, July 15, 1997. New provisions include allowing minor-aged direct descendants to hunt during tribal season, shortening of deer gun season; adding turkey season guidelines; changing brook trout and bass bag limits; prohibiting 4-wheel drive vehicles on logging roads during spring break up; closing road south of Richard's Bridge; mandatory registration; wildlife count.

9. Resolution No. 010-2000, adopted March 21, 2000, approved by BIA April 11, 2000.

10. Resolution No. 03-02, adopted January 2, 2002, approved by BIA January 15, 2002.

11. Legislative Note: The March 21, 2000 amendments regarding fees were not properly incorporated into the Ordinance. Upon this discovery, the appropriate fees were incorporated on November 5, 2003, following the November 4, 2003 Tribal Council meeting.

12. Resolution No. 039-04, adopted July 20, 2004.

13. Resolution No. 044-06, adopted June 6, 2006.

14. Resolution No. 051-06, adopted July 18, 2006.

15. Resolution No. 011-07, adopted November 7, 2006.

16. Resolution No. 030-08, adopted May 6, 2008.

17. On October 9, 2008, Tribal Council made an administrative correction by adding the words "or permittee" to Section 21.15.5(C).

18. Resolution No. 021-09, adopted February 3, 2009.

19. Resolution No. 082-09, adopted September 1, 2009.

20. Resolution No. 06-11, adopted November 16, 2010.

21. Resolution No. 040-12, adopted June 5, 2012.

22. Resolution No. 007-13, adopted October 23, 2012.

23. Resolution No. 07-14, adopted November 5, 2013.

24. Resolution No. 043-14, adopted August 19, 2014.

25. Resolution No. 048-15, adopted June 3, 2015.

26. Resolution No. 063-16, adopted September 6, 2016.

27. Resolution No. 042-17, adopted August 15, 2017.

28. Resolution No. 069-19, adopted September 3, 2019.

29. Resolution No. 042-021, adopted August 3, 2021.

Part I — General Provisions And Organization

Section ENV.01.01 — Tribal Council Purpose And Findings

The Tribal Council finds that:

(a) One of the most important short and long-term resources is the fish and wildlife of the Stockbridge-Munsee Community.

(b) The fish and wildlife are important cultural resources to the Tribe.

(d) Certain species need protection in order to survive as a species.

(e) Properly managed natural resources will provide an excellent environment for natural habitat such as fish, wildlife, natural herbs, wildflowers, and forest resources.

(f) The Tribe's ownership of fee land, forest crop fee land, managed forest fee land, and the United States' ownership of federal trust and proclaimed lands for the benefit of the Tribe implicates Tribal, federal, and state law depending on the ownership of the land.

(g) The Tribe's increasing land base, home building, economic development, and reforestation efforts necessitate increasing involvement and management of the natural resources by the Conservation/Ecology Departments, the Fish and Wildlife Board and the Tribal Council.

(h) All enrolled members of the Tribe shall have a right to share in the beneficial use of the natural resources of the Tribe's trust and fee lands.

(i) All individuals with privileges under this ordinance also have a responsibility to be good stewards of the natural resources on the Tribe's trust and fee lands. While tribal members do have a right to share in the bounty from the land, they must do so in a responsible manner that ensures the long-term continuation of healthy and sustainable natural resource populations for the benefit of future generations. This responsibility extends to maintaining a healthy environment for sustaining those fish and wildlife resources as all life is inter-connected.

Section ENV.01.02 — Authority

(a) The Ordinance is authorized under Article VII (f) of the Stockbridge-Munsee Constitution, and its inherent powers, as an exercise of its governmental powers to govern the use, management and administration of lands, waters, fish and wildlife of the Stockbridge-Munsee Indian Reservation. Such authority is essential to protect the political integrity, economy, and the general welfare of the Stockbridge-Munsee Community.

(b) In addition, the Stockbridge-Munsee Community has authority over tribal lands owned in fee simple by virtue of its ownership of such land and its authority over the conduct of its members and may enforce this Ordinance consistent with such authority.

Section ENV.01.03 — Definitions

(a) "Big game" shall mean, but not be limited to deer and bear.

(b) "Fish and Wildlife Board" means the body appointed by the Tribal Council.

(c) "Conservation/Ecology Departments" means the departments and entities such as the game warden(s) and the ecologist(s).

(d) "Fur-bearing animals" shall mean beaver, mink, muskrat, otter, skunk, raccoon, fox, weasel, opossum, badger, coyote, fisher, and bobcat.

(e) "Infraction(s)" means violations of this Ordinance as further identified hereunder, including in Section ENV.01.17, Section ENV.01.21, Section ENV.01.24, Section ENV.01.26, and Section ENV.01.28.

(f) "Migratory birds" shall have the meaning set forth pursuant to the Migratory Bird Treaty Act regulations, 50 CFR part 10.

(g) "Minor" means a person under the age of 18 years old, at the beginning of the season for which they hold a permit.

(h) "Pan fish" means, perch, bluegill, crappie, sunfish, and rock bass.

(i) "Permittee" means a person who is a direct descendant, a spouse of a Stockbridge-Munsee tribal member, or a legally-adopted minor child of an enrolled Stockbridge-Munsee tribal member.

(j) "Small game" shall mean all wild animals not defined as big game, turkey, fur bearing animals, or protected species.

(k) "Special Permit" means a ceremonial harvest permit issued by the Tribal Council for the harvest of fish or game for use at a feast or other ceremonial occasion; a disabled permit issued by the Tribal Council to accommodate a tribal member's physical disabilities. Such permits are issued upon such terms and conditions as the Tribal Council deems appropriate.

(l) "Spring Hole" means the area of the West Branch of the Red River, commonly known as the Spring Hole.

(m) "Tribal Court" means the Stockbridge-Munsee Court.

(n) "Tribal Council" means that the Stockbridge-Munsee Community Tribal Council.

(o) "Tribe" means the Stockbridge-Munsee Community.

(p) "CITES" is an abbreviation for Convention on International Trade in Endangered Species.

(q) "Bow" is a general term for a weapon that fires arrows and includes recurve, compound, longbow, and crossbow.

(r) "Adult Bear" is a bear that measures 42 inches or greater in length, as measured in a straight line from the tip of nose to the base of tail.

(s) "Cub" is a bear that is less than 42 inches in length, as measured in a straight line from the tip of the nose to the base of the tail.

(t) "Public Road" refers to any road that is intended to provide a route for public access, such as roads listed on the Indian Reservation Roads inventory or other local road inventories, as well as driveways to facilities that are open to the public. In addition, the railroad bed from Morgan to Camp One Road is treated as Public Road for the purpose of this Ordinance, however, this treatment does not grant any access rights to the general public. Forest roads, as defined in Chapter ENV.02, are not Public Roads.

Section ENV.01.04 — Jurisdiction

(a) This Ordinance shall apply to all lands and waters of the Stockbridge-Munsee Reservation, which for purposes of enforcement of this Ordinance includes proclaimed reservation lands and tribal trust lands as well as individual trust lands under the jurisdiction of the Stockbridge-Munsee Community.

(b) This Ordinance shall also apply in relation to lands that the Tribe owns in fee simple; however, such lands may be subject to state laws or may be subject to terms of an agreement between the Tribe and the State of Wisconsin.

Section ENV.01.05 — Fish And Wildlife Board

(a) General Powers.

(1) In addition to the powers of the Fish and Wildlife Board bylaws, the Fish and Wildlife Board is authorized to oversee conservation policy on the Stockbridge-Munsee Indian Reservation in accordance with this Ordinance.

(2) The Fish and Wildlife Board may develop and recommend to the Tribal Council other conservation rules and regulations that shall not violate the provisions of the Tribal Constitution, this Ordinance, or any other tribal law.

(3) The Fish and Wildlife Board may exercise those powers authorized under this Ordinance, and as directed by the Tribal Council.

(4) The Fish and Wildlife Board will follow all applicable Tribal law including Chapter ADM.02, Code of Conduct.

(b) Duties and Responsibilities of the Board. The Fish and Wildlife Board shall:

(1) Meet on a regular basis and submit their meeting minutes to Tribal Council.

(2) Make recommendations to Tribal Council regarding amendments to this Ordinance.

(3) Make recommendations to the Tribal Council regarding conservation resource policy issues.

(4) Make recommendations regarding Special Permits.

(5) Request assistance from the Conversation/Ecology Departments to fulfill the Fish and Wildlife Board's responsibilities, as needed.

Section ENV.01.06 — Conservation/Ecology Departments

(a) The Conservation/Ecology Departments, departments of the Tribe, are responsible for carrying out the functions and policies of the Tribe relating to the natural resources, which are consistent with this Ordinance.

(b) The Conservation Department shall have authority to enforce the provisions of this Ordinance utilizing Authorized Law Enforcement, the Tribal Prosecutor, and the Stockbridge-Munsee Tribal Court.

(c) The Conservation/Ecology Departments shall work with the Fish and Wildlife Board, the Environmental Department, and other departments to ensure that water quality, fish stocks and fish spawning areas are not harmed by activities controlled, regulated, or authorized by the Conservation/Ecology Departments.

(d) Nothing in this Ordinance is intended to limit the Conservation or Ecology Department's ordinary functions, duties, or responsibilities.

Section ENV.01.07 — Tribal Council

(a) The Tribal Council has overall authority to approve recommendations from the Conservation/Ecology Departments and/or Fish and Wildlife Board regarding conservation issues, policies and procedures.

(b) The Tribal Council may temporarily alter seasons, limits, fees, permit requirements, close areas, or waive provisions of this ordinance, if the Tribal Council determines that it is in the best interests of the Tribe and that an emergency exists, other similar circumstances exist, or there is not adequate time to amend this Ordinance. The Tribal Council must also determine that if it does not act, the Tribe or its conservation resources will be harmed. Any actions under this provision must be acted on by Resolution, and in accordance with Chapter ADM.01.

(c) The Tribal Council may also issue any Special Permit upon such terms and conditions the Tribal Council shall deem appropriate.

(d) The Tribal Council may also waive any provision of this Ordinance for special cultural or ceremonial events such as the Chemon Welch fishing derby, or other similar events.

(e) This section is not intended to be any limitation on Tribal Council's inherent or constitutional authority.

(f) No one is authorized to release non-native animals or plant non-native plants on tribal lands without Tribal Council approval. This does not apply to individual gardens on land assignments or authorized community gardens.

Part II — Hunting – Big Game (Deer, Bear), Turkey, Small Game And Migratory Birds

Section ENV.01.08 — License, Permits, And Harvest Tags (Enrolled Member And Minor-Aged Direct Descendent)

(a) Enrolled members of the Stockbridge-Munsee Community shall not be required to purchase or possess hunting permits when hunting, possessing, or transporting any game lawfully taken within the boundaries of the Stockbridge-Munsee Indian Reservation, provided:

(1) the enrolled tribal member has his or her valid tribal identification card in his or her possession; and

(2) when hunting, the enrolled tribal member is at least 12 years of age and has successfully completed an approved hunter safety course and possesses a certificate for such course EXCEPT that enrolled tribal members who are at least 10 years of age and less than 12 years of age may also hunt subject to the criteria outlined in Section ENV.01.08(c) herein;

(3) all hunters must have harvest tags in their possession while hunting big game and turkey; and

(4) if under 16 years of age, the enrolled tribal member must be accompanied by an adult tribal member while hunting.

(b) Permittees who are minor-aged direct descendants may receive a permit to hunt deer and turkey on the Reservation during the tribal season; provided:

(1) the permittee is at least 12 years of age and has successfully completed an approved hunter safety course and possesses a certificate for such course, EXCEPT that permittees who are at least 10 years of age and less than 12 years of age may also hunt subject to the criteria outlined in Section ENV.01.08(c) herein; and

(2) if under 16 years of age, the minor must be accompanied by an adult tribal member while hunting.

(c) Enrolled tribal members and permittees who are at least 10 years of age and less than 12 years of age may hunt on the tribal land so long as:

(1) they have successfully completed an approved hunter safety course and possess a certificate for such course; and

(2) there is only one (1) weapon that is jointly possessed between the minor and the adult; and

(3) they are within an arm's length of an adult who is legally authorized to hunt with that weapon during that season at all times while the minor is in possession of the weapon; and

(4) the minor and adult comply with all other hunting laws, seasons, and bag limits.

(d) As long as an eligible person is enrolled in high school when he/she turns 18-years of age, then that person may obtain hunting permits as a minor-aged permittee.

(e) As long as an eligible person is not yet 18-years of age at the time when a specific hunting season begins, then that person may obtain and use a hunting permit as if a minor-aged permittee for that season.

(f) Permittees who are minor-aged direct descendants are required to have their permit on their person or in their possession.

(g) Any person who hunts within the jurisdiction of this Ordinance shall have in their possessions either an enrollment card or a valid permit. The enrollment card or permit must be in possession when:

(1) Carrying a firearm or bow,

(2) Shooting, trapping, taking or possessing small game or fur bearing animals.

(3) Transporting game.

(h) Any person born after August 15, 1992 must have successfully completed an approved hunter safety course and possess a certificate in order to hunt on the Reservation.

(i) Big game and turkey hunting requires all hunters to possess valid harvest tags as provided in Section ENV.01.18.

Section ENV.01.09 — Permittee Hunting Permits And Fees

(a) Permittees may hunt within the Reservation provided that they have a valid Hunting Identification Permit issued by the Conservation Department and comply with all applicable laws.

(b) Fees for adult direct descendants and spouses of tribal members are:

(1) Deer, migratory birds, and small game hunting permit is $30.00 annually.

(2) A Sportsman permit for hunting and fishing, which is valid for the calendar year, is $50.00 annually. A Sportsman permit is not valid for turkey hunting.

(3) Turkey permit for spring or fall is $15.00.

(c) There are no fees for minor-aged direct descendants, however they must obtain a permit from the Conservation Department.

(d) Permittees are required to have their permit on their person or in their possession while hunting deer, migratory birds, and small game.

(e) Permittee hunters must have harvest tags in their possession while hunting deer and turkey.

Section ENV.01.10 — Deer Hunting Regulations

(a) The deer hunting season is from August 15 to January 31 for tribal members and minor direct descendants.

(b) The taking of deer shall be limited to four (4) per person per season for tribal members (at least 2 must be antlerless), except as permitted in Section ENV.01.10(b)(1). Minor direct descendants shall be limited to one (1) deer per season.

(1) A tribal member may request that up to two (2) antlerless deer be donated to them from another Tribal member.

(A) The donee can request up to two (2) deer donation tags from the Conservation Department.

(B) The donee must inform the Conservation Department who the donee will give the donation tags to.

(1) Bow season: September 15 through December 31.

(2) Firearm season: from the Saturday of the week before Thanksgiving to the Sunday following Thanksgiving.

(3) Permittees under this section are limited to one deer per year; EXCEPT, permittees who are direct descendants may take two (2) deer per season so long as one is antlerless.

(d) All hunters are required to wear blaze orange or hot pink clothing during Wisconsin gun deer seasons. At least 50% of the outer clothing worn above the waist must be blaze orange or hot pink. A hat or head covering, if worn, must also be at least 50% blaze orange or hot pink.

Section ENV.01.11 — Group Deer Hunting/Assisted Harvest

(a) Group Deer Hunting, also referred to as Party Hunting, is defined as at least 3 or more hunters who are hunting together within sight or voice contact of another person at all times and harvest a deer for another member of the group.

(b) Individuals are allowed to participate in group deer hunting as follows:

(1) An enrolled tribal member may participate in a group deer hunt so long as at least one hunter in the group has a valid, unused carcass tag and the hunter with the tag has agreed another hunter in the group can fill that tag for him/her if a deer is harvested.

(2) A permittee can only participate in group hunting activities during the time frame from the Saturday of the week before Thanksgiving to the Sunday following Thanksgiving so long as:

(A) the permittee had a valid, unused carcass tag at the start of the 9-day permittee gun deer season, and

(B) at least one hunter in the group has a valid, unused carcass tag and the hunter with the tag has agreed another hunter in the group can fill that tag for him/her if a deer is harvested.

(3) Hunters may not use electronic devices (except hearing aids) to get someone to tag a deer. It is legal to use electronic devices for reasons other than getting someone to tag the deer.

(c) It is illegal to kill deer for another person, EXCEPT, as part of group deer hunting activities allowed under this Section or when filling a deer donation tag under Section ENV.01.10(b)(1).

Section ENV.01.12 — Hunting Regulations – In General

(a) Equipment.

(1) No permanently anchored hunting equipment, including tree stands, cameras and targets, may be used on tribal property. Equipment is considered to be permanently anchored when nails, screws or other similar items that can damage trees are used to anchor the equipment.

(2) Tribal members and permittees may leave hunting equipment in place overnight, so long as the equipment has an identification tag. Tags can be acquired from the Tribe's Conservation Department. Untagged equipment will be subject to confiscation and removal.

(b) Baiting and Feeding.

(1) No person may place or use bait or feed material for the purpose of hunting any wild animal, other than bear as permitted under Section ENV.01.13(b)(4).

(2) No person may place or allow the placement of any material to feed wild animals for non-hunting purposes, except as allowed for birds and small mammals under Section ENV.01.12(b)(3).

(3) Material may be placed solely for the purpose of attracting and feeding wild birds and small mammals for non-hunting purposes, if:

(A) Placed in bird feeding devices and structures at a sufficient height or design to prevent access by deer;

(B) The structures and devices are within 50 yards of a dwelling for human occupancy; and

(C) When deer are found to be utilizing bird feeding devices or structures, the devices or structures shall be enclosed or elevated higher to prevent access by deer.

(1) Deer may not be taken with any rim fire cartridge or with any centerfire cartridge of less than .22-caliber.

(2) Turkey may not be taken with any centerfire cartridge during the spring season.

(3) Bear may not be taken with any rim fire cartridge or with any centerfire cartridge of less than .25-caliber.

(4) Deer and bear may not be taken with an air rifle of any caliber; EXCEPT, air-powered weapons that fire arrows or bolts with broadheads are allowed.

(5) Beginning January 1, 2023, deer and bear may not be taken with lead bullets.

(d) Arrowheads for deer hunting must be made of all steel barbless design, not less than one (1) inch wide for single two (2) blades and not less than three (3) inches in circumference for three (3) or more blades. Arrowheads with blades of mill-tempered spring steel which contain a plastic core or ferrule conforming with the above dimensions, with a minimum weight of seventy-five (75) grain may be used.

Section ENV.01.13 — Bear Hunting Regulations

(a) Only tribal members may take bear.

(b) Only adult bear may be taken during bear seasons. The season for taking bear shall be August 15 to November 30, except that the season for taking bear with aid of dogs shall be as described in subsection (c). Individuals shall be limited to taking one (1) bear per person per season.

(1) It shall be unlawful to molest any bear in its den.

(2) It shall be unlawful to shoot or molest a cub or any adult bear accompanied by cub(s).

(3) Nothing in this Ordinance shall prohibit the taking of any bear, which poses an threat to human safety.

(4) Bait may be placed and used for the purpose of hunting bear, except that no person may place, use or hunt over bait that:

(A) Is placed outside of the baiting season, which is June 15 to November 30;

(B) Has a volume of more than 25 gallons;

(C) Is not totally enclosed in a hollow log, a buried container, a hole in the ground or a stump and that is capped with logs, rocks, or other naturally occurring and unprocessed substances to prevent deer from accessing the bait;

(D) Contains meat or fish byproducts; and

(E) Contains liquid grease or cooking oil.

(5) Substances that can cause permanent damage to trees and brush, including but not limited to liquid grease or cooking oil, may not be applied to trees and brush.

(1) The season for hunting bear with the aid of dogs shall be September 1 to October 31.

(2) The season for training dogs by pursuing bear shall be July 1 to August 31.

(3) It is illegal to hunt, pursue or train with more than a total of 6 dogs at one time regardless of the number of bear hunters in a group or the ownership of the dogs.

(4) Dogs may be used to recover bear taken from November 1 to November 30; provided, the Conservation Department or game wardens are notified prior to the dogs being used solely for the recovery action.

Section ENV.01.14 — Turkey Hunting Regulations

(a) Turkey hunting requires harvest tags and turkeys must be registered consistent with Section ENV.01.18.

(b) Spring Turkey Season:

(1) The spring turkey season is open to tribal members and permittees. Tribal members may harvest four (4) tom or jake during this season. Permittees may harvest two (2) tom or jake during this season.

(2) Hunting season for tribal members is March 1 to June 30.

(3) Hunting for permittees is April 15 to May 31.

(1) The Fall turkey season is open to tribal members and permittees. Tribal members may harvest four (4) turkeys of any sex. Permittees may harvest two (2) turkeys of any sex during this season.

(2) The fall hunting season for tribal members is from August 15 to January 31.

(3) The fall hunting season for permittees is from September 15 to December 31.

(4) Permittees may only take turkey with a centerfire rifle or a shotgun loaded with slugs during time periods when the permittee is also authorized to take deer with a firearm.

Section ENV.01.15 — Small Game, Migratory Bird And Grouse Regulations

(a) Small game season shall be August 1 to the last day of February. Permittee small game season is closed during traditional 9-day gun deer season.

(b) There shall be a daily limit of ten (10) not to exceed twenty (20) in possession of taking of rabbit and squirrel.

(c) The taking of Migratory Birds shall be subject to the maximum federal annual allowance provided for the Mississippi Flyway, as provided in 50 CFR part 20.

(1) No lead shot may be used to take migratory birds over water.

(2) Migratory bird season shall be September 1 to November 30.

(3) There shall be a daily limit of ten (10) ducks of any sex and any species and a daily limit of five (5) geese. The possession limit shall be double the daily bag limit.

(d) Ruffed grouse and spruce grouse shall be limited to five (5) per day per person, and the possession and transportation of these types of small game shall be limited to no more than ten (10) grouse at any time.

Section ENV.01.16 — Commercial Hunting

(a) Except for the exception(s) listed herein, there shall be no commercial taking of big game, turkey or small game.

(1) Hides of deer may be possessed and transported for commercial purposes.

Section ENV.01.17 — Hunting Infractions

(a) Class A Infractions.

(1) Any person who kills, wounds, catches, takes, traps, or has in his/her possession any bird, small game, big game, turkey, or fur bearing animal included in this Ordinance without a valid permit or permits shall be guilty of a Class A Infraction.

(2) Taking, assisting in taking, possessing or transporting any game in violation of this Ordinance shall be deemed a Class A Infraction.

(3) Wanton destruction or waste of any game animal, or bird on tribal lands shall be deemed a Class A Infraction. Waste shall include the failure to process a game animal, or bird in a timely manner.

(4) Violating the terms and/or conditions of any Special Permit shall be deemed a Class A Infraction.

(5) It shall be unlawful to use a set gun or swivel gun for any purpose. Violation of this provision shall be deemed a Class A Infraction.

(6) It shall be unlawful to take game with the use of drugs, medicated bait, poison, or other deleterious substances. Violation of this provision shall be deemed a Class A Infraction.

(7) It shall be unlawful to take bear within fifty (50) yards of any garbage dump or within one hundred (100) yards of any dwelling or within one hundred (100) yards of any area designated by the Tribe as a campground. Violation of this provision shall be deemed a Class A Infraction.

(8) Any person who sells, or assists, or aids in the sale of venison meat is subject to a Class A infraction.

(9) Permanent tree strands are prohibited. Screw in steps, metal screws, or nails attached to trees are prohibited. Violators will be subject to a Class A infraction.

(10) Any person who intentionally disturbs the personal property of another person engaged in lawful activities under this Ordinance shall be subject to a Class A infraction.

(b) Class B Infractions.

(1) Allowing any other person to make use of his/her permit, regardless of whether or not such person would qualify to receive a permit in his/her own right, shall be deemed a Class B Infraction.

(2) Exceeding established limits, using prohibited means or equipment, using bait contrary to tribal law, hunting outside of established seasons and/or hours shall be deemed a Class B Infraction.

(3) Fraud in the procurement of any permit shall be deemed a Class B Infraction.

(4) Any person who uses a light for wildlife viewing at night after 10 PM or who has a firearm/bow in their vehicle while using a light for wildlife viewing shall be subject to a Class B infraction.

(1) Hunting while under the influence of alcohol or controlled substances shall be deemed a Class C Infraction.

(2) Carrying a firearm in any motor vehicle, unless the firearm chamber is unloaded, or a loaded magazine is not attached to the firearm or the firearm is otherwise broken down, shall be deemed a Class C Infraction. Rounds may be stored separately from the firearm or in a separate magazine, so long as the magazine is not attached to the firearm.

(3) Hunting from a snowmobile or chasing game with a snowmobile or other motor vehicle shall be deemed a Class C Infraction.

(4) Except for hunting of raccoon or coyote, hunting of game animals by artificial lights shall be deemed a Class C Infraction.

(5) Refusal of any person engaged in any activity relating to hunting regulated under this Ordinance to display the proper permit or identification upon request of any Authorized Law Enforcement Personnel shall be deemed a Class C Infraction.

(6) It shall be unlawful to hunt with any poisoned arrow or arrow with explosive tip. Violation of this provision shall be deemed a Class C Infraction.

(7) It shall be unlawful to take big game or turkey with the aid of any trap or snare, or with the aid of dogs; except bear may be taken with the aid of dogs. Violation of this provision shall be deemed a Class C Infraction.

(8) It shall be unlawful to discharge any weapon across or down any Public Road, or to hunt within fifty (50) feet of any Public Road; EXCEPT, when turkey or small game hunting, shotshells loaded with #4 or smaller shot may be discharged from unpaved Public Roads and railroad beds. Violation of this provision shall be deemed a Class C Infraction.

(9) It shall be unlawful to deposit any game entrails, body parts, and/or hide, into the waters of any creek, stream, river or lake or to dispose of same within 150 feet of any creek, stream, river, lake, Public Road, residence or residential area. Violation of this provision shall be deemed a Class C Infraction.

(10) Any person who uses a vehicle or other means to block a Public Road with the intent of limiting access for other individuals to engage in activities permitted under this Ordinance shall be subject to a Class C infraction.

Section ENV.01.18 — Mandatory Registration / Wildlife Count

(a) All big game and turkey harvested on the Stockbridge-Munsee Reservation must be registered.

(1) Mandatory harvest tags will be issued to enrolled members and permittees through the Stockbridge-Munsee Conservation Department. Harvest tags must be obtained by hunters each season prior to hunting.

(2) Hunters must have harvest tags in their possession while hunting. Harvest tags must be attached immediately upon harvest. Big game and turkey must be tagged in the following manner: Bear & deer – at base of antler or hind leg through the gamble; turkey – around the base of the wing.

(3) All big game and turkey must be registered with the Conservation/Ecology Departments within 48 hours of harvest and processed within 30 days of registration.

(4) During a State of Wisconsin closed season, big game and turkey transported off the Reservation must also receive a Wisconsin DNR transportation tag.

(b) Before and during the applicable hunting season, the Conservation/Ecology Departments shall publish in the Mohican News, and tribal posting places, the applicable registration places, phone numbers, and hours. The Tribe's web site may also be utilized.

(c) From time to time, but at least every other year, the Conservation/Ecology Departments will perform a count of the wildlife within the jurisdiction; particularly the bear, deer, and turkey, but also other species as needed. Data compiled is to be brought to the Fish and Wildlife Board for reviews and recommendations.

Part III — Fishing

Section ENV.01.19 — Fishing Regulations

(a) Fees for adult direct descendants and spouses of tribal members are:

(1) Fishing permit, which is valid for the calendar year, is $30.00 annually.

(2) A Sportsman permit for hunting (except turkey) and fishing, which is valid for the calendar year, is $50.00 annually.

(3) There are no fees for minor-aged direct descendants, however, they must obtain a permit from the Conservation Department.

(b) There shall be no limitation on the taking of rough fish for personal use. The following regulations are imposed on the taking of: brook trout, northern pike, rainbow trout, brown trout, bass (large mouth and small mouth), panfish, and walleye.

(c) For trout, there will be a size limit of eight (8) inches or better, and a limit of ten (10) of any kind for tribal members and five (5) trout of any kind for other permittees per day. There will be a limit for trout possession of fifty (50) for tribal members and twenty-five (25) for other permittees.

(1) There is a limit of five (5) bass per day.

(2) There is a limit of twenty-five (25) panfish per day.

(3) There is a limit of five (5) northern pike per day.

(4) There is a limit of five (5) walleye per day.

(d) All waters within the jurisdiction shall be closed to trout fishing from October 1 to November 30. The Spring Hole, including the creek leading to the West Branch of the Red River, shall be closed from October 1 to May 1.

(e) The trout fishing season for tribal members and minor-aged permittees is December 1 through September 30. The trout fishing season for adult permittees shall be from the first Saturday in May until September 30.

(f) Blue Heron Pond Regulations (located in NE¼ of Section 34, Bartelme): Catch and release by tribal members and permittees is permitted. Keeping fish is limited to tribal members and permittees age 15 and under, and 55 and older.

Section ENV.01.20 — Commercial Fishing Permits

(a) Commercial fishing will not be permitted.

Section ENV.01.21 — Fishing Infractions

(a) Class A Infractions.

(1) Any person who kills, wounds, catches, takes, traps, or has in his/her possession any fish included in this Ordinance without a valid permit or permits shall be guilty of a Class A Infraction.

(2) Taking, assisting in taking, possessing or transporting any fish in violation of this Ordinance shall be deemed a Class A Infraction.

(3) Wanton destruction or waste of fish on tribal lands shall be deemed a Class A Infraction. Waste shall include the failure to process a fish in a timely manner.

(4) Violating the terms and/or conditions of any Special Permit shall be deemed a Class A Infraction.

(5) It shall be unlawful to take fish by means of explosives, drugs, poison, lime, medicated bait, or other deleterious substances. Violation of this provision shall be deemed a Class A Infraction.

(6) Any person who intentionally disturbs the personal property of another person engaged in lawful activities under this Ordinance shall be subject to a Class A infraction.

(b) Class B Infractions.

(1) Allowing any other person to make use of his/her permit, regardless of whether or not such person would qualify to receive a permit in his/her own right, shall be deemed a Class B Infraction.

(2) Exceeding established limits, using prohibited means or equipment, using bait contrary to tribal law, hunting outside of established seasons and/or hours shall be deemed a Class B Infraction.

(3) Fraud in the procurement of any permit shall be deemed a Class B Infraction.

(1) Carrying a firearm in any motor vehicle, unless the firearm chamber is unloaded, or a loaded magazine is not attached to the firearm or the firearm is otherwise broken down, shall be deemed a Class C Infraction. Rounds may be stored separately from the firearm or in a separate magazine, so long as the magazine is not attached to the firearm.

(2) The refusal of any person engaged in any activity relating to fishing regulated under this Ordinance to display the proper permit or identification upon request of any Authorized Law Enforcement Personnel shall be deemed a Class C Infraction.

(3) It shall be unlawful to use fish seines, fish traps, or gill nets, except under authority of a Special Permit issued by the Council. Violation of this provision shall be deemed a Class C Infraction.

(4) Any person who uses a vehicle or other means to block a Public Road with the intent of limiting access for other individuals to engage in activities permitted under this Ordinance shall be subject to a Class C infraction.

Part IV — Trapping

Section ENV.01.22 — Fur-Bearing Animals And Trapping Regulations

(a) Only tribal members may take fur-bearing animals.

(b) Only tribal members may trap.

(1) Quotas for the number of fur-bearing animals that may be trapped during the season shall be set at the beginning of the season based on the recommendation of the Conservation/Ecology Departments and acceptance of the Fish and Wildlife Board.

(2) Seasonal quotas will be posted at tribal posting places, the Little Star Convenience Store, in the Mohican News and on the tribal website.

(3) Once a seasonal quota has been reached or will be reached imminently for a particular animal, the Conservation/Ecology Departments will close the trapping season for that animal. Notice of season closure will be posted by the Conservation/Ecology Departments at tribal posting places, the Little Star Convenience Store, in the Mohican News and on the tribal website.

(d) All traps and fur-bearing animals taken pursuant to these regulations shall have the tribal member's enrollment number clearly marked on them.

(e) When shipping furs, the parcel must be plainly marked on the outside stating the name, address, permit number of the shipper, the number and kind of skins contained in the package. The bill of lading or receipt issued by any common carrier to a shipper shall specify the number and species of furs shipped.

(f) Hides or pelts adapted to personal use need not carry the permit number once the adaptation is completion.

(g) Coyotes may be taken year-round with a weapon.

(h) Bobcat, Badger, Fisher, and Otter:

(1) Trappers must report their trappings with the Conservation/Ecology Departments within 48 hours of the trapping.

(2) A seasonal quota will be set for bobcat, badger, fisher, and otter on an annual basis based on the recommendations of the Conservation/Ecology Departments and acceptance by the Fish and Wildlife Board.

(3) Once the quota has been met, the Conservation/Ecology Departments shall post such notices at the Little Star Convenience Store, the Conservation Department and the Tribe's web site.

(4) Tribal members must obtain a transportation tag from the Ecology Department, if the bobcat, badger, fisher, and/or otter will be transported off of the reservation.

(5) If the hides or pelts legally harvested on tribal lands are to leave the State of Wisconsin, then a CITES tag may also be needed.

(i) Trap Size and Type Restrictions.

(1) The use of body grip traps larger than 220 size is prohibited for dry land sets; EXCEPT, the use of body grip traps of any size is prohibited during any time period when the bobcat or fisher quota has been reached.

(2) The use of snares or cable restraints is prohibited for dry land sets.

(3) The restrictions on trap size and type for dry land sets does not apply to trapping weasel, mink, muskrat, beaver, and otter in, on, or amongst a body of water.

(j) Trap Checking Requirements.

(1) Dry land sets must be checked at least once each calendar day.

(2) Water sets must be checked at least once every 4 calendar days, EXCEPT, traps that are under ice water sets must be checked at least once every 14 calendar days.

Section ENV.01.23 — Commercial Trapping

(a) The skins/pelts of all fur-bearing animals may be taken to be offered for sale.

Section ENV.01.24 — Trapping Infractions

(a) Class A Infractions.

(1) Any person who kills, wounds, catches, takes, traps, or has in his/her possession any bird, small game, big game, turkey, or fur-bearing animal included in this Ordinance without a valid permit or permits shall be guilty of a Class A Infraction.

(2) Taking, assisting in taking, possessing or transporting any game in violation of this Ordinance shall be deemed a Class A Infraction.

(3) Wanton destruction or waste of any animal on tribal lands shall be deemed a Class A Infraction. Waste shall include the failure to process an animal in a timely manner.

(4) Violating the terms and/or conditions of any Special Permit shall be deemed a Class A Infraction.

(5) It shall be unlawful to use a set gun or swivel gun for any purpose. Violation of this provision shall be deemed a Class A Infraction.

(6) It shall be unlawful to take game with the use of drugs, medicated bait, poison, or other deleterious substances. Violation of this provision shall be deemed a Class A Infraction.

(7) Any person who intentionally disturbs the personal property of another person engaged in lawful activities under this Ordinance shall be subject to a Class A infraction.

(8) Any person who molests, takes, or appropriates a trap belonging to another person or the animal or contents of a lawfully placed trap belonging to another person shall be subject to a Class A infraction.

(b) Class B Infractions.

(1) Allowing any other person to make use of his/her permit, regardless of whether or not such person would qualify to receive a permit in his/her own right, shall be deemed a Class B Infraction.

(2) Exceeding established limits, using prohibited means or equipment, using bait contrary to tribal law, hunting outside of established seasons and/or hours shall be deemed a Class B Infraction.

(3) Fraud in the procurement of any permit shall be deemed a Class B Infraction.

(2) Hunting from a snowmobile or chasing game with a snowmobile or other motor vehicle shall be deemed a Class C Infraction.

(3) Refusal of any person engaged in any activity relating to trapping regulated under this Ordinance to display the proper permit or identification upon request of any Authorized Law Enforcement Personnel shall be deemed a Class C Infraction.

(4) It shall be unlawful to take big game or turkey with the aid of any trap or snare. Violation of this provision shall be deemed a Class C Infraction.

(5) It shall be unlawful to deposit any game entrails, body parts, and/or hide, into the waters of any creek, stream, river or lake or to dispose of same within 150 feet of any creek, stream, river, lake, Public Road, residence or residential area. Violation of this provision shall be deemed a Class C Infraction.

(6) Any person who uses a vehicle or other means to block a Public Road with the intent of limiting access for other individuals to engage in activities permitted under this Ordinance shall be subject to a Class C infraction.

Part V — Other Requirements

Section ENV.01.25 — Motor Vehicles

(a) Motor vehicles are prohibited on forest roads during spring break up, except as otherwise authorized under tribal law.

(1) ATVs, UTVs and snowmobiles are exempt from the spring break-up road closure.

(2) Forest roads are defined under Chapter ENV.02.

(b) Motor vehicles and ATVs are prohibited beyond the dells landing and other posted sensitive areas.

Section ENV.01.26 — Motor Vehicle And Transportation Related Infractions

(a) Class A Infractions

(1) Transporting any game in violation of this Ordinance shall be deemed a Class A Infraction.

(b) Class B Infractions

(1) Any person who uses a light for wildlife viewing at night after 10 PM or who has a firearm/bow in their vehicle while using a light for wildlife viewing shall be subject to a Class B infraction.

(2) Hunting from a snowmobile or chasing game with a snowmobile or other motor vehicle shall be deemed a Class C Infraction.

(3) It shall be unlawful to discharge any weapon across or down any road, or to hunt within fifty (50) feet of any paved road; EXCEPT, when turkey or small game hunting, shotshells loaded with #4 or smaller shot may be discharged from unpaved Public Roads and railroad beds. Violation of this provision shall be deemed a Class C Infraction.

(4) Motor vehicles or ATV use in a prohibited area is a Class C infraction.

(5) Any person who uses a vehicle or other means to block a road with the intent of limiting access for other individuals to engage in activities permitted under this Ordinance shall be subject to a Class C infraction

Section ENV.01.27 — Protected Species

(a) There shall be no taking, possessing or transporting at any time of species listed as protected, threatened, or endangered under federal law, including, but not limited to, those listed under the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, the Lacey Act, and the Endangered Species Act.

(b) There shall be no taking, possession, or transporting at any time of any species of fish or wildlife that may from time to time be established or reintroduced into the lands and waters of the Stockbridge-Munsee Community until such time as the Tribal Council deems appropriate by establishing a seasons and regulations pertaining to such species.

(d) The taking of antlerless elk and antlerless moose shall not be permitted. Antlered elk or antlered moose may be taken subject to the following provisions.

(1) Antlered moose or antlered elk may only be taken by tribal members during the tribal deer season.

(2) The taking of antlered moose or antlered elk is subject to the same requirements as the taking of an antlered deer.

(3) The antlered moose or antlered elk must be tagged using the tribal member's deer tag.

(e) The taking of a wolf shall not be permitted unless the wolf poses a threat to human safety. In the event of a taking due to a threat to human safety, the individual shall immediately contact tribal game wardens/conservation officers; the carcass and site shall not be disturbed.

Section ENV.01.28 — Other Infractions

(a) Aiding, abetting or conspiring with another person to knowingly cause any person to violate any provision of this Ordinance or any rules and regulations adopted hereunder shall be a Class A infraction.

(b) Any person who enters or remains on any land owned by the Stockbridge-Munsee Community without the Tribe's authorization shall be subject to a Class A infraction.

(d) Any person who knowingly obstructs Authorized Law Enforcement in fulfilling his or her duties under this Ordinance shall be subject to a Class A infraction.

(e) Any person who releases a non-native species, except as authorized by Tribal Council or law, shall be subject to a Class A infraction.

(f) Any tribal member or permittee who abuses his or her privileges, which include the use of motorized vehicles and leaving hunting equipment in place overnight, under this Ordinance to provide assistance to an individual that is not a tribal member or permittee and who is participating in lawful recreation activities on tribal fee lands shall be subject to a Class A infraction. This provision is not intended to limit a person's ability to provide emergency assistance when there is an individual in need of aid.

Part VI — Application

Section ENV.01.29 — Enforcement

(a) Both Stockbridge-Munsee Law Enforcement Officers and Game Wardens/Conservation Officers are considered "Authorized Law Enforcement" for purposes of enforcement of this Ordinance and the Forestry Ordinance, Chapter ENV.02 of the Stockbridge-Munsee Tribal Code, (hereinafter referred to as "Ordinances" in this Section ENV.01.29) and, as such, have authority to investigate and enforce the provisions of such Ordinances. Authorized Law Enforcement shall consult with other law enforcement agencies, where appropriate.

(b) Authorized Law Enforcement is authorized to investigate and pursue violations of these Ordinances. This may include observing persons engaged in activities under these Ordinances to ensure that the methods and equipment are lawful. Authorized Law Enforcement shall conduct such activities in good faith and in accordance with good law enforcement practices and may take such actions as appropriate to the circumstances and under applicable laws.

(1) Authorized Law Enforcement may issue warnings and/or citations to individuals who violate these Ordinances. Such warnings and/or citations are considered to be civil in nature, rather than criminal.

(2) Authorized Law Enforcement have authority to confiscate and seize hunting and/or fishing equipment, weapons, vehicles, or any other equipment used in violating these Ordinances.

(A) If equipment, vehicles, or weapons are confiscated and seized, such equipment, vehicles or weapons shall be considered evidence and properly recorded and secured at the offices of the applicable Authorized Law Enforcement officers pending return or disposition in accordance with tribal law.

(B) If the alleged violator pays the amount of the citation before the court hearing date, the confiscated equipment, vehicles, or weapons (except for illegal items) shall be returned to the ordinance violator unless subject to confiscation under other applicable law.

(3) Authorized Law Enforcement also has authority to confiscate and seize fish and game obtained in violation of these Ordinances. The confiscated fish or game shall be documented and/or photographed for evidence purposes. If the fish or game is suitable for human consumption, Authorized Law Enforcement shall turn the fish or game over to the Elderly Department or Tribal elders.

(c) The citation must be served on the person responsible for the violation in a timely manner with copies delivered to the Tribal Court and Tribal Prosecutor within three (3) business days of service.

(1) The Tribal Prosecutor shall use his or her discretion to prosecute violations of this Ordinance.

(2) Persons convicted of violations to this Ordinance shall be subject to the penalties herein described.

(3) In addition to forfeiture actions the Tribal Prosecutor may seek enforcement
of any and all parts of this Ordinance by Court actions seeking injunctions or restraining orders. The Tribal Prosecutor may seek an emergency order from the Court to restrain or enjoin any violation that is jeopardizing the health or safety of any person. Such an order may be sought and issued ex parte if the Tribe shows a good faith effort to serve notice on the necessary parties.

(4) If the Court finds the person not guilty of the alleged violation, any property or equipment seized by Authorized Law Enforcement shall be returned to the person.

(d) Penalties.

(1) Any person found guilty of this Ordinance shall be assessed a fine ranging from $100.00 to $5,000 as specified in subsections (6), (7) or (8) below. In assessing the fine, the Court shall consider the severity of the offense, the acceptance of responsibility by the charged person, the number of previous convictions, and deterrence to others.

(2) In lieu of or in addition to any other penalty, the Tribal Court may also order that equipment or property seized by Authorized Law Enforcement not be returned to the violator and the equipment or property to become permanent property of the Conservation Department to be used of or disposed of at the Tribal Council's discretion.

(3) In lieu of or in addition to any other penalty, any person found guilty of
violating this Ordinance may be required by the Tribal Court to provide community service or such other relief as is necessary and property for the enforcement of this ordinance.

(4) The Tribal Court may also order suspension of hunting, trapping, and/or fishing privileges not to exceed five years.

(5) Revenues received from fines or forfeitures are to be deposited into the Tribe's general revenues.

(6) Civil remedial money penalties, referred to in this Ordinance as Fish & Game Infraction(s) are classified and carry penalties as follows and other remedies as the court deems appropriate:

(A) Class A Infractions, not less than $500.00 nor more than $5,000.00.

(B) Class B Infractions, not less than $300.00 nor more than $5,000.00.

(7) When any person is found guilty of a violation, and such person has been convicted of a previous violation of this Ordinance within a period of one year, there shall be a mandatory revocation of all privileges regulated under this Ordinance for a minimum of two years, and the Infraction penalties may be enhanced as follows and other remedies as the court deems appropriate:

(A) For a Class A Infraction, $5,000.00.

(B) For a Class B Infraction, not less than $1,000.00 nor more than $5,000.00.

(8) For a third violation of this Ordinance within a period of one (1) year the penalty shall be $5,000.00 and up to a mandatory lifetime revocation of all privileges regulated under this Ordinance and other remedies as the court deems appropriate.

(e) Civil Damages. In addition to an action for civil penalties, the Tribe may bring a civil action for recovery of damages against any person unlawfully killing, wounding, catching, taking, trapping, harvesting, or having unlawfully in his or her possession any game animal, fish, or bird.

Section ENV.01.30 — Parties To A Violation

(a) Whoever is concerned in the commission of a violation of this Ordinance is a principal and may be charged with the violation although he or she did not directly commit it and although the person who directly committed it has not been convicted of the violation.

(b) A person is concerned in the commission of a violation if the person:

(1) Directly commits the violation; or

(2) Aids and abets the commission of it; or

(3) Is a party to a conspiracy with another to commit it or advises, hires, or counsels or otherwise procures another to commit it.

(c) Any person who attempts any violation of this ordinance shall be subject to the same class of infraction if they had completed all the steps for a violation. An attempt to commit a violation requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute a violation and that the actor does acts towards the commission of the violation which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

Section ENV.01.31 — Tribal Court

The Tribal Court shall have jurisdiction over all violations of this Ordinance. The burden of proof is on the Tribe to prove with clear and convincing evidence that a violation of this Ordinance has occurred.

Section ENV.01.32 — Severability

In the event that any provision of this Ordinance is ruled illegal by a court of competent jurisdiction, the remaining provisions of this Ordinance shall remain unaffected.

Section ENV.01.33 — Amendments

Amendments to this Ordinance will be effective upon enactment by the Stockbridge-Munsee Community Tribal Council without further review by the Secretary of Interior.

Chapter ENV.02 — Forest Resources Ordinance

Legislative History

1. Resolution No. 0637, adopted November 14, 1978, approved by BIA November 17, 1978.

2. Resolution No. 0641, adopted January 29, 1979.

3. Resolution No. 0730, adopted November 8, 1980.

4. Resolution No. 0746, adopted May 2, 1981.

5. Resolution No. 0766, adopted August 8, 1981.

6. Resolution No. 0766-1, adopted August 8, 1981.

7. Resolution No. 1026, adopted June 16, 1987.

8. Resolution No. 1127, adopted February 7, 1989.

9. Resolution No. 1161, adopted July 18, 1989.

10. Resolution No. 102-97, adopted January 8, 1997.

11. Resolution No. 021-06, adopted February 7, 2006.

12. Resolution No. 045-06, adopted June 6, 2007.

13. Resolution No. 031-08, adopted May 6, 2008.

14. Resolution No. 083-09, adopted September 18, 2009, approved by BIA April 16, 2012.

15. Resolution No. 054-10, adopted August 17, 2010.

16. Resolution No. 053-15, adopted July 7, 2015, approved by BIA July 22, 2015.

Part I — General Provisions

Section ENV.02.01 — Findings, Purpose, Authority And Jurisdiction

(a) Findings. The Tribal Council finds that:

(1) One of the most important short and long term resources of the Tribe is its forest resources.

(2) Properly managed forest resources will provide economic value to the Tribe.

(3) Properly managed forest resources will provide an excellent environment for fish, game, natural herbs and wildflowers.

(4) Trust forest resources, such as timber on trust lands, are federal trust assets that are subject to management and oversight of the federal government in accordance with federal law.

(5) The Tribe's increasing land base and reforestation efforts necessitate increasing involvement and management of the forest resources by Forestry Staff, Forestry Committee and the Tribal Council.

(b) Purpose. The purpose of this ordinance is to establish a framework for how the Tribe will conduct its forestry operations, including the establishment of a Forestry Committee, as well as to regulate the use of forest resources in order to best protect those resources for the benefit of the Tribe and its members.

(1) The ordinance is authorized under Article VII (f) of the Stockbridge-Munsee Constitution and inherent tribal authority as an exercise of governmental powers to govern the members of the Stockbridge-Munsee Community, as well as the use, management and administration of lands and resources under its jurisdiction.

(2) In addition, the Stockbridge-Munsee Community has authority over lands that it owns in fee simple by virtue of its ownership of such land and may enforce this ordinance in relation to access to such lands and use of forest resources consistent with such authority.

(d) Jurisdiction.

(1) Territorial Jurisdiction. This ordinance shall apply on the Stockbridge-Munsee Reservation, which for purposes of enforcement of this ordinance includes proclaimed reservation lands and tribal trust lands as well as individual trust lands under the jurisdiction of the Stockbridge-Munsee Community. This ordinance shall also apply in relation to lands that the Stockbridge-Munsee Community owns in fee simple.

(2) Personal Jurisdiction. This ordinance shall apply in relation to members of the Stockbridge-Munsee Community, as well as such persons who consent to the jurisdiction of the Stockbridge-Munsee Community by entering tribal lands and impact forest resources.

(3) Subject Matter Jurisdiction. The Stockbridge-Munsee Tribal Court shall have jurisdiction over violations by Tribal members that occur on Tribal fee lands. The Stockbridge-Munsee Tribal Court shall have concurrent jurisdiction with federal court for any violations for all matters relating to this ordinance that occur on Tribal trust land or proclaimed lands.

Section ENV.02.02 — Definitions

(a) "Approved Logger" means an individual and/or business that is on the Tribe's current Approved Loggers list.

(b) "Authorized Law Enforcement" refers to both the Tribe's police officers and the Tribe's conservation wardens.

(d) "BIA Forester" means a Forestry Staff member employed by the BIA on behalf of the Tribe and has authority over lands held in trust.

(e) "Committee" refers to the Stockbridge-Munsee Forestry Committee.

(f) "Cord" means 128 cubic feet of stacked wood.

(g) "DBH" means Diameter at Breast Height which is accepted as four and one half (4.5) feet above the ground.

(h) "Descendant" refers to a person who is registered as a descendant on the Tribe's descendant registry.

(i) "Elder" refers to a person who is age 55 or older.

(j) "Emergency" means a situation usually caused by catastrophic events such as tornadoes, floods, storms, and other similar events that requires tree removal immediately.

(k) "Enrolled member" means a person who is enrolled for membership in the Tribe.

(l) "Forest-Officer-in-Charge" or "FOC" means a member of the Forestry Staff with authority over land that is part of the Reservation. The BIA Forester has authority over trust lands. The Tribal Forester has authority over lands held by the Tribe in fee simple. The Tribal Forester also is the FOC over any Enterprise Sale of Forest Products.

(m) "Forest Products" refers to timber harvested with the intent of sale, wood chips and other similar timber-based materials.

(n) "Forestry Staff" means all employees employed by the Tribe in the Forestry Department, as well as the BIA Forester.

(o) "Greenery" means any material from an herbaceous plant or shrub, or a tree branch no larger than two inches (2") in diameter at the base.

(p) "Motor Vehicle" means any vehicle powered by mechanical means. This includes, but is not limited to, cars, trucks, vans, all-terrain vehicles (ATVs), utility task vehicles (UTVs), snowmobiles, motorcycles and tractors.

(q) "Personal use" means use by the tribal member holding the permit and his or her immediate household. Products intended for personal use may not be sold, given away or exchanged for cash, goods or other services unless specifically authorized under a permit.

(r) "Reservation," for purposes of this ordinance, refers to those lands that are proclaimed as the reservation of the Stockbridge-Munsee Community, lands held in trust for the Stockbridge-Munsee Community, individual trust lands under the jurisdiction of the Stockbridge-Munsee Community, and lands owned by the Tribe in fee simple.

(s) "Sapling" means any tree with a DBH greater than two (2) inches, but less than five (5) inches.

(t) "Seedling" means any tree with a DBH less than two (2) inches.

(u) "Shrub" means a woody perennial plant usually branched several times at or near the base, giving it a bushy appearance, usually less than seventeen (17) feet in height at maturity.

(v) "Timber" means any tree, or portion of a tree, that could be harvested as a forest product: pulp, bolt, saw log or veneer. Merchantable timber has a DBH of 5 inches or larger. Standing timber is merchantable timber that has not yet been harvested.

(w) "Tree" means a woody perennial plant with a single trunk (typically unbranched near the base), usually exceeding seventeen (17) feet in height at maturity.

(x) "Tribal Council" refers to the governing body for the Stockbridge-Munsee Community as established under its Constitution.

(y) "Tribal Forester" means the Forestry Staff member hired by the Tribe to head the Forestry Department and have authority over lands owned in fee simple by the Tribe, as well as Tribal Forest Enterprise activities.

(z) "Tribal Forest Enterprise" means an enterprise that is initiated and organized by the Tribe and, for purposes of this ordinance, typically occurs when the Tribe retains ownership of some or all forest products after harvest to sell to one or more third parties.

(aa) "Tribal Logger" means any enterprise that is at least 51% owned by one or more enrolled member(s) of the Stockbridge-Munsee Community. In order to be awarded sale contracts, a Tribal Logger must also be on the Approved Loggers list.

(bb) "Tribe" refers to the Stockbridge-Munsee Community.

Part II — Stockbridge-Munsee Forestry Committee

Section ENV.02.03 — Committee Mission Statement

The Committee was created to aid in the protection and conservation of the forest resources of the Tribe. The purpose of the Committee is to act as an advocate for and make recommendations to the Tribal Council on all forestry-related matters.

Section ENV.02.04 — Committee Objectives

(a) The Forestry Committee's objectives are:

(1) Protection of any and all forest assets of the Tribe;

(2) Preservation and maintenance of our forests for future generations;

(3) Maintenance of logging roads;

(4) Assurance of proper logging practices; and

(5) Consideration of all natural resources including, but not limited to, flora, fauna, water and wetlands.

Section ENV.02.05 — Committee By-Laws

ARTICLE I – NAME, ESTABLISHMENT AND PURPOSE

(a) Name. The name of the committee shall be the Stockbridge-Munsee Forestry Committee.

(b) Establishment. The Tribal Council, under its inherent authority as a tribal government responsible for tribal assets, establishes this Committee.

(c) Purpose. The Committee is vested with authority to make recommendations to the Stockbridge-Munsee Tribal Council regarding forestry management on lands held in trust for the Tribe and lands owned in fee simple by the Tribe in accordance with Chapter ENV.02, the Forest Resources Ordinance, as amended.

ARTICLE II - MEETINGS

(a) Regular Meetings. The regular monthly meeting of the Committee shall be held on the 1^st Wednesday of each month. Meetings shall be held at the Tribe's Environmental Offices or at a location designated by the Tribal Council.

(b) Special Meetings. Special meetings of the Committee may be held at any time to implement the provisions of the Tribe's approved Forest Management Plan.

(d) Open and Closed Sessions. All such meetings shall be open to Tribal members, except that a closed session may be called for purposes of discussing matters of a confidential nature. The meeting must be returned to open session after holding a closed session. All actions must be taken in open session.

(e) Quorum. At least four (4) members of the Committee shall constitute a quorum to conduct business and exercise the powers of the Committee.

(f) Notice of Meetings. A written notice stating the place, day, and hour of regular meetings of the Forestry Committee shall be delivered not less than five (5) working days before the date of the meeting to the members of the Committee and shall be posted to the public. Notice of any special meetings shall be given to Committee members, as well as posted to the public, at least 48 hours in advance. This notice will be done by the Forestry Staff. He/she will post notice at the Library, Health Center, Tribal Office, Headquarters, Housing, Elderly Center, Little Star and Casino.

(g) Minutes. Minutes must be taken at Committee meetings and shall be in a format designed to generate an informative record of meetings. Minutes must be submitted to the Tribal Council for acceptance and shall be required before stipends are issued for meeting attendance.

ARTICLE III –COMMITTEE ORGANIZATION

(a) General Powers.

(1) The Committee is authorized to oversee forest policy on the Reservation in accordance with this ordinance and Forest Management Plan.

(2) The Committee may develop and recommend to the Tribal Council other rules and regulations of forestry which shall not violate the provisions of the Tribal Constitution, this ordinance, the Forestry Management Plan, other Tribal law, as well as federal and state law as applicable.

(3) The Committee may exercise those powers authorized under this ordinance and as directed by the Tribal Council.

(b) Composition and Qualifications of the Forestry Committee. The Committee shall be composed of seven (7) adult (21 years or older) enrolled members of the Tribe.

(1) The Committee will follow all applicable Tribal law including Chapter ADM.02, Code of Conduct.

(2) The term of appointment shall be for five (5) years.

(1) Meet on a regular basis and submit their meeting minutes to Tribal Council.

(2) Make recommendations to Tribal Council regarding approval or denial of permits as outlined in this ordinance.

(3) Make recommendations to Tribal Council regarding amendments to this ordinance.

(4) Make recommendations to the Tribal Council regarding forest resource policy issues.

(5) Make recommendations to Tribal Council regarding the Forest Management Plan.

(6) Seek approval from Tribal Council for any proposed actions outside the scope of an approved Forest Management Plan.

(7) Have at least one member review all proposed management areas in a timely manner before taking any official action.

(8) Request Forestry Staff to assist as needed.

(9) Shall compile and regularly update a list of Approved Loggers.

(10) Submit list of Approved Loggers to Tribal Council by July 1^st, every year.

(d) Political Office. In no event shall a member of the Committee serve as a member of the Tribal Council during his/her term as a Committee member.

(e) Removal. The Committee may make a recommendation to the Tribal Council for the removal of any Committee member for neglect of duty as a Committee member, including but not limited to, failure to appear at three (3) consecutive regular meetings without a valid reason or performing a duty that constitutes a conflict of interest. All such charges must be documented.

(f) Conflict of Interest. In carrying out the duties of the Committee, no member shall make or participate in making decisions which involve personal or family financial interest.

ARTICLE IV – MEMBERSHIP

(a) Number. The officers of the Committee shall be a Chairperson, Vice-chairperson, and Secretary. Each shall be elected by the Committee itself.

(b) Elections. Length and term of office shall be staggered appointments for continuity. Elections for officers will occur during the regular November meeting.

(c) Chairperson. The Chairperson shall preside at all meetings of the Committee. At each meeting the Chair shall submit such recommendations and information as may be considered proper concerning the business affairs and operational policies of the Committee. The Chairperson shall not vote except in cases of a tie.

(d) Vice-Chairperson. The Vice-Chairperson shall perform the duties of the Chairperson in the absence or incapacity of the Chairperson.

(e) Secretary. The Secretary shall keep the records of the Committee and shall act as the recorder of all meetings. The Secretary shall keep minutes of every Committee meeting in a journal kept for such purpose and shall perform all duties incident to the office of Secretary, including sending meeting minutes to Tribal Council.

(f) Removal of Officers. Any officer elected by the Committee may be removed from office by Tribal Council.

ARTICLE V – AMENDMENTS

These bylaws may be altered, amended, or repealed upon resolution of the Committee, with final approval of the Tribal Council.

Part III — Administration

Section ENV.02.06 — Tribal Council

(a) The Tribal Council has overall authority to approve recommendations from the Committee and tribal employees in relation to issues, policies and procedures related to the use of forest resources. However, the Tribal Council acknowledges that the use of trust forest resources must be consistent with applicable requirements under federal law.

(b) The Tribal Council establishes a system for permitting the use of forest resources as outlined under this ordinance.

(c) The Tribal Council reserves the right to issue special permits upon such terms and conditions as the Tribal Council deems appropriate and to waive provisions of this ordinance for special cultural or ceremonial events.

(d) The Tribal Council authorizes the set aside of 100% of Proceeds of Labor funds (stumpage) from sales of forest resources on fee and trust lands for future land acquisition.

Section ENV.02.07 — Forestry Staff

(a) The Forestry Department is a department of the Tribal Government and is responsible for carrying out the functions and policies of the Tribe relating to the forest resources that are consistent with this ordinance.

(b) Forestry Staff shall have authority to enforce the provisions of this ordinance utilizing Authorized Law Enforcement personnel.

(c) Forestry Staff shall also provide assistance as necessary and needed in order that the BIA can enforce provisions of this ordinance and/or federal law on trust land.

(d) Forestry Staff shall work with the Fish and Game Board, Conservation Department, Ecology Department and Environmental Department to insure that all natural resources including, but not limited to, flora, fauna, water and wetlands are not harmed by activities controlled, regulated, or authorized by the Forestry Department.

(e) Forestry Staff shall work with the Cultural Preservation Department and/or the Tribal Historic Preservation Officer to ensure historical and/or cultural resources are not harmed by the activities controlled, regulated or authorized by the Forestry Department.

Part IV — General Standards

Section ENV.02.08 — Rights And Responsibilities Of Beneficial Usage

(a) All enrolled members of the Tribe shall have the right to share in the beneficial use of the forest resources as provided in this ordinance.

(b) All individuals with privileges under this ordinance also have a responsibility to be good stewards of the natural resources on the Reservation. While tribal members do have a right to share in the bounty from the land, they must do so in a responsible manner that ensures the long-term continuation of healthy and sustainable natural resource populations for the benefit of future generations. This responsibility extends to maintaining a healthy environment for forest resources as all life is inter-connected.

Section ENV.02.09 — Harvesting Of Wild Crops

(a) All enrolled members may harvesting wild crops.

(1) The following are considered to be wild crops: berries, mushrooms, greenery (herbs, shrubs and branches), roots, wildflowers, moss and wild vegetables.

(2) Wild crops may be harvested for personal use and this does not require a permit. Harvested wild crops may not be sold or exchanged for cash, goods or other services.

(3) Non-enrolled spouses and descendants may harvest wild crops so long as an enrolled member of the Tribe is present.

(b) Wild ginseng (Panax quinquefolius) may only be harvested by an enrolled member for personal use, provided that person has a valid Free-Use Ginseng Permit.

(1) Only plants with 3 prongs or more may be harvested.

(2) Wild ginseng may only be harvested during ginseng season, which is September 1 to October 15.

(3) All wild ginseng harvested must be reported to and verified by Forestry Staff by the end of the season.

(4) Harvesters may retain roots, stalk and leaves, but all berries from the harvested plant must be planted within five (5) feet of the parent plant at the time of harvest.

Section ENV.02.10 — Forestry Activities By Waters

(a) There will be no commercial harvest of standing timber within 300 feet of a river without prior approval of the Tribal Council. For the purposes of granting forestry permits, rivers are defined as the Red River, the West Branch of the Red River, and Silver Creek.

(b) All trout streams will have a 100-foot no-cut buffer, unless the requirement for a buffer is waived by both the Committee and the Tribe's Fish and Wildlife Board.

Section ENV.02.11 — Disease Or Infested Trees

(a) Insects, disease, or infestation may require or limit harvesting conditions or requirements.

(b) Oak Wilt. Cutting, pruning, or trimming an oak tree cannot be done between April 1 and September 1 of each year. On a case-by-case basis, some oak trees may be cut or manipulated under the Domestic Clearing Permit, but are subject to the restrictions listed under that permit.

Section ENV.02.12 — Forest Roads

(a) The forest road network is vital to the Tribe's logging operations and provides access to the Reservation for enrolled members. Keeping this network in good work condition is mandatory.

(b) Forest roads are not public rights-of-way, but rather are a private road network for the use of the Tribe. The following persons have permission to use the forest roads and/or access forested portions of the Reservation to the following persons: enrolled members, tribal employees who need access for their work and such other persons who have authorization from the Tribe.

(1) Open forest roads may be used by any motor vehicle, which is not prohibited for any other reason, so long as no unnecessary damage is done to the road.

(2) Motor vehicle traffic may not make new forest roads without the consent of the Tribal Council.

(3) Motor vehicle traffic may not cause excessive damage which could inhibit the use of the forest road by any other tribal member or tribal department.

(4) Forest roads may not be blocked for any reason by any person other than Forestry Staff or Authorized Law Enforcement, without the consent of the Tribal Council.

(d) Spring Breakup Road Closure.

(1) To reduce degradation, the Tribal Forester will monitor conditions during spring breakup and will make the decision of when motor vehicle traffic will be prohibited from all forest roads and landings.

(2) ATVs, UTVs and snowmobiles are exempt from the spring breakup road closure.

(3) A notice will be posted in all Tribal Offices and Tribal posting locations at or before the time of closure.

(4) A notice of road closure will be submitted for publication in the Mohican News. However, due to the potential emergency timeframe needed on some closures, the effective dates may occur prior to publication in the newspaper.

(e) Special Concern Road Closure.

(1) Forest roads may need to be closed to any and/or all motor vehicles at any time of the year for various reasons such as, but not limited to, safety hazards, invasive species infestations, erosion or other special concerns.

(2) Any Special Concern Road Closure must be brought before the Committee and approved by Tribal Council.

(3) If any Special Concern Road Closure is deemed necessary:

(A) A notice will be posted in all Tribal Offices and Tribal posting locations at or before the time of closure.

(B) A notice will be submitted for publication in the Mohican News. However, due to the potential emergency timeframe needed on some closures, effective dates may occur prior to publication in the newspaper.

(C) A physical obstruction will be placed at the beginning and end of the forest road subject to the Special Condition Road Closures and remain in place until the closure is lifted.

Part V — Permits

Section ENV.02.13 — Forest Permits – Generally

(a) Permits are required for nearly all activities relating to forest resources.

(b) Depending on the activity and the location of the activity, permit approval may be done by Forestry Staff, Committee, Tribal Council, and the BIA.

(c) All activities must be in accordance with the Forest Management Plan, Chapter PRP.02 - Land Use Code, and all other applicable law.

(d) All timber harvested subject to a permit or contract must be scaled by Forestry Staff, except as follows: timber harvested under a free-use firewood permit; timber harvested under a domestic maintenance permit and kept for personal use; timber harvested under a permit or contract that allows scaling by other persons.

Section ENV.02.14 — Forestry Staff Approved Permits

(a) The following activities require permits and can be authorized and issued by the Tribal Forestry Staff.

(b) FREE-USE GINSENG PERMIT: Adult enrolled members may obtain a permit to harvest ginseng for personal use subject to the requirements of Section ENV.02.09(b).

(c) FREE-USE FIREWOOD PERMIT: Adult enrolled members may obtain an annual permit from Forestry Staff to harvest firewood for personal use. There is no stumpage charge.

(1) Forestry Staff is authorized to issue Free-use Firewood Permits, so long as there are no special conditions in relation to that permit.

(2) Free-use Firewood Permits with special conditions, such as those regarding who is authorized to harvest the wood, are subject to approval by the Committee and Tribal Council.

(3) No products harvested for personal use may be sold, given away, or exchanged for cash, goods, or other services. The prohibition on giving away wood does not apply to wood donations to an enrolled Stockbridge-Munsee Tribal Elder or for Stockbridge-Munsee cultural practices.

(4) A Firewood Permit is valid from March 15^th until March 14^th of the following year and is valid on all Reservation lands.

(5) Ten (10) full cords of firewood shall be the maximum allowable harvest per permit. Additional cordage may be requested after the allowable limit is used and must be granted at the discretion of the Committee.

(6) When applying for a Free-use Firewood Permit, the enrolled member must provide their enrollment number and indicate if the firewood is leaving the Reservation.

(7) Only enrolled members, non-enrolled spouses and descendants may assist the permit holder with harvesting firewood.

(A) The following persons are eligible to apply for a permit with special conditions to allow persons other than those identified in the above subsection to assist with harvesting firewood:

(i) Non-enrolled parents or legal guardians of enrolled member children who are living on the Reservation; and

(ii) Elder or disabled enrolled members.

(B) Any person providing harvest assistance without the presence of the permit holder must be identified on the permit.

(8) Firewood can only be cut from dead or down trees. Oak trees that are dead or down are subject on the seasonal bar on harvest under Section ENV.02.11(b).

(9) The use of tractors, skidders or other type of machinery to remove firewood must be approved in advance by the Committee. If approved, precaution must be exercised to prevent damage to the forest and equipment may need to be washed and inspected upon request by Forestry Staff.

(10) Scaling is not required. However, the Forestry Staff and Authorized Law Enforcement have the right to verify the volume of firewood is within the permit limits.

(d) Domestic Maintenance Permit: Adult enrolled members may obtain a permit from the Forestry Staff to remove merchantable timber for safety or aesthetic reasons on their land assignment.

(1) Forestry Staff will approve and mark all trees prior to harvest.

(2) Oak trees may only be cut or manipulated during the times when there is no seasonal bar on harvest under Section ENV.02.11(b), except as provided under Section ENV.02.14(c)(5).

(3) A Domestic Maintenance permit is valid from January 1^st through December 31^stand is valid on all Reservation land.

(4) The enrolled member may cut the forest products or may choose anyone to cut the forest products at their own expense.

(5) Downed trees from storms may be cut on an enrolled member's land assignment without obtaining a permit.

(A) The enrolled member must notify Forestry Staff of the cut as soon as reasonably possible, if they do not possess a firewood permit.

(B) Downed oaks may be cut or manipulated so long as Forestry Staff is notified. The resulting oak stump must be burned or buried or may be chemically-treated by Forestry Staff.

(6) Personal Use.

(A) No stumpage will be charged so long as the forest products retained for personal use by the enrolled member holding the permit and their immediate household.

(B) No products cut for personal use may be sold, given away, or exchanged for cash, goods or other services. The prohibition on giving away wood does not apply to wood donations to another enrolled member.

(C) Scaling is not required. However, Forestry Staff and Authorized Law Enforcement have the right to verify that the volume of wood.

(7) Sale of Wood.

(A) If the permit holder intends to sell the wood or exchange it for cash or goods, then stumpage will be charged on timber harvested under this permit.

(B) A receipt for the stumpage payment must be received by the Forestry Department prior to the sale of the timber.

(e) MAPLE SAP COLLECTION PERMIT. Adult enrolled members may obtain an annual permit from the Forestry Department to drive a motor vehicle on logging roads for sap collection, even during such times as when forest roads are closed for spring breakup.

(1) Permit holders must designate which roads they wish to use when requesting the permit.

(2) Permit holders are allowed to use motorized vehicles on forest roads for the purpose of hauling sap from collection points to their processing area.

(3) Forestry Staff will inspect the forest road to verify whether the road was restored as required.

(4) The permit holder must restore the forest road to its original condition before June 1^st of the permit year.

(5) If the permit holder fails to restore the forest road as required, then:

(A) the Forestry Department will have the road restored at the permit holder's expense; and

(B) the permit holder will be barred from obtaining another permit for the use of any forest roads for sap collection.

Section ENV.02.15 — Tribal Council Approved Permits

(a) The following activities must be brought to the Committee and approved by the Tribal Council before the permit can be issued by Forestry Staff.

(b) DOMESTIC USE PERMIT: Adult enrolled members may obtain a permit to harvest forest products such as cedar, white birch bark, balsam boughs, white pine, etc., for their own personal use such as for fences, decorations or other projects. There is no stumpage charge. Applicants shall state what materials are needed and the amount needed. The prohibition on giving away products does not apply donations to an enrolled elder or for Stockbridge-Munsee cultural practices.

(1) The enrolled member must submit a written request to the Committee notifying them of the quantity, type of product to be harvested and how the product will used. Depending on the size of the project the Committee will ask for submission of detailed plans.

(2) The Forestry Staff will determine the availability of the forest product and may designate where the product will be harvested, should the permit be issued.

(3) The Committee will make a recommendation to the Tribal Council. A maximum allowable cut will also be recommended to the Tribal Council.

(4) If Tribal Council approves the request, the Forestry Staff will issue the permit. The permit will be valid for a specified time, not to exceed one year.

(5) The enrolled member, with assistance from other enrolled members, a non-enrolled spouse or descendants, may harvest the forest products. The permit holder must be on-site during the harvest unless the holder is an elder or disabled.

(6) The Forestry Staff will track and prepare an annual estimate of the total amount of product and value of such product harvested from trust lands under this type of permit. If the product is harvested from trust land, then this information will be provided to the BIA at the end of each fiscal year.

(c) DOMESTIC PERMIT FOR USE IN CONSTRUCTION. This permit allows the permit holder to harvest timber that will be used for the construction of the building identified in the permit.

(1) The enrolled member must submit a written request to the Committee that includes detailed plans of the building including a realistic timeline for construction completion. The member must obtain all other required permits, such as in relation to land use, before this permit can be approved.

(2) The project can only be for the enrolled member's personal use and be located on the Reservation.

(3) If the Committee approves the request, the recommendation to Tribal Council will include a time limit on the project and the amount of timber to be harvested.

(4) The enrolled member must provide a bond for the stumpage value of all timber to be harvested before the permit may be issued or construction may begin.

(A) The amount of the bond will be determined by Forestry Staff based on an estimated value of the timber to be harvested.

(B) Upon completion of the project within the identified timeframe, then the stumpage bond will be refunded in full.

(C) If the project is not completed within the identified timeframe or consistent with permit requirements, then the bond may be forfeited to the Tribe in part or in full.

(5) If the permit is approved by Tribal Council, Forestry Staff will designate the area to be cut and mark the trees. Forestry Staff will also scale the harvested timber and record/file the stumpage amount and value.

(d) DOMESTIC CLEARING PERMIT: Adult enrolled members may obtain a permit to harvest timber and/or forest products for the purpose of clearing a specific limited area for a dwelling, garage or other outbuilding, or business on their land assignment, lot or leased land.

(1) The enrolled member must submit a written request to the Committee that includes detailed plans of the proposed building, including a realistic timeline for construction completion.

(A) The member must obtain all other required permits, such as in relation to land use, before this permit can be approved.

(B) If the building site is located on tribal trust land, the enrolled member will also be required to obtain any applicable BIA permits, such as a forest products harvesting permit.

(2) No clearing is allowed beyond three hundred (300) feet from the centerline of a public right-of-way road.

(3) The enrolled member must provide a bond for the stumpage value of all timber to be harvested before the permit may be issued or construction may begin.

(A) Upon completion of the project within the identified timeframe, then the stumpage bond will be refunded in full.

(B) If the project is not completed within the identified timeframe or consistent with permit requirements, then the bond may be forfeited to the Tribe in part or in full.

(4) The enrolled member is responsible for the cost of service to harvest the forest products.

(5) The permit request should indicate the species and expected volume to be harvested. Forestry Staff will coordinate with the enrolled member by assisting in staking the proposed harvest area and calculating the expected volumes.

(6) The Committee will make a recommendation to the Tribal Council. A positive recommendation will be made contingent on a successful perc test. No cutting, except to perform the perc test, may occur unless the site has a successful perc test.

(7) If Tribal Council approves the permit request, Forestry Staff will issue the permit and mark the trees to be harvested. The permit will be valid for a specified time, not to exceed one year from date of issuance.

(8) Forestry Staff will provide the Approved Loggers list to the enrolled member on request.

(9) Forestry Staff will scale the timber or forest products.

(10) On a case-by-case basis, some oak trees may be cut under this permit during the timeframe when normally barred under Section ENV.02.11(b). If a live oak tree is cut during the normal oak wilt bar timeframe, then the resulting oak stump must be burned, buried or chemically-treated within 48-hours of the tree being cut.

(e) FIREWOOD-FOR-SALE PERMIT. Adult enrolled members may obtain a permit to harvest and sell or trade firewood.

(1) The enrolled member must present a written request to the Committee identifying the desire to sell firewood.

(2) The Committee will make a recommendation to the Tribal Council.

(3) If permit is approved by the Tribal Council, then the Firewood-for-Sale Permit will be issued and managed by the Tribal Forester.

(4) A Firewood-for-Sale Permit is valid from March 15^th until March 14^th of the following year and is valid on Reservation lands.

(5) The enrolled member is responsible to pay a nonrefundable stumpage charge of $200.00 to the Tribe before the permit will be issued by the Tribal Forester. This charge is subject to change according to fair market value of hardwood pulp and will be determined before the first of each year.

(6) The amount of timber harvested is not to exceed 10 full cords. It is the responsibility of the permit holder to notify the Forestry Staff of wood to be scaled and verified. The volumes of timber from trust lands will be reported to the BIA by the end of the fiscal year.

(7) This is an individual permit and the permit holder must be on site when harvesting or selling. Descendants and the permit holder's non-enrolled spouse may assist the permit holder.

(f) TEMPORARY USE PERMIT:

(1) Persons who are not enrolled members may apply for a permit to temporarily enter the Reservation for a specific purpose, such as removing wood from their property, or gaining temporary access to a land-locked property.

(2) The applicant must submit detailed written plans of the proposed purpose including area where access is needed, reason needed, and the expected length of time the permit is needed.

(3) The Committee will make a recommendation to the Tribal Council regarding the temporary permit request.

(4) The Tribal Council may instruct Forestry Staff to issue a temporary use permit subject to the conditions the Tribal Council desires.

Section ENV.02.16 — Tribal-Departmental Permits

Tribal departments, entities, and committees must apply for permits as provided for in this ordinance in the same manner and process as other allowable permits. Under a departmental permit, any employee of that tribal department may carry out the task authorized under the permit.

Section ENV.02.17 — Denial Of Permit(s) And/Or Contract

(a) Anyone owing any forestry-related debt to the Tribe shall not be granted any permit.

(b) The Tribe may deny permits or contracts for any of the following reasons:

(1) poor past logging practices,

(2) stumpage debts owed,

(3) timber trespass(es),

(4) past violations, misuse of process, procedures, or permits,

(5) proposal denied under the Tribe's land impact review process;

(6) inconsistent with the Tribe's forest management plan.

Part VI — Sales Of Forest Products

Section ENV.02.18 — Forest Product Sales – Generally

(a) In order to generate revenues and best manage its forest resources, the Tribe may sell forest products subject to terms of this ordinance, its forest management plan, and other applicable laws.

(b) The Tribe shall sell forest products by written contract.

(1) Such sales will be by: an open market sale of standing timber; a tribal forest enterprise sale of standing timber; a tribal forest enterprise sale of forest products; or an emergency/small lot forest enterprise sale.

(2) The Tribe may sell some forest products by open market and other forest products by tribal forest enterprise as part of the same sale.

(c) Sales of timber from lands held by the United States in trust for the Tribe shall be conducted through the BIA consistent with federal law.

(d) Persons authorized to access the Reservation as part of timber sales are required to comply with tribal law, as well as the terms of the applicable contract(s).

Section ENV.02.19 — Open Market Sale Of Standing Timber

(a) The open market sale of standing timber is the default process that the Tribe uses to sell standing timber. It has the most checks and balances, is the most transparent and is the most straightforward to administer.

(b) An open market sale of standing timber occurs when the Tribe sells standing timber to a selected bidder and that bidder is responsible to harvest and remove that timber from the Reservation.

(1) The Tribal Timber Sale Bid Policy shall apply in relation to such sales.

(2) Successful bidders will be required to pay a stumpage bond prior to the harvest of the standing timber.

(3) Scaling by Forestry Staff is required prior to the harvested timber being removed from the Reservation, unless scaling by another person at another location is authorized by contract.

(c) The Tribal Council, based on recommendation of the Committee, must approve an open market sale of standing timber prior to the sale being conducted.

Section ENV.02.20 — Tribal Forest Enterprise Sale Of Standing Timber

(a) A tribal forest enterprise sale of standing timber occurs when the Tribe contracts or subcontracts an Approved Logger to harvest, sort, and deck timber on the Tribe's behalf.

(1) The Tribe will retain ownership of part or all of the timber, which the Tribe then sells directly to one or more mills or other third-parties by a tribal forest enterprise sale of forest products.

(2) The Tribal Timber Sale Bid Policy shall apply in relation to the tribal forest enterprise sale of standing timber.

(3) Successful bidders will be required to pay a stumpage bond prior to the harvest of the standing timber.

(4) Scaling by Forestry Staff is required prior to the harvested timber being removed from the Reservation, unless scaling by another person at another location is authorized by contract.

(b) The Tribal Council, based on recommendation of the Committee, must approve a tribal forest enterprise sale of standing timber prior to the sale being conducted.

(c) The Tribe must enter into an agreement with the BIA in order to purchase standing timber located on tribal trust land for purposes of tribal forest enterprise sale of standing timber.

Section ENV.02.21 — Tribal Forest Enterprise Sale Of Forest Products

(a) A tribal forest enterprise sale of forest products is used to sell harvested forest products in which the Tribe had retained ownership to one or more buyers.

(b) A tribal forest enterprise sale of forest products may be used in the following types of situations: when a harvest contains high volumes of veneer or specialty products; or when the enterprising of forest products is believed to provide a greater benefit to the Tribe then an open market sale.

(c) The Tribal Council, based on recommendation of the Committee, must authorize the use of the tribal forest enterprise sale of forest products process prior to the sale being conducted.

(d) The Tribal Council, based on recommendation of the Committee, will approve the sales to individual buyers as part of these sales, except, when there are time constraints that prevent prior approval in order to maximize the benefit to the Tribe. In the event of such time constraints, then Tribal Forester shall inform the Committee and Tribal Council as soon as reasonably possible about the terms of the sale and the sale will be handled based on the following process:

(1) The Tribal Forester is the Forest-Officer-in-Charge of tribal forest enterprise sales of forest products.

(2) The FOC must make a reasonable effort to obtain quotes and/or price lists from interested local mills or potential purchasers with a minimum of at least three (3) requested.

(3) All Tribal Loggers on the Approved Logger list must be contacted.

(4) Tribal preference does not apply in relation to these sales of forest products.

(5) The FOC will use their best professional judgment to choose the buyer that will provide the highest benefit to the Tribe and document all decisions.

(e) At the conclusion of the sale, the FOC will inform the Committee about the sale, including who purchased the forest products and an accounting of costs and revenues from the sale.

Section ENV.02.22 — Emergency/Small Lot Tribal Forest Enterprise Sale

(a) The process for an emergency/small lot tribal forest enterprise sale will be used when there is a harvest or sale of harvested timber that need to be handled quickly in order to retain the highest benefit to the Tribe.

(b) The emergency/small lot tribal forest enterprise sale will be used when the normal processes cannot be done in a timely manner and/or when the harvest is for a small amount of forest product making it impractical to conduct an open market sale, such as disease treatments, localized blowdowns, clearings for development and ceased thefts.

(c) The need, prescription, and Scope of Work for the harvest/salvage must be recommended by the Committee and approved by the Tribal Council. Such approvals will be obtained prior to the harvest unless the nature of the emergency requires immediate action. In the event immediate action is required, the approvals will be obtained as soon as possible after the fact.

(d) Timber will be harvested by either tribal staff or a hired contractor. The contractor may be from the Approved Logger list, but this is not required depending on the scope of the project. This determination will be made on a case-by-case basis by the Tribal Forester.

(e) Emergency harvests, salvages, or mitigation may be in excess of the Tribe's annual allowable cut per its Forest Management Plan.

Section ENV.02.23 — Tribal Timber Sale Bid Policy

(a) Purpose. The purpose of this policy is to refine the bidding process for sales of forest products by the Tribe and the BIA. The intent of this Policy is to facilitate the Tribe in obtaining the best possible timber sales, consistent with federal law, while encouraging Tribal loggers to participate in the bidding process in a meaningful manner.

(b) Coverage and Scope.

(1) This Policy applies to the open market sale of standing timber and the tribal forest enterprise sale of standing timber (except for emergency and small lot tribal forest enterprise sales).

(2) Certain federal laws, including 25 C.F.R. Ch. 163, or other contracts and grants may supersede or contain provisions that are inconsistent with this Policy. If the federal law/contract/grant provisions are mandatory, those provisions of the contract/grant contract shall control, and the remaining portions of this Policy shall be adhered to.

(3) If the Tribal Council has approved a tribal forest enterprise sale of standing timber, then the Tribe reserves the right to have the BIA negotiate the tribal timber sale directly with the Tribe at appraised rates as per 25 C.F.R. 163.13(c).

(4) This Policy does not apply to change orders or change directives, which are added work or services within the general scope of an on-going project.

(5) This Policy does not prohibit the Tribe retracting any invitation for bids.

(1) The Committee shall compile and regularly update a list of Approved Loggers. The Committee shall submit the list of Approved Loggers to Tribal Council by July 1 of every year.

(2) The criteria for determining Approved Loggers include the ability to obtain and maintain comprehensive and worker's compensation insurance, ability to obtain and maintain bonding, experience, reliability, previous references, background/portfolio of the enterprise, technical ability, financial ability, applicable certification and/or licenses, proof of ownership of equipment, tax numbers or other factors the Forestry Committee deems important.

(3) The Committee reserves the right to remove an enterprise from the Approved Logger's list for non-compliance with tribal law and/or their contract.

(4) If the Committee determines that a Tribal Logger is ineligible to be an Approved Logger, the Tribal Loggers must be notified in writing regarding what the specific deficiencies are and/or what must be corrected to gain or maintain status.

(d) Tribal Logger Preference.

(1) The Committee shall apply preference when an Approved Tribal Logger's submitted bid at least meets the BIA's or Tribe's minimum bid rates.

(2) The Approved Tribal Logger's submitted bid is within 10% of the highest submitted bid.

(3) An Approved Tribal Logger whose bid is within 10% of the highest submitted bid, shall be required to match the highest submitted bid, with the understanding that the Tribe will rebate the matched amount (with no interest) upon successful completion of the timber sale.

(A) The BIA may require that the Approved Tribal Logger, in writing or fax, affirmatively agree to match the highest submitted bid by 3pm, the next business day.

(4) For example:

Timber Company ABC bids $100,000

Tribal Logger bids #1 $ 92,000

Tribal Logger bids #2 $ 94,000

Tribal Logger bids #3 $ 87,000

Tribal Logger #3 bid is too low to be considered for preference. The bid is below the 10% maximum difference to be considered for the sale.

Tribal Logger bid #1 is within the 10% maximum difference. However, Tribal Logger bid #2 is the higher bid between the eligible Tribal Loggers. Therefore, Tribal Logger Bid #1 does not receive the timber sale contract.

Tribal Logger bid #2 is the highest preference bid with the 10% maximum difference. #2 would be required to match the $100,000 bid, but will receive a rebate of $6,000 upon the successful completion of the timber sale.

Timber Company ABC would not get the timber sale contract because Tribal Logger bid #2 would be awarded the timber sale contract. Because Tribal Logger #2's bid is within 10% of the highest bid (Timber Company ABC), and it would match the $4,000 difference, Timber Company ABC and Tribal Logger #2 are essentially bidding at $100,000.

(5) Preference shall not be adhered to if there are no Approved Tribal Loggers' bids within 10% of the highest bid.

(6) Although this Policy is intended to aid Tribal Loggers in obtaining timber sales contracts, no legal rights or remedies are created by this Policy.

(7) Applicant(s) for Indian preference will be required to provide certification of membership from the Tribe.

(8) An applicant seeking preference has the burden to demonstrate that the enterprise is eligible for preference, by providing proof of at least 51% ownership at the time of bid submission.

(e) Compliance.

(1) The Forestry Department and Committee are bound by this Tribal Timber Bid Sale Policy and shall fully comply with all terms of this Policy. The Forestry Department and Committee shall not divide projects, or take other actions to avoid being subject to this Policy.

(2) The Tribe's Legal Department shall review all contracts before the Tribe signs the contract.

Part VII — Violations And Enforcement

Section ENV.02.24 — Timber Infraction(s) - General.

(a) Each day or portion of a day during which a violation occurs or exists is a separate violation.

(b) Each violation of this ordinance shall be considered a separate violation.

(c) For any Timber Infraction defined under this ordinance, the Tribal Court may invoke, all or in part, the provisions of this ordinance.

(d) The Tribal Court shall inform the Forestry Department in writing of any permit(s) or privilege(s) revoked or suspended as the result of an adjudicated proceeding before the Court.

(e) The imposition of the civil penalties provided herein shall not be a defense by any person to any civil or criminal charge brought against such person by the United States Government as trustee of the forest resources of the Tribe.

(f) All permits are subject to immediate suspension by the Tribe if Forestry Staff reasonably believe that a violation of this ordinance has occurred and it is in the best interests of the Tribe to immediately stop the activity.

Section ENV.02.25 — Infractions Defined.

(a) Violating the terms and/or conditions of any permit and/or contract issued pursuant to this ordinance shall be deemed a Class A Infraction.

(b) Harvesting, cutting, possessing, and/or taking forest resources without the requisite permit shall be deemed a Class A Infraction.

(c) Exceeding the amount of wood or wood products authorized for harvest under a permit issued pursuant to this ordinance shall be deemed a Class A Infraction.

(d) Removing wood or forest products harvested on the Reservation without first having it scaled by Forestry Staff shall be deemed a Class A Infraction.

(e) Harvest or cutting of any live tree without the proper permit shall be deemed a Class A Infraction.

(f) Fraud in the procurement of any permit shall be deemed a Class B Infraction.

(g) Placing or causing to be placed into the waters of any creek, stream, river or lake any tree or plant or portion thereof; or placing or causing to be placed into the waters of any creek, stream, river or lake any soil or timber resource debris resulting from any activity regulated by this ordinance shall be deemed a Class B Infraction.

(h) Refusal of any person engaged in harvesting, cutting and/or taking of forest resources, to display the proper permit or identification upon request of any authorized law enforcement personnel shall be deemed a Class C Infraction.

(i) Any other violation of this ordinance shall be deemed a Class A Infraction.

Section ENV.02.26 — Enforcement

(a) Authorized Law Enforcement has authority to investigate and enforce the provisions of this ordinance. Forestry Staff have authority to report violations of this ordinance to Authorized Law Enforcement and other implicated law enforcement agencies. Authorized Law Enforcement may consult with other law enforcement agencies on a case-by-case basis as needed.

(b) Authorized Law Enforcement is authorized to investigate and enforce violations of this ordinance. This may include observing persons engaged in activities under this ordinance to ensure that activities are lawful. Authorized Law Enforcement shall conduct such activities in good faith and in accordance with good law enforcement practices and may take such actions as appropriate to the circumstances and under applicable laws.

(c) Authorized Law Enforcement may issue warnings and/or citations to individuals or entities who violate this Ordinance. Such warnings and/or citations are considered to be civil in nature, rather than criminal. Such authorization does not affect the federal enforcement that may be available for enforcement purposes.

(d) Authorized Law Enforcement has authority to confiscate and seize equipment, timber or other forest products, vehicles or any other equipment used in violating this ordinance.

(1) If equipment, vehicles or weapons are confiscated and seized, such equipment, vehicles or weapons shall be considered evidence and properly recorded and secured with the Tribe's Public Safety Department.

(2) Unless ordered by the Court or subject to confiscation under other applicable law, if the alleged violator pays the amount of the citation before the court hearing date, the confiscated and other evidence shall be returned to the violator.

(e) The citation must be served on the person responsible for the violation in a timely manner with copies delivered to the Tribal Court and Tribal Prosecutor within three (3) business days of service.

(1) The Tribal Prosecutor shall use his or her discretion to prosecute violations of this ordinance.

(2) Persons convicted of violations to this ordinance shall be subject to the penalties herein described.

(3) In addition to forfeiture actions the Tribal Prosecutor may seek enforcement of any and all parts of this ordinance by Tribal Court actions seeking injunctions or restraining orders. The Tribal Prosecutor may seek an emergency order from the Tribal Court to restrain or enjoin any violation that is jeopardizing the health or safety of any person. Such an order may be sought and issued ex parte if the Tribe shows a good faith effort to serve notice on the necessary parties.

(4) If the Tribal Court finds the person not guilty of the alleged violation, any property or equipment seized by the Authorized Law Enforcement shall be returned to the person.

(f) Penalties.

(1) Any person found guilty of this ordinance shall be assessed of a fine ranging from $200.00 to $5,000. In assessing the fine, the Court shall consider the severity of the offense, the acceptance of responsibility by the charged person, the number of previous convictions, and deterrence to others.

(2) Normal civil remedial money penalties are as follows:

(A) Class A Infractions, not less than $500 or more than $5,000.00.

(B) Class B Infractions, not less than $300 or more than $5,000.00.

(3) When any person is found guilty of a violation, and such person has been convicted of a previous violation of this ordinance within a period of one year, there shall be a mandatory revocation of all privileges regulated under this ordinance for a minimum of two years, and the infraction penalties may be enhanced as follows and other remedies as the Tribal Court deems appropriate:

(A) For a Class A Infraction, $5,000.00.

(B) For a Class B Infraction, not less than $1,000.00 nor more than $5,000.00.

(4) For a third violation of this ordinance within a period of one (1) year the penalty shall be $5,000.00 and a mandatory lifetime revocation of all privileges regulated under this ordinance and other remedies as the court deems appropriate.

(5) In lieu of or in addition to any other penalty, the Tribal Court may also order that equipment or property seized by Authorized Law Enforcement not be returned to the violator and the equipment or property to become permanent property of the Conservation Department to be used of or disposed of at the Tribal Council's discretion.

(6) In lieu of or in addition to any other penalty, any person found guilty of
violating this ordinance may be required by the Tribal Court to provide community service.

(7) The Tribal Court may also order suspension of privileges to harvest forest products for a period not to exceed five years.

(8) The Tribal Court may, in addition to the money penalty described herein grant such other relief as is necessary and proper for the enforcement of this ordinance.

Section ENV.02.27 — Parties To A Violation - Attempt To Violate

(a) Whoever is concerned in the commission of a violation of this ordinance is a principal and may be charged with the violation although he or she did not directly commit it and although the person who directly committed it has not been convicted of the violation.

(b) A person is concerned in the commission of a violation if the person:

(1) Directly commits the violation;

(2) Aids and abets the commission of the violation; or

(3) Is a party to a conspiracy with another to commit a violation or advises, hires, or counsels or otherwise procures another to commit it.

Section ENV.02.28 — Burden Of Proof And Statute Of Limitations

(a) The burden of proof for citations issued under this ordinance, unless specified otherwise, shall be by preponderance of the evidence, which is a showing that it is more likely than not that the facts alleged are true.

(b) A citation for a violation of this ordinance must be issued within one (1) year after the commission of the violation.

Section ENV.02.29 — Civil Damages

In addition to an action to impose civil remedial money penalties, the Tribe may also seek civil action for recovery of damages against any person or entity who violates this ordinance.

Section ENV.02.30 — Severability

In the event that any provision of this ordinance is ruled illegal by a court of competent jurisdiction, the remaining provisions of this ordinance shall remain unaffected.

Chapter ENV.03 — Solid Waste Management Ordinance

Legislative History

1. The urgency to have the Solid Waste Management Code in place, it was not brought before the Ordinance Committee.

2. Resolution No. 1102, adopted September 20, 1988.

3. Amended Feb. 4, 1992, adding Jurisdiction and Procedure until tribal court is established.

4. Amended September 1, 1992, adding sections to regulate hazardous and toxic wastes, construction wastes, etc. and rule-making authority.

5. Resolution No. 067-2000, adopted October 24, 2000.

Section ENV.03.01 — Scope And Purpose

(a) The purpose of this Ordinance is to help ensure that efficient, nuisance free and environmentally acceptable solid waste management procedures are practiced on the Stockbridge-Munsee Reservation.

(b) This Ordinance applies to the activities of tribal members and non-members on the Reservation. It is not intended to preempt Wisconsin Department of Natural Resources solid waste management regulations otherwise applicable to non-members on this Reservation.

Section ENV.03.02 — Solid Waste Management

(a) Solid wastes within the Reservation boundaries shall be handled, stored, collected, transported, transferred, processed and disposed of in accordance with the provisions of this Ordinance and where appropriate under the provisions of the Natural Resource Code.

(b) The owner or occupant of any premise, business establishment, or industry shall be responsible for the sanitary storage of all solid waste accumulated at the premise, business establishment or industry.

(1) Durable, rust-resistant, non-absorbent, water tight, rodent-proof and easily cleanable containers with a close-fitting, insect-tight cover with adequate handles or bails to facilitate handling, or

(2) Other types of containers acceptable to the local governing agency and conforming to the intent of this Section.

(d) Every person, occupant, owner or permit holder shall have the duty of maintaining the premises or equipment under his/her supervision, containers or disposal areas in compliance with the requirements of this Ordinance.

Section ENV.03.03 — Refuse Collection

(a) Waste matter shall be placed for collection and collected at a frequency which precludes the possibility of unsightly, unclean or unhealthy premises or the occurrence of a nuisance, and in no event shall be less than once a week. In the event a collection service is not used, the occupant of the premise shall be responsible for disposing of the wastes in a timely manner.

(b) The collector shall transfer the contents of all containers into an approved vehicle or vehicle provided for such purpose. He/she shall clean up all garbage, rubbish, or waste matter spilled during collection and shall completely empty containers and replace lids.

(c) The collector shall not damage cans or property while making collections and shall return containers to their proper locations or designated place.

(d) A container in poor repair and not meeting the requirements shall be tagged securely by the collector with a notice to repair or replace the container.

(e) Refuse not acceptable for collection, junk car bodies, discarded appliances and demolition waste shall be the responsibility of the owners for removal and disposal.

(f) Vehicles or containers used for the collection and transportation of any solid waste shall be loaded and moved in such a manner that the contents will not fall, leak or spill therefrom, and shall be covered when necessary to prevent blowing of material.

(g) Solid waste generated within the boundaries of the reservation shall be deposited at a tribal solid waste collection site, in accordance with the rules in effect for preparation, bagging, separation and recycling.

Section ENV.03.04 — Refuse Disposal And Anti-Littering

(a) No person shall throw or deposit any garbage, rubbish, or waste matter or cause the same to be thrown or deposited upon any street, alley, gutter, park, tribal properties or adjacent lands; or throw or deposit the same in or upon any premises or vacant lot or in any water or waterway.

(b) No person shall dispose of solid waste on any private or public residential property where disposal will cause a public nuisance or health hazard, by causing foul odors to escape or by infestation of insects or rodents. All solid wastes shall be disposed of at appropriately designated landfills.

(c) No person shall dispose of solid waste from any stopped or moving vehicle onto any state, county, town, or tribal highways, roads, or rights-of-way.

Section ENV.03.05 — Jurisdiction And Procedure

(a) Jurisdiction is hereby conferred upon the Stockbridge-Munsee Tribal Court over actions brought for violations of this Ordinance.

(b) Proceedings for violations of this Ordinance shall be governed by the appropriate sections of the Tribal Court Code; provided, that proceedings may be instituted in Tribal Court by the issuance of a citation.

(c) Until such time as a tribal court is established, any enforcement actions pursuant to this code may be initiated as a civil action by the tribe or by any person specially harmed in body or property or land use enjoyment by such violation in any court of competent jurisdiction.

Section ENV.03.06 — Enforcement

(a) The provisions of this Ordinance shall be enforced by all tribal law enforcement officers and those county and state officials who are empowered by the Stockbridge-Munsee Community to enforce the provisions of this Ordinance.

Section ENV.03.07 — Penalties

(a) Violation of the provisions of this Ordinance shall be punishable by a civil remedial money penalty not to exceed $500.00. Each day of a violation may be treated as a separate violation under this provision.

(b) In addition to a civil remedial money penalty, any personal property including vehicles and other equipment which has been used in connection with the violation of this Ordinance may be seized and forfeited pursuant to the appropriate sections of Chapter TCT.02.

(c) In addition to the foregoing penalties, the Court may suspend or revoke any license issued pursuant to this Ordinance.

(d) Upon conviction the Court shall order payment of court costs of $15.00.

(e) Nothing herein shall prevent the Tribe from bringing suit against any violator of this Ordinance for money damages for harm to tribal resources caused by the violation.

(f) Any interested party may bring suit in tribal court to enjoin a violation of this Ordinance.

(g) To prevent or remediate violations of this Ordinance, the court may order remedial action, restoration, community service, injunctive relief, damages, forfeitures, penalties, costs, reasonable attorney fees, and/or other relief. Any forfeiture or penalty shall inure to the Tribe.

Section ENV.03.08 — Amendments, Severability And Non-Liability

(a) Amendments. Amendment to this Ordinance will be effective upon enactment by the Stockbridge-Munsee Community Tribal Council without further review by the Secretary of the Interior.

(b) Severability and Non-liability. If any section, provision, or portion of this Ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Ordinance will not be affected thereby. The Tribe declares there is no liability on the part of the Tribe, its agencies, or employees for damages that may occur as a result of reliance upon or conformance with this Ordinance. The Tribe, by adoption of this Ordinance, does not waive sovereign immunity in any respect.

Section ENV.03.09 — Hazardous And Toxic Waste

(a) No person shall dispose of any hazardous or toxic waste as defined by federal or state law at any time subsequent to the adoption of this section within the boundaries of the Reservation, except in accordance with rules promulgated by the Solid Waste Committee. The Solid Waste Committee shall post a list or description of hazardous and toxic substances at the disposal collection site in such a way as to give notice of substances that are not accepted at the disposal site and that require special treatment for disposal. For purposes of this section, posting a reference to any federal or state law shall have the effect of adopting the provisions of listings thereof.

(b) Any person or entity found to have violated this section shall forfeit not less than $100.00 nor more than $500.00 per day for such violation from the date of disposal.

Section ENV.03.10 — Construction, Demolition, Yard Wastes And Burning

(a) No person shall burn any substance as a means of disposal with the exception of dry, uncoated paper and cardboard, unpainted wood, combustible construction, demolition, and yard wastes, including leaves, tree and brush trimming, grass clippings, and other vegetable matter.

(b) Burning of construction, demolition and yard wastes shall be permitted only pursuant to tribally issued burning permits issued for persons, places and periods of time to be determined by the Solid Waste Committee, in consultation with conservation officers.

(c) Burning shall only be permitted in an approved container placed in such a manner as to minimize risk of fire to nearby property.

Section ENV.03.11 — Rule Making Authority

(a) The Tribal Solid Waste Committee shall have the authority to promulgate rules for the operation of the solid waste disposal site, including rules governing the preparation, separation, bagging, and recycling of substances brought for disposal. Such rules shall be made available to reservation residents in printed form at the disposal site and the tribal office.

(b) The Solid Waste Committee shall prepare lists or descriptions of substances that may not be deposited at the disposal site, which shall be posted in a secure and weather proof place that is visible at the disposal site gate.

(c) The Solid Waste Committee may adopt a schedule of procedures and fees for disposal of non-household wastes, such as unusual quantities of solid waste, unbagged wastes, construction or demolition wastes or items requiring special disposal or handling at the disposal site.

(d) Rules, fees, and disposal directions shall be effective from the date of adoption, or posting if required by this section, unless the Tribal Council shall temporarily or permanently suspend their effect.

(e) Operations of the Disposal Facility and the Solid Waste Committee shall be defrayed by revenues from recycling revenues and disposal fees.

Section ENV.03.12 — Recycling

(a) Materials identified as recyclable shall be separated from non-recyclable solid waste and recycled in accordance with the Stockbridge-Munsee Community Recycling Plan or other applicable materials.

(1) Recyclable materials are items that can be re-used, re-refined, reformed, smelted or serve as a raw material for manufacturing processes; these materials have a secondary market and collection facilities in place for such re-use.

(A) Recyclable materials include, but are not limited to, paper and containers made from glass, steel and plastics.

(B) Other materials, such as the following, are also recyclable, but need to be handled in a special manner: used engine oil, fluorescent light bulbs, old automobiles and wet cell batteries.

(2) Non-recyclable solid wastes are those waste materials that are a part of the solid waste stream and do not currently have an available recycling process or are excluded from the recycling process for other reasons.

(b) No person may dispose of recyclable materials by abandonment, dumping, burning or using other destructive means on those materials.

(c) To the greatest extent practicable, recyclable materials shall be kept clean and free of contaminants such as dirt, oil, grease, food or non-recyclable materials.

(d) Yard waste and plant materials shall be disposed of through composting or burning in accordance with applicable laws. It shall not be included with solid waste that is disposed of in a landfill or other similar means.

(e) Responsibility for Recycling.

(1) Occupants of residential units shall be held responsible for recycling materials from their own household waste in accordance with this Ordinance.

(2) Owners of multi-family dwellings and non-residential properties shall have the final responsibility for recycling at their premises. However, owners shall not be held responsible for the actions of individuals on their premises, if they act to promote recycling at their premises in accordance with the following:

(A) Provide adequate, separate containers for recyclable materials and non-recyclable solid waste.

(B) Provide written notice to tenants, users and occupants of the premises about recycling requirements under this Ordinance, the Plan and any other recycling program at the premises.

(D) Provide written notification to tenants, users and occupants of the premises about how to prepare materials and where to store the materials for collection.

Section ENV.03.13 — Stockbridge-Munsee Community Recycling Plan

(a) The Tribe shall adopt the Stockbridge-Munsee Community Recycling Plan ("Plan") to address how recycling will be handled on Reservation.

(b) The following procedures shall apply to the adoption of this Plan.

(1) The Plan shall be developed by the tribal Environmental Department, with the input from interested tribal departments or committees.

(2) Once a draft Plan is prepared, the public shall be given an opportunity to comment on the provisions of the Plan. Public comments on the Plan will be considered and a final draft of the Plan submitted to the Tribal Council.

(3) The Plan shall become final when it is adopted by the Tribal Council through a resolution at a regular Tribal Council meeting.

(c) The Plan shall be reviewed by the tribal Environmental Department at least every three years and amended as necessary.

(1) The public shall be given an opportunity to comment on proposed amendments. Public comments will be considered when a final draft of the revised Plan, which incorporates the amendments, is prepared.

(2) The revised Plan shall become final when it is adopted by the Tribal Council through a resolution at a regular Tribal Council meeting.

(d) The Tribe shall also adopt such policies as are necessary to implement the Plan for the Tribe's government and economic enterprises. Such policies shall be developed by the tribal Environmental Department and shall regulate all employees.

Chapter ENV.04 — Water Pollution Control

Legislative History

1. Resolution No. 1122, adopted January 3, 1989.

2. Resolution No. 1161, adopted July 18, 1989.

3. A BIA list of approved ordinances on file there as of 1993 shows they have the Water Quality Ordinance on file.

4. Resolution No. 1552-95, adopted November 7, 1995.

5. Resolution No. 050-98, adopted August 5, 1998.

Section ENV.04.01 — Pollution Of Waters - Public Policy Of The Tribe

Whereas the pollution of the waters of this reservation constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish and aquatic life, and impairs domestic, agricultural, industrial, recreational, traditional, cultural, and other legitimate beneficial uses of water, and whereas such pollution is contrary to the best interest of the Stockbridge-Munsee Community Band of Mohican Indians (hereinafter Tribe), it is hereby declared to be the public policy of the Tribe to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and aquatic life, and for domestic, agricultural, industrial, traditional, cultural, recreational, and other beneficial uses; to provide that no waste be discharged into any waters of the reservation without first being given the degree of treatment necessary to protect the legitimate beneficial uses of such waters; to provide for the prevention, abatement, and control of new or existing water pollution; to place in priority those control measures directed toward the elimination of pollution which creates hazards to public health; to insure due consideration of financial problems imposed on water polluters through the pursuit of these objectives; and to cooperate with other agencies of the Tribe, state, and agencies of the state, and the federal government in carrying out these objectives.

Section ENV.04.02 — Definitions

For purposes of this Act, the following words and phrases shall have the meanings ascribed to them in this Section:

(a) "Pollution" means such artificial or induced natural contamination, or other alteration of the physical, chemical, biological, and radiological properties, of any waters of the reservation, or such discharge of any liquid gaseous, or solid substance into any waters of the reservation as will create a nuisance or render such waters harmful or detrimental or injurious to public health, safety, welfare, or to domestic, commercial, industrial, agricultural, traditional, cultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

(b) "Waters of the Reservation" means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, 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 this federal Indian reservation or any portion thereof, except that bodies of water confined to and retained within the limits of private property which do not develop into or constitute a nuisance, or a public health hazard, or a menace to fish and wildlife, shall not be considered to be "waters of the reservation" under this definition.

(c) "Person" means an individual, corporation, partnership, association, state, or political subdivision thereof, federal agency, state agency, municipality, commission or interstate body.

(d) "Pollutant" means dredged spoil, dirt, slurry, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, chemical waste, biological nutrient, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, or any industrial, forestry, municipal, or agricultural waste.

(e) "Pollution" means artificially made, artificially induced, or natural alteration of the physical, chemical, and radiological integrity of water.

(f) "Effluent Limitation" means any restriction or prohibition established under tribal law on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into reservation waters, including but not limited to standards of performance for new sources, toxic effluent standards, and schedules of compliance.

(g) "Permit" means a permit issued under this article.

(h) "Point Source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissures, containers, rolling stock, concentration animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

(i) "Schedule of Compliance" means a schedule of remedial measures and times including an enforceable sequence of actions or operations leading to compliance with any control regulation or effluent limitation.

Section ENV.04.03 — Environmental Protection Commission

(a) There is hereby created a Tribal Environmental Protection Commission, as a division of the tribal government under the direction of the Tribal Council and the Commission shall exercise its power and perform its duties and functions specified in this article, said Commission shall consist of six (6) persons. It shall include the heads of the Tribal Department of Forestry, Fish and Game, Human Services, and the Tribal Health Board, and two (2) reservation residents appointed by the Tribal Chairperson with the consent of the Tribal Council. Appointments must be made so as to include appropriate agricultural, wildlife, industrial, and cultural training within its own membership; although no specific number of its members shall be required to be so trained. A majority of members must be officially enrolled members of the Tribe.

(b) Of the two (2) members appointed by the Tribal Chairperson, both shall serve four year terms, except of those first two appointed, one shall be appointed for three years, and one shall be for four years. The Tribal Chairperson may fill any vacancy in the appointed membership of the Commission, and may remove any appointed member for cause. The heads of tribal departments may designate an administrative staff member to perform the duties of the member making the designation.

(c) All members of the Commission shall have a vote. Four (4) members shall constitute a quorum, and the concurrence of a majority of a quorum of the Commission in any matter within its powers and duties shall be required for any determination made by the Commission.

Section ENV.04.04 — Duties Of Environmental Protection Commission In Regard To Water Quality.

Repealed, Resolution No. 050-98.

Section ENV.04.05 — Classification Of The Waters Of The Reservation

Repealed, Resolution No. 050-98.

Section ENV.04.06 — Water Quality Standards

Repealed, Resolution No. 050-98.

Section ENV.04.07 — Control Regulations

(a) The Commission shall promulgate control regulations for the following purposes:

(1) To describe prohibitions/standards, concentrations, and effluent limitations on the extent of specifically identified pollutants, such as any of those mentioned in Section ENV.04.06 that any person may discharge into any specified class of reservation waters;

(2) To describe pre-treatment requirements, prohibitions, standards, concentrations, and effluent limitations on waste any person may discharge into any specified class of water of the reservation from any facility, process, activity, or waste pile including but not limited to: forest resources; pulp and paper mills; paperboard, builders paper and board mills; meat product and rendering processing; canned and preserved fruits and vegetables processing; sugar processing; organic chemicals manufacturing; oil and gas transportation; electric power plants; leather tanning and finishing; timber products processing.

(3) To describe precautionary measures, both mandatory and prohibitory, that must be taken by any person owning, operating, conducting, or maintaining any facility process, activity, or waste pile that does or might cause pollution of any waters of the reservation in violation of control regulations or cause the quality of any waters of the reservation to be in violation of any applicable water quality standard.

(b) In the formulation of each control regulation, the Commission shall consider the following:

(1) The need for regulations that control discharges of specified pollutants that the subject of water quality standards for the receiving waters of the reservation;

(2) The degree to which any type of discharge is subject to treatment, the availability, practicality, and technical and economic feasibility of treatment techniques; and the extent to which the discharge to be controlled is significant;

(3) The continuous, intermittent, or seasonal nature of the discharges to be controlled;

(4) Whether a regulation that is to be applicable to discharges into flowing water should be written in such a way that the degree of pollution tolerated or treatment required will be dependent upon the volume of flow of the receiving water or the extent to which the discharge is diluted therein, or the capacity of the receiving water to assimilate the discharge; and

(5) The need for specification of safety precautions that should be taken to protect water quality including, but not limited to; requirements for the keeping of logs and other records, requirements to protect subsurface waters in connection with mining exploration and surface mining and the drilling and operation of wells, and requirements as to settling ponds, holding tanks, and other treatment facilities for water that will or might enter reservation waters.

(c) The Commission shall coordinate and cooperate with the Tribal Attorney, the Tribal Health Board, and Natural Resource offices having regulatory powers in order to avoid promulgating control regulations that would be either redundant or unnecessary.

Section ENV.04.08 — Individual Sewage Disposal System

(a) Upon request of any person, the Commission shall review the adequacy of local community control of individual sewage disposal systems that are applicable in any portion of the reservation in which the soil, geological conditions, or other factors indicate the unregulated outflow from one or more individual sewage disposal systems would or might pollute the waters of the reservation. After such review and upon any finding of inadequacy, the Commission shall promulgate a control regulation for the area involved which shall identify such area by legal description and shall also specify the terms and conditions for individual sewage disposal systems construction, use, design, maintenance, spacing, and location that shall be applicable in such area.

Section ENV.04.09 — Additional Authority Of The Commission

(a) In addition to the powers and duties of the Commission specified elsewhere, the Commission is empowered to:

(1) Accept and supervise the administration of loans and grants from the federal government and from other public sources, if authorized by Tribal Council, which loans and grants shall not be expended for other than purposes for which provided;

(2) Advise, consult, cooperate, and enter into agreements, if authorized by Tribal Council, with other agencies of the Tribe, the federal government, states, and other Tribes, and with groups and industries affected by the provisions of this article and policies of the Commission, but any such agreement involving authorizing or requiring compliance in this reservation with any water quality standard or control regulation shall not be effective unless or until the Commission has presented the public with an opportunity for a hearing with respect to such standard or regulation and has adopted the same in compliance with Section ENV.04.19 and

(3) Exercise all incidental powers necessary and proper for carrying out the purposes of the article including the powers to issue and enforce rules and orders.

Section ENV.04.10 — Administration Of Water Quality Control Programs

(a) The Tribal Division of Natural Resources shall administer and enforce the water quality control programs adopted by the Commission.

Section ENV.04.11 — Duties Of The Division

(a) The Division shall:

(1) Carry out the enforcement provisions of this article, including enforcement or civil penalty provisions, criminal prosecution of violators and such other administrative and judicial relief as may be appropriate;

(2) Administer the waste discharge permit system as provided in Section ENV.04.24 to Section ENV.04.26;

(3) Monitor waste discharges and waters of the reservation as provided in Section ENV.04.12; and

(4) Submit an annual report to the Commission as provided in Section ENV.04.14.

Section ENV.04.12 — Monitoring

(a) The Division shall take such samples as may be necessary to enable it to determine the quality of every reasonably accessible segment of reservation waters. In sampling such waters the Division shall give consideration to characteristics such as those listed in Section ENV.04.02(b), but if pollution is suspected the sampling shall not be limited or restricted by reason of the fact that no water quality standard has been promulgated for the suspected type of pollution.

(b) As to every segment of reservation waters so sampled, the Division shall endeavor to determine the nature and amount of each pollutant, whether a new or different water quality standard is needed, the source of each pollutant, the place where such pollutant enters the water, and the names and addresses of each person responsible for or in control of each entry.

(1) Determine what control regulation is applicable, if any;

(2) Determine whether the discharge is covered by a permit and whether any condition of the permit is being violated; and

(3) Determine what further control measures with respect to such pollution source are practicable.

(d) The Division shall inform the Commission of any unusual problem which creates difficulties in abating pollution.

Section ENV.04.13 — Monitoring, Reporting And Recording

(a) The owner or operator of any facility, process or activity from which a discharge of pollutants is made into waters of the reservation or into any publicly owned treatment works shall in such form and in accordance with such specifications as the Division may require:

(1) Establish and maintain records;

(2) Make reports;

(3) Install, calibrate, use and maintain methods and equipment, including biological monitoring methods;

(4) Sample discharges; and

(5) Provide additional reasonably available information relating to discharges into publicly owned treatment works.

Section ENV.04.14 — Annual Report To The Commission

(a) On or before March of each year, the Division shall report to the Commission on the effectiveness of the provisions of this Article and shall include in such report such recommendations as it may have with respect to any regulatory or legislative changes that may be needed or desired. Such report shall contain the then current information that has been obtained pursuant to Section ENV.04.04.

Section ENV.04.15 — Authority To Enter And Inspect Premises And Records

(a) The Division, through its authorized employees, has the power, upon presentation of proper credentials, to enter and inspect at any reasonable time and in a reasonable manner any property, premise, or place for the purpose of investigating any actual, suspected, or potential source of water pollution, or ascertaining compliance or noncompliance with any control regulation or any order promulgated under this Article. Such entry is also authorized for the purpose of inspecting and copying of records required to be kept concerning any effluent source.

(b) If such entry or inspection is denied or not consented to, the Division is empowered to and shall obtain from the Tribal Court for the district in which such property, premise, or place is located, a warrant to enter and inspect prior to entry and inspection. The Tribal Court of the Stockbridge-Munsee Tribe is empowered to issue such warrants upon a proper showing of the need for such entry and inspection.

Section ENV.04.16 — Emergencies

(a) Whenever the Division determines, after investigation, that any person is discharging or causing to be discharged or is about to discharge into any reservation waters, directly or indirectly, any pollutant which in the opinion of the Division constitutes a clear, present, and immediate danger to the health or livelihood to members of the public, the Division shall issue its written order to said person that he must immediately cease or prevent the discharge of such pollutant into such waters and thereupon such person shall immediately discontinue such discharge. Concurrently with the issuance of such order the Division may seek a restraining order or injunction pursuant to Section ENV.04.35.

Section ENV.04.17 — Additional Authority And Duties Of The Division

(a) In addition to the authority specified elsewhere in this Article, the Division has the power to:

(1) Conduct or cause to be conducted studies, research and demonstrations with respect to water pollution and control, abatement, or prevention thereof, as requested by the Commission;

(2) Furnish technical advice and services relating to water pollution problems and control techniques;

(3) Designate one or more persons or agencies in any area of the reservation as an agent of the Division, to exercise and perform such powers and duties of the Division as may be specified in such designation;

(4) To certify, when requested, the existence of any facility, land, building, machinery, equipment, treatment works, sewage and disposal systems, as have been acquired, constructed, or installed in conformity with the purposes of this Article; and

(5) To take such action in accordance with rules and orders promulgated by the Commission as may be necessary to prevent, abate, and control pollution.

(b) All fees and penalties collected by the Division shall be transmitted to the Tribal Finance Office in a timely manner for deposit to the credit of the Tribal General Fund.

Section ENV.04.18 — Authority And Procedures For Hearings

(a) The Commission or Division may hold public hearings, issue notices of hearings, issue subpoenas requiring the attendance of witnesses and the production of evidence, administer oaths, take such testimony as is deemed necessary, make findings and determinations, and issue orders, all in conformity with this Article.

(b) The Commission may adopt such rules and regulations governing procedures and hearings before the Commission or Division as may be necessary to assure that such hearings will be fair and impartial.

(c) At any hearing, any person who is affected by the proceeding and whose interests are not already adequately represented, shall have the opportunity to be a party thereto upon prior application to and in the sole discretion of and approval by the Commission or Division, as the case may be, and such person shall have the right to be heard and to cross examine any witness.

(d) After due consideration of the written and oral statements, the testimony, and the arguments presented at any such hearing, the Commission or Division, as the case may be, shall enter its written findings and final order, based upon evidence in the record.

(e) In all proceedings before the Commission or Division with respect to any alleged violation of any control regulation, permit or order, the burden of proof shall be upon the Division.

(f) The Commission or Division may designate a Hearing Officer who shall have the power to issue notices of hearing, to issue subpoenas requiring the attendance of witnesses and the production of evidence, to administer oaths, and to take such testimony as may be necessary and such Hearing Officer shall certify and file recommended findings and conclusion and a proposed order with the Commission or Division as appropriate, for adoption or modification by such Commission or Division. The Commission or Division may designate a Hearing Officer if the purpose of the hearing is to develop control regulations, or is held pursuant to Section ENV.04.20.

The Hearing Officer may be an employee of the Division.

Section ENV.04.19 — Procedures To Be Followed In Setting Standards And Control Regulations

Repealed, Resolution No. 050-98.

Section ENV.04.20 — Administrative Reconsideration

Any party directly affected by an order or determination of the Commission or Division shall have thirty (30) calendar days from the effective date to seek judicial review. During the time permitted for seeking judicial review, the party seeking judicial review shall apply to the Commission or Division, as appropriate for a hearing or rehearing with respect to, or reconsideration of, such order or determination. The determination by the Commission or Division whether to grant or deny the application for a hearing, rehearing, or reconsideration shall be made within ten (10) days after receipt by the Commission or Division. Such determination by the Commission may be made by telephone, mail, or at a meeting. If the application for a hearing, rehearing or reconsideration is granted, then the order or determination to which such application pertains shall not be considered final for purposes of judicial review, and the Commission or the Division may affirm, reverse, or modify, all or part of the order or determination. After this the order or determination shall be final.

Section ENV.04.21 — Enforcement Hearings - Judicial Review

(a) Any final order or determination by the Division or the Commission shall be in writing, supported by written findings, and subject to judicial review in accordance with the provisions of this Article and any other applicable provisions of the Tribal Code or Tribal Court Rules of Civil Procedure.

(b) Any proceeding for judicial review of any final order or determination of the Division or the Commission shall be filed in the Tribal Court within thirty (30) days after said order or determination has been served upon the party affected. Such period shall be stayed while an application for a hearing, rehearing, or reconsideration is pending pursuant to Section ENV.04.20

(c)(1) Except with respect to emergency orders issued pursuant to Section ENV.04.16, any person to whom a cease and desist order, clean-up order, or other order has been issued by the Division or Commission, or against whom an adverse determination has been made, may petition the Tribal Court for a stay of the effectiveness of such order or determination. Such petition shall be filed in the Tribal Court in which is located the pollution sources.

(2) Such petitions may be filed prior to any such order or determination becoming final or during any period in which is located the Pollution sources affected.

(3) Such stay shall be granted by the court if there is probable cause to believe that refusal to grant a stay will cause serious harm to the affected person or any other person, and:

(A) That the alleged violation or activity to which the order or determination pertains will not continue, or if it does continue, any harmful effects on waters of the reservation will be alleviated promptly after the cessation of the violation or activity; or

(B) That the refusal to grant a stay would be without sufficient corresponding public benefit.

(d) Any party may move the court to remand the case to the Division or the Commission in the interests of justice, for the purpose of adducing additional specified and material evidence and findings thereon; but the burden shall be on such party to show reasonable grounds for the failure to adduce such evidence previously before the Division or Commission.

(e) If the court does not stay the effectiveness of an order of the Commission or Division, the court shall enforce compliance with that order by issuing a temporary restraining order or injunction at the request of the Commission or Division.

Section ENV.04.22 — Samples, Secret Processes

(a) If samples of water or water pollutants are taken for analysis and a violation of any permit or control regulation is suspected, a representative portion of the same shall be furnished at cost upon request to the person who is believed to be responsible for such suspected violation. A representative portion of such sample shall be furnished to any suspected violator at cost whenever any remedial action is taken with respect thereto by the Division. A duplicate of every analytical report pertaining to such sample shall be furnished as soon as practicable to such person.

(b) Any information relating to any secret process, method of manufacture or production, or sales or marketing data, which may be acquired, ascertained, or discovered, whether in any sampling investigation, emergency investigation, or otherwise, shall not be publicly disclosed by any member, officer, or employee of the Commission or Division, but shall be kept confidential. Any person seeking to invoke the protection of this Section in any hearing shall bear the burden of proving its applicability. This Section shall never be interpreted as preventing full disclosure of effluent data.

Section ENV.04.23 — Rules Of Civil Procedure - Applicability

(a) Except as otherwise specified in this Article, service or process, notices, and other papers shall be in accordance with the Rules of Civil Procedure established for the Tribal Court.

Section ENV.04.24 — Permits Required For Discharge Of Pollution - Administration

(a) No person shall discharge any pollutant into any reservation water from a point source without first having applied for, nor after December 31, 1988, without having obtained a permit from the Division for such discharge. Each application for a permit duly filed under the federal Clean Water Act shall be deemed to be a permit application filed under this Article, and each permit issued pursuant to the Federal Act shall be deemed to be a temporary permit issued under this Article which shall expire when the federal permit expires.

(b) The Tribe shall examine applications for and may issue, suspend, revoke, modify, deny, and otherwise administer permits for the discharge of pollutants into reservation waters. Such administration shall be in accordance with the provisions of this Article and regulations, if any, promulgated by the Tribe.

(c) The Tribe shall promulgate such regulations as may be necessary for the orderly and effective administration of permits for the discharge of pollutants. Such regulations shall be consistent with the provisions of this Article and shall be in furtherance of the policy contained in Section ENV.04.07 and may pertain to and implement, among other matters, permit and permit applications contents, procedures, requirements and restrictions with respect to the following:

(1) Identification and address of the owner and operator of the activity, facility, or process from which the discharge is to be permitted;

(2) Location and quantity and quality characteristics of the permitted discharge;

(3) Effluent limitations and requirements for treatment prior to discharge;

(4) Equipment and procedures required for mandatory monitoring as well as record-keeping and reporting requirements;

(5) Schedules of compliance;

(6) Procedures to be followed by tribal personnel for entering and inspecting premises;

(7) Submission of pertinent plans and specifications for the facility, process, or activity which is the source of the waste discharge;

(8) Restrictions on transfer of the Permit;

(9) Procedures to be followed in the event of expansion or modification of the facility, process, or activity from which the discharge occurs or the quantity, quality, or frequency of the discharge;

(10) Duration of the permit not to exceed five years, and renewal procedures;

(11) Authority of the Tribe to require changes in plans for specifications for control facilities as a condition for the issuance of a permit;

(12) Identification of control regulations over which the permit takes precedence and identification of control regulations over which a permit may never take precedence:

(13) Notice requirements of any intent to construct, install, or alter any process, facility, or activity that is likely to result in a new altered discharge; and

(14) Effectiveness under this Article of permit applications submitted to and permits issued by the federal government under the federal Clean Water Act.

(d) The Tribe may authorize temporary permits to be issued pending completion of review procedures otherwise required prior to issuance of a permit, but no temporary permit may be issued for more than a period of two years nor shall any temporary permits be renewed.

(e) Nothing in any permit shall ever be construed to prevent or limit the application of any emergency power of the Tribe.

(f) Every permit issued for a sewage treatment works shall contain such terms and conditions as the Tribe determines to be necessary or desirable to assure continuing compliance of applicable control regulations. Such terms and conditions may require that whenever deemed necessary by the Tribe to assure such compliance the permittee shall:

(1) Require pretreatment of effluent from industrial, governmental, or commercial facilities processes and activities before such effluent is received into the gathering and collection system of the permittee;

(2) Prohibit any connection to any municipal permittee's intercepter and collection system that would result in receipt by such municipal permittee of any effluent other than sewage required by law to be received by such permittee;

(3) Include specified terms and conditions of its permit in all contracts for receipt by the permittee of any effluent not required to be received by a municipal permittee;

(4) Initiate engineering and financial planning for expansion of the sewage treatment works whenever throughput and treatment reaches 80% of design capacity;

(5) Commence construction of such sewage treatment works expansion whenever throughput and treatment reaches 95% of design capacity or, in the case of a municipality, either commence such construction or cease issuance of building permits within such municipality until such construction is commenced, except that building permits may continue to be issued for any construction which would not have the affect of increasing the input of sewage to the sewage treatment works of the municipality involved; and

(6) Inclusion of the requirements authorized by paragraph (4) of this subsection (F) shall be presumed unnecessary to assure compliance upon a showing that the area served by a governmental sewage treatment works has a stable or declining population; but this provision shall not be construed as preventing periodic review by the Tribe should it be felt that growth is occurring or will occur in the area.

(g) Every permit issued for a discharge from any facility, process, or activity that includes any dam, settling pond, or hazard within or related to its system shall include such terms and conditions as the Tribe determines necessary to prevent or minimize the discharge of any pollutant into any reservation waters in potentially dangerous quantities.

(h) For the purposes of defraying costs incurred by the Tribe in their monitoring of waste discharged into reservation waters pursuant to a permit issued under this Section, the permittee shall pay to the Tribe a fee of one hundred dollars ($100.00) prior to the commencement of each year covered by the permit beyond the first year. Until such fee is paid, when due, the permittee shall not be in good standing under this Article.

Section ENV.04.25 — Application - Fee - Public Participation

(a) "Minor municipal discharge" is a discharge from a publicly owned wastewater treatment plant which is less than all cases in subparagraph (1) of this paragraph.

(b) "Minor industrial discharge" is one which does not discharge over fifty thousand (50,000) gallons in the aggregate on any one day of the year from one or more discharge points and which does not contain toxic pollutants.

(c) "Irrigation return flow" means tailwater, tile drainage, or surfaced groundwater flow from irrigated land, in a system operated by public or private organizations or individuals, if:

(1) There is a point source of discharge (e.g., a pipe, a ditch, or any other defined or discrete conveyance), whether an artificial or a natural feature of the land, purposely maintained as a drainage structure;

(2) The return flow is from land areas of more than three thousand (3,000) contiguous irrigated acres or three thousand (3,000) noncontiguous irrigated acres which use the same artificial drainage system or natural feature of the land purposely maintained as a common drainage structure;

(3) The discharge from the lands (as opposed to the water supply to the lands) is controlled by one public or private organization or one individual. Irrigation return flow is concerned with the drainage from irrigated land. It does not include the delivery of irrigation water.

(d) "Feedlots" includes:

(1) "Small feedlots", by type and capacity:

(A) Slaughter and feeder cattle - up to 1,000;

(B) Mature dairy cattle - up to 700;

(D) Sheep - up to 10,000;

(E) Turkey - up to 55,000;

(F) Chickens, with continuous overflowing watering - up to 100,000;

(G) Chickens, with liquid manure handling systems - up to 30,000;

(H) Ducks - up to 5,000.

(e) FEES

(1) Minor municipal and industrial discharges - $50

(2) Irrigation return flow - $10

(3) Small feedlots - $10

(f) The permits shall run from the date of issuance, and the annual fees shall be paid to the Tribe.

(1) Upon receipt of an application, the Tribe shall prepare a tentative determination to issue or deny the permit, and if it is to be issued, its tentative determination as to the terms and conditions of such permit.

(2) Public notice of every complete application for a discharge permit shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed discharge and of the proposed determination to issue or deny a permit. Procedures for the circulation of public notice shall be established by the Tribe and shall include at least the following:

(A) Notice shall be circulated within the geographical areas of the proposed discharge.

(B) Notice shall be mailed to any person or group upon request.

(C) The Tribe shall add the name of any person or group upon request to a mailing list to receive copies of notices for all discharge applications within the state or within a certain geographical area.

(D) The Tribe shall promulgate such regulations as are necessary and appropriate to provide an opportunity for public hearing, when appropriate, prior to granting or denial of a discharge permit by the Tribe.

Section ENV.04.26 — Permits - When Required And When Prohibited

(a) The Tribe shall issue a waste discharge permit in accordance with regulations promulgated under this Article.

(b) No discharge shall be permitted which will violate any duly promulgated reservation-wide or local land use plan unless all requirements and conditions of applicable ordinances and regulations have been met or will be met pursuant to a schedule of compliance.

(c) No discharge shall be permitted which will violate a control regulation unless the waste discharge permit contains effluent limitations and a schedule of compliance specifying treatment requirements as determined by the Division. Such requirements shall require the best practical or available treatment consistent with the federal Clean Water Act.

(d) No discharge shall be permitted that by itself or in combination with other pollution will result in pollution of the receiving waters in excess of the pollution permitted by an applicable water quality standard unless the permit contains effluent limitations and a schedule of compliance specifying treatment requirements.

(e) In any case in which a permit for a discharge has been applied for but final disposition of such application has not been made, such discharge shall not be a violation of any provisions of this Article or regulations promulgated under this Article unless the Tribe proves that absence of final administrative disposition of such application has resulted from the failure of the applicant to furnish information reasonably required or requested in order to process the application.

Section ENV.04.27 — Nuclear, Toxic, And Radioactive Wastes

(a) It is unlawful for any person to discharge, deposit, generate, or dispose of any radioactive, toxic, or other hazardous waste underground in liquid, solid, or explosive form.

Section ENV.04.28 — Agricultural Wastes

(a) The Tribe may not issue any permit for any flow or return flow of irrigation water into reservation waters.

(b) The Tribe may not issue any permit for animal waste on farms and ranches.

Section ENV.04.29 — Tribes To Be Notified Of Suspected Violations And Accidental Discharges - Penalty

(a) Any person or any agency of the Tribe may apply to the Tribe to investigate and take action upon any suspected or alleged violation of any provision of this article or of any order, permit, or regulation issued or promulgated under the authority of this Article.

(b) Any person engaged in any operation or activity which results in a spill or discharge of oil or other substance which may cause pollution of the waters of the reservation contrary to the provisions of this article shall, as soon as he has knowledge thereof, notify the Division of Natural Resources. Any person who fails to notify the Tribe as soon as practicable is deemed in violation of this Article and, upon an administrative finding thereof, shall be levied an administrative civil penalty of not more than five hundred dollars ($500.00), or by imprisonment upon conviction for a misdemeanor for a violation of this Article for not more than six (6) months, or by both such administrative penalty and criminal penalty.

Section ENV.04.30 — Notice Of Alleged Violations

(a) Wherever the Tribe has reason to believe that there has occurred a violation of an order, permit, or control regulation issued or promulgated under authority of this Article, the Tribe shall cause written notice to be served personally or by certified mail return-receipt requested upon the alleged violator or its agent for service of process. The notice shall state the provision alleged to be violated, the facts alleged to constitute a violation, and any may include the nature of any corrective action proposed to be required.

(b) Each cease and desist and clean-up order issued pursuant to Section ENV.04.33 and Section ENV.04.34 shall be accompanied by or have incorporated in it the notice provided for in subsection (a) of this Section unless such notice shall thereto have been given.

Section ENV.04.31 — Hearing Procedures For Alleged Violations

(a) In any notice given under Section ENV.04.30 the Tribe may require the alleged violator to appear before it for a public hearing and to answer each alleged violation. Such hearing shall be held no sooner than fifteen (15) days after service of the notice, except the Tribe may set an earlier date for hearing if it is requested by the alleged violator if an emergency exists.

(b) If the Tribe does not require an alleged violator to appear for a public hearing, the alleged violator may request the Tribe to conduct such a hearing. Such request shall be in writing and shall be filed with the secretary of the Tribe no later than thirty (30) days after service of the notice under Section ENV.04.30. If such a request is filed, a hearing shall be held within a reasonable time.

Section ENV.04.32 — Suspension, Modification, And Revocation Of Permit

(a) Upon a finding and determination, after hearing, that a violation of a permit provision has occurred, the Tribe shall suspend, modify, or revoke the pertinent permit, or take such other action with respect to the violation as may be authorized pursuant to regulations promulgated by the Tribe.

Section ENV.04.33 — Cease And Desist Orders

(a) If the Tribe determines, with or without a hearing, that there exists a violation of any provision of this Article or of any order, permit, or control regulation issued or promulgated under authority of this Article, the Tribe (or its appropriate agency) 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.

Section ENV.04.34 — Clean-Up Orders

(a) The Tribe (or its appropriate agency) may issue orders to any person to clean up any material which he, or his employee, or his agent has accidentally or purposely dumped, spilled, or otherwise deposited in or near reservation waters which may pollute them. The Tribe may also have the Tribal Attorney proceed and take appropriate action.

Section ENV.04.35 — Restraining Orders And Injunctions

(a) In the event any person fails to comply with a cease and desist order or clean-up order that is not subject to stay 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, a suit for a temporary restraining order, preliminary injunction, or permanent injunction to prevent any further or continued violation of such order. In any such suit the final findings of the Tribe based upon evidence in the record, shall be prima facie evidence of the facts found therein.

(b) Suits under this Section shall be brought, where practicable, in the Tribal Court of the district where the discharge occurs. Emergencies shall be given precedence over all other matters pending in such court. The institution of such injunction proceeding by the Tribe shall confer upon such court exclusive jurisdiction to determine finally the subject matter of the Proceeding.

Section ENV.04.36 — Civil Penalties

(a) Any person who violates any provision of any permit issued under this Article or any final cease and desist order or clean-up order shall be subject to a civil penalty of not more than five hundred dollars ($500 ) per day for each day during which such violation occurs.

(b) Upon application of any of the Division, penalties shall be determined after a hearing as to the amount thereof and may be collected by the Tribe by action instituted in Tribal Court by the Tribal Attorney for collection of such penalty. A stay of any order of the Tribe pending judicial review shall not relieve any person from any liability under subsection (a) of this Section, but the reason for the request for judicial review shall be considered in the determination of the amount of the Penalty.

(c) Any person who discharges any pollutant into any reservation waters commits a violation of this ordinance if such discharge is made:

(1) In violation of any permit issued under this Article; or

(2) In violation of any cease and desist order or clean-up order issued by the Tribe (or its appropriate agency) which is final and not stayed by court orders; or

(3) Without a permit, if a permit is required by the provisions of this Article for such discharge, unless there is then pending an application for such a permit; or

(4) In violation of any applicable control regulation, unless a permit has been issued therefore or unless there is then pending an application for such a permit.

(d) Prosecution under paragraphs (1) through (4) of subsection (c) of this Section shall be commenced only upon complaint filed by the Tribe.

(e) Any person who commits criminal pollution of reservation waters shall be fined, for each day the violation occurs, as follows:

(1) If the violation is committed with criminal negligence or recklessly, the maximum fine shall be one hundred fifty dollars ($150).

(2) If the violation is committed knowingly or intentionally, the maximum fine shall be two hundred dollars ($200).

(3) If two separate offenses under this Article occur in two separate episodes during a period of two years, the maximum fine for the second offense shall be double the amounts specified in paragraphs (1) and (2) of this subsection.

Section ENV.04.37 — Falsification And Tampering

(a) Any person who knowingly makes any false statement, representation, or certification in any application, record, plan, or other document filed or required to be maintained under this Article, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Article is guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not more than three hundred dollars ($300), or by imprisonment in the tribal jail for not more than six (6) months, or by both fine and imprisonment.

Section ENV.04.38 — Proceedings By Other Parties

(a) The factual or legal basis for proceedings or other actions that shall result from a violation of any control regulation insure solely to the benefit of the people of the Tribe, and is not intended by this Article, in any way, to create new private rights or to enlarge existing private rights. A determination that water pollution exists or that any standard has been disregarded or violated, whether or not a proceeding or action may be brought by the Tribe, shall not create by reason thereof any presumption of law or finding of fact which shall be for the benefit of any person other than the Tribe.

(b) A permit issued pursuant to this Article may be introduced in any court of law as evidence that the permittee's activity is not a public or private nuisance. Introduction into evidence of such permit and evidence of compliance with the permit conditions shall constitute a prima facie case that the activity to which the permit pertains is not a public or private nuisance.

Section ENV.04.39 — Streambed Alteration

(a) Alteration work shall not be permitted within the high water mark of any stream without receiving a permit from the Tribal Council.

(1) Any person proposing the project shall submit a work plan to the Tribal Council for their review. As a part of the review process, the Tribal Council may consult the U.S. Fish and Wildlife Service and the Bureau of Indian Affairs for recommendations. On this basis, the Council will either issue a permit, deny a permit, or request further review.

(b) There shall be no heavy equipment allowed within the confines of any stream. In-stream work shall be completed with equipment situated out of the stream channel.

Section ENV.04.40 — Minimum In-Stream Flow

(a) Under this Article, minimum in-stream flow for cultural a traditional uses, fish and aquatic life, recreation and esthetic purposes are legitimate beneficial uses.

(b) Parties proposing to de-water major reservation streams for irrigation purposes or agricultural use must demonstrate to the Tribe that the proposed activities will not interfere with a minimum stream-flow no less than ten (10) cubic feet per second (cfs) for the purpose of subsection (c).

(c) A minimum stream flow of 10 cfs shall be retained in all other streams at all times, unless the natural flow, due to natural conditions, is less than 10 cfs.

Section ENV.04.41 — Lakeshore Management

(a) A permit is required by any person who proposes to do any work which will alter or diminish the course, current, or cross sectional area of a lake or its lakeshore. Without limitation, the following activities are, when conducted below mean annual high water elevation, examples of work for which a permit is required. Construction of channels and ditches; dredging of lake bottom areas to remove muck, silt, or weeds; lagooning; filling; constructing breakwaters or pilings, wharves, and docks.

(b) Any person proposing work within a lakeshore area shall submit a work plan to the Tribal Council for their review. The Tribal Council will make the final decision on whether or not and how any work is accomplished, with the aid of the U.S. Fish and Wildlife Service and the Bureau of Indian Affairs where appropriate. Factors to be considered during the review process are that the work will not, during either its construction or utilization:

(1) materially diminish water quality;

(2) materially diminish habitat for fish or wildlife;

(3) interfere with navigation or other lawful recreation;

(4) create a public nuisance;

(5) create a visual impact discordant with natural scenic values, as determined by the Tribal Council, where such values form the predominant landscape elements; or

(6) materially impair cultural or traditional uses of lakes and lakeshore areas.

(c) A person who performs work in a lake without a permit for that work shall, if required by the Tribal Council, restore the lake to its condition before it was disturbed, and is subject to the provisions for violations, remedies, and penalties under this Article as contained in Section ENV.04.36 et seq.

Section ENV.04.42 — Obstructions To Fish Passage

(a) No object may be built in or across a stream that will block or inhibit the free passage of fish past that point.

(b) Any person proposing such work must submit a written project proposal to be reviewed by the Tribal Council in conjunction with the U.S. Fish and Wildlife Service, Bureau of Indian Affairs, or other appropriate parties at a public meeting. If approval is received, and a permit granted, permit conditions must be adhered to which will facilitate the passage of fish.

Section ENV.04.43 — Forestry

(a) Effective December 31, 1988, forest logging shall be prohibited within an area within ten (10) chains (660 feet) of the bank of any reservation stream determined by the Tribe to have the potential to support a population of fishes or which serves as a spawning ground for the same.

(b) Logging roads shall be prohibited within the area described in subsection (a) except for permitted activities under subsection (c).

(c) Any person proposing access roads or trails or stream crossings along or over streams determined by the Tribe to have the potential to support a population of fishes or which serves as a spawning ground for the same shall submit a written project proposal to the Tribal Council for a permit to conduct such activities. The Tribal Council shall make the final decision as to whether such activities will be permitted and what conditions shall be required in order to preserve the species or species habitat.

(d) Any person who seeks to harvest timber must submit a written project proposal to the Tribal Council for a permit to conduct such activities. The Tribal Council shall make the final decision whether such activities will be permitted and under what conditions such activity will be permitted in order to:

(1) Preserve the resulting water quality in order to meet the standards of that particular watershed, as established by the Tribe pursuant to its stream classification system under this Article; and

(2) Avoid general deterioration of water quality through erosion from the practice of clear cutting of timber.

Section ENV.04.44 — Oil & Gas Recovery Activities, Surface Mining

(a) Effective December 31, 1988, oil and gas exploration and recovery activities (underground injection is prohibited) and surface mining activities shall be prohibited within an area 1,000 feet from the banks of any reservation stream or lake determined by the Tribe to have the potential to support a population of fishes of which serves as a spawning ground for the same.

(b) Any person seeking to engage in such activities covered under subsection (a) within one-half mile of a tribally designated stream under that subsection must submit a written project proposal to the Tribal Council for a permit to conduct such activities. The Tribal Council shall make the final decision as to whether such activities will be permitted and what conditions shall be required to preserve the species or species habitat.

(c) Effective December 31, 1988, oil and gas exploration and recovery activities, and surface mining activities, which will affect reservation streams and lakes will require a tribal permit.

(d) Any person seeking to engage in such activities covered under subsection (c) of this Section must submit a written project proposal to the Tribal Council for a permit to conduct such activities. The Tribal Council shall make the final decision as to whether such activities will be permitted and what conditions will be required to:

(1) Assure that the resulting water quality will meet the standards of that particular watershed as established by the Tribe pursuant to its stream classification system under this Article; and

(2) Assure that all resulting effluent discharges from such operations shall be retained or treated in a proper manner so as to protect the watershed from degradation from the tribally established standard for that stream or watershed.

Section ENV.04.45 — Livestock

(a) Effective December 31, 1988, corrals designed and constructed for holding, loading, and unloading livestock are prohibited within an area one hundred (100) feet from the banks of any reservation stream or lake unless permitted by the Tribe under subsection (c) of this Section.

(b) Effective December 31, 1988, livestock watering, feeding, and salting locations are prohibited within an area one thousand (1,000) feet from the banks of any reservation stream or lake unless permitted by the Tribe under subsection subsection (e) of this Section.

(c) Any person desiring to engage in activities covered under subsections (a) and (b) of this Section must submit in writing a project proposal to the Tribal Council. The Tribal Council shall make a final decision as to whether such activities will be permitted and what conditions will be imposed. Factors the Tribe may consider may include:

(1) Fish preservation and spawning habitat preservation; and

(2) Water quality protection to meet the standards of that particular watershed, as established by the stream classification system.

Section ENV.04.46 — Severability

(a) If any provision of this Article or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this Article which can be given effect without regard to the invalid provision or applications, and to this end the provisions of this Act are severable.

Chapter ENV.05 — Air Pollution Control

Legislative History

1. Resolution No. 1128, adopted February 7, 1989.

2. A BIA list of approved ordinances of file there in 1993 shows they have the Air Quality Ordinance on file.

Section ENV.05.01 — Legislative Declaration

(a) In order to pro maintain, and enhance the health, welfare, culture, traditions, convenience and comfort of the members of the Stockbridge-Munsee Band of Mohicans and the health and welfare of all residents of the Stockbridge-Munsee Indian reservation and in order to facilitate the enjoyment of nature, scenery, and other resources of the Tribe, it is declared to be the policy of the Tribe to achieve the maximum practical degree of air purity in every portion of the reservation. To that end, it is the purpose of this article to require the use of all available practical methods to reduce, prevent and control air pollution throughout the entire reservation. It is further declared that the prevention, abatement, and control of air pollution throughout the entire reservation are matters of tribal concern and are affected with the public interest and that provisions of this article are enacted in the exercise of the police powers of this tribe for the purpose of protecting the health, peace, safety, cultural resources, and general welfare of the people of this reservation.

Section ENV.05.02 — Definitions

As used in this article, unless the context otherwise requires:

(a) "Air Contaminant" means fumes, smoke, particulate matter, vapor, gas, or any combination thereof, but it does not include water vapor or steam condensate.

(b) "Air Contaminant Source" means any source whatsoever, at, from or by reason of which there is emitted or discharged into the atmosphere any air contaminant.

(d) "Commission" means the Environmental Protection Commission created by Section ENV.04.03 of Water Pollution Control, Chapter ENV.04.

(e) "Emission" means the discharge or release into the atmosphere of one or more air contaminants.

(f) "Emission Control Regulations" means and includes any standard promulgated by regulation which is applicable to all air contamination sources within a specified area and which prohibits or establishes limits for specific types of emissions in such area, and also any regulation which by its terms is applicable to a specified type of a facility, process, or activity for the purpose of controlling the extent, degree, or nature of contamination emitted from such type of facility, process, or activity, and also any regulation adopted for the purpose of preventing or minimizing emission or any air contaminant in potentially dangerous quantities.

(g) "Person" means any individual, public or private corporation, partnership, association, firm, trust, estate, the Tribe or its departments and agencies, and any other legal entity whatsoever which is recognized by law as the subject of rights and duties.

Section ENV.05.03 — Duties Of Environmental Protection Control Commission

Duties of Environmental Protection Control Commission as created in Water Pollution Control Code, Chapter ENV.04, Section ENV.04.03.

(a) The Commission shall develop and maintain a comprehensive program for prevention, control, and abatement of air pollution throughout the entire reservation, including a program for control of emissions from all significant sources of air pollution, and shall promulgate ambient air goals for every portion of the reservation

(b) The Commission shall adopt and modify such plans as may be necessary for the implementation of such programs. Ambient air quality standards and emission control regulations shall be adopted and promulgated in accordance with Section ENV.04.05 and Section ENV.04.06.

(c) The Commission and the Tribal Board of Health shall hold a joint public hearing during the month of June of each year in order to hear public comment on air pollution problems within the reservation, alleged sources of air pollution within the reservation, and the availability of practical remedies therefor.

(d) On or before November 1 of each year, the Commission shall report to the Tribal Chairperson on the effectiveness of the provisions of this Article in carrying out the legislative intent, as declared in Section ENV.05.01, and shall include in such report such recommendations as it may have with respect to any legislative changes that may be needed or desirable.

(e) The Commission shall receive all applications for hearings concerning violations and all applications for the granting of variances made pursuant to Section ENV.05.11 or Section ENV.05.12 and may, in its discretion, either set such applications for hearing and determination by the Commission in accordance with the provisions of Sections Section ENV.05.13 or Section ENV.05.14 or transmit such applications to the variance board for hearing and determination in accordance with the provisions of Section ENV.05.13.

Section ENV.05.04 — Commission - Additional Authority

(a) The Commission shall have maximum flexibility in developing an effective air/water pollution control program and may promulgate such combination of regulations as may be necessary or desirable to carry out the legislative purpose set forth in Section ENV.05.01. Such regulations may include, but shall not be limited to:

(1) Division of the reservation into such control zones or areas as may be necessary or desirable for effective administration of the air pollution control program;

(2) Classification and definition of different degrees or types of air pollution; or

(3) Emission control regulating that are applicable to the entire reservation, that are applicable only within specified areas or zones of the reservation, or that are applicable only when a specified class of pollution is present.

(b) The Commission may hold public hearings, issue notice of hearings, issue subpoenas requiring the attendance of witnesses and the production of evidence, administer oaths, and take such testimony as it deems necessary.

(c) The Commission may adopt such rules and regulations governing procedures before the board as may be necessary to assure that hearings before said board will be fair and impartial.

(d) The Commission may exercise all incidental powers necessary to carry out the purpose of this Article.

(e) The Commission may require the owner or operator, or both, of any air contamination source to:

(1) Establish and maintain reports as prescribed by the Commission;

(2) Install, use, and maintain monitoring equipment or methods as prescribed by the Commission;

(3) Record sample emissions in accordance with such methods, at such locations, at such intervals, and in such manner as the Commission shall prescribe; and

(4) Provide such other information as the Commission may require.

Section ENV.05.05 — Commission To Promulgate Ambient Air Quality Standards

(a) In addition to the other powers and duties enumerated in this article, the Commission shall have the power to adopt, promulgate, amend, and modify such standards for the quality of ambient air as may be appropriate or necessary to carry out the purposes of this Article, including but not limited to:

(1) Standards which describe the maximum concentrations of specifically described contaminants that can be tolerated, consistent with the protection of the good health of the public at large; such standards may differ for different parts of the reservation as may be necessitated by variations in altitude, topography, climate, or meteorology;

(2) Standards which describe the air quality goals that are to be achieved by control programs within specified periods of time; such standards may be either reservation-wide or restricted to specified control areas; and

(3) Standards which describe varying degrees of contamination of ambient air.

(b) Ambient air standards shall include such requirements for test methods and procedures as will assure that the samples of ambient air tested are representative of the ambient air.

Section ENV.05.06 — Commission To Promulgate Air Emission Control Regulations

(a) As promptly as possible, the Commission shall adopt and promulgate emission control regulations which require the use of effective practical air pollution controls for each significant source, potential source, and type of source of air contamination throughout the entire reservation and thereafter may modify such regulations from time to time. In the formulation of each emission control regulation, the Commission shall take into consideration the following:

(1) The tribal policy regarding air pollution, as set forth in Section ENV.05.01 ;

(2) Federal recommendations:

(3) The degree to which the concentrations of certain types of contaminants in certain portions of the reservation require that emission control regulations be more stringent than in other portions of the reservation;

(4) The degree to which any particular types of emission is subject to treatment, the availability and feasibility of control, techniques, and the extent to which the emission to be controlled is significant;

(5) The continuous, intermittent, or seasonal nature of the emission to be controlled;

(6) Whether the emission control regulation should be applied throughout the entire reservation or only in a specified portion of the reservation; and

(7) The need for specification of safety precautions that should be taken with respect to any source or potential source or type of source of air contamination.

(b) Such emission control regulations may include, but shall not be limited to, regulations pertaining to:

(1) Visible pollutants;

(2) Particulates;

(3) Sulfur oxides, sulfuric acids, hydrogen sulfide, nitrogen oxides, carbon oxides, hydrocarbons, fluorides, and any other chemical substances;

(4) Odors;

(5) Open burning of incidental refuse, open burning at dumps, open burning for agricultural purposes, open burning of junk automobiles, and any other open burning activity;

(6) Organic solvents;

(7) Photochemical substances; and

(8) Toxic gases.

(c) The Commission has the duty to identify each type of facility, process, and activity which produces or which potentially or accidentally might produce significant emission of air contaminants and shall promulgate an emission control regulation for each such facility, process, and activity, except for motor vehicles and airplanes to the extent prohibited by federal law. The requirements and prohibitions contained in such regulations shall be set forth with as much particularity and clarity as is practical. Upon adoption of an emission control regulation under this subsection (c) for the control of a specific facility, process, or activity, such regulation shall apply to the exclusion of other emission control regulations adopted pursuant to subsection (b) of this Section; prior to such adoption, the general regulations adopted pursuant to subsection (b) of this Section shall be applicable to such facility, process, or activity. Emission control regulations adopted pursuant to this Section may include, but shall not be limited to, regulations pertaining to the following facilities, processes, and activities:

(1) Incinerator and incinerator design;

(2) Storage and transfer of petroleum products and any other volatile substance;

(3) Activities which frequently result in particulate matter becoming airborne, such as construction and demolition operations and operation of parking lots;

(4) Specifications, prohibitions, and requirements pertaining to fuels and fuel additives, such as tetraethyl lead;

(5) Wigwam waste burners, pulp mills, alfalfa dehydrators, asphalt plants, and any other industrial or commercial activity which tends to emit air contaminants as a by-product;

(6) Industrial process equipment;

(7) Industrial spraying operations; or

(8) Storage and transfer of toxic gases.

(d) Among its emission control regulations, the Commission shall include appropriate regulations pertaining to accidents, shutdowns, and other conditions which justify temporary relief from controls.

(e) Each emission control regulation shall be operative with regard to any ambient air quality standard unless such regulation expressly provides otherwise.

Section ENV.05.07 — Commission - Procedures To Be Followed In Setting Standards And Regulations

(a) Prior to adopting, promulgating, amending, or modifying any ambient air standard authorized in Section ENV.05.05 or any emission control regulation in Section ENV.05.06 , the Commission shall conduct a public hearing thereon. Notice shall be given at least sixty (60) days prior to the hearing and shall include each proposed regulation, and shall be mailed to all persons who have filed with the Commission a written request to receive such notices.

(b) Any person desiring to propose a regulation differing from the regulation proposed by the Commission shall file such other proposal with the Commission not less than twenty days prior to the hearing, and, when on file such proposal shall be open for public inspection.

(c) Witnesses at the hearing shall be subject to cross-examination by or on behalf of the Commission and by or on behalf of persons who have proposed regulations pursuant to subsection (b) of this Section.

(d) Regulations promulgated pursuant to Sections Section ENV.05.05 and Section ENV.05.06 shall not take effect until thirty days after they have been filed with the Secretary, Tribal Business Council.

Section ENV.05.08 — Inspection And Entry

In addition to authority specified elsewhere in this Article, the Tribe through its Environmental Protection Commission has the power to enter and inspect any property, premises, or place for the purposes of investigating any actual, suspected, or potential source of air pollution or air contamination or ascertaining compliance or noncompliance with any emission standard or any order promulgated under this Article; except that, if such entry or inspection is denied or not consented to, the Commission or its agent is empowered to and shall obtain from the Tribal Court a warrant to enter and inspect any such property, premise, or place prior to entry and inspection. The Tribal Court of this reservation is empowered to issue such warrants upon a proper showing of the need for such entry and inspection. Any information relating to secret commercial process, or method or manufacture, or production obtained in the course of the inspection or investigation shall be kept confidential.

Section ENV.05.09 — Air Pollution Emergencies Endangering Public Health

(a) Whenever the Commission shall determine, after investigation, that any person is either engaging in any activity involving significant risk of air contamination or is discharging or causing to be discharged into the atmosphere, directly or indirectly, any air contaminant and such activity or discharge constitutes a clear, present, and immediate danger to the health of the public, or that any such activity or discharge of air contaminants, if permitted to continue unabated, will result in a condition of clear, present, and immediate danger to the health of the public, the Commission shall:

(1) Issue a written cease and desist order to said person requiring immediate discontinuance of such activity or discharge of such contaminant into the atmosphere, and upon receipt of such order, such person shall immediately discontinue such activity or discharge; or

(2) Apply to the tribal court of this Tribe for a temporary restraining order, preliminary injunction, or permanent injunction as provided for in the tribal rules of civil procedure. Any such action in the Tribal Court shall be given precedence over all matters pending in such Tribal Court. The institution of such injunction proceedings by the Commission shall confer upon said Tribal Court exclusive jurisdiction to determine finally the subject matter of the proceeding; or

(3) Both issue such a cease and desist order and apply for any such restraining order or injunction.

Section ENV.05.10 — Air Contaminant Emission Notices And Emission Permits

(a) After ninety days from January 1, 1990, no person shall permit emission of air contaminants from, or construction or alteration of, any facility, process, or activity except residential structures, from which air contaminants are, or are to be emitted through any permanently located chimney, stack, pipe, or other conduit unless and until an air contaminant emission notice has been filed with the Tribe. A revised emission notice shall be filed whenever a significant change in emissions is anticipated or has occurred.

(b) Each such notice shall specify the location at which the proposed emission will occur, the name and address of the person operating or owning such facility, process, or activity, the nature of such facility, process, or activity, and an estimate of the quantity and composition of the expected emission.

(c) If the information required by subsection (a) of this Section is on file with the Tribe on or after January 1, 1990, such information shall be deemed to constitute compliance with the requirements of said subsection (a) as to the emission covered thereby.

(d) No person shall construct or substantially alter any building, facility, structure, or installation, except single family residential dwellings, or install any machine, equipment or other device, or commence the conduct of any activity, or commence performance of any combinations thereof, or commence operations of any of the same which will or does constitute a new air contamination source without first obtaining or having a valid permit therefor from the Commission. The Commission shall establish rules, regulations, and procedures in accordance with the provisions of this article for the issuance or denial of permits which shall be in conformity with the purposes of this article as set forth in Section Such procedures shall include, but not limited to, the following:

(1) Filing an application with the Tribe which may include such relevant plans, specifications, air quality data, and other information as the Tribe may reasonably request;

(2) The Tribe shall prepare its preliminary analysis of the effect upon the ambient air quality and the extent of emission control within twenty days after date on which an application is filed.

(3) For those types of projects or activities defined or designated by the Commission as warranting public comment with respect thereto, the Tribe shall within fifteen days after it has prepared its preliminary analysis give public notice of the proposed project or activity by at least on publication in a newspaper of general circulation and shall receive and consider public comment thereon for a period of thirty days thereafter.

(4) Within thirty days following the period for public comment, or within fifteen days after the preparation of its preliminary analysis where no delay for public comment is required, the Tribe shall grant the permit unless it determines that the proposed project or activity would not meet the applicable emission standards or regulations of the Commission. Any permit issued by the Tribe may contain such terms and conditions as it deems necessary for the proposed project or activity to qualify for a permit. If any of such terms or conditions of the permit are violated, the division may revoke the permit. If the Tribe fails to act upon the application within the prescribed time, the permit shall be deemed to have been granted.

(5) If the Tribe denies or revokes a permit, the applicant may request a conference with the commission or a hearing before the commission in accordance with the provisions of Section ENV.05.13. The Commission may delegate the responsibility to hold a conference or hearing with respect to any such request to a variance board.

(6) Within thirty days after such conference or hearing, the Commission or variance board shall issue an order either affirming or reversing the decision of the Commission. If the decision or revocation of the Commission reversed, the Commission or variance board shall order the issuance or reinstatement of the permit which order may contain such terms and conditions as shall be necessary and reasonable.

(7) Orders of the Commission or Variance Board shall be final upon the date of issuance.

Section ENV.05.11 — Enforcement

(a) The Tribe shall enforce compliance with the emission control regulations promulgated pursuant to the provisions of Section ENV.05.06.

(b) In case any written and verified complaint shall be filed with the Tribe alleging that, or in case the Tribe itself shall have cause to believe that, any person is violating any emission control regulation, the Tribe shall cause a prompt investigation to be made, and, if the person who makes such investigation on behalf of the Tribe finds after such investigation that a violation of any such regulation exists, he shall promptly so notify both the alleged violator and the Commission in writing. Thereupon, the Tribe shall diligently endeavor to obtain voluntary abatement of such violation.

(c) After notice has been given pursuant to subsection (b) of this Section, but in no event later than six months after the giving of such notice, if the alleged violation-has not been abated, the Tribe shall cause to be issued and served upon the person allegedly violating any such regulations a written order which shall specify the provision of the emission control regulation of which such person is said to be in violation and a statement of the manner in which such person is said to violate it, and such order shall require the person so complained against to cease and desist from such violation within such reasonable time as the Tribe may determine, but not to exceed six months.

Section ENV.05.12 — Variances

(a) The Variance Board or Commission may grant a variance suspending or modifying the enforcement of any emission control regulation or any rule, regulation, or enforcement order issued pursuant to this Article against any person whenever the said Commission shall determine that:

(1) Control techniques are not available or that compliance with applicable emission control regulations from which a variance is sought would create an unreasonable economic burden; and

(2) The granting of such variance would be consistent with, and aid in, implementing the legislative policy as set forth in Section ENV.05.01.

(b) The Commission shall grant a variance suspending or modifying the enforcement of any emission control regulation or any rule, regulation, or enforcement order issued pursuant to this Article against any person whenever the said Commission shall determine that strict compliance with any provision of, or order issued pursuant to, this Article would result in an arbitrary and unreasonable taking of property or in the practical closing of any lawful business or activity and such would be without sufficient corresponding public benefit.

(c) The variance shall be granted, terminated, or modified by the Commission only after a hearing before it held pursuant to the provisions of this Article. A variance may be granted with respect to any existing or proposed facility, process, or activity. Hearings may be requested either by the Commission, the Tribe, or by any person applying for or having received such a variance.

(d) Any variance granted pursuant to the provisions of this article shall be granted for such period of time and under such conditions as shall be specified by the Commission. The failure to meet any condition of the variance without prior written permission of the said Commission shall render such variance null and void. The Commission shall review, at least annually, and variance that has been granted to determine whether the terms and conditions of said variance have been complied with and whether the continuance of the variance is justified.

Section ENV.05.13 — Hearings

(a) Not less than fifteen days after a hearing has been requested, the Commission, as the case may be, shall grant such request and set a time and place therefor.

(b) The Tribe shall appear as a party in any hearing before the Commission and shall have the same judicial review as any other Party.

(c) All testimony taken at any such hearing before the Commission shall be under oath or affirmation. A full and complete record of all proceedings and testimony presented shall be taken and filed.

(d) Any information relating to secret processes or methods of manufacture or production which may be required, ascertained, or discovered shall not be publicly disclosed in public hearings or otherwise and shall be kept confidential by any member, officer, or employee of the Commission, or the Tribe, but any person seeking to invoke the protection of this Section in any hearing for a variance shall bear the burden of proving its applicability.

(e) At any hearing, any person who is affected by the proceeding and whose interests are not already adequately represented shall have the opportunity to be a party thereto upon prior application to and approval by the Commission, in its sole discretion, as deemed reasonable and proper by said Commission, and such person shall have the right to be heard and to cross-examine any witness.

(f) After due consideration of the written and oral statements, the testimony, and the arguments presented at any such hearing, the Commission shall enter its findings and final order, based upon evidence in the record, or make such final determination of the matter as it shall deem appropriate.

(g) In all proceedings before the Commission with respect to any alleged violation of any emission control regulation or order, the burden of proof shall be upon the Tribe.

(h) The applicant for a variance shall bear the burden of proof.

(i) Variances, orders, and determinations of the Commission shall become final within thirty days from the date on which they are issued, unless within such period the Commission grants a rehearing, or unless, within such period the Commission concludes that said variance, order or determination interferes with the attainment of the objectives of this Article, as set forth in Section ENV.05.12. If the Commission so concludes, it shall, within said thirty-day period, notify the applicant of such conclusion, including the nature of the interference involved, and allow the applicant ten days in which to request a hearing before the Commission on said variance, order, or determination, which hearing shall be set and held in accordance with the provisions of Section ENV.05.12. and of this Section. Following the hearing before the Commission, or if no hearing is requested, the Commission shall enter its final order affirming or modifying said variance, order, or determination.

(j) Every hearing granted by the Commission shall be conducted by a hearing officer designated by the Commission.

Section ENV.05.14 — Judicial Review

(a) Any final order or determination by the Tribe or the Commission shall be subject to judicial review in accordance with the provisions of this article and the provisions.

(b) Any party may move the court to remand the case to the Tribe or the Commission in the interests of justice for the purpose of adducing additional specified and material evidence and findings thereon; but such party shall show reasonable grounds for the failure to adduce such evidence previously before the Tribe or the Commission.

(c) Any proceeding for judicial review of any final order or determination of the Tribe or the Commission shall be filed in the Tribal Court for the district in which is located the air contamination source affected, and it shall be filed within twenty days after the date of said final order or determination.

Section ENV.05.15 — Injunctions

(a) In the event any person fails to comply with a cease and desist order that is not subject to a stay pending administrative or judicial review, the Commission may request the Tribal Attorney to bring, and if so requested it is his duty to bring, a suit for an injunction to prevent any further or continued violation of such order. In any such suit the final findings of the Tribe or Commission, based upon evidence in the record, shall be prima facie evidence of the facts found therein.

Section ENV.05.16 — Civil Penalties

(a) Penalties shall be determined and collected by a Tribal Court upon action instituted by the Tribe for the determination and collection of said penalty under this Section and in accordance with the following Provision:

(1) Any person who violates any final cease and desist order which is not subject to a stay pending judicial review and which has been issued pursuant to this Article shall be subject to a civil penalty of not more than five hundred dollars ($500) per day for each day during which such violation occurs.

(b) Penalties collected shall be transmitted in a timely fashion to the Tribal Finance Office for deposit in the Tribal General Fund.

Section ENV.05.17 — Severability

(a) If any provision of this article or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this article which can be given effect without regard to the invalid provision or application, and to this end the provisions of this article are severable.

Chapter ENV.06 — Groundwater Protection Ordinance

Legislative History

1. Resolution No. 071-2000, adopted November 7, 2000, approved by BIA November 22, 2000.

Section ENV.06.01 — Purpose

The residents of the Stockbridge-Munsee Indian Reservation depend exclusively on groundwater for a safe drinking water supply. Groundwater also is the primary source of water for wetlands, streams and rivers on the Reservation. Certain land use practices and activities can seriously threaten or degrade groundwater quality and quantity. The purpose of this Ordinance is to protect the groundwater of the Reservation for all reasonable uses, as well as to promote the public health and welfare of the Stockbridge-Munsee Community.

Section ENV.06.02 — Jurisdiction

This Ordinance shall apply to areas within the boundaries of the Stockbridge-Munsee Indian Reservation so that the groundwater underlying the Reservation may be protected.

Section ENV.06.03 — Definitions

(a) "Aquifer" is a saturated, permeable, geologic formation of soil or rock that contains and will yield groundwater.

(b) "Best Management Practices" (BMPs) refers to measures, either managerial or structural, that are determined to be the most effective, practical means of preventing or reducing pollution.

(c) "Community Water Supply Well" is a public water supply well that serves 15 or more service connections used by year-round residents or regularly serves at least 25 year-round residents.

(d) "Groundwater" is the water that exists beneath the land surface, but more commonly is the water in an aquifer.

(e) "Non-community Water Supply Wells" are public water supply wells that do not qualify as community water supplies. Non-community water supply wells are divided into two categories:

(1) A non-transient non-community water supply regularly serves at least 25 of the same people over six months per year.

(2) A transient non-community water supply serves all other non-community water supply systems.

(f) "Person" refers to any and all persons and parties, including individuals, corporations, partnerships, other organizations or governmental entities.

(g) "Private Sewage System" is a sewage treatment and disposal system serving a single structure that has a septic tank and soil absorption field located on the same land parcel as the structure. This term also means an approved alternative sewage system, including a substitute for the septic tank or soil absorption field, a holding tank, a system serving two structures or a system located on a different parcel than the structure.

(h) "Private Well" is any well that provides water for human consumption and is not considered a public water supply well.

(i) "Privy" is a building or structure above a buried container or above an unlined excavation used for the deposition of human waste.

(j) "Public Water Supply Well" provides drinking water for human consumption to 15 or more service connections or to an average of at least 25 individuals daily at least 60 days per year. A public water supply well is either a 'community' or 'non-community' water supply well.

(k) "Recharge Area" means the areas or features that supply groundwater to a well through the surface infiltration of water.

(l) "Safe Drinking Water Act" (SDWA) refers to the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. § 300f et seq., and the regulations adopted under the SDWA.

(m) "Time of Travel" (TOT) is the distance that groundwater will travel in a specified time. In this Ordinance, it refers to the time that it takes groundwater and potential contaminants to reach a pumping well(s) from an area within the aquifer that is up-gradient from the well(s).

(n) "Wastewater" means any water carrying waste materials, except clear water wastes, created in and conducted away from residences, industrial establishments and public buildings.

(o) "Well" means any drillhole or other excavation or opening that is deeper than it is wide and extends more than 10 feet below the ground surface for the purpose of obtaining groundwater.

(p) "Wellhead Protection Area" (WHPA) is the surface and subsurface area around a well, through which contaminants are reasonably likely to move toward and reach that well within a given time frame.

Section ENV.06.04 — Protection Of Groundwater Quality And Quantity

(a) The quality of groundwater shall be maintained at such a level that it is available for use as drinking water, as well as for other reasonable uses.

(b) Groundwater may not be used in such quantities that the use is detrimental to others.

Section ENV.06.05 — Groundwater Protection Best Management Practices

The following BMPs shall be adopted on the Reservation, as applicable, to help protect the quality of the groundwater. These BMPs shall be followed, unless they are superseded by more stringent requirements under this Ordinance or other applicable laws.

(a) Handle and store materials that could contaminate groundwater in a secure location with secondary containment. When not in immediate use, keep such materials in closed containers.

(b) Properly dispose of waste materials, unused or unwanted chemicals, and used batteries in a timely fashion.

(d) Have plans and equipment in place to promptly contain and clean spills. Dispose of cleaning materials properly.

(e) Eliminate floor drain discharges to the ground, septic systems, storm sewers or any surface water body.

(f) Single-walled underground fuel storage tanks should be replaced with above-ground or basement fuel storage tanks or monitored buried tanks conforming with industry standards.

(g) Mix and load pesticides, fertilizer or any other substance that could contaminate groundwater in a way that prevents leaks, spills or overflows onto the soil. Dispose of cleaning rancid from sprayer tanks and equipment properly.

(h) Match the application of pesticides and fertilizers to the actual need and uptake rates. Avoid chemicals with high leaching potential on highly permeable soils.

(i) Seal floor surfaces with an impermeable material that is resistant to substances used in the facility at commercial and/or industrial facilities.

(j) Isolate spill-prone areas from floor drains with the use of berms.

(k) Closed cooling water systems should be adopted.

(l) Consolidate and segregate waste-generating operations in a secure area.

(m) Proper disposal systems are needed for wastewater generated at commercial and/or industrial facilities or use holding tanks for such wastewater.

Section ENV.06.06 — Underground Injection Wells

(a) The use of any well or water system for the underground placement of any waste, surface or subsurface water, or any other substance is generally prohibited. The only exceptions to this general prohibition are when the persons proposing the underground placement have the written permission of the Tribal Council for their activities and the tribal Environmental Department has approved the placement as being:

(1) necessary for the construction, rehabilitation or operation of a well or water system, or

(2) necessary for the remediation of contaminated soil, groundwater or an aquifer.

(b) Injection wells classified as Class I, Class II, Class III and Class IV under the federal Underground Injection Control regulations of the SDWA (40 CFR pt. 144) are prohibited on the Reservation.

(c) The following types of wells are not regulated under this Section or the Underground Injection Control regulations of the federal SDWA:

(1) Individual or single family residential waste disposal systems such as domestic septic systems;

(2) Non-residential septic systems or similar waste disposal systems, if such systems are used solely for the disposal of sanitary waste and have the capacity to serve fewer than 20 persons a day;

(3) Any dug hole that is not used for the emplacement of fluids underground.

Section ENV.06.07 — Wellhead Protection -- General

(a) Wellhead protection provides communities with a way to safeguard water supplies by controlling land use around wells so as to prevent contaminants from entering groundwater.

(b) Wellhead protection programs have the goal of identifying and mitigating potential sources of groundwater contamination. They target protecting groundwater from three main sources of contaminants: the direct introduction of contaminants into the well from improper well casing, road runoff, spills and accidents; microbial contamination such as bacteria and viruses; and chemical contaminants.

(c) Lands around a well, which receive protection from possible sources of contamination, are called wellhead protection areas (WHPAs). WHPAs can be all or a portion of land that supplies water to a well and that contaminants are reasonably likely to move through to reach a well over a period of time.

(1) WHPAs are determined using geologic and hydrologic criteria, such as the physical characteristics of the aquifer and the effect that pumping has on groundwater movement.

(2) The delineation of WHPAs allow resources to be focused on protecting the locations where groundwater is most likely to be polluted.

Section ENV.06.08 — Wellhead Protection Districts

(a) WHPAs are divided into different wellhead protection districts. These districts are administrative areas where restrictions are placed on uses of land that can pose a threat of contamination to a well.

(1) The Reservation contains two types of wellhead protection districts.

(A) Groundwater Protection Overlay District A ("District A")

(i) The primary recharge area of a well is protected in District A.

(ii) The land in District A is subject to stringent use and development restrictions because of its close proximity to wells and the corresponding high threat of contamination.

(B) Groundwater Protection Overlay District B ("District B")

(i) Areas of secondary recharge receive protection in District B.

(ii) Land use restrictions within District B are less restrictive because of the longer flow time before reaching the well, the increased opportunity for containment dilution and the increased potential for attenuation.

(2) The size of these wellhead protection districts varies depending on the type of well with community water supply wells having the largest districts since they pump a greater volume of water and consequently draw water from a larger recharge area.

(b) For community water supply wells at the Tribe's primary housing area, which is located off of Camp 14 Road within Section 16, T.28 N., R. 13 E. of Shawano County:

(1) District A is described as those lands that lie within the five (5) year TOT. The 5-year TOT for these wells has been established as encompassing those lands within 2,982 feet of the wells; and

(2) District B is those lands beyond the 5-year TOT that lie within the twenty (20) year TOT and are located in a direction which lies from -15^o to -70^o off of true north. The 20-year TOT has been established as extending up to 11,928 feet from the wells, but only encompasses those lands to the south of the West Branch of the Red River.

(1) District A are those lands within a radius of 330 feet from the well; and

(2) District B are those lands extending out from District A to be within a total distance of 660 feet from the well.

(d) For private wells on the Reservation:

(1) District A is the area within a radius of 100 feet from the well.

(2) District B are those lands extending out from District A to be within a total distance of 300 feet from the well.

Section ENV.06.09 — Permitted Uses In Wellhead Protection Districts

(a) The following uses of land are permitted within District A.

(1) Parks and playgrounds, provided there are no on-site waste disposal facilities.

(2) Housing, retail premises, schools and churches that are connected to a community sewer system.

(3) Roads that service homes on the community sewer system, so long as the roads have curbside drainage, which drains away from the well, and road salt use is limited to emergencies (e.g. ice storms).

(4) Wildlife areas.

(5) Non-motorized trails, such as biking, skiing, nature and fitness trails.

(6) Forestry.

(b) The following uses are permitted within District B.

(1) All uses listed above as being permitted in District A.

(2) Above-ground and basement storage tanks, up to 660 gallons, with secondary containment and monitored buried tanks conforming to industry standards.

(3) Sewered commercial uses, except those listed as prohibited in Section ENV.06.10(b).

(4) Unsewered (single family) residential uses.

Section ENV.06.10 — Standards And Prohibited Uses In Wellhead Protection Districts

(a) The following standards apply to uses permitted within Districts A and B.

(1) Of the lot area not covered by impervious surfaces, 75% shall be maintained or developed with vegetative cover not requiring the use of pesticides or fertilization after the initial establishment.

(2) Above-ground fuel storage tanks shall provide leak-proof secondary containment not less than 125% of the tank volume and basement fuel storage tanks shall provide secondary containment for not less than 100% of the tank volume.

(3) All abandoned wells shall be properly backfilled and sealed using bentonite pellets or other suitable materials approved by the U.S. Environmental Protection Agency guidelines within one month of abandonment

(b) The following uses of land are prohibited in District A. This list is not exhaustive since the only permitted uses are those specifically listed above in Section ENV.06.09.

(1) On-site private sewage systems.

(2) Underground storage tanks of any size and other storage tanks without secondary containment basins.

(c) The following uses of land are prohibited in both Districts A and B. These uses are prohibited based on the high probability that activities routinely associated with these uses will cause groundwater contamination. This list is not exhaustive since the only permitted uses are those specifically listed above in Section ENV.06.09.

(1) Agricultural activities, including animal confinement facilities, animal waste facilities and land spreading of animal waste.

(2) Pesticide and/or fertilizer storage and use.

(3) Commercial activities involving materials that can contaminate groundwater, such as:

(A) Dry cleaning businesses.

(B) Printing and duplicating businesses.

(D) Bulk fertilizer and/or pesticide facilities.

(E) Asphalt products manufacturing.

(F) Electroplating facilities.

(G) Exterminating businesses.

(H) Paint and coating manufacturing.

(I) Lumber treatment tanks and other facilities.

(4) Landfills, facilities for the storage or disposal of waste materials, recycling facilities, and other waste disposal activities, including land spreading.

(5) Junk yards and auto salvage yards.

(6) Gas stations.

(7) Maintenance and repair establishments, including vehicle maintenance and repair, body repair, and tire and battery services.

(8) Bus or truck terminals.

(9) Salt storage, including salt/sand combinations.

(10) Aquaculture activities.

(11) Cemeteries.

Section ENV.06.11 — Nonconforming Uses In Wellhead Protection Districts

(a) A nonconforming use is one that does not comply with the requirements of this Ordinance, but was lawful prior to the enactment of the Ordinance.

(b) No use that is prohibited or regulated by this Ordinance shall be lawful in a wellhead protection district upon enactment of this Ordinance. However, uses of wellhead protection districts, which are not in conformance with the Ordinance and exist at the time the Ordinance takes effect, are not prohibited.

(1) If an alteration of, addition to or repair over 50% of the value is planned for a nonconforming use, a variance under Section ENV.06.15 is required.

(c) If a nonconforming use is discontinued for twelve (12) consecutive months, it is no longer permitted and any future uses must comply with this Ordinance.

Section ENV.06.12 — Best Management Practices For Wellhead Protection

The following BMPs apply in WHPAs on the Reservation to prevent or minimize groundwater contamination through wells. These BMPs shall be followed, unless they are superseded by more stringent requirements under this Ordinance or other tribal laws.

(a) Maintain vegetation 20 feet around well casing unless surface is impermeable and drains away from well.

(b) Prevent contaminants of any kind from entering the well directly and the soil in the vicinity of the well.

(d) Locate livestock pastures, feeding operations and waste storage downslope and far enough from wells to prevent leachate from reaching groundwater.

(e) Maintain a distance of at least 150 feet from wells when mixing pesticides, fertilizers or other substances that could contaminate groundwater.

(f) Reduce fertilizer use and limit the use of pesticides.

Section ENV.06.13 — Regulation Of Private Sewage Systems -- General

(a) The Tribe is interested in regulating the siting, installation, use and maintenance of private sewage systems, so as to ensure the safety of drinking water supplies, to protect human health and to protect the environment.

(b) As required under the Stockbridge-Munsee Utility Ordinance (Section UTL.01.15), new buildings that are proximate to the tribal sanitary sewer system shall be constructed with wastewater systems that are connected to the tribal sanitary sewer system and buildings with existing private sewage systems, which are proximate to the tribal sanitary sewer system, are required to connect to the sanitary sewer within ten years.

(c) All buildings on the Reservation that are permanently or intermittently intended for human habitation or occupancy, which are not served by a public sanitary sewer, shall have a properly functioning private sewage system for the treatment and disposal of wastewater.

(d) Every private sewage system shall be designed, located and constructed to prevent any discharge of wastewater or partially treated wastewater into drain tiles, onto the ground surface, into the structure served, into surface waters or into groundwater, including seasonal zones of saturation.

(e) Privies may be permitted only when the building served by the privy is not provided with plumbing or water service and when there is no electrical service available to the site.

(f) The land owner or person holding the land assignment is responsible for the private sewage system on that property.

Section ENV.06.14 — Maintenance And Use Of Private Sewage Systems

(a) Private sewage systems shall be used in a way that ensures their proper operation and minimizes impacts on groundwater.

(1) The system shall be sized to adequately dispose of all wastewater generated in the structure or facility that is served.

(2) The system shall not be used to dispose of toxic and hazardous materials, including household chemicals. The amount of bleach, disinfectants and drain and toilet bowl cleaners in the system shall be limited.

(3) The system shall not be used to dispose of non-degradable materials.

(4) The system should not be parked on or driven over to prevent soil compaction or damage to the drain lines. Tree and shrub growth around system should be controlled since roots can clog and damage drain lines.

(b) Every private sewage system shall be adequately maintained.

(1) Septic tanks shall be pumped out at least once every two (2) years, as appropriate, or when the sludge level reaches one-quarter (1/4) of the liquid capacity of the tank.

(2) Commercial septic tank additives shall not be used as an alternative to sludge pumping or as septic tank cleaners since such additives can exterminate useful microbes, resulting in an increased discharge of pollutants, and can contaminate groundwater.

(3) Sludge, scum or sewage pumped from a septic tank shall be disposed of by authorized persons and in accordance with tribal procedures and any necessary permits.

(4) Holding tanks shall be pumped out as necessary and, if pumping is not done, the Tribe will have the tank pumped at the owner's expense.

(5) Periodic inspections of the system shall be done to ensure that systems are used and maintained properly.

Section ENV.06.15 — Variances

(a) The Tribal Council may grant variances from the requirements of this Ordinance, if it is determined that the activity will not harm groundwater. The following procedure shall apply.

(1) A written application for the variance shall be submitted to the Tribal Council Secretary by the applicant that describes the proposed activity and how it varies from those permitted.

(2) The Tribal Council Secretary shall forward copies of the application to the Tribal Council and appropriate tribal departments, including Environmental, Land Management and Utilities. The departments shall provide comments on the proposed variance to the Tribal Council.

(3) A date for public discussion of the variance application with the Tribal Council shall be set for not more than 45 days after receipt of the application. A notice of the application and the date it will be discussed shall be publicized at least 2 weeks prior to this discussion.

(4) Following the public discussion of the application before the Tribal Council, the Council shall consider the impacts of the proposed variance and assess whether there is a negative impact to groundwater. In doing so, the Tribal Council shall consider the comments received from tribal departments and during the public discussion.

(5) The Tribal Council shall issue a written decision as to whether the variance will be granted, granted with stipulations governing the proposed activity, or denied.

(6) The Tribal Council may revoke or modify a variance if they determine that the activity authorized in the proposed variance has or will have a negative impact or if they determine that such a revocation or modification is in the best interests of the Tribe.

(b) Variances are limited to the activities described in the application and are subject to any stipulations required by the Tribal Council. If the applicant does not act upon the variance within two (2) years after it is granted, the applicant must apply for and receive a new variance before the proposed activity may be undertaken.

Section ENV.06.16 — Administration

(a) The tribal Environmental Department shall administer this Ordinance, including:

(1) assessing compliance with the Ordinance and other applicable tribal law;

(2) investigating suspected violations and initiating enforcement actions;

(3) conducting monitoring activities;

(4) recommending new or different groundwater standards; and

(5) taking such action as may be necessary to prevent, abate and control pollution.

(b) The tribal Environmental Department, through its authorized employees, is authorized to enter and inspect property or premises and records to investigate potential sources of groundwater pollution.

(1) Entry must be done at a reasonable time and in a reasonable manner.

(2) If entry is denied, a warrant shall be obtained from the Stockbridge-Munsee Tribal Court allowing the Environmental Department to enter and inspect. The Tribal Court may issue such warrants upon a proper showing of the need for such entry and inspection.

(c) The tribal Environmental Department shall periodically organize an education campaign on groundwater protection and the requirements of this Ordinance.

Section ENV.06.17 — Determination Of Compliance

(a) Sampling and analyses may be done by the tribal Environmental Department to the extent considered necessary to assess groundwater quality or quantity and for the identification of the nature, amount, source, and point of entry for pollutants, if possible

(b) Samples shall be preserved and analyzed in accordance with procedures described in the "Standard Methods for the Examination of Water and Wastewater" by the American Public Health Association, American Water Works Association and the Water Pollution Control Federation, and any revisions or amendments thereto, or other methods acceptable to the tribal Environmental Department.

Section ENV.06.18 — Emergencies

(a) If the Tribal Environmentalist, or other person designated by the Tribal Council to act under this Section, determines that any person causes, is causing or is planning to cause a violation of this Ordinance and that such person's actions, either directly or indirectly, constitute a clear, present and immediate danger to the public's health or livelihood or irreparable harm to the environment, they may issue a Temporary Cease and Desist Order.

(1) The Temporary Cease and Desist Order shall require the violation to immediately cease to prevent further pollution.

(2) The Temporary Cease and Desist Order shall be a written Order describing the alleged violating actions, which must be immediately discontinued.

(3) The Environmentalist shall coordinate with the Stockbridge-Munsee Clerk of Courts so that the Order contains the date for a hearing on a Temporary Restraining Order. If the court date cannot be determined prior to the issuance of the Temporary Cease and Desist Order, the alleged violator shall receive written notice of the date as soon as it is set.

(b) Concurrent with the issuance of the Temporary Cease and Desist Order in emergency situations, the tribal Environmentalist shall inform the Tribal Prosecutor of these actions so that a complaint requesting a Temporary Restraining Order may be filed in the Stockbridge-Munsee Tribal Court.

(1) The Temporary Cease and Desist Order shall only be in effect until a hearing can be held on the request for a Temporary Restraining Order or for a maximum of 10 days. The hearing shall be held as soon as practicable, by telephone if necessary.

(2) In extraordinary circumstances where a judge is unavailable for a hearing, the Temporary Cease and Desist Order may be extended for an additional 5 days.

Section ENV.06.19 — Reports Of Suspected Violations

Any person who engages in any operation or activity that causes groundwater pollution in violation of this Ordinance or who witnesses another person engaging in such operations or activities, shall notify the tribal Environmental Office as soon as he or she has knowledge of that violation. A person who fails to notify the Tribe as soon as practicable is deemed in violation of this Ordinance and, upon a judicial finding thereof, shall be levied a civil penalty of not more than Five-hundred dollars ($500.00).

Section ENV.06.20 — Enforcement Proceedings

(a) If, upon investigation, the tribal Environmental Department determines that a violation of this Ordinance has occurred, is occurring or is likely to occur, the Tribal Environmentalist shall provide written Notice of the violation to the alleged violator and file a copy of this Notice with the Tribal Prosecutor.

(1) The Notice shall contain a description of the alleged violation as well as any corrective action that may be required.

(2) The Notice shall be provided to the person that the Environmental Office determines is responsible for the violation. If unable to determine the person responsible, the Notice shall be provided to the person responsible for the land, who for purposes of this Ordinance, is the landowner or the assignee or lessee if the land is assigned or leased.

(b) After receiving a copy of such a Notice from the Tribal Environmentalist, the Tribal Prosecutor shall discuss the violation and its potential consequences with the Environmental Department. If it is determined that judicial action is needed, the Tribal Prosecutor may:

(1) have a citation issued by the tribal law enforcement personnel to the alleged violator under tribal law; or

(2) file a complaint seeking a remedy under this Ordinance in Tribal Court.

(c) Hearings on alleged violations shall be conducted in the Stockbridge-Munsee Tribal Court in accordance with normal court procedures.

Section ENV.06.21 — Remedies

If the Tribal Court finds that there has been a violation of this Ordinance, the Court may issue the following remedies.

(a) Cease and Desist Order. A Cease and Desist Order sets forth the acts or practices that violate the Ordinance and the time by which the violation must be terminated.

(b) Clean-up Order. A Clean-Up Order requires a person to clean up any material that could contaminate groundwater and take actions to remediate groundwater that has been contaminated.

(c) Restraining Order or Injunction. A Temporary Restraining Order, Preliminary Injunction or Permanent Injunction may be issued to prevent any further or continued violation during court proceedings or in the event any person fails to comply with a Cease and Desist Order or a Clean-Up Order, which is not subject to a stay pending review.

(d) Civil Penalties.

(1) Any person who violates the terms of this Ordinance shall be subject to a forfeiture, for each day the violation occurs, as follows:

(A) If the violation is committed with negligence or recklessly, the maximum forfeiture shall be Two-hundred fifty dollars ($250.00) per day.

(B) If the violation is committed knowingly or intentionally, the maximum forfeiture shall be Five-hundred dollars ($500.00) per day.

(C) If two separate offenses under this Ordinance, occur in two separate episodes during a period of two years, the maximum forfeiture for the second offense shall be double the amounts specified above.

(2) Any person who violates a Final Cease and Desist Order or Clean-Up Order shall be subject to a civil penalty of not more than Five hundred dollars ($500.00) per day for each day during which such violation occurs.

(3) These penalties shall in no way limit the Court's ability to use other judicial remedies, such as exercising its contempt power, in response to a violation of this Ordinance.

(e) Alternative Dispositions. The Court shall have the discretion to tailor a disposition that will be the most effective in addressing the defendant's violation, the needs of the Community and any harm resulting from the violation. Such alternative remedies may be issued in addition to those remedies described in this Ordinance.