OFF-RESERVATION ENVIRONMENTAL IMPACTS ORDINANCE (2021)
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OFF-RESERVATION ENVIRONMENTAL IMPACTS ORDINANCE
Of The Hoopa Valley Tribe
Title 64
ORDINANCE NO. — 03-00
DATE APPROVED: July 20, 2000 and October 1, 2021
SUBJECT:
WHEREAS:
WHEREAS:
‘WHEREAS:
' WHEREAS:
WHEREAS:
WHEREAS:
WHEREAS:
Compact-required ordinance providing for the preparation, circulation and
consideration by the Tribe of environmental impact reports concerning potential off-
Reservation environmental impacts related to the construction, renovation, expansion
of or modification to Class III gaming facilities.
The Hoopa Valley Tribe (Tribe) adopted its Constitution and Bylaws on June 20,
1972, approved by the Commissioner of Indian Affairs on August 18, 1972,
confirmed and ratified by the United States Congress in October 1988, in Public Law
100-580, the Hoopa-Yurok Settlement Act, and thereafter amended on June 18, 1996;
The Hoopa Valley Tribal Council is the governing body of the Hoopa Valley Tribe
pursuant to authority expressed in Article V Section 1 of the Constitution;
The Hoopa Valley Tribal Council is authorized to promulgate and enforce ordinances
governing the conduct of members and nonmembers of the Hoopa Valley Tribe;
The Hoopa Valley Tribe and the State of California (State) entered into a tribal-state
gaming compact pursuant to the Indian Gaming Regulatory Act of 1988 (25 U.S.C.
§ 2701 et seq.) in September, 1999;
The voters of California approved Proposition 1A on March 7, 2000 thereby
amending the California Constitution to authorize the scope of gaming contained in
the tribal-state gaming compact;
The Tribe and the State agreed to an amended Compact executed on September 10
and October 19, 2018 (Compact);
The Compact, at section 11, requires the Tribe to adopt an ordinance providing for
the preparation, circulation, and consideration by the Tribe of environmental impact
reports concerning potential off-reservation environmental and economic impacts of
any Project, as defined in the Compact, and sets out requirements for the preparation
of a tribally-commissioned environmental impact report (EIR) addressing mitigation
of any significant effects on the off-reservation environment;
Off-Reservation Environmental Impacts Ordinance Page 1
NOW, THEREFORE, BE IT RESOLVED THAT: the enactment of this Ordinance promotes the
public health, safety and welfare and is in the public interest;
- BEIT FURTHER RESOLVED THAT: the Tribal Council hereby adopts this Ordinance in order
to comply with the requirements of the Compact to the extent those provisions are authorized by
IGRA. .
64.1. SHORT TITLE
This Ordinance shall be known and may be cited as the Off-Reservation Environmental
Impacts Ordinance or Title 64.
642. SCOPE
This Ordinance shall only apply to the Hoopa Valley Tribe and shall be limited to Projects
as defined herein.
. 64.3. PURPOSE
The purpose of this Ordinance is to comply with the requirements of the Compact. It is also
the purpose of this Ordinance to provide a means to ensure that significant off-reservation
environmental impacts caused by a Project commenced in relation to the Tribe’s gaming operation,
as defined herein, are identified and mitigated to the fullest extent possible.
64.4, DEFINITIONS
64.4.1. “Board of Supervisors” means the Humboldt County Board of Supervisors.
64.4.2. “Casino” means the Lucky Bear Casino or its successor.
64.4.3. “Class III gaming” means the forms of Class II gaming defined as such by IGRA as
well as by any regulations of the National Indian Gaming Commission.
64.4.4, “Compact” means the tribal-state gaming compact between the Tribe and the State
of California and any amendments thereto.
64.4.5, “Council” means the Hoopa Valley Tribal Council as established by the Hoopa
Valley Tribal Constitution and Bylaws.
64.4.6. “Environmental Impact Report” or “EIR” means any environmental assessment,
environmental impact report or environmental impact statement, at the case may be.
64.4.7. “Gaming Activities” means Class III gaming activities as defined in IGRA, that are
authorized under the Compact.
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- 64.4.8. “Gaming Facility,” as defined in the Compact, means any building in which Class III
Gaming Activities or Gaming Operations occur, or in which the business records,
receipts, or other funds of the Gaming Operation are maintained (but excluding
offsite facilities primarily dedicated to the storage of those records, and financial
institutions), and parking lots, walkways, rooms, buildings, including hotels, and
areas that provide amenities to Gaming Activity patrons, if and only if the principal
purpose of which is to serve the activities of the Gaming Operation.
64.4.9. “Gaming Operation,” means the business enterprise that offers and operates Class III
gaming activities, whether exclusively or otherwise.
64.4.10. “IGRA” means the Indian Gaming Regulatory Act of 1988 (25 U.S.C. § 2701 et seq.),
any amendments thereto and all regulations promulgated thereunder.
64.4.11. "Interested Persons" means (i) all local, state, and federal agencies, which, if a Project
- were not taking place on Indian lands, would have responsibility for approving the
Project or would exercise authority over the natural resources that may be affected
by the Project, (ii) any incorporated city within ten (10) miles of the Project, and (iii)
persons, groups, or agencies that request in writing a notice of preparation of a draft
tribal environmental impact report, or have commented on the Project in writing to
the Tribe or Humboldt County.
64.412. “Off-Reservation’” means outside the exterior boundaries of the Hoopa Valley Indian
Reservation and as hereafter constituted and within six (6) miles of the exterior
boundaries of the Reservation.
64.4.13. “Project,” as defined by Compact, section 2.21, means (i) the construction of a new
7 Gaming Facility, or (ii) renovation, expansion, or modification of an existing Gaming
Facility, or (iii) other activity involving a physical change to the reservation
environment, provided the ‘principal purpose of which is directly related to the.
activities of the Gaming Operation, and any one of which may cause a Significant
Effect on the Off-Reservation Environment.
| 64.4.14. “Reservation” means the Hoopa Valley Indian Reservation, and as hereafter
constituted, including lands otherwise held in trust for the Tribe by the United States.
64.4.15. “Significant Effect to the Off-Reservation Environment,” means the same as
“Significant Effect(s) on the Environment” and means a substantial or potentially
substantial adverse change in any of the physical conditions within the area affected
by the Project including land, air, water, minerals, flora, fauna, ambient noise,
cultural areas and objects of historic, cultural or aesthetic significance. As provided
by Compact, section 2.21, a Significant effect on the Off-Reservation Environment
occurs if any of the following conditions exist:
Off-Reservation Environmental Impacts Ordinance Page 3
(a) A proposed Project has the potential to degrade the quality of the offreservation environment, curtail the range of the environment, or achieve
short-term, to the disadvantage of long-term, environmental goals.
(b) The possible effects of a Project on the off-reservation environment are
individually limited but cumulatively considerable. (“Cumulatively
considerable” means that the incremental effects of an individual Project
are considerable when viewed in connection with the effects of past
projects, the effects of other current projects, and the effects of probable
future projects.)
(c) The off-reservation environmental effects of a Project will cause substantial
' adverse effects on human beings, either directly or indirectly.
64.4.16. “State” as defined in the Compact, means the State of California or an authorized
official or agency thereof designated by the Compact or by the Governor of the State
of California.
64.4.17. “Tribe” means the Hoopa Valley Tribe, its departments and entities, including the ©
Lucky Bear Casino.
64.5. SIGNIFICANT ENVIRONMENTAL IMPACT DETERMINATION
In the exercise of sovereignty and in accordance with Compact, section 11(c), and the terms of
this Ordinance, the Tribe shall be the lead agency for purposes of making determinations
regarding the environmental impacts of proposed Projects, assessing environmental impacts,
'.. conducting consultation, if any, issuing findings, conducting and certifying environmental
evaluations, and selecting alternatives and mitigation measures necessary to implement the
policies and procedures set forth in this Ordinance.
The policies and purposes of the National Environmental Policy Act (NEPA) and California
‘Environmental Quality Act (CEQA) consistent with the Tribe's governmental interests shall be
‘the basis for this evaluation. The procedures for tribal review of the potential off-reservation
environmental impacts of Projects are as follows. .
64.6. INITIAL ENVIRONMENTAL ASSESSMENT
For every proposed Project, an initial environmental assessment shall be conducted either by the
Tribe itself, using its own Tribal Environmental Agency staff and resources (TEPA), or by a —
‘consultant engaged under contract with the Tribe (consultant). The Tribe shall take appropriate
' action to initially determine whether a proposed Project will have a Significant Effect on the Off-
Reservation Environment. Appropriate action requires consideration of the factors identified in
the environmental checklist attached to the Compact as Appendix B (Environmental Checklist).
_ This assessment also includes consideration of all phases of project planning, implementation
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. . and operation. In addition, the Tribe may consult with the Gaming Operation or other entity
responsible for managing the Project to determine if the proposed Project may be revised to
avoid or reduce any environmental impacts.
64.6.1. Findings Regarding Significant Effects on the Off-Reservation Environment.
64.6.1.1. Negative Declaration. Based on an environmental evaluation, the Tribe may
issue a Negative Declaration (also referred to as a Finding of No Significant
Impact or FONSD, if the Tribe determines the Project will not result in a
Significant Effect on the OffReservation Environment or there is substantial
evidence that any Significant Effect on the Off-Reservation Environment
identified in the environmental assessment would be avoided or mitigated by
revision(s) to the Project.
64.6.1.1.1. A Negative Declaration may be made based on an existing
Environmental Impact Report prepared for an earlier Project.
64.6.1.1.2. Notice of Negative Declaration. Within 30 days of any decision
supporting a Negative Declaration, the Tribe shall notify the State
of any Negative Declaration and provide supporting documentation
concerning the proposed Project to the State Clearinghouse in the
Office of Planning and Research and the Humboldt County Board
of Supervisors.
64.6.2. _ Environmental Impact Report. Alternatively, if the environmental evaluation reveals.
the potential for a Significant Effect on the Off-Reservation Environment, the Tribe
shall prepare an environmental impact report (EIR) i in accordance with the following
procedures.
64.7, PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT
Upon a determination that a Project may have a Significant Effect on the Off-Reservation
- Environment, the Tribe, through the TEPA or a consultant, shall cause the preparation of a draft
EIR.
64.7.1. Each EIR shall go through both a draft and final stage. A draft EIR shall serve as the
_ basis for public review and consultation between the Humboldt County Board of
Supervisors and the Tribe. A final EIR is the document memorializing the Tribe’s |
assessment of potential Significant Impacts on the Off-Reservation Environment and
decisions regarding mitigation measures. :
64.7.2. Contents of an Environmental Impact Report.
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An EIR shall provide detailed information, as described in Compact, section 11.1, about the
Significant Effect(s) on the Off-Reservation Environment, and include the following:
(a) A table of contents;
(b) A project summary; —
(c) A detailed description of the project;
(d) A description of the local and regional off-reservation environment in the
vicinity of the Project as it exists before commencement of the Project;
(e) A description of the potential significant off-reservation environmental
impacts of the Project, including a discussion of indirect and direct,
significant, adverse effects and a comparison of existing physical
conditions to the potential post-project physical conditions;
(f) A description of mitigation measures for consideration;
(g) <A description of a range of reasonable alternatives to the Project which
could feasibly achieve the basic objectives of the Project, including the
“no Project” alternative; and
(h) A discussion of any cumulative impacts which may compound or increase
other off-reservation environmental impacts.
(i) Ina final EIR, comments received through the review process and the
Tribe’s responses to those comments.
64.8. NOTICE OF PROJECT AND DRAFT ENVIRONMENTAL IMPACT REPORT
- Upon commencing the preparation of the draft EIR, the Tribe shall send a notice of preparation
to the State Clearinghouse in the State Office of Planning and Research (State Clearinghouse)
and to Humboldt County Board of Supervisors for distribution to the public. The Tribe shall post
the notice of preparation of the draft EIR on the Tribe’s website. In addition, the Tribe will make
'. copies available for public inspection at the Tribe's Neighborhood Facilities Building and at such
other on and off-reservation locations as may be appropriate based on the nature of the Project.
The notice of preparation of the draft EIR is to provide all Interested Persons with information
describing the Project and its potential Significant Effects on the Off-Reservation Environment
sufficient to enable a meaningful response or comment. In addition, the notice shall include:
(a) The proposed location of the Project shown on topographical as well as
regional maps;
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(b)
(c)
(d)
The probable off-reservation environmental effects of the Project;
A statement that Interested Persons have the opportunity to provide
comments to the Tribe within forty-five (45) days of the date of the receipt
of the notice of preparation by the State Clearinghouse and Humboldt
County; and
A request that Interested Persons identify, in their comments, any offreservation environmental issues and reasonable mitigation measures the
Tribe should consider in its evaluation of the Project.
64.9, NOTICE OF COMPLETION OF DRAFT ENVIRONMENTAL IMPACT REPORT
In a timely manner, the Tribe shall file a copy of the draft EIR and a notice of completion with
the State Clearinghouse, the State Gaming Agency, and the California Department of Justice,
Office of the Attorney General. -The notice of completion shall include the following:
(a)
(b)
()
(@)
A brief description of the Project;
The proposed location of the Project;
An address where copies of the draft EIR are available; and
Notice of a period of forty-five (45) days during which comments on the
draft EIR may be submitted to the Tribe. ~
The Tribe will submit ten (10) copies each of the draft EIR and the notice of completion to
Humboldt County, which will -be asked to post public notice of the draft EIR at the office of the
County Board of Supervisors and to furnish the notice of completion and a copy of the draft EIR .
to the public libraries serving the County. As an alternative to receiving paper copies, the Tribe
and the County may agree that a single electronic copy of the draft EIR and the notice of
completion may be submitted by the Tribe to the County. -
In addition, the Tribe will provide public notice of completion through the following methods:
(a)
(bo)
(c)
(d)
Publication on the Tribe's website;
Publication at least one (1) time by the Tribe in a newspaper of general
circulation in the area affected by the Project;
If more than one (1) area is affected, the notice shall be published in the
newspaper of largest circulation from among the newspapers of general
circulation in those areas; and
Direct mail to the owners and occupants of property adjacent to, but
outside, the Indian lands on which the Project is to be located. Owners of
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such property shall be identified as shown on the latest equalization
assessment roll.
64.10. CONSULTATION WITH INTERESTED PARTIES
Before finalizing the EIR, the Tribe or the consultant shall consult with and solicit comments
from any federal, state, or local governmental agency, which has jurisdiction by law or special
expertise with respect to any potentially involved environmental impact. At a minimum the Tribe
or consultant must submit copies of all EIRs concerning a proposed project to the State
Clearinghouse in the Office of Planning and Research, and the Humboldt County Board of
- Supervisors for distribution to the public. Additionally, the Tribe or the consultant will make
such copies available for public inspection at the Tribe's Neighborhood Facilities Building on the
Reservation and at such other on and off-reservation locations as may be appropriate. based on
the nature of the Project.
The Tribal Council or its consultant shall, if requested by the Humboldt County Board of
Supervisors, meet to discuss mitigation of Significant Effects on the Off-Reservation Environment. .
64.11. PUBLIC HEARING
The Tribal Council or its consultant shall conduct at least one (1) public hearing at least thirty (30)
days prior to commencement of the Project to provide an opportunity to members of the public
residing off-Reservation to make oral statements regarding a negative declaration or EIR.
In advance of the public hearing, either the Tribe or the consultant shal! submit the draft EIR to
the Tribal Council along with any written comments received for the consultation described
above. The Tribal Council will select a time and place on the Reservation for one public hearing
‘on the Project and will cause either its staff, the TEPA or the consultant to publish notice, -as
described in section 64.9, of the time, place, and nature of this hearing.
At the public hearing, the Tribe or the consultant shall make a presentation regarding the .
assessment documented in the draft EIR as well as a summary of all written comments received.
_» -- In addition, the Tribal Council will permit, subject to reasonable limitations, interested members ..
of the public and affected agencies of the federal, state, or local government to present their”
views and comments on both the proposed Project itself and the draft EIR.
In its discretion, if the Tribal Council believes that further study, information or hearings are
desirable, it may direct the preparation of such additional study, information or hearings.
64,11.1. Tribal Council Decision. When the Tribal Council is satisfied that it is fully ~
informed regarding relevant issues related to the draft EIR, the written comments
received on the draft EIR, or hearings which it may have elected to conduct, the
Tribal Council will analyze all relevant facts and decide whether to:
(a) Issue a finding of no significant impact and proceed with the Project;
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(b) Direct either Tribal staff or the engaged consultant to consolidate all
comments and views of both affected governmental agencies and the
public on the draft EIR, with appropriate responses to all new information
and submit the consolidated final EIR to the Tribal Council after which the
Tribal Council will perform its analysis;
(c) Accept the draft EIR as the final EIR and proceed with the Project but
subject to a good-faith effort to implement conditions or mitigation
measures the Tribal Council accepts or adopts.
(d) Accept the draft EIR but not proceed with the Project.
(e) Reject the draft EIR and not proceed with the Project; .
64.11.2. Tribal Council Resolution. The Tribal Council’s decision at the public hearing
shall be memorialized in the form of a written resolution which, together with all
supporting. documentation and information, shall constitute the Tribe's record of
decision for the Project. Any resolution by which the Tribal Council proceeds
with a Project shall also include a finding requiring good-faith effort to be made
to implement mitigation measures,
64.12. MITIGATION OF SIGNIFICANT ADVERSE OFF-RESERVATION IMPACTS
In accordance with the Compact, section |1.4(e), a Project may proceed only if such a
determination is supported by substantial evidence and there is agreement with Humboldt —
County that the impacts to the off-reservation community have been balanced with appropriate
and commensurate benefits to the off-reservation community. Substantial evidence includes
facts, reasonable assumptions predicated upon facts, and expert opinions supported by facts.
The Tribal Council shall not approve a Project for which an EIR has identified one or more
significant environmental impacts, unless. the Tribal Council makes one or more of the following
written findings supported by substantial evidence in the record:
64.12.1. Changes have been required in the Project which avoid or substantially lessen the
Significant Effects on the Off-Reservation Environment ideritified in the EIR;
64:12.2. Such changes are within the responsibility and jurisdiction of the State of
California or other local government agency which can and should require them .
and are not within the jurisdiction of the Tribe;
64.12.3. Specific economic, social or other considerations make infeasible the mitigation
measures or Project alternatives identified in the final EIR; or
64.12.4. The benefits of the Project outweigh unavoidable adverse environmental effects.
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64.13. ISSUANCE OF FINAL ENVIRONRMENTAL IMPACT REPORT
The Tribe shall prepare, certify and make the final EIR available to Humboldt County, the State
Clearinghouse, the State Gaming Agency, and the California Department of Justice, Office of the
Attorney General (and, in the event potentially significant traffic impacts are identified in the
~ final EIR, to the California Department of Transportation) before the completion of negotiations
with the County conducted pursuant to Compact section 11.6 [promptly but no later than thir ty
(30) days before the commencement of a Project]. The final EIR shall consist of:
(a) The draft EIR or a revision of the draft;
(b) Comments and recommendations received on the draft EIR either verbatim or in
surnmary;
(c) A list of persons, organizations, and public agencies commenting on the draft EIR;
(d) The responses of the Tribe to significant environmental points raised in the review
and consultation process, reflecting the Tribe's good faith, reasoned analysis and
consideration of each substantive comment bearing on any off-reservation
environmental impact; and
(e) In the event the Tribe has determined that specific economic, legal, social,
technological, or other considerations, including the legitimate needs of the Tribe to
generate revenue to provide essential programs and services to its members, make
infeasible the mitigation of Significant Effects on the Off-Reservation Environment,
the final EIR shall identify the specific overriding economic, legal, social,
technological or other consideration(s) supporting approval of the Project based on
substantial evidence in the EIR.
64.14. PROGRESS UPDATES
During the duration of the Project, the Tribe shall orally or in writing, including but not limited to
- publication in the Tribal newspaper, if any, and one local newspaper of general circulation in the
| vicinity of the Reservation and approximately every three (3) months until completion of the
Project, generally inform the Humboldt County Board of Supervisors and public of the Project’s
progress. Failure to inform the Board of Supervisors and public of the progress of a Project shall
not be ground for issuance of a peremptory writ of mandate or otherwise create jurisdicti on in the
' Tribal Court.
64.15. REVIEW OF ORDINANCE WITH STATE
The Tribe and State may from time to time, meet to review this Ordinance, the Tribe’s compliance
herewith and Section 11 of the Compact to ensure Significant Effects on the Off-Reservation
Environment resulting from Projects undertaken by the Tribe may be avoided or mitigated.
64.16. TRIBAL COURT JURISDICTION
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64.16.1. Exhaustion of Administrative Remedies
To be entitled to seek judicial review of Tribal Council action for alleged violations of this
Ordinance, aggrieved parties must first exhaust their administrative remedies by presenting
their specific objections to the Tribal Council at the time of the public hearing. If this is not
donie, then the Tribal Court must deny any relief requested for lack of jurisdiction.
64.16.2, Statute of Limitations:
(a) 30 days after the filing and posting of the Notice of a Negative Declaration
or Notice of Preparation or Certification of an EIR; OR
(b) 45 days after either:
a. the Tribal Council’s determination to carry out or approve a Project; or
b. commencement of a Project, if the Project is undertaken without a
formal decision by the Tribal Council.
64.16.3. Pre-Notice Filing
The plaintiff in an action under this Ordinance shall serve a notice of intent to commence
action upon the Tribal Council at least 20 days prior to filing the action. Said notice shall
be considered an administrative remedy pursuant to 64.11.1, above.
64.16.4. Exclusive Jurisdiction
The Tribal Courts shall have exclusive jurisdiction to adjudicate actions commenced
pursuant to this Ordinance.
64.16.5. Remedies
If after a trial, hearing or remand from an appellate court, a trial court finds that the Tribal
Council has violated this Ordinance, the court will issue a peremptory writ of mandate.
requiring one or more of the following:
(a) That the Tribal Council’s decision be voided;
(b) That the Tribal Council or the real party in interest suspend all activity
pursuant to the decision that could alter the off-reservation environment
until the Tribal Council takes steps to comply with this Ordinance; and/or
(c) That the Tribal Council take specific action to cause the decision to comply
with this Ordinance.
Off-Reservation Environmental Impacts Ordinance Page 11
64.16.5.1. The Tribal Court shall retain jurisdiction over the matter until it has
determined that the Tribal Council has adequately complied with this Ordinance,
provided that the Tribal Court cannot direct the Tribal Council to exercise its
jurisdiction in any particular way.
64,16.5.2. The Tribal Court is not authorized to, and shall not, award attorney’s fees or
monetary damages as against the Tribe for violations of this Ordinance.
64.17. EFFECTIVE DATE; AMENDMENT
This Ordinance shall take effect upon its adoption by the Tribal Council. This Ordinance may be
amended as provided in accordance with the Legislative Procedures Act.
64.18. SEVERABILITY
If any part of this Ordinance is held to be invalid, the remainder shall remain in full force.and :
effect to the maximum extent possible.
64.19. SOVEREIGN IMMUNITY
- Nothing in this Ordinance shall be deemed to waive the sovereign
immunity of the Hoopa Valley Tribe or any of its enterprises, officers,
agents, or employees, except to the extent provided for herein. Nothing
herein shall authorize the award of monetary damages, attorney’s fees
or punitive damages as against the Hoopa Valley Tribe or any of its
| enterprises, officers, agents or employees. |
Off-Reservation Environmental Impacts Ordinance Page 12
CERTIFICATION
I, the undersigned, as Chairman of the Hoopa Valley Tribal Council, do hereby certify that the
Hoopa Valley Tribal Council is composed of eight (8) members, of which seven (7) were poll
voted, constituting a quorum and held this 29" day of September 2021 and approved this 1** day
of October 2021 thereof; and was reaffirmed at a Regular Meeting held October 7, 2021; and this
Ordinance was duly adopted under the Emergency LPA process, Title 6 of the Hoopa Valley
Tribe. The Hoopa Valley Tribe composed of eight (8) members, of which seven (7) were
present, constituting a quorum at a Regular Meeting thereof, duly and regularly called, noticed,
convened and held this 4'" day of November 2021; and final approval occurred and this
Ordinance was duly adopted by a vote of six (6) in favor with zero (0) opposed and zero(0)
abstaining, and that said Ordinance has not been rescinded or amended in any way.
Dated this fourth day of November 2021.
_
Joe Davis, Chairman
Hoopa Valley Tribal Council
Attest: _
Amber Turner, Executive Secretary
Hoopa Valley Tribal Council
Off-Reservation Environmental Impacts Ordinance Page 13
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