40.17.220 Relationship Between Penalty Amount Sought in an Administrative Action and Accepted in Settlement

The Tribal Administrative Procedures Act (TAPA) for administrative proceedings shall be utilized by the TMBCI/EPA to include a specific proposed penalty in the complaint or at a later specified time. The TMBCI/EPA shall provide the respondent with an explanation of how the penalty was calculated in accordance with any criteria set forth in the TAPA. This Policy requires that enforcement personnel calculate a proposed penalty (and include this amount and the underlying rationale for adopting it either in methodology for calculating penalty amounts which would be acceptable to the Tribal Court in settlement of administrative and judicial enforcement actions. The dollar amount of the proposed penalty that will be sought in the administrative hearing may exceed the amount of the penalty the Agency would accept in settlement. This may be so for several reasons:

(a) At the time the complaint is filed, the TMBCI/EPA will often not be aware of mitigating factors (then known only to the respondent) on the basis of which the penalty may be adjusted downward.

(b) It is appropriate that the TMBCI/EPA have the enforcement discretion to accept in settlement a lower penalty than it has sought (in its complaint, because in settling a case the TMBCI/EPA is able to avoid the costs and risks of litigation. Moreover, respondents must perceive that they face some significant risk of higher penalties through litigation to have appropriate incentives to agree to penalty amounts acceptable to the TMBCI/EPA in settlement.