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Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 23 - ENVIRONMENTAL CODE

 

[Historical Note: Chapter 23 is derived from Resolution No.___ Enacted______ ]

Art. I. Waste Ordinance §§ 23-1 - 23-50

Art. II. Open Burning Ordinance §§ 23-51 - 23-100

Art. III. Reserved

Section 23-1. PURPOSE AND POLICY.

This Ordinance (Chapter 23, Article I) is intended to provide for the administration and enforcement of this ordinance and to provide penalties for its violation. This Article defines unlawful disposal of waste, how responsibility of waste is determined and sets penalties for unlawful disposal.

The purposes of this ordinance are to:
  1. Promote the health and safety of Tribal members and all other persons within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe;

  2. Promote the cultural, social and economic stability of residential, agricultural, commercial, industrial, forest, riparian, and environmentally sensitive lands within the Nation and other lands within the jurisdiction of the Tribe;

  3. Contribute to the protect the historical and cultural values and traditions of the Tribe, the Nation as a permanent Tribal homeland, and the aboriginal character of the Nation;

  4. Minimize air, water and land from solid and hazardous waste pollution, including contamination of the tribe's aquifers, groundwater, surface waters, drinking water supplies, and all other natural resources;

  5. Enhance standard of living, quality of life, welfare and well-being of all persons within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe;

  6. Provide and promote Tribal environmental protection and services within the Nation, and to regulate environmental activities under principles of Tribal sovereignty; and

  7. Implement, regulate, and enforce environmental standards and criteria, orders and permit conditions, and laws and regulations under the Ordinance, for the sanitary storage, collection, transportation and disposal of all solid waste within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe.

Section 23-2. JURISDICTION UNDER THE WASTE ORDINANCE.

The Tribe asserts inherent sovereignty to exercise civil authority and jurisdiction over the conduct of Tribal members and all other person on all lands within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe. This Ordinance is designed to maintain the environment, natural resources, public health, safety, welfare, political integrity and economic security of the Tribe. Because violations of this Ordinance or any rules or regulations adopted thereunder will demonstrably and seriously impact the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe, this Ordinance, and any rules and regulations adopted thereunder, shall apply to:
  1. all persons within the exterior boundaries of the Nation, without exception, including but not limited to, all Tribal members, and all other person on the Nation, including any Indians who are members of other Indian Tribes, all non-Indians, and any other person as defined under the Ordinance; and

  2. all places and lands located anywhere within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe, including all trust lands, and notwithstanding the issuance of any patent, fee, allotment, right-of-way, lease, and any real property interest of any kind, held by any person as defined under the Ordinance.

Section 23-3. CONSENSUAL RELATIONS AMONG NON-INDIANS, THE TRIBE, AND TRIBAL MEMBERS.


Any person who uses land anywhere within the exterior boundaries of the Nation and any person who enters into agreements or understandings with the Tribe or its members and residents by commercial dealings, contracts, leases, licenses, permits, intergovernmental agreements, or other arrangements, commercial or otherwise, shall be deemed to have entered into a consensual relationship with the Tribe or its members.


Section 23-4. APPLICABILITY.

Any person who is anywhere within the exterior boundaries of the Nation and other lands within the jurisdiction of the Tribe, whether on trust or non-trust lands, agrees to comply with, and is subject to this Ordinance, and any rules or regulations promulgated thereunder, all Tribal laws, and all orders of the Tribal Council, Environmental Department and Tribal Court. All such persons shall have consented to the civil jurisdiction of the Fort McDowell Tribal Court, and shall be subject to civil prosecution, civil penalties, civil damages, or any other civil remedies imposed or awarded by the regulations promulgated thereunder.

Traditional activities associated with cultural or ceremonial practices shall be excluded for the purposes of this Article.


Section 23-5. DEFINITIONS.


In this Article, unless the context otherwise requires, the following terms shall have the meanings herein ascribed to them:
  1. Approved site means a solid waste landfill established and operated in compliance with 40 CFR Part 257 and 258.

  2. Disposal means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water. so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

  3. Household hazardous waste means materials that could be classified as hazardous waste under 40 CFR Parts 261.20 - § 261.35 but are exempt from treatment as hazardous waste under 40 CFR Parts 261.4(b)(1) because households generate them. This category includes non-empty household containers of paint, paint products, household cleaners, automotive fluids, pesticides, pool chemicals, household batteries, and similar materials.

  4. Nation means the Fort McDowell Yavapai Nation.

  5. Open burning means the burning of any materials wherein air contaminants resulting from combustion are emitted directly into the ambient air without passing through a stack or chimney. Open burning includes the burning of any refuse or salvageable material in any device not subject to or designed specifically to comply with the requirements of Article II of this Chapter.

  6. Open dumps means any facility or site where solid waste or hazardous waste is disposed of which is not a sanitary landfill and which does not meet the criteria issued under 40 CFR Parts 257 and 258 and which is not a facility authorized for disposal of hazardous waste.

  7. Operator means the person(s) responsible for the overall operation of a facility or part of a facility.

  8. Owner means the person(s) who owns a facility or part of a facility.

  9. Permitted contractor is a person who has a valid permit from the Fort McDowell Environmental Department to recover and transport solid waste.

  10. Person means an individual, trust, firm, Joint Stock Company, corporation (including a government corporation) partnership, association, Tribe, State, municipality, commission, political subdivision of a State, or any interstate body.

  11. Run-off means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

  12. Run-on means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

  13. Sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, waste supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

  14. Solid Waste means all solid and semi-solid wastes including any garbage, trash, rubbish, refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, such as ashes, dead animals, abandoned vehicles, appliances, infectious wastes, hazardous wastes, street and parking lot cleaning, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point source subject to permit under 33 U.S.C. 1342, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923.) The subcategories for solid waste are as follows:

    1. Appliances, Vehicles, and Equipment: Shall be considered solid waste if they are not in use, are in a state of disrepair, and are not properly stored, thereby causing an unsightly or hazardous condition to exist.

    2. Brush: All large trimmings from trees and shrubbery that cannot be readily place in containers.

    3. Bulky Refuse: Lawn and shrubbery clippings, leaves, weeds, paper, cardboard boxes, rugs, and other materials of lightweight nature.

    4. Hazardous Waste: Any solid waste, as defined in 40 CFR Part 261.3.

    5. Garbage: All waste that is capable of decay or decomposition, excepting sewage and body wastes, and the wrappings and containers resulting from the storage preparation, serving, and otherwise using of foods in or upon all premises.

    6. Manufacturing By-products: Any solid waste resulting from commercial or industrial processes, including but not confined to, produce packaging and shipping.

    7. Recyclable Materials: Any solid waste consisting of postconsumer materials which may be collected, separated, cleansed, treated, or reconstituted and returned to the economic stream in the form of raw materials or products.

    8. Residual Construction Debris: Any solid waste resulting from a construction project which would include lumber, scraps, shingles, plaster, brick, dirt, rock, gravel or concrete. This list is not all-inclusive but provides examples of typical construction debris.

Section 23-6. RESPONSIBILITY FOR STORAGE AND DISPOSAL OF SOLID WASTE.
  1. Any person generating, producing, storing, or any person who has received any solid waste shall be responsible for the proper storage, removal, transport and disposal of solid waste. Solid waste, while being transported, shall be covered, tied or otherwise secured so waste will not be blown or dropped from the transport vehicle until it is legally deposited in an approved site or collected by a permitted contractor.

  2. In addition to other persons who may be responsible as set forth in this section and for the purpose of this chapter, a person generating solid waste is responsible for the lawful storage, removal, transport and disposal of that solid waste until it is legally deposited in an approved site or collected by a permitted contractor.

  3. When solid waste is dumped or deposited in violation of this Article and a particular person is identified three or more times on, in or within the material constituting the solid waste, there shall be a rebutable presumption that the person is responsible for the unlawful dumping of solid waste.

  4. Any person who by contract, agreement or otherwise arranges for the recovery, transport, disposal or dumping of solid waste is responsible for complying with the provisions of this Article regarding solid waste.

Section 23-7. COLLECTION AGENCY.

  1. Solid waste shall only be collected by the Fort McDowell Facilities Maintenance and Utilities Management Department or by commercial haulers that have obtained a permit from the Fort McDowell Yavapai Nation's Environmental Department authorizing private collection. Solid waste deposited for collection shall become the property of the Nation, or the authorized permitted commercial haulers upon collection. No other person shall remove any or all such solid waste so collected.

Section 23-8. PREPARATION OF SOLID WASTE.


All solid waste shall be prepared for collection or disposed of as follows:
  1. Solid Waste. FMYN or the permitted commercial hauler shall provide residential containers approved by the Facilities Maintenance and Utilities Management Department, except when the Nation or the permitted hauler may furnish large dumpsters or containers to commercial or residential customers for the accumulation, storage, and collection of all solid waste. The Facilities Maintenance and Utilities Management Department shall keep the containers in good repair and sanitary condition. Containers found to be no longer serviceable through disrepair or maintained in an unsanitary condition may be condemned by the Facilities Maintenance and Utilities Management Department from further use. All refuse must be suitably contained or properly prepared to be acceptable for collection. Legal notice of condemnation shall consist of a label or tag affixed to the container or notification in person or by mail to the owner or responsible party.

  2. Garbage. Garbage shall be drained and wrapped and placed suitably in a container so as not to attract flies or other organisms that transmits pathogens.

  3. Bulky Refuse. Bulky refuse and furniture shall be placed in containers or beside them or tied in bundles by the community member and set out for collection. The weight of a loaded container or bundle shall not exceed sixty (60) pounds. Discarded boxes should be flat when placed into a commercial dumpster. The Facilities Maintenance and Utilities Management Department Director or designee may provide bulk item service to any residential or commercial customer, which may be subject to the appropriate solid waste fees.

  4. Brush. The community member shall neatly stack brush cut for disposal. Brush may be place in regular refuse containers but must readily fall out when emptied and shall not extend twelve inches (12") over the top edge of the container or be compacted or wedged in a manner which would impede collection. Upon notification by the Environmental Department, residents have ten (10) days to remove brush that does not conform to the requirements of this subsection. The contractors must remove brush trimmed by contractors. Should the resident or contractor fail to comply, the Facilities Maintenance and Utilities Management Department will remove the bush and may charge a fee for the service.

  5. Appliances and Vehicles. The Facilities Maintenance and Utilities Management Department will collect discarded appliances from dwelling premises, which may be subject to the appropriate solid waste fees, that two (2) persons can readily lift into a truck. The Community Member shall remove or cause to be removed all other appliances, vehicles, or equipment classified as solid waste from their premises. Doors shall be removed from all appliances or secured in such a way that no one can enter.

  6. Building Materials. All owners, contractors, and builders of structures shall contain all residual construction material, debris, and solid waste in metal containers or within a fenced enclosure that prohibits the scattering or windblown movement of the material. Upon completion of any structure, the contained debris and/or solid waste shall be hauled at the expense of the contractor, builder, or owner as appropriate. To minimize fire hazard to adjacent structures, the containers or fences enclosures will be located a minimum of fifty feet (50') from any existing structure or structures under construction. Failure to comply with proper containment of construction debris and/or solid waste will result in a written notification by the Environmental Department directing the responsible party to take corrective action within two (2) to ten (10) days depending on the nature of the problem, or the Facilities Maintenance and Utilities Management Department will remove the debris and may bill the responsible party.

  7. By-Products. Any commercial or manufacturing establishment which by the nature of its operation creates an unusual amount of by-product refuse shall be required to dispose of its own waste as opposed to the having the Facilities Maintenance and Utilities Management Department provide the service.

  8. Dangerous and Hazardous Waste. Dangerous wastes shall be placed in a proper container plainly marked "DANGER." The Facilities Maintenance and Utilities Management Department reserves the right to deny service for certain dangerous or hazardous wastes and require that the customer properly dispose of it by other means. Oil should be placed in a separate container, not inside refuse containers.

  9. Cactus. All cacti shall be placed in separate sealed cardboard boxes apart from other refuse. A cardboard box-containing cactus shall be sealed and in condition to sustain the weight of the cactus when lifted. Failure to properly contain cactus will result in denial of service for collection.

  10. Soil and Concrete. Waste soil, manure, concrete, masonry blocks, sod, and rocks shall be disposed by the Community Member, or the Facilities Maintenance and Utilities Management Department will remove the debris and may bill the responsible party.

  11. Ownership of Solid Waste. Solid waste will remain the property and responsibility of the homeowner or Community Member until collected by the Facilities Maintenance and Utilities Management Department, tribal enterprise or private permitted haulers, wherein it becomes the property of the Fort McDowell Yavapai Nation, tribal enterprise or the private permitted haulers, respectively.

  12. Abatement of Health Hazard. In addition to the other remedies provided for in this Section, if the Facilities Maintenance and Utilities Management Department Director, Environmental Department Director or their designee determines that a Community Member's solid waste is creating a health hazard, the Facilities Maintenance and Utilities Management Department may collect the customer's solid waste. Solid waste may be collected as often as necessary in an attempt to abate the health hazard. All collection may be subject to appropriate solid waste fees.

Section 23-9. UNLAWFUL STORAGE, DISPOSAL OR BURNING OF SOLID OR HAZARDOUS WASTE ON THE NATION.

  1. Solid Waste:

    1. Any landfill site on the Nation that has not been authorized to accept waste under 40 CFR Part 258 is considered to be an open dumpsite.

    2. It is expressly prohibited and shall be unlawful, for any person to dispose of, or dump, scatter, or place, or cause to be dumped, scattered or placed, any solid waste as defined under this Article, at or near an open dump site within the exterior boundaries of the Nation, or on any other land within the exterior boundaries of the Nation, except as disposal may be permitted under the Article at a duly authorized and designated MSWLF as defined in 40 CFR Part 258.

    3. It is unlawful to store or accumulate solid waste in a manner that is a hazard to the public health and safety, as determined by the Environmental Department and that solid waste continues to be the stored or accumulated in such a manner for more than fifteen (15) days after receipt of written notice from the Environmental Department of the hazardous condition.

  2. Prohibition of Hazardous Waste:

    1. The receiving, accepting, handling, treatment, storage, processing, dumping, or disposal of regulated hazardous waste, as defined under 40 CFR Part 261.3, anywhere within the exterior boundaries of the Nation is expressly prohibited and unlawful. Transportation of any regulated hazardous waste within the exterior boundaries of the Nation must be in full compliance with Federal law, or is otherwise unlawful.

    2. The collection, storage, transfer, transportation, and disposal off the Nation of conditionally exempt small quantity generator hazardous waste generated on the Nation, is subject to such rules and regulations as the Tribal Council may issue in compliance with Federal law. Any violation of such rules or regulations is expressly prohibited and unlawful.

    3. These prohibitions do not apply to household hazardous waste which is not regulated hazardous waste, and which may lawfully be disposed of at a MSWLF.

  3. Prohibition of Burning of Solid Waste or Hazardous Waste:

    1. It is expressly prohibited, and shall be unlawful, for any person to openly burn except as authorized by Chapter 23 Article 11, Open Burning Ordinance.

  4. Required Permits for the Collection and Transportation of Solid Waste and Municipal Solid Waste Landfills:

    1. All tribal departments and subordinate economic enterprises, private enterprises, or any other persons or entities are required to obtain a permit from the Environmental Department to either collect or transport solid waste.

    2. Any permittee shall be required to comply with this Article, any rule or regulation promulgated pursuant to this Article, all Tribal environmental standards and criteria, all relevant guidance documents, all permit conditions, all orders issued by the Environmental Department under authority of this Article, and all applicable Federal or Tribal laws, environmental in nature or otherwise.

    3. No permittee may collect or transport solid waste without first having obtained a solid waste collection and transportation permit from the Environmental Department.

    4. As a condition for the issuance of a solid waste collection and transportation permit, the Environmental Department shall require every vehicle operated by the transporter to carry a copy of the solid waste permit issued by the Environmental Department. Every vehicle and driver must be licensed and must comply with all applicable safety and insurance requirements.

    5. As a condition for the issuance of a solid waste collection and transportation permit, the transporter agrees to make an annual report by December 1 of each year indicating the number and type of installations emptied or cleaned, the volume and nature of the solid waste disposed of, the place and manner in which such solid waste was finally disposed, and such other information as the Environmental Department may require. A renewal may be denied by the Environmental Department for failure of the permittee to properly and timely file such annual report.

    6. Any tribal department, tribal subordinate economic enterprise, privateenterprise, person or entity may file an application with the Environmental Department for a permit to collect and transport solid waste.

    7. The permit application to transport and collect solid waste must contain the following minimum information:

      1. Name, address, and phone number of all persons owning or holding an interest in the applicant of five (5) percent or more;

      2. Name, address, and phone number of all officers, directors, or partners;

      3. A statement that no officer, director, partner or holder or an interest of five (5) percent or more, has ever been convicted of a felony, and that no felony charges are currently pending;

      4. A statement which discloses in detail any charge, complaint, fine, order, decree, statement, or finding of "no contest" for violation of any Tribal, Federal, State, county or municipal environmental or health law, regulation, permit or condition against an officer, director, partner or holder of an interest of five (5) or more within the past five (5) years, including the jurisdiction, disposition, and name, address and phone number of the person who filed the original charge or complaint, and the name of the Environmental Department, Board, Administrative Body, Judge, Justice of the Peace, Magistrate or Arbitrator who levied or entered any fine, order, penalty, decree, statement, or finding.

      5. A current financial statement of the applicant's net worth, including a description of major assets and liabilities, and any other financial information requested by the Environmental Department.

      6. A description of any judgements rendered against any officer, director, partner or holder of an interest of five (5) percent or more in the applicant, for five (5) years proceeding the date of application.

      7. A description of any bankruptcy or insolvency proceedings instituted by any officer, director, partner, or holder of an interest of five (5) percent or more in the applicant, for five (5) years preceding the date of the application.

      8. Evidence of a bond, letter of credit, or other evidence of security for the adequate protection of the Tribe.

      9. Any other information reasonably requested by the Environmental Department.

Section 23-10. SCAVENGING.

  1. No person, unless authorized by the owner of the solid waste, may remove, collect, or disturb solid waste in a container that is set out for the collection and recycling or disposal by the Fort McDowell Yavapai Nation, its agents, or a permittee.

  2. No person, unless authorized by the Fort McDowell Yavapai Nation, may remove, collect, or disturb recyclable materials deposited for collection at any of the Community's designated recycling drop-off and collection centers.

Section 23-11. RECOVERY OF DISPOSAL COSTS.

  1. If a person violates any provision of this article and as a result, the Fort McDowell Yavapai Nation arranges for or executes the lawful disposal of the solid waste or hazardous waste, that person shall be responsible to the Fort McDowell Yavapai Nation for all reasonable costs and expenses associated with the transportation and proper disposal of the solid waste.

  2. If the Fort McDowell Yavapai Nation or a property owner files suit to collect their reasonable costs and expenses for disposal of the waste as provided in Subsection A of this section, the court may award a reasonable amount as attorney's fees to the prevailing party.

Section 23-12. CIVIL PENALTIES AND CRIMINAL PENALTIES.

  1. Any person who violates any provision of this Article that is specifically criminalized pursuant to Chapter 6 Section 113 of the Criminal Code shall be guilty of a criminal offense. Any person who violates any provision of this Article shall be subject to civil penalty based upon the severity of the offense and be based on the factors set forth in Subsection B of this Section. The Tribal Court may impose a civil penalty either: 1.) Not less that fifty dollars ($50.00) but not more than ten thousand dollars ($10,000) for each violation, or 2.) The actual damage caused plus up to three (3) times the actual damages sustained by the Tribe, the owner, or possessor of the property.

  2. In determining the amount of a civil penalty under this section, the following factors shall be considered:

    1. The seriousness of the violation.

    2. As an aggravating factor only, the economic benefit, if any, resulting from the violation.

    3. Any history of that violation.

    4. Any good faith efforts to comply with this chapter.

    5. The economic impact of the penalty on the violator.

    6. The duration of the violation.

    7. Previous violations of the alleged violator.

    8. Other factors deemed relevant.

Section 23-14. Forfeiture.


Any property used or which could reasonably have been used to commit any violation of this Article, or used in aid of or in conjunction with the commission of an act in violation of this Article, or any thing which was the object of or was intended to be the end result obtained from an act of violation of this Article, upon any land with the Fort McDowell Yavapai Nation shall be subjected to forfeiture. The authorization requirements, and procedures set out in Chapter 7.5, Sections 7.5-9, Seizure and Forfeiture of Property and 7.5-10, Forfeiture Proceedings shall apply to all forfeiture actions under this Article, any reference to civil trespass in Chapter 7.5 shall mean a violation of this Article.


Section 23-15. Enforcement Process.


The enforcement process of this ordinance shall be accomplished in the following manner:
  1. Any person or entity having knowledge of a violation or potential violation of this ordinance should report the information to either the Tribal Police Department or the Tribal Environmental Department.

  2. The Environmental Department in consultation with the Tribal Police Department shall determine whether there is reasonable cause to believe that the alleged violation constitutes a serious violation (major offense) of this ordinance. A major offense includes an immediate threat to public health or the environment.

  3. If it is determined that there is reasonable cause to believe that an immediate threat to public health or the environment exists, then the following process shall apply:

    1. The Environmental Department shall notify that Tribal Prosecutor's Office. The Tribal Prosecutor is authorized to file an action on behalf of the Tribe for a temporary restraining order, a preliminary injunction, a permanent injunction, criminal penalties, civil penalties or any other relief provided by law. Other legal possessors of land on the Nation such as Tribal Member Assignees or lessees who have sustained damages as a result of the alleged violation may either (i) join in the action filed by the Tribal Prosecutor or (ii) file an action to recover their damages in the event the Tribe elects not to file an action. If a possessor(s) of land joins an action by the Tribe, the Court shall apportion the receipt of any monetary penalties in an equitable manner based upon the loss suffered by each party.

    2. A temporary restraining order may be granted without written or oral notice to the alleged violator or that alleged violator's attorney if (i) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and/or irreparable injury, loss, or damage will result to the Tribe or third party, and (ii) the Tribe or the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required.

    3. The Environmental Department, in cooperation with the Tribal Police Department, shall investigate the allegations and issue a report of its findings to the Court.

    4. The Tribal Court shall schedule the appropriate hearing(s) and/or trial and decide the allegations of the complaint or motion.

  4. If it is determined that the alleged violation constitutes a minor offense, the following process shall apply:

    1. The Environmental Department shall issue a notice by certified mail to the alleged violator, with a copy to the Tribal Police Department, advising the alleged violator that they have ten (10) days to correct the alleged violation.

    2. Upon the expiration of the ten (10) days, the Environmental Department shall notify the Tribal Police Department if the alleged violation has not been corrected and shall prove a recommendation regarding the assessment of an appropriate fine. The Tribal Police Department shall then issue a civil summons and ticket to the alleged violator. The summons shall state the date and time to appear before the Tribal Court. The ticket shall indicate the alleged violation(s), the alleged date(s) of said violation(s), and the amount of the assessed fine. The alleged violator may either (i) appear and contest the allegations, or (ii) pay the fine and be relieved of the obligation to appear at the court. The payment of the fine in this subsection shall not relieve the alleged violator of his duty to comply with this ordinance.

    3. If the alleged violator elects to contest the allegations, the Tribal Court shall hear the matter. The Tribal Court may, in its discretion based upon the individual facts of the case, either (i) issue a warning for the first offense of a minor nature, (ii) decrease the assessed fine, or (iii) uphold the assessed fine.

  5. If the Environmental Department or the Police Department believes that a violation of Federal laws exists, a meeting shall be scheduled which shall include representatives from the Environmental Department, the Police Department, the Prosecutor's Office and the Tribal Attorney's Office. After this meeting, the Tribal Attorney shall notify the Tribal Council of the matter and shall assume responsibility for making a recommendation in the manner of proceeding.

Section 23-16. REPEAL OF PREVIOUS LAWS, ORDINANCE AND POLICIES AND EFFECTIVE DATE.


Except for Chapter 6, Section 6-113, this article shall supercede any and all prior solid waste laws, ordinances, or policies of the Tribe including but not limited to Solid Waste Collection and Treatment/Disposal Policy dated December 2, 1993. This Article shall be effective on the date approved by Tribal Council.


Section 23-17. SEVERABILITY.

If any provision of this article is deemed unenforceable, the remainder of this article shall continue in full force and affect.


Section 23-18. CHANGES TO FEDERAL LAW.


Any references to federal statutes, regulations, or other laws in this Waste Ordinance shall refer to that section as it may be amended, modified or renumbered from time to time.

(Section 23-19 through 23-50. Reserved.)



ARTICLE II. OPEN BURNING ORDINANCE

Section 23-51. DEFINITIONS
.

In this Article, unless the context otherwise requires, the following terms shall have the meanings herein ascribed to them:
  1. Agricultural waste means any matter generated by crop, horticultural, or livestock production practices, and includes such items as bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities, but does not include land clearing waste; buildings; garbage; dead animals; motor vehicles and parts thereof; nor pesticides and containers thereof, unless the manufacturer has identified open burning as a safe disposal procedure.

  2. Garbage means all waste that is capable of decay or decomposition, excepting sewage and body wastes, and the wrappings and containers resulting from the storage preparation, serving, and otherwise using of foods in or upon all premises.

  3. Landscape waste means any plant matter, except garbage, including trees, tree trimmings, branches, stumps, brush, weeds, leaves, grass, shrubbery, yard trimmings, and crop residues.

  4. Land clearing waste means plant matter which is removed from land, including plant matter removed from stream banks during projects involved more than one property owner, for the purpose of rendering the land useful for residential, commercial, or industrial development.

  5. Environmental Department means the designated Environmental Department of the Fort McDowell Yavapai Nation. The person(s) authorized at act on behalf of the Environmental Department is the Fort McDowell Yavapai Nation's Environmental Department Director or his/her authorized representative.

  6. Open burning means the burning of any materials wherein air contaminants resulting from combustion are emitted directly into the ambient air without passing through a stack or chimney.

  7. Residential waste means any matter, including landscape wastes, generated on a one-, two- or three- family residence as a result of residential activities, but not including garbage.

Section 23-52. RELATIONS TO OTHER PROHIBITIONS.
  1. Notwithstanding any provisions in this Article of the Tribal Code, no open burning shall be conducted in an area where a governmental entity having jurisdiction regarding air quality on the reservation issues an air alert, warning, or emergency.

  2. No provisions of this Article of the Tribal Code, permitting open burning, and no permission to open burn granted by the Environmental Department, shall exempt any person from compliance with any section of the Tribal Code.

Section 23-53. OPEN BURNING.
  1. No person or property owner shall cause or allow open burning within the exterior boundaries of the Fort McDowell Yavapai Nation except as provided in paragraphs (B) and (C) of this Article. In the event of extreme fire danger then open burning shall only be allowed as set forth insubsection C.

  2. Open burning shall be allowed for the following purposes without notification to or permission from the Environmental Department:

    1. Cooking for human consumption;

    2. Branding, heating tar, welding, acetylene torches, highway safety flares, heating for warmth of outdoor workers, smudge pots and similar occupational needs.

    3. Ceremonial fires.

      Fires allowed by paragraphs (B) (1) and (B) (2) of this rule shall not be used for waste disposal purposes and shall be of minimum size sufficient for their intended purpose; the fuel shall be chosen to minimize the generation and emission of air contaminants.

  3. Open burning shall be allowed for the following purposes upon receipt of a permit from the Environmental Department provided that the following conditions specified in the permission are followed:

    1. Disposal of ignitable or explosive materials where the Environmental Department determines that there is no practical alternate method of disposal;

    2. Instruction in methods of fire fighting or for research in the control of fires;

    3. In emergency or other extraordinary circumstances for any purposes determined to be necessary by the Environmental Department.

    4. Recognized horticultural, silvicultural, range, or wildlife management practices.

    5. Disposal of land clearing waste, landscape waste and agricultural waste only if the following conditions are observed:

      1. The fire is set only when atmospheric conditions will readily dissipate contaminants;

      2. The fire does not create a visibility hazard on roadways;

      3. The fire is located at a point on the premises not less than one thousand feet from any inhabited building not located on said premises; and

      4. The wastes are stacked and dried to provide the best practicable condition for efficient burning; and

      5. No materials are burned that contain rubber, grease, asphalt or liquid petroleum products.

Section 23-54. PERMITS AND NOTIFICATION TO THE ENVIRONMENTAL DEPARTMENT.
  1. The following permit process shall apply:

    1. An application for a permit to open burn shall be submitted in writing at least ten (10) days before the fire is to be set. The application shall be in such form and contain such information as required by the Environmental Department.

    2. Such applications shall contain, as a minimum, information regarding:

      1. The purpose of the proposed burning;

      2. The nature of quantities of material to be burned;

      3. The date or dates when such burning will take place;

      4. The location of the burning site, including a map showing distances to residences, populated areas, roadways, and other pertinent landmarks; and

      5. The methods or actions that will be take to reduce the emissions of air contaminants.

    3. A permit to open burn shall not be granted unless the applicant demonstrates to the satisfaction of the Environmental Department and Fire Department that open burning is necessary to the public interest; will be conducted in a time, place, and manner as to minimize the emission of air contaminants; and will have no serious detrimental effect upon adjacent properties or the occupants thereof. The Environmental Department and the Fire Department may impose such conditions as may be necessary to accomplish the purpose of this Article of the Tribal Code.

    4. A permit to open burn must be obtained for each specific project. In emergencies where public health or environmental quality will be seriously threatened by delay while a permit is sought, the fire may be set with oral permission of the Environmental Department and the Fire Department.

    5. Any open burning shall be constantly attended until the fire is extinguished. Fire extinguishing equipment shall be available for immediate use. Open burning shall be extinguished at dark.

    6. Violations of any of the conditions set forth by the Environmental Department in granting a permit to open burn shall be grounds for revocation of such permit and refusal to grant future permits, as well as for the imposition of other sanctions provided by law.

Section 23-55. CIVIL PENALTIES AND CRIMINAL PENALTIES.

  1. Any person who violates any provision of this Article that is specifically criminalized pursuant to Chapter 6 Section 113 of the Criminal Code shall be guilty of a criminal offense. Any person who violates any provision of this Article shall be subject to civil penalty based upon the severity of the offense and be based on the factors set forth in Subsection B of this Section. The Tribal Court may impose a civil penalty either: 1.) Not less than fifty dollars ($50.00) but not more than ten thousand dollars ($10,000) for each violation, or 2.) The actual damage caused plus up to three (3) times the actual damages sustained by the Tribe, the owner, or possessor of the property.

  2. In determining the amount of a civil penalty under this section, the following factors shall be considered:

    1. The seriousness of the violation.

    2. As an aggravating factor only, the economic benefit, if any, resulting from the violation.

    3. Any history of that violation.

    4. Any good faith efforts to comply with this chapter.

    5. The economic impact of the penalty on the violator.

    6. The duration of the violation.

    7. Previous violations of the alleged violator.

    8. Other factors deemed relevant.

      Any person or persons who shall set or start or fuel an open fire without permit, as required by this article, or who fails to comply with any request to cease burning, shall pay to the Nation a service charge including all costs and charges incurred by the Nation by reason of calling the Nation's Fire Department or any other fire department. The Nation may sue in any court of competent jurisdiction for its service charges as civil damages, and may recover such costs and expenses incurred by the Nation and the Nation's Fire Department from any person who sets such an open fire.

Section 23-56. FORFEITURE.


Any property used or which could reasonably have been used to commit any violation of this Article, or used in aid of or in conjunction with the commission of an act in violation of this Article, or any thing which was the object of or was intended to be the end result obtained from an act of violation of this Article, upon any land with the Fort McDowell Yavapai Nation shall be subjected to forfeiture. The authorization requirements, and procedures set out in Chapter 7.5, Sections 7.5-9, Seizure and Forfeiture of Property and 7.5-10, Forfeiture Proceedings shall apply to all forfeiture actions under this Article, any reference to civil trespass in Chapter 7.5 shall mean a violation of this Article.


Section 23-57. ENFORCEMENT PROCESS.


The Tribal Prosecutor is authorized to file an action on behalf of the Nation for a temporary restraining order, a preliminary injunction, a permanent injunction, criminal penalties, civil penalties or any other relief provided by law.


Section 23-58. REPEAL OF PREVIOUS LAWS, ORDINANCE AND POLICIES AND EFFECTIVE DATE.


This article shall not supercede the following sections of the Tribal Code: Section 6-118. Negligent Handling of Campfire and/or Negligent Starting of a Fire; Section 6-108.01. Reckless Burning; Section 6-108.02. Negligent Burning; Section 6-108.03. Arson; Section 6-108.04. Causing a Brush Fire; and Section 6113 Unlawful Dumping or Burning. This Article shall be effective on the date approved by Tribal Council.


Section 23-59. SEVERABILITY.

If any provision of this article is deemed unenforceable, the remainder of this article shall continue in full force and affect.

(Section 23-60 through 23-100. Reserved.)







Ft. McDowell Yavapai Nation
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

President Dr. Clinton M. Pattea
Vice President
Robin Russell
Treasurer
Larry Doka
Council Member
Gwen Bahe
Council Member
Benedict Smith, Sr.

Resolution No. Ft. McD 2000-146

WHEREAS,
The Fort McDowell Yavapai Nation Tribal Council is dedicated to protecting the health, safety and welfare of its people and the land within its exterior boundary;

WHEREAS,
the Fort McDowell Yavapai Nation wishes to ensure that the air quality is maintained which supports public health and aesthetic values; and

WHEREAS,
the Council recognized the intimate relationship between the natural environment and the quality of life of human beings; and

WHEREAS,
it is not the intent of this Open Burning Ordinance to impose unnecessary restrictions on the cultural and customary practices of the people of the Fort McDowell Yavapai Nation.

NOW THEREFORE BE IT RESOLVED, that the Open Burn Ordinance is hereby approved and shall be known as the Open Burn Ordinance, Chapter 23, Article II of the Tribal Law and Order Code.

BE IT ALSO RESOLVED,
that the Tribal Council adopts revised Section 6-113, Unlawful Dumping or Burning of the Tribal Law and Order Code.

BE IT FUTHER RESOLVED,
that any Ordinance, Article, Code, Resolution, or Rule in conflict with the Open Burning Ordinance and/or the revised Section 6-113 in whole or in part, is rescinded to the extent that such conflict exists.

BE IT FINALLY RESOLVED,
that the President, or his designee, is hereby authorized to sign and otherwise execute all documents necessary to carry out the intent of this Resolution.

CERTIFICATION

Pursuant to the authority contained in Article V, Section 13 (A)(2)(3)(6) & (21), and (B)(1)(2) of the Constitution of the Fort McDowell Yavapai Nation ratified by the Tribe on October 19, 1999, and approved by the Secretary of the Interior on November 12, 1999, the foregoing resolution was adopted this 13th day of December, 2000, at a Council Meeting held at Fort McDowell at which a quorum of 5 members were present, 0 absent, by a vote of 3 for and 1 opposed and 0 abstained.

Dr. Clinton Pattea
President
Fort McDowell Yavapai Nation

Mona Nunez

Secretary
Fort McDowell Yavapai Nation

12-13-00
Date








Ft. McDowell Yavapai Nation
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

President Dr. Clinton M. Pattea
Vice President
Robin Russell
Treasurer
Larry Doka
Council Member
Gwen Bahe
Council Member
Benedict Smith, Sr.

Resolution No. Ft. McD 2000-147


WHEREAS, the Fort McDowell Yavapai Nation Council (the "Council") is authorized to enact ordinances to protect the health, peace, morals, and general welfare of the For McDowell Yavapai Nation and its members; and

WHEREAS,
Community members are affected by the general physical appearance of the Community; and

WHEREAS,
a considerable problem exists due to litter and illegal dumping along the roads and the within the exterior boundaries of the Reservation which poses a threat to the quality of the environment and the quality of life of the Community residents; and

WHEREAS, the Facility Maintenance and Utilities Management Department does provide waste collection for each household in the Community; and

WHEREAS,
the failure to control litter and trash adversely affects the health and general welfare of the Community.

NOW THEREFORE BE IT RESOLVED,
that the Waste Ordinance is hereby approved and shall be known as the Waste Ordinance, Chapter 23, Article I of the Tribal Law and Order Code.

BE IT ALSO RESOLVED, that the Tribal Council adopts revised Section 6-113, Unlawful Dumping or Burning of the Tribal Law and Order Code.

BE IT FUTHER RESOLVED,
that any Ordinance, Article, Code, Resolution, or Rule in conflict with the Waste Ordinance and/or the revised Section 6-113 in whole or in part, is rescinded to the extent that such conflict exists.

BE IT FINALLY RESOLVED
that the President, or his designee, is hereby authorized to sign and otherwise execute all documents necessary to carry out the intent of this Resolution.

CERTIFICATION


Pursuant to the authority contained in Article V, Section 13 (A)(2)(3)(6) & (21), and (B)(1)(2) of the Constitution of the Fort McDowell Yavapai Nation ratified by the Tribe on October 19, 1999, and approved by the Secretary of the Interior on November 12, 1999, the foregoing resolution was adopted this 13th day of December, 2000, at a Council Meeting held at Fort McDowell at which a quorum of 5 members were present, 0 absent, by a vote of 4 for and 0 opposed and O abstained.

Dr. Clinton Pattea
President
Fort McDowell Yavapai Nation

Mona Nunez

Secretary
Fort McDowell Yavapai Nation

12-13-00

Date

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