How federal environmental legislation promoted tribal-regional consolidation

The 5 December 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers appellate court ruling in favor of the Standing Rock Sioux tribe’s request for cease of construction of the Dakota Access Pipeline adjacent to the territorial boundaries of the Native nation by Energy Transfer Partners. The landmark decision to deny the easement required for permit of the $3.8 billion under- construction pipeline that would carry crude oil 1,200 miles across four states, to bore under Lake Oahe, was based on legislation protecting federal lands.

Standing Rock has become synonymous with protest, as the tribe has maintained its Treaty rights extend beyond the territory in question. Now indisputable that federal environmental legislation preempts the company’s rights to continue construction under a protected waterway, as well as tribes claim of sovereign territorial jurisdiction of those waters. This follows a 9 September 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers federal court decision, and statement by three federal agencies in September 2016, that would have allowed Energy Transfer Partners to proceed with the pipeline construction.

CERCLA, CWA, FWPCAA, and Oil Pollution Act of 1990

The federal appellate court ruling in favor of the Standing Rock Sioux Tribe DAPL complaint, reflects judicial adherence to Clean Water Act 33 U.S.C. §1251 et seq. (1972) and related regulation protecting national waterways. Legislative foundation to induction of the Environmental Protection Agency (EPA) itself under President Nixon, the CWA was informed by the Federal Water Pollution Control Amendments (FWPCAA) 33 U.S.C. §1251- 1376 et seq. (1948), amended between 1952 and 1988. The goals of the CWA ensure healthy access to water by humans and wildlife. Regulation of dischargers is outlined in the guidelines to permit for, and control of oil spillage, and effluents from factories and wastewater plants under the National Pollutant Discharge Elimination System (NPDES) of 1972.

Prior to enactment of the CWA, the Federal Water Pollution Control Act of 1948 provided the basis regulation and: 1) establishment of a regulatory framework to pollutants discharge control in the jurisdictional waters of the US; 2) formative basis to Environmental Protection Agency (EPA) policy and administration; 3) a system of standards to audit and control of contaminants; 4) codified restrictions on use of waterways; 5) financial allocation guidelines to planning of municipal construction of sewage and related facilities; and 6) procedure to surface water pollution response. Oil spillage is part of the surface-water-quality index definition of primary water pollutants in addition to heavy metals, synthetic organic compounds, and dissolved solids.

By 1990 the Oil Pollution Act 33 U.S.C. §2701 et seq. amended the CWA to include Spill Prevention Control and Countermeasure Plans for oil transport in waterways, as well as compliance audit, mandated by state EPAs or Departments of Environmental Management (DEMs). Monitoring of Total Maximum or Daily Loads (TMDL) is part of the state-by-state strategy for the control and reporting of industrial pollutant flows in waterways. Distributors and indirect dischargers involved in the treatment of effluents such as chemicals, oils, and waste, must perform those processes in accordance with the standards laid forth by EPA federal regulation.

Wetlands defined in the CWA classify types of wetlands preserves, and abatement and control measures allowed by classification. Other regulatory guidelines to the CWA provide for rules to: groundwater contamination; combined sewer overflow; and farm run-off. The Coastal Zone Management Act 16 U.S.C. ch. 33 § 1451 – 1464 (1972) furthers regulatory enforcement of the management and use of ocean and great lake fronts. The Safe Drinking Water Act (SDWA) 42 U.S.C. §300f et seq. (1974) supports public health administration in Food & Drug Administration (FDA) control of municipal waterways in accordance with EPA rules to testing of drinking water for microbial pathogens, oil and other chemicals such as pesticides.

The Comprehensive Environmental Response, Compensation, and Liability Act 42. U.S.C. §9601–9675 (1982) Superfund policy for taxation of chemicals is a system of federal accountability which allows the EPA to monitor and fine non-compliant entities. The decision by the appellate court to refuse the easement allowing for construction permit of DAPL, is in part based on Energy Transfer Partners inability to follow CERCLA guidelines. CERCLA sets limits to pollution in compliance with U.S. federal government regulatory rules, and serves to determine the scope of liability companies sustain for contamination of the environment, in cases involving oil spills and other toxic releases in federal waterways.

Superfund also involves a public action warning system to mitigate exposure. The policy is intended to leverage EPA compliance for long-term remediation of risk, and legal representation on behalf of the public good. EPA enforcement of protections of waterways from manufactured chemicals, oil, pesticides etc., and waste disposal of those products follows CERCLA guidelines.

DAPL: A Tribal-Public Choice

During the DAPL protests, the question has been effectively asked, “so is it federal land or Sioux land?”, pointing to the issue of sovereignty bound with a protest waged against big oil, and the threat of toxic tort violations to reservation waterways. In a Native American Indian political context undergoing change, the opportunity to restate Treaty rights asserts an interest in consolidation of adjacent lands to reservation governance for the protection and betterment of those natural reserves and waterways, through the enforcement of federal regulatory legislation. Such as scenario would put the federally recognized tribal nation in the role of political leadership; prioritizing an agenda of federal land and waterways preservation and conservation, and participatory governance of the region with private land owners.

by: Tamara Campbell


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5 Must Have Estate Planning Documents

Estate Planning-5 Essential Documents you Must Have

When estate planning is mentioned, a lot of people think that this only means drafting a will or a trust and you’re done. Nonetheless, estate planning entails a lot of other factors that ensure that your assets are transferred to your preferred heirs upon your death.  Furthermore, you need to include provisions to ensure that your family members can access or take control of your finances and assets should you become disabled. To make sure that you’ve included everything, it’s important to consult an estate planning attorney, spanish fork. Here are some items you need to have on your estate plan.

Trust or will

Even if you don’t have substantial assets, you need a will or trust. A will ensures that your property is passed according to your wishes. Trusts also limit legal challenges and estate taxes. It’s important to pay attention to the wording. You don’t want a scenario where you’ve assigned the same assets to two different people. This could lead to a will contest and a rivalry between the two people caught up in this situation.

Power of attorney

It’s essential to draft a durable power of attorney so that the person or agent assigned to act on your behalf is at liberty to act in the event of your disability. If you fail to assign this, the court may be forced to decide what happens to your assets in the case you’re found to be mentally incompetent to handle your finances and make decisions.

Have your attorney help you come up with a power of attorney as this is what gives the agent the power to enter into financial transactions, transact real estate and make any decisions on your behalf. Be sure to choose an agent you completely trust and are comfortable with.

Beneficiary designations

A beneficiary designation lists down the people to benefit from your possessions. Have all your insurance plans and retirement accounts contain a beneficiary and a contingent beneficiary if you’ve not already included them in the will. Failure to name your beneficiaries may force the court to decide the next course of action. Only name beneficiaries who are over 21 years and are mentally competent, otherwise the court may have to get involved.

Letter of intent

This is a document left by you to a beneficiary or executor. Its purpose is to decide what you want done with particular assets if you are incapacitated or deceased. Some letters of intent also indicate any special requests you may have had and details of how you’d like your funeral to be.

Healthcare power of attorney

This document allows you to designate another person who will make important t health decisions on your behalf. It can be a family member or a spouse. Always pick someone you trust and would likely recommend something you would agree with. Having a backup agent is recommended in case you initial one is unavailable to act when needed.

Preparing for the unexpected is always important. Have an estate planning help you draft all the important documents that lists your beneficiaries who will get your assets in the event of your death. Having an agent gives you the peace of mind knowing that someone capable is able to make important decisions on your behalf.