Colville Tribal Law and Order Code, Title 4 - Natural Resources and Environment, Ch. 18-19

TITLE 4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 18-19

CHAPTER 4-1 FISH, WILDLIFE AND RECREATION
CHAPTER 4-2 WATERCRAFT REGISTRATION
CHAPTER 4-3 LAND USE AND DEVELOPMENT
CHAPTER 4-4 CULTURAL RESOURCES PROTECTION
CHAPTER 4-5 ON-SITE WASTEWATER TREATMENT AND DISPOSAL
CHAPTER 4-6 MINING PRACTICES WATER QUALITY
CHAPTER 4-7 FOREST PRACTICES WATER QUALITY
CHAPTER 4-8 WATER QUALITY STANDARDS
CHAPTER 4-9 HYDRAULICS PROJECT PERMITTING
CHAPTER 4-10 WATER USE AND PERMITTING
CHAPTER 4-11 RANGELAND MANAGEMENT
CHAPTER 4-12 FOREST PROTECTION
CHAPTER 4-13 SOLID WASTE
CHAPTER 4-14 WILD HORSES
CHAPTER 4-15 SHORELINE MANAGEMENT
CHAPTER 4-16 HAZARDOUS SUBSTANCE CONTROL
CHAPTER 4-17 PUBLIC FACILITIES FINANCING
CHAPTER 4-18 INTERIM CONTROL CHAPTER TO REGULATE THE CONSTRUCTION/OPERATION OF AIR EMISSION SOURCES DECLARATION AND DEFINITIONS
CHAPTER 4-19 FIRE MANAGEMENT

CHAPTER 4-18 INTERIM CONTROL CHAPTER TO REGULATE THE CONSTRUCTION/OPERATION OF AIR EMISSION SOURCES

DECLARATION AND DEFINITIONS

4-18-1 Legislative Declaration

(a) The Colville Business Council finds that the beneficial stewardship of the land, air, and waters of the Colville Reservation is a solemn obligation of the tribal government of the Confederated Tribes of the Colville Reservation, and of the present generation for the benefit of future generations. The potential for the emission of pollutants into the air has created an emergency threatening the reserved natural resources of the Tribe, including the right to clean air. The purpose of this Chapter is to provide for the regulation of air emissions, facilitate the development and implementation of effective emissions control techniques, and to prevent harmful results to the reservation environment and reservation population due to emission of pollutants into the air.

(b) The Tribe enacts this Chapter on an interim emergency basis for the specific purpose of regulating the construction of air pollution sources at the CIPV facility, to provide for the control of pollutants from the CIPV facility, and to provide for the implementation of effective emission control technologies at the CIPV facility. This Chapter is also intended to assure that the CIPV facility is in compliance with the Clean Air Act, 42 U.S.C. 7661 et. seq.

4-18-2 Definitions

(a) "Air contaminant" means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof.

(b) "Air pollution" means the presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as is, or may be, injurious to human health, plant or animal life, or property, or which interferes with enjoyment of life and property.

(d) "CAA" means the Clean Air Act, 42 U.S.C. § 7401 et. Seq.

(e) "CIPV" means Colville Indian Power & Veneer, a subsidiary of the Colville Tribal Enterprise Corporation ("CTEC").

(f) "CIPV facility" means the Colville Indian Power & Veneer facility, formerly known as the Quality Veneer & Lumber ("QVL") facility, owned by CIPV and located in Omak, Washington.

(g) "Construction" means the process of design, permitting, actual on-site construction, or entering into binding agreements or contractual obligations to undertake construction of the source which cannot be canceled or modified without substantial loss to the owner or operator.

(h) "Control equipment" means any device which prevents or controls the emission of any air contaminant.

(i) "Emission" means a direct or indirect release of any dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof into the ambient air.

(j) "Environmental Trust" or "Department" means the Tribes' Environmental Trust Department, also sometimes referred to as the Office of Environmental Trust (or OET). Any reference to the Office or Environmental Trust or OET elsewhere in this Ordinance or in any permit or order issued hereunder shall be deemed to refer to the Department, and the validity of such permit or order shall not in any way be affected by the use of the term Office of Environmental Trust or OET.

(k) "EPA" means the United States Environmental Protection Agency.

(l) "Facility" means the sum total of all of the pollutant emitting activities that belong to the same industrial grouping or are located on one or more contiguous or adjacent properties, and are owned or operated by the same person or persons under common control.

(m) "Installation" means the placement, assemblage, or construction of equipment or control equipment at the premises where the equipment or control equipment will be used, and includes all preparatory work at such premises.

(n) "Modification" means any physical change in, or change in the method of operation of, a source, except the use of an alternative fuel or raw material that the source is approved to use by the Environmental Trust that increases the amount of any air contaminant emitted or that results in the emission of any air contaminant not previously emitted.

(o) "Reservation" means the Colville Reservation as defined in CTC § 1-1-362.

(p) "Owner" or "Operator" means the person that owns, leases, supervises, or operates the equipment or control equipment.

(q) "Particulate matter" or PM means any material, except water in an uncombined form, that is, has been, or is likely to become airborne and exists as a liquid or a solid at standard conditions.

(r) "Person" means and includes any individual, firm, public or private corporations, association, partnership, political subdivision, municipality, or governmental agency.

(s) "Potential to emit" means the maximum capacity of a facility to emit an air contaminant under its physical and operational design. Any physical or operational limitation on the capacity of the facility to emit an air contaminant, including control equipment and restrictions on the hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable.

(t) "Source" means a building, structure, equipment, control equipment, or facility that emits or may emit any air contaminant into the atmosphere.

(u) "Tribe" or "Tribes" means the Confederated Tribes of the Colville Reservation.

(v) "Volatile organic compound" or "VOC" means an organic compound that participates in atmospheric photochemical reactions. This excludes all compounds determined to have negligible photochemical reactivity by the U.S. Environmental Protection Agency and listed in 40 CFR 51.100.

4-18-3 through 4-18-9 reserved.

REGULATION OF CIPV

4-18-10 Duties and Powers of the Environmental Trust Department

(a) It is the responsibility of Environmental Trust (the Department) to observe and enforce the provisions of this Chapter and all orders, rules, and regulations issued or enacted pursuant thereto. The Department is empowered to issue citations, issue stop work orders, apply for injunctive relief, initiate court suits, issue permits, establish and collect fees, and use any legal means to enforce the provisions of this Chapter.

(b) The Department is authorized to request technical assistance from EPA in the enforcement of this Chapter, and may request other assistance from EPA with regard to the direct enforcement of this Chapter as necessary to facilitate compliance with the CAA.

4-18-11 General Regulations and Orders

(a) Construction of Veneer Dryers. Upon written request by CIPV, the Department may authorize CIPV to replace the existing three direct wood fired dryers at the CIPV facility with two new Coe M62 steam heated Jet Dryers. The Department's authorization shall include limitations on emissions of VOC and PM. Emissions from the new dryers shall continue to be routed to the existing boilers. The Department may authorize CIPV to take action to construct and to install the new dryers; provided that CIPV shall not begin regular operation of the new dryers until and unless CIPV receives further written authorization from the Department as provided for in subsections (d) through (f), below, of this section.

(b) Administration and Permit Fees. Should CIPV seek the Department's approval for the construction and subsequent operation of the proposed veneer dryers, CIPV shall within thirty (30) days of the effect date of this Chapter transfer the sum of $75,000.00 into the Department's Hazardous Waste Account #422 (HWA), established under the authority of the Hazardous Substances Control Act (HSCA), CTC § 4-16-7. These funds shall be used by the Department to cover its oversight costs associated with CIPV's compliance under this Chapter, including the Department's costs for the administration of orders or permits for construction and/or operation of the veneer dryers. The Department may assess such additional fees against CIPV as may be necessary if the Department reasonably expects that its costs may exceed $75,000 during the period of time that elapses before a final EPA Title V permit is issued to CIPV. Funds transferred to the HWA by CIPV pursuant to this Chapter shall be expended pursuant to a budget approved under the HSCA, CTC § 4-16-7(c).

(c) Application for EPA Permit. The Department's assistance to CIPV is discretionary and may be suspended or withdrawn if CIPV is not diligently pursuing approval from EPA of CIPV's outstanding permit application under Title V of the Clean Air Act, 42 U.S.C. 766 1 et seq. , or if CIPV is not promptly submitting information as requested by EPA (or as required by 40 C.F.R. Part 71), or if CIPV is not fully cooperating with the Department.

(d) Operating Permit and Public Involvement Process. If CIPV requests that the Department issue an Order permitting CIPV to begin regular operation of the new dryers, the Department may issue a regulatory order after complying with the following public involvement process:

(1) Public notice of the proposed order shall be published in the Colville Tribal Tribune or in two (2) other newspapers of general circulation in Okanogan and Ferry counties, and copies of the notice mailed to all persons who have made timely requests to the OET for information concerning the proposed Order. Notice shall also be sent to the US Environmental Protection Agency Regional Administrator. The public notice shall include, at a minimum, the following information:

(A) The name and address of the owner or operator and the source;

(B) A brief description of the purpose of the proposed order and the requirements included in the proposed order;

(C) The deadline for submitting written comments to the Department; and

(D) The opportunity for a public hearing if the Department determines that there is significant public interest in the proposed order.

(2) The initial public comment period shall be at least thirty (30) days.

(3) During the initial thirty (30) day public comment period, any person may request a public hearing be held. Any such request shall be submitted in writing to the Department, shall indicate the interest of the entity filing it, and shall describe why a hearing is warranted. The Department may, at its discretion, hold a public hearing if it determines significant public interest exists. Any such hearing shall be held before a hearing officer and upon such notice and at a time and place as the Department deems reasonable. The hearing officer shall hear testimony at the public hearing and prepare a written summary of the testimony received at the hearing. The Department shall provide at least thirty (30) days prior notice of any hearing. If a public hearing is held, the public comment period shall extend through the hearing date.

(e) Environmental Trust Action. The Department shall only issue an order under section 4-18-11 (d)(1)(D), to provide for operation of the dryers, after:

(1) The public comment period has ended;

(2) Any public hearing scheduled has been held; and

(3) The Department has considered all information and data related to the proposed order, including all written comments received and any summary of testimony prepared by the hearing officer.

(f) Effective Date. Unless otherwise ordered by the Department, an order issued under this section shall be effective on the date the Department approves the order.

(g) Appeals. Any order issued by the Department under this section may be appealed to Tribal Court only by a party who is aggrieved by the Department's order, and provided that such party participated in the public comment period. The Tribal Court shall have jurisdiction of such appeal only to the extent that it may determine whether the Department followed the procedures set forth in this Chapter and correctly applied the provisions of this Chapter to its order.

4-18-12 Compliance Monitoring

(a)Cooperation with Requests for Information. The Department may require CIPV to provide prompt and complete responses to requests by the Department for documentation or information concerning location, size, and height of contaminant outlets at CIPV, processes employed, nature and quantity of the air contaminant emission, compliance with applicable permits and regulations, and other information related to the CIPV facility as may be required by the Department.

(b) Operation and Maintenance Plan. CIPV shall develop and implement an operation and maintenance plan to assure the CIPV facility continues to comply with applicable permits and regulations. A copy of the plan shall be filed with the Department. The plan shall reflect good industrial practice and shall include, but not be limited to, the following:

(1) Periodic inspection of all equipment and control equipment;

(2) Monitoring and recording of equipment and control equipment performance;

(3) Prompt repair of any defective equipment or control equipment;

(4) Procedures for start up, shut down, and normal operation;

(5) The control measures to be employed to assure compliance with this Chapter; and

(6) A record of all actions required by the plan.

The plan shall be reviewed and updated as required by the Department to reflect any changes in good industrial practice.

(c) Inspection. For the purpose of investigating conditions specific to the control, recovery, or release of air contaminants into the reservation environment, a duly authorized representative of the Department shall have the power to enter at reasonable times upon the CIPV facility. CIPV shall not refuse access to the duly authorized representative of the Department who requests entry for the purpose of inspection, and who presents appropriate credentials; nor shall any person obstruct, hamper, or interfere with any such inspection.

(d) Testing. For the purpose of determining compliance with an emission standard, a duly authorized representative of the Department shall have the authority to conduct testing at CIPV or to order the owner or operator of the source to have it tested and to report the results to the Department. In the event the Department conducts the test, the Department shall provide the owner or operator an opportunity to observe the sampling and to obtain a sample at the same time.

(e) Methods. Testing of sources for compliance with emission standards shall be performed in accordance with current US Environmental Protection Agency-approved methods unless specific methods have been adopted by the Department. Where there is no federally-approved or Department-approved method, testing shall be performed in accordance with a method approved in writing by the authorized representative of the Department.

4-18-13 through 4-18-19 reserved.

NOTICE-FINES-INJUNCTION

4-18-20 Violations-Notice

(a) Not less than ten (10) days prior to the commencement of any formal or informal enforcement action under this Chapter, the Department shall serve written notice upon the alleged violator. The notice shall specify the provisions of the this Chapter or the orders issued by the Department hereunder, alleged to be violated, and the facts alleged to constitute a violation thereof, and may include a unilateral order directing that necessary corrective action be taken within a reasonable time. The Department may require that the alleged violator or violators appear before the Department for a hearing to determine whether violation has occurred. Every notice of violation shall offer to the alleged violator an opportunity to meet with the Department prior to the commencement of an enforcement action.

(b) In case of a continuing violation, whether or not knowingly committed, each day's continuance shall be a separate and distinct violation.

4-18-21 Civil Fines

(a) Any person who violates any of the provisions of this Chapter may incur a civil fine in an amount not to exceed $15,000.00 per day for each violation.

(b) Any person who fails to take action as specified by an order issued pursuant to this Chapter shall be liable for a civil fine of not more than $15,000.00 for each day of continued noncompliance.

(c) Any civil fine may be appealed to the Tribal Court if such appeal is filed with the Tribal Court and served on the Department within thirty (30) days after receipt by the person who received the notice imposing the penalty.

(d) Fines received shall be deposited in the Tribal Hazardous Waste Account #422 and held there to be spent only for the purposes of funding the Department's air pollution program, subject to approval by the Colville Business Council of an appropriate budget pursuant to CTC § 4-16-7(c).

4-18-22 Injunctive Enforcement

(a) Notwithstanding the existence or use of any other remedy, whenever any person has engaged in, or is about to engage in, any acts or practices which constitute or will constitute a violation of any provision of this Chapter, the Department, after notice to such person and an opportunity to comply, may petition the Tribal Court for a restraining order, a temporary or permanent injunction, or another appropriate order.

(b) As an additional means of enforcement, the Department may accept an assurance of discontinuance of any act or practice deemed in violation of this Chapter or of any order issued pursuant thereto, from any person engaging in, or who has engaged in, such act or practice. Any such assurance shall specify a time limit during which such discontinuance is to be accomplished. Failure to perform the terms of any such assurance shall constitute prima facie proof of a violation of this Chapter or the orders issued pursuant thereto, which make the alleged act or practice unlawful for the purpose of securing any injunction or other relief from the Tribal Court.

(c) Upon failure to comply with any final order of the Department, the Department may bring an action in the Tribal Court to enforce such final order, prevent a potential violation of this Chapter or order of the Department, and to obtain such other relief as necessary.

4-18-23 through 4-18-29 reserved.

CONSTRUCTION

4-18-30 Liberal Construction

The provisions of this Chapter are to be liberally construed to effectuate the policies and purposes of this Chapter.

4-18-31 Severability

If any provision of this Chapter or its application to any person or circumstance is held invalid, the remainder of the Chapter or the application of the provision to other persons or circumstances is not affected.

EFFECTIVE DATE; TERM

4-18-32 Effective Dates

The effective date of this Chapter shall be the date this Chapter is enacted and adopted by the Council. This Chapter shall apply retroactively.

4-18-33 Term

All provisions of this Chapter shall remain in full effect until the earlier of the following:

(a) This Chapter is duly amended by the Business Council; or

(b) EPA issues a permit to CIPV as provided for by Title V of the Clean Air Act, 42 U.S.C. 7661 et seq., 40 C.F.R. Part 71, which, as determined by the Department, provides for control of all emissions from the CIPV facility no less stringently than provided for by this Chapter.

4-18-34 Sovereign Immunity

Nothing in this Chapter shall be construed to constitute a waiver of the sovereign immunity of the Tribe, or of any instrumentality of the Tribe, except to the extent necessary for the Department to enforce the provisions of this Chapter.

(Chapter 4-18 Enacted 1/24/03, Resolution 2003-28)

CHAPTER 4-19 FIRE MANAGEMENT

GENERAL PROVISIONS

4-19-1 Legislative Intent

The Colville Business Council acknowledges that forest wildfires are a threat to public health and safety and cause devastating damage to tribal and private resources, including but not limited to clean air, clean water, fish and wildlife habitat, timber resources, forest soils, economic and employment opportunities, range lands, structures, recreational areas and other improvements. That the natural role of fire in forest ecosystems is used under controlled burns and conditions to prevent wild fired by maintaining healthy forests and eliminating sources of fuel posing potential hazard.

The Business Council declares its intent by establishing and maintaining a complete, cooperative and coordinated forest fire protection and suppression program hereinafter known as Fire Management. That second to saving lives, the primary purpose of the Fire Management Department is to protect forest resources and suppress forest wild fires.

4-19-2 Definitions

As used in this Chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

(a) "Additional Fire Hazard" means a condition existing on any land within the boundaries of the Colville Reservation covered wholly or in part by forest, range, or any other debris which is likely to further the spread of fire and thereby endanger life or property. The term additional fire hazard does not include green trees or snags left standing in upland or riparian areas under the Federal Forest Practices Act.

(b) "Closed season" means a specified amount of time determined by Fire Management to be of fire danger and may be cause to suspend fire permits and raise the industrial fire precaution level necessary for prevention of wildfires.

(c) "Department" means Fire Management or its authorized representatives, as defined in this Chapter.

(d) "Department protected lands" means all land(s) subject to protection by Fire Management either through cooperative agreements or contracts.

(e) "Emergency fire costs" means those costs incurred or approved by Fire Management for emergency fire suppression, including employment of personnel, rental of equipment, and the purchase of supplies to suppress any fire or action thereof.

(f) "Forest, range, slash or stubble debris" includes but is not limited to forest slash, chips, cut grass, standing or cut fields, and any other vegetative residue resulting from activities on forest land.

(g) "Forest fire service" includes all personnel employed to prevent or fight wildland fires including tribal and federal law enforcement officers.

(h) "Forest lands" means any improved or unimproved lands which have enough trees, standing or down, or flammable material as determined by Fire Management to be a fire hazard to life or property. Sagebrush and grass areas adjacent to or intermingled with areas supporting tree growth may also be considered forest lands.

(i) "Forest landowner" means the owner, or the person in possession of any public or private forest, rangelands, or allotments.

(j) "Forest" or "range material" means any forest slash, chips, timber, stubble or timber which is standing or down, or other vegetation.

(k) "Land owner operation" means every activity and supporting activities of a forest landowner, the landowner's agents, employees, independent contractors, or permittees in the management and use of forest and range land subject to protection by Fire Management for the primary benefit of the owner(s) including the growing, harvesting, and transport of forest and rangeland products, the development of transportation systems, the utilization of minerals or other natural resources, and the clearing of land. This also includes negligent recreational or residential activities, or both, not associated with these enumerated activities.

(l) "Participating landowner" means any owner whose land is subject to protection by Fire Management.

(m) "Slash" means organic forest debris such as treetops, limbs, brush, and other flammable material remaining on forest and rangeland as a result of a land owner operation.

(n) "Slash burning" means the planned and controlled burning of forest debris on forest lands by broadcast burning, underburning, pile burning, or other means for the purposes of silviculture, hazard abatement, or reduction and prevention or elimination of a fire hazard.

(o) "Suppression" means all activities involved in the containment and control of forest fires, including the patrolling thereof until such fires are extinguished or considered by Fire Management to pose no further threat to life or property.

(p) "Unimproved lands" means those lands that will support grass, brush, or tree growth, or other flammable material when such lands are not cleared or cultivated, and in the opinion of the department, are a fire menace to life and property.

(q) "Wildfire" means a uncontrolled fire that travels and spreads rapidly.

(r) "Wildlands fire" means a fire burning in natural vegetation that requires an individual or crew(s) to expand more than one hour of labor to confine, control and extinguish.

FIRE PROTECTION; INVESTIGATIONS; FIRE MANAGEMENT PERSONNEL

4-19-10 Fire Protection Powers and Duties of Department; Enforcement

At Fire Management's discretion, appointment of trained personnel possessing necessary qualifications to carry out duties and supporting functions of the Department may include hiring, appointing fire investigators, wardens, and other commissioned law enforcement to represent Fire Management in fire investigations and court proceedings.

(a) Fire Management shall have direct charge and supervision of all matters pertaining to wildland fire suppression within the boundaries of the Colville Indian Reservation.

(b) Fire Management shall:

(1) Enforce this Chapter;

(2) Be empowered to take charge of and direct the work in suppressing forest fires;

(3) Investigate the origin and cause of all forest fires to determine whether a criminal act or a negligent act by person, firm, or corporation caused the start of, or the spread of, or the existence of a fire.

(4) Furnish notice or information to the public calling attention to forest fire dangers and penalties for violation of this Chapter.

(5) Adopt rules for the prevention, control, and suppression of forest fires considered necessary including, but not limited to:

(A) fire equipment and materials;

(B) use of personnel; and

(C) fire prevention standards and operating conditions including a provision for reducing these conditions where justified by local factors such as location and weather.

4-19-11 Conducting Investigations

(a) Fire Management shall work cooperatively in conducting investigations, to the extent possible, with utilities, property owners, and other interested parties to identify and preserve evidence. Fire Management is authorized, without court order, to take possession or control of relevant evidence found in plain view and belonging to any person, firm, or corporation. Fire Management shall notify, to the extent possible, the person, firm, or corporation of its intent to take possession or control of the evidence.

(b) Before Fire Management takes possession or control of evidence, the person, firm, or corporation shall be afforded reasonable opportunity to view the evidence and shall be afforded reasonable opportunity to examine, document, and photograph it. If the person, firm, or corporation objects in writing to Fire Management's taking possession or control of such evidence, Fire Management must either:

(1) Return the evidence within seven days after the day on which Fire Management is provided with the written objections; or

(2) Obtain a court order authorizing the continued possession or control thereof.

(1) Fire Management may not take possession or control of evidence over the objection of the owner of such evidence if:

(A) The evidence is used by the owner in conducting a business or in providing an electric utility service; and

(B) Fire Management's taking possession or control of the evidence would substantially and materially interfere with the operation of the business or provision of electric utility service.

(2) Fire Management may not take possession or control of evidence over the objection of an electric utility when the evidence is not owned by the utility but has caused damage to property owned by the utility. However, this subsection does not apply if Fire Management has notified the utility of its intent to take possession or control of the evidence and provided the utility with reasonable time to examine, document, and photograph the evidence.

(d) Only personnel qualified to work on electrical equipment may take possession or control of evidence owned or controlled by an electric utility.

(e) Fire Management may remove at will or suspend the authority of any investigator, warden or other authorized law enforcement official to represent Fire Management in fire investigations who is incompetent or unwilling to properly discharge the duties of such office.

4-19-12 Wardens—Appointment—Duties

Fire Management may appoint any of its employees as wardens, at such times and in such localities it considers the public welfare demands, within any area of the reservation 4 where there are forest lands requiring protection.

(a) Wardens shall:

(1) Provide forest fire prevention and protection information to the public;

(2) Investigate discovered or reported fires on forest lands and take appropriate action;

(3) Patrol assigned areas, visit camp grounds of frequent use and warn campers, visitors and other users of fire hazards;

(4) Inspect all vehicles, locomotives and all steam internal combustion, devices and other spark-emitting equipment including chainsaws for spark arresters and adequate devices which prevent the escape of sparks or fire;

(5) Inspect forest land operations and activities for required fire prevention and suppression equipment or devices and ensure that protection of forests are enforced. In addition, wardens who hold federal, state, or tribal law enforcement commissions verified and approved by the Colville Tribal Police Department shall have the authority to:

(A) Investigate, arrest, and initiate prosecution of all Tribal Law and Order Code violators; and

(B) Investigate all forest land fires as assigned by Fire Management, complete investigation reports, and appear in court as needed on said investigations and prosecutions.

(b) Wardens shall submit reports which summarize activities for that period, how assigned areas are visited, expenses incurred, and other information which may be required by Fire Management, in a format and at a time specified.

(c) Fire Management may remove at will or revoke the authority of any warden who is incompetent or unwilling to properly discharge the duties of the office.

(d) Fire Management shall determine the placement and assignment of the wardens and at the request of the individual districts, may assign additional wardens during times of special need, or high fire danger.

(e) The authority of the wardens regarding the prevention, suppression, and control of forest fires, summoning, impressing, employing help, or making arrests for violations of this Chapter may extend to any part of the reservation.

4-19-13 Wardens—Ex officio Appointments—Compensation

(a) Colville Tribal Police Department commissioned officers, whether a Colville tribal police officer, a natural resources enforcement officer, a ranger, a cross-commissioned state or county officer, or other commissioned officer while in their respective jurisdictions may be deemed ex officio wardens during any emergency regarding the suppression and extinguishing of any forest land fire.

(b) Employees of the United States Bureau of Indian Affairs, when recommended by the forest manager and at the discretion of Fire Management, may be commissioned as wardens and vested with the powers specified in this Chapter.

(c) A warden shall not create any indebtedness or incur any liability on behalf of the Tribes and will not receive additional compensation for services, except when employed in cooperation with the Colville Tribes under the provisions of this Chapter. Warden's engaged in the prevention, suppression and extinguishing of the spread of fire or for the investigation of wildfire may receive additional compensation at a rate to be fixed by Fire Management. Other jurisdictions supplying ex officio wardens may also be compensated for additional costs for supplying officers and equipment.

(d) Fire Management may revoke the authority granted to any ex officio warden under this Chapter who is incompetent or unwilling to properly discharge the duties of the office.

4-19-14 Service of Notices

Any notice required by law to be served by Fire Management, a warden, an ex officio warden, or a ranger shall be sufficient if a written or printed copy thereof is delivered, mailed, telegraphed, or electronically transmitted by Fire Management, warden, ex officio warden, or ranger to the person to receive the notice, or to his or her responsible agent. If the name or address of the person or agent is unknown and cannot be obtained by reasonable diligence, the notice may be served by posting the copy in a conspicuous place upon the premises affected by the notice.

4-19-15 Arrests Without Warrants

Fire Management employees appointed or commissioned as wardens, and all law enforcement officers may arrest persons violating this Chapter without a warrant pursuant to CTC § § 2-1-32 and 2-1-33.

4-19-16 Violations—Penalty

Any person who willfully violates any of the orders or rules adopted under this Chapter for the protection of forests from fires is guilty of Reckless Burning, Chapter 3-1-201 and subject to the penalties for committing this crime pursuant to Colville Tribal Law and Order Criminal Code.

BURNING PERMITS

4-19-30 Burning Permits

(a) Except in certain areas designated by Fire Management or permitted by rules adopted by Fire Management, a person shall have a valid written burning permit to burn:

(1) Any flammable material on any lands under the protection of Fire Management; or

(2) Forest, range waste, slash, or stubble debris on lands protected by the Fire Management.

(b) To be valid, a permit must be signed by both Fire Management and the permittee. Requests by phone will be honored and will state “requested by phone” in place of the permittee’s signature. Conditions may be imposed in the permit for the protection of life, property, or air quality and any permit may be suspended or revoked when conditions warrant. A permit shall be effective only under the conditions and for the period stated therein. Signing of the permit or the notation "request by phone" shall indicate the permittee's agreement to and acceptance of the conditions of the permit.

(1) All requirements relating to fire fighting equipment, the work to be done, and precautions to be taken before commencing the burning have been met;

(2) No unreasonable danger will result; and

(d) Fire Management authorized employees, or any warden, or ranger may refuse, revoke, or postpone the use of permits to burn when necessary for the safety of adjacent property or when necessary in their judgment, to prevent air pollution as provided in the rules set forth by Fire Management.

(e) Sweat lodges used for religious purposes must be permitted, provided that reasonable conditions may be imposed to prevent the risk of fire, including designating a safe location, requiring a cleared area around the fire, a designated fire watch person and the requirement of the fire to be extinguished as soon as the sweat is completed.

(f) Violation of this section will result in civil infractions and possible loss of burning privileges.

FIRE DANGER/HAZARDS

4-19-31 Closed to Entry—Designation

(a) When any forest land is exposed to fire danger or a condition exists pursuant to section 4-18-33, Fire Management may designate such land as a "region of extra fire hazard" subject to closure. Fire Management shall adopt rules for the protection of such land.

(b) All such rules shall be published in newspapers of general circulation in the counties where such region is situated and effective for a length of time as Fire Management may determine.

Extreme Fire Danger—CLOSED TO ENTRY—Except as Provided by Law

shall be posted indicating the beginning and ending dates of the closure and shall be posted on the public highways entering the region.

(d) The rules shall be in force while the forest land continues to be exposed to fire danger or ceases to be so exposed. Fire Management may extend, suspend, or terminate the closure by proclamation.

(e) A violation of this section will be treated as trespass onto Colville Tribal property and will be a civil infraction pursuant to CTC § 3-7-30. A violation of this section where human life is endangered, shall be considered Reckless Endangerment pursuant to CTC § 3-1-11 and is a Class A Offense.

4-19-32 Suspension of Burning Permits/Privilege

(a) In locations of unusual fire danger, Fire Management may issue an order suspending any or all burning permits or privileges authorized in section 4-18-30 of this Chapter.

(b) The burning privileges of a place of residence, business or an area where a person has repeatedly violated section 4-18-30 of this Chapter may have burning privileges suspended.

(c) A violation of this section shall be an infraction, and where a fire generates from the violation, the costs for fire suppression and the investigation will be in added to the civil fine.

4-19-33 Closure of Forest Operations or Forest Lands

(a) When weather conditions arise which present an extreme fire hazard whereby life and property may be endangered, Fire Management may issue an order shutting down all logging, land clearing, or other industrial operations which may cause a fire. The shutdown shall be for the time periods and in the region designated in the order. During 8 shutdowns, all persons are excluded from logging operation areas, and areas of logging slash, except those present in the interest of fire protection.

(b) When fire conditions exists whereby lands on the reservation may be endangered, Fire Management with the approval of the Business Council may issue an order restricting access to and activities on forest lands. The order shall describe the region and the extent of restrictions necessary to protect forest lands. During the period in which the order is in effect, all persons are excluded from the region described, except those persons present in the interest of fire protection.

(c) When extreme fire condition exist, or are in danger of existing on an actively burning wildfire, and with coordination of law enforcement, certain areas shall be closed to public access in order to protect the safety of human life. If a landowner or person having property within the fire area can show a valid reason for needing to be in that area, he or she may be escorted by a warden, law enforcement, or a trained department firefighter; PROVIDED That, the area has been first declared safe by the incident commander or the safety officer of Fire Management.

(d) Each day's violation of an order under this section shall constitute a separate infraction. Violation of this section, where human life is endangered (including public safety officers) shall be considered Reckless Endangerment, as provided for under CTC § 3-1-11 and is a Class A Offense.

4-19-34 Spark-Emitting Equipment or Device

It is unlawful during the closed season, for any person to operate any steam, internal combustion, electric engine, or any other spark-emitting equipment or device on any forest land or in any place where fire could spread to forest land. It shall be the operator's responsibility to contact Fire Management to become familiar with requirements that may have been established pursuant to this Chapter.

Each day and each piece of equipment in operation in violation of the order shall be considered a separate violation.

4-19-35 Work Stoppage Notice—Penalty for Violations

(a) Every person or operator who receives a written order pursuant to this Chapter, or any rule adopted by Fire Management, concerning fire prevention and suppression preparedness, shall cease operations until such person or operator has come into compliance as specified in the order.

(b) Fire Management may specify in the order special conditions and precautions that the operation must comply with in order to continue until the end of that working day.

(c) Each day and each piece of equipment in operation in violation of the order shall be considered a separate violation.

4-19-36 Deposit of Fire or Live Coals

(a) No person shall deposit fire or live coals within the bounds of the Colville Indian Reservation on lands protected by Fire Management during closed season for any reason, unless a permit has been obtained from Fire Management. This includes, but is not limited to, used charcoal briquettes, cigarettes, fireworks, welding rod or other hot metal.

(b) No person or employee operating a railroad shall deposit fire or live coals upon the right-of-way on any lands protected by Fire Management during closed season, unless the fire or live coals are immediately extinguished.

4-19-37 Reports of Fire

(a) Any person engaged in activity on forest lands shall immediately report to Fire Management in person, or by radio, or by telephone, or by telegraph, any fires on lands protected by Fire Management.

(b) Railroad companies, other public carriers, and private industry operating on or through lands protected by Fire Management shall immediately report to Fire Management, in person, or by radio, or by telephone, or by telegraph, any fires on or adjacent to their right-of-way, route, or property.

4-19-38 Lighted Material—Vehicles, Public Transportation or Equipment in Operation

(a) It is an infraction during a closed season, or in a closed area for any person to throw away any lighted tobacco, cigars, cigarettes, matches, fireworks, charcoal, or other lighted material, or to discharge any tracer or incendiary ammunition on any lands within the boundaries of the Colville Indian Reservation.

(b) It is an infraction during the closed season for any individual to smoke any flammable material on areas within the boundaries of the Colville Indian Reservation other than on roads, cleared landings, gravel pits, or any similar area free of flammable material.

(c) Every vehicle operated through or above forest, range, brush, or grain areas shall be equipped (in each compartment) with a suitable receptacle for the disposition of lighted tobacco, cigars, cigarettes, matches, or other flammable material.

(d) Every person operating public transportation through or above forest, range, brush, or grain areas shall post a copy of this section in a conspicuous place within the smoking compartment of the public transportation; and every person operating a saw mill or a logging camp in any such areas shall post a copy of this section in a conspicuous place upon the ground or buildings of the milling or logging operation.

(e) A violation of this section shall be an infraction, and where a fire generates from the violation, the costs for fire suppression and the investigation will be in added to the civil fine.

4-19-39 Escaped Slash, Grass and Debris Burns—Obligations

(a) Should a fire escape from a permitted slash, grass or debris burn, any personnel and equipment necessary to suppress that fire will be retained until the fire is declared out by Fire Management, and shall be at the expense of the permittee. In addition, if a slash or debris burn becomes an uncontrolled fire, Fire Management may recover from the landowner the actual costs incurred to suppress the fire.

(b) A violation of this section shall be an infraction, and all expense incurred to suppress a fire which resulted from a slash, grass or debris burn, in which the land owner's negligence was involved, shall be the obligation of the landowner.

4-19-40 Negligent Starting of Fires—Allowance of Extreme Fire Hazards or Debris— Liability—Recovery of Reasonable Expenses—Lien

(a) Any person, firm, or corporation:

(1) Whose negligence is responsible for the starting or existence of a fire which spreads onto Fire Management protected land(s); or

(2) Who creates or allows an extreme fire hazard to exist and which hazard contributes to the spread of a fire; or

(3) Who allows forest debris to exist and which debris contributes to the spread of fire;

(4) Shall be liable to Fire Management for any reasonable expenses made necessary by (1), (2), or (3) of this section.

Fire Management or any fire protection agency of the United States or the State of Washington may recover in the Colville Tribal Court such reasonable expenses in fighting the fire together with costs of investigation and litigation; including reasonable attorneys' fees and taxable court costs, if the fire fighting activity was authorized or subsequently approved by Fire Management. The authority granted under this section, allowing the recovery of reasonable expenses incurred by fire protection agencies, shall apply only to expenses incurred after the effective date of this Chapter.

(b) Fire Management or the agency incurring such expense shall have a lien for the same against any property of the person, firm, or corporation liable under subsection 4-18- 40(a)(1) of this section, by filing a claim of lien naming the person, firm, or corporation, describing the property against which the lien is claimed, specifying the amount expended on the lands on which the fire fighting took place, and the period during which the expenses were incurred, and signing the claim with post office address. No claim of lien is valid unless filed with the county clerk and recorder of the county in which the property sought to be charged is located, and with the Colville Tribal Court within a period of ninety days after the expenses of the claimant are incurred. The lien may be foreclosed in the same manner as a mechanic's lien is foreclosed under the statutes of the State of Washington.

EXTREME FIRE HAZARDS; PROHIBITED ACTS

4-19-60 Disposal of Forest Debris—Trees Falling onto Another's Land

Any person clearing land or a right-of-way for a railroad, a public highway or road, a ditch, a pike or a wire line, or for any other transmission, or transportation utility right-of-way, shall pile and burn or dispose of, by other satisfactory means, all forest, range waste, slash or stubble debris cut upon said land as rapidly as the clearing or cutting progresses, or at such other times as Fire Management may specify, and if during the closed season, in compliance with section 4-18-30.

No person clearing any land or right-of-way, or in cutting or logging timber for any purpose may fall, or permit to fall any trees so that they may fall onto land owned by another without first obtaining permission from the owner in addition to complying with the terms of this section for the disposal of refuse. All terms of this section and other forest laws within the Colville Tribal Law and Order Code shall be observed in all clearings of right-of-way or other land on behalf of the tribes itself or any county thereof, either directly or by contact and unless unavoidable emergency prevents, provision shall be made by all officials directing the work for withholding a sufficient portion of the payment therefore until the disposal is completed, to insure the completion of the disposal in compliance with this section.

4-19-61 Fire Hazard Areas—Abatement—Summary action—Recovery of Costs

(a) A landowner or a person responsible for land where a fire hazard exists shall take reasonable measures to abate the danger. The fire hazard area may warrant the cleaning up of, the removal of hazardous material, the controlled burning of, or any other satisfactory means which would isolate, reduce or eliminate the fire hazard.

(b) Fire Management shall adopt rules to define areas of extreme fire hazard that the owner and person responsible shall abate. The areas shall include, but are not limited to, high-risk areas where life or buildings may be endangered or areas adjacent to public highways or areas of frequent public use.

(c) Fire Management may adopt rules after consultation with the Business Council and the forest manager defining other conditions of extreme fire hazard with a high potential for fire spreading to lands in other ownerships.

(d) The duty to abate, isolate, or reduce fire hazards, and liability under this Chapter arise upon creation of the extreme fire hazard. Damages for breach of the duty include, but are not limited to, all fire suppression expenses incurred by Fire Management.

(e) If the owner or person responsible for the existence of the extreme fire hazard or forest debris subject to section 4-18-60 refuses, neglects, or unsuccessfully attempts to abate, isolate, or reduce the same, Fire Management may summarily abate, isolate, or reduce the hazard as required by this section and recover twice the actual cost thereof from the owner or person responsible.

(f) Such costs shall include the salaries, expenses, equipment incurred in abating the hazard and any addition expenses incurred by Fire Management. All such costs shall be recoverable through a lien being placed upon the land. Such lien shall be enforceable in the same manner as are mechanic's liens under Washington State law.

(g) Summary action may be taken only after ten days' from the date of which written notice was served on the owner or reputed owner of the land on which the extreme fire hazard or forest debris subject to section 4-18-60 exists. The notice shall include a suggested method of abatement and an estimated cost thereof. The notice shall be delivered by personal service or by registered certified mail to the last known address of the owner or reputed owner.

4-19-62 Failure to Extinguish Campfire

It is an infraction for a person to start a fire in a campground and leave the campground before extinguishing the fire. Failure to extinguish a campfire is an infraction.

4-19-63 Willful Setting of Fire

It is an infraction for a person to willfully start a fire on private property, or any land protected by Fire Management, or on any land within the boundaries of the Colville Reservation. Willful setting of fire is an infraction.

4-19-64 Removal of Notices

It is an infraction for a person to willfully and without authorization deface or remove any warning notice posted under the requirements of this Chapter. Violations shall be considered trespass pursuant to Chapter 3-7-30 and vandalism pursuant to Chapter 3-7-31 of Colville Tribal Property and is an infraction.

4-19-65 Negligent Fire—Spread

It is an infraction for a person to negligently allow fire originating on the person's own property to spread to the property of another or onto lands protected by Fire Management. Violation of this section may be the basis for a civil trespass action.

4-19-66 Uncontrolled Fire—Public Nuisance—Suppression—Summary Action— Recovery of Costs

(a) A person engaged in an activity on lands of a landowner, or on forest lands and having knowledge of a fire, notwithstanding the origin or subsequent spread of fire, shall make every reasonable effort to suppress the fire.

(b) Any fire on or threatening forest land, that is burning uncontrolled and without proper action being taken to prevent its spread, is a public nuisance by reason of its menace to life and property.

(c) If a person has not suppressed the fire and the fire is on or threatening forest land within a forest protection zone, Fire Management shall suppress the fire.

(1) If the owner, lessee, other possessor of such land, or an agent or contractor of the owner, lessee, or possessor, having knowledge of a fire, has not made a reasonable effort to suppress the fire, the cost of suppression may be recovered from the owner, lessee, or other possessor of the land and the cost of the work shall also constitute a lien upon the real property or chattels under the person's ownership.

(A) The lien may be filed by Fire Management in the office of the county clerk and recorder or with the Colville Tribal Court and foreclosed upon in the same manner, provided by Washington State law, for the foreclosure of a mechanics' liens.

(B) The Office of Reservation Attorney shall bring action to recover the costs of suppression or to foreclose the lien upon the request of Fire Management.

(2) In the absence of negligence, no costs other than those provided in this Chapter shall be recovered from any landowner for lands subject to the forest protection assessment with respect to the land on which the fire burns.

(d) When a fire occurs in a land clearing, right-of-way clearing, or landowner operation, contingent upon available resources and funding, it shall be fought to the full limit of the available employees and equipment, and the fire fighting shall be continued with the necessary crews and equipment in such numbers as are, in the opinion of the Fire Management, sufficient to suppress the fire. The fire shall not be left without a fire fighting crew or fire patrol until authority has been granted by the Fire Management

(Chapter 4-19 Adopted 4/15/04, Resolution 2004-261)
(Certified 2/28/04)