RIPARIAN PROTECTION AND SURFACE MINING PRACTICES ORDINANCE

C)

RIPARIAN PROTECTION AND SURFACE MINING PRACTICES ORDINANCE

of the

HOOPA VALLEY TRIBE

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

TITLE 35

HOOPA VALLEY TRIBAL CODE

ORDINANCE NO. 3-92, As Amended and Permanently Reauthorized

DATE APPROVED: August 3, 1992

SUBJECT: "RIPARIAN PROTECTION AND SURFACE MINING PRACTICES

WHEREAS: The Hoopa Valley Tribe adopted a Constitution and Bylaws

(Tribal Constitution) on June 20, 1972, which was approved by

the Commissioner of Indian Affairs on August 18, 1972, and

ratified and confirmed by Congress in 1988 in section 8 of

Pub. L. 100-580, and Article V of this Constitution

establishes that the Hoopa Valley Tribal Council (Tribal

Council or Council) is the governing body of the Tribe, and

under Article IX, the Council is authorized to: administer

all tribal property, § l{a); enforce the protection of tribal

property, wildlife, and natural resources, § 1(e); provide

assessments or license fees upon persons doing business or

obtaining special privileges within the Reservation, § 1(f);

negotiate with the Federal, State, and local governments on

behalf of the Tribe, § 1(g); prevent the sale, disposition,

lease, or encumbrance of tribal lands, interests in lands, or

other tribal assets, § 1(i); exclude from the unallotted lands

of the Reservation persons not legally entitled to reside or

otherwise be present therein, § 1(j)}; safeguard and promote

the safety and general welfare of the Tribe and the

Reservation community by among other things regulating the

conduct of trade and the use and disposition of property

within the Reservation, § 1(1); and

WHEREAS: The Tribal Council has concluded that it is necessary to

exercise comprehensive tribal regulatory authority over

surface mining within the exterior boundaries of the Hoopa

Valley Reservation, and over surface mining and other

activities in the Trinity River and Klamath River riparian

areas, in order to protect fundamental tribal ceremonial,

fishery, and property interests, water quality, and the public

health and safety; and

WHEREAS: To implement said regulatory authority, the Council has

adopted a Riparian Protection and Mining Practices Ordinance,

which has been continuously in effect since June 4, 1992,

C)

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 2

pursuant to the emergency provisions contained in Section 6.10

of the Legislative Procedures Act (LPA); and

WHEREAS: Since initial emergency enactment of said Ordinance on

June 4, 1992, the Council has reauthorized it on July 2, 1992,

pursuant to the emergency provisions of the LPA, and has

further reviewed and modified said Ordinance pursuant to the

procedures for permanent enactment of Ordinances set forth in

Section 6.3 of the LPA; and

WHEREAS: Pursuant to the review process set forth in LPA Section

6.3, the Council concludes that it is now appropriate to enact

said Ordinance on a permanent basis, as modified by

departmental comments and legal review developed during the

review process.

THEREFORE BE IT NOW RESOLVED THAT: Pursuant to Section 6.3 of the

Legislative Procedures Act, and the tribal constitutional and

legal authorities recited herin, the Tribal Council hereby

enacts the attached Riparian Protection and Surface Mining

Practices Ordinance, in order to protect the fundamental

tribal values identified in Section 35.0 thereof and the

Tribe's sovereign governmental authority.

BE IT FURTHER RESOLVED THAT: The Tribal Council hereby reaffirms

its intent that the provisions of this Ordinance be

enforceable against non-members of the Tribe and upon private

lands within the Reservation, and accordingly the Tribal

Chairman is authorized and directed, in consultation with the

Office of Tribal Attorney, to transmit this Ordinance to the

Bureau of Indian Affairs and the EPA for any review and

approval that may be necessary, and to seek the support of

those agencies for this important assertion of tribal

jurisdiction.

BE IT FURTHER RESOLVED THAT: It shall be the policy of the Tribe

and its authorized entities and departments to vigorously

enforce the provisions of this Ordinance, and to oppose any

assertion of jurisdiction by Humboldt County, or by the State

of California or any of its agencies, that purports to

regulate the matters herein regulated by tribal authority.

35.0 SHORT TITLE, FINDINGS, AND PURPOSE

35.0.1 Short Title. This Ordinance shall be known as the

Riparian Protection and Surface Mining Practices Ordinance of

—_

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3,

Subject:

Page 3

1992

Riparian Protection and Surface Mining Practices

the Hoopa Valley Tribe.

35.0.2 Findings. The Tribal Council hereby finds as

- follows:

(a) Since time immemorial, the Trinity River, its

tributary streams, the streambeds thereof, and the

riparian areas and gravel bars adjacent thereto, have

been natural resources of the most profound significance

to the Hoopa Valley Tribe, and Hoopa Indians have always

used these resources for cultural, ceremonial, religious,

fishery, seasonal residential, and other purposes

fundamental to the Tribe's way of life.

(b) It is the position of the Tribe that the bed and

banks of the Trinity River, as well as the gravel bars

and riparian areas adjacent thereto, which lie outside

the stakelines of the allotments and former allotments

near the River, continue to be unallotted lands of the

Hoopa Valley Tribe held in trust for the Tribe by the

United States.

(c) The gravel resources in the Trinity River riparian

area are a mineral resource within the meaning of federal

and tribal law, and extraction or surface mining of these

gravel resources has the potential both to generate

revenues and create employment for the Tribe and to

Significantly harm fundamental tribal values in the

Trinity River and its riparian area.

(d) Various sites along the Trinity River are or may be

contaminated with toxic or hazardous materials as a

result of previous land use activities, many of which

were authorized without adequate review of impacts or

without adequate disclosure to the Tribe of the potential

for such impacts, and the contamination at these sites

may, if not properly contained and cleaned up, pose

significant risks to water quality and the public health.

(e) Pursuant to federal law as determined by the U.S.

Supreme court in such cases as Montana v. United States,

450 U.S. 544 (1981), the Hoopa Valley Tribe possesses

inherent sovereign authority to regulate on-Reservation

surface mining and gravel extraction operations, and

other activities that affect fundamental tribal interests

and the public health and safety, including when such

activities are conducted by non-members of the Tribe on

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page

35.1

4

privately owned lands within the Reservation.

(f) Under 1988 amendments to the Clean Water Act, 33

U.S.C. § 1377, Indian Tribes are entitled to be certified

by the U.S. Environmental Protection Agency (EPA) as

authorized to exercise exclusive jurisdiction (tribal

primacy) over all on-Reservation surface and ground water

quality matters, including over on-Reservation portions

of waters, such as those of the Trinity River, that also

flow through other jurisdictions.

(g) In the past, and continuing to the present, various

persons, including non-members of the Hoopa Valley Tribe,

who own private lands within the Reservation, have

extracted gravel from and engaged in surface mining

operations and other activities upon gravel bars along

the Trinity River. These activities have the potential

to signifcantly affect ceremonial and fisheries values

and water quality in the Trinity River, and purported

regulation of these activities by agencies of the State

and Federal governments has been ineffective to address

these impacts.

35.0.3 Purpose. The purpose of this Ordinance is to

exercise comprehensive tribal regulatory authority over

surface mining within the exterior boundaries of the Hoopa

Valley Reservation, and over surface mining and other

activities in the Trinity River and Klamath River riparian

areas, in order to protect fundamental tribal cultural,

ceremonial, fishery, and property interests, water quality,

and the public health and safety.

SCOPE

35.1.1 Subject to exclusions established pursuant to

section 35.1.2 below, the provisions of this Ordinance shall

apply to all proposed surface mining or mineral development

activities within the exterior boundaries of the Reservation,

and to all activities within the Trinity and Klamath River

riparian areas with the potential to affect water quality,

fishery values, public health and safety, and other

fundamental interests of the Tribe, including such activities

conducted by non-members of the Tribe or on privately owned

lands. Activities to be regulated hereunder shall include but

are not limited to:

(a) Surface and subsurface removal of mineral

Ordinance No. 3-92, As Amended and Permanently Reauthorizeda

-~ August 3, 1992

\/ Subject: Riparian Protection and Surface Mining Practices

Page 5

(D)

(c)

(e)

(a)

35.1.2

resources, overburden, rock, or soil, including

quarry operations (borrow pitting) for road

surfacing or other uses;

All prospecting activities involving removal of

soil or rock material, including operations

involving the reopening of existing mine pits,

tunnels, or quarries;

Sand and gravel operations;

Activities, such as suction dredging, that have the

potential to affect the riparian area, water

quality, or the channel of the Trinity River;

Any activities in the Trinity River or Klamath

River riparian areas with potential to affect the

riverbed or river flow, ground or surface water

quality, or fishery, cultural, or ceremonial

values.

Some projects may be excluded from the requirements

of this Ordinance if the Review Committee determines that no

adverse environmental effects will occur due to the limited

size or scale of a proposed project. Such exclusions may

include but are not limited to:

(a)

Excavations or grading conducted for farming, or

onsite construction, or for the purpose of

restoring land following a flood or natural

disaster.

(b) Such other mining or excavation operations that the

Review Committee determines to be of an infrequent

nature or insignificant impact, and which involve

only minor surface disturbances;

(c) Categorically excluded projects as identified by

the Review Committee pursuant to Section 35.3.4 of

this Ordinance.

35.2 DEFINITIONS

35.2.1 Angle of Repose means the maximum angle of slope

(measured from horizontai plane) at which loose cohesionless

(> material will come to rest on a pile of similar material. The

\ 7 angle is generally a few degrees less than the angle of

Ordinance No. 3~92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 6

internal friction of the same material. The angle of repose

commonly ranges between 33° and 37° on natural slopes and is

rarely less than 30° or more than 39°.

35.2.2 Backfill means earth, overburden, mine waste or

imported material used to replace material removed during

mining.

35.2.3 Bench means a flat surface from which a pit or

quarry is worked. The height of the slope between benches is

the bench interval. The benches that are left on a final cut

are generally termed retaining benches, and serve to retain or

limit rock falls from the surface above.

35.2.4 Borrow Pit means an excavation created for the

mining of rock, unconsolidated geologic deposits, or soil,

which does not constitute on-site construction as that phrase

is defined in Section 35.1.14 hereof. Such excavation is

considered to be surface mining activity subject to regulation

under this Ordinance.

35.2.5 Committee means the Review Committee, as established

under the provisions of Section 35.3 hereof.

35.2.6 Council means the Hoopa Valley Tribal Council.

35.2.7 Cut Slope (Face) means a bank or slope that has been

created by removing material below the pre-existing ground

surface.

35.2.8 Critical Gradient means the maximum’ stable

inclination of an unsupported slope under the most adverse

conditions that it will likely experience, as determined by

current engineering technology.

35.2.9 Fill Slope means a bank or slope that has been built

up by the placing of material on top of the existing ground

surface.

35.2.10 Grading means to bring an existing surface to a

designed form by cutting, filling and/or smoothing operations.

35.2.11 Mined Lands means the surface, subsurface, and

ground water of an area in which surface mining operations

will be, are being, or have been conducted, including private

ways and roads appurtenant to any such area, land excavations,

workings, mining waste, and areas in which structures,

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 7

facilities, equipment, machines, tools, or other materials or

property which result from, or are used in, surface mining

operations, are located.

35.2.12 Minerals means any naturally occurring chemical

element or compound, or groups of elements and compounds,

formed from inorganic processes or organic substances, and

includes but is not limited to gravel resources in the areas

riparian to the Trinity and Klamath Rivers and their tributary

streams and creeks.

35.2.13. Mining Waste means the residual soil, rock, mineral,

liquid, vegetation, mill tailings, equipment, machines, tools

or other materials or property directly resulting from, or

displaced by, surface mining operations.

35.2.14 Mitigation shall be defined according to the

reasonable discretion of the Review Committee with reference

to the definitions found in 40 C.F.R. § 1508.20.

35.2.15 On-site Construction means those earth material

moving activities (such as excavation, grading, compaction,

and the creation of fills and embankments) which are required

to prepare a site for construction of structures, landscaping

or other land improvements. Such activities are not deemed to

be surface mining operations if the resulting excavations,

fills, grades, or embankments are beneficially modified by

such construction of structures, landscaping, or other land

improvements. Excavations, fills, grades, or embankments that

of themselves constitute engineered works such as dams, road

cuts, fills, catchment basins, or levees are not considered to

be surface mining operations. Earth material moving

activities in areas either on or off-site where the resulting

excavations, fills, grades, or embankments will not be

beneficially modified by the construction of structures,

landscaping or other land improvements, and that do not of

themselves consist of engineered works are deemed to be

surface mining operations unless exempted under Section 35.1.2

of this Ordinance.

35.2.16 Operator means any person or entity engaged in

surface mining operations, including any person or entity

contracting with another person entity for the performance of

surface mining operations.

35.2.17 Overburden means soil, rock, or other material that

lies above a natural mineral deposit or in-between mineral

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 8

deposits, before or after its removal by surface mining

operations.

35.2.18 Permit means any formal authorization from, or

approval by, the Tribe, the Review Committee, or other tribal

entities and agencies, the absence of which would preclude

surface mining operations or other activities regulated

hereby.

35.2.19 Person means, but shall not be limited to, an

individual, trust, firm, company, corporation, partnership,

association, agency, municipality, commission, department, or

other entity.

35.2.20 Reclamation means a comprehensive process of land

treatment and restoration that minimizes water quality

degradation, riverbed or river flow alteration, air pollution,

damage to aquatic or wildlife habitat, flooding, erosion, and

other adverse effects from surface mining operations,

including adverse surface effects incidental to under ground

mines, so that mined lands are reclaimed to a usable condition

which is readily adaptable for alternate land uses and create

no danger to public health and safety. The process may extend

to affected lands surrounding mined lands, and may require

backfilling, grading, resoiling, revegetation, soil

compaction, stabilization or other measures.

35.2.21 Reclamation Plan means the applicant's (operator's)

completed and approved plan for reclaiming the lands affected

by his surface mining operations conducted after enactment of

this Ordinance, as required and described in Sections 35.5 and

35.6 of this Ordinance.

35.2.22 Reservation means the Hoopa Valley Reservation as it

exists as of the date of enactment of this Ordinance or as it

hereafter may be enlarged.

35.2.23 Resoiling means the process of artificially building

or reconstructing a soil profile.

35.2.24 Riparian Area shall be defined according to the

reasonable discretion of the Review Committee, but shall

include at a minimum, with respect to the Trinity River, the

lands lying between the stakeline boundaries of the allotments

and former allotments along that river. The Review

Committee's discretion shall be guided by the standard that

the vegetation, soil, and mineral resources, and ground and

O)

a,

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 9

35.3

surface waters of the riparian area are to be viewed as a

comprehensive ecosystem.

35.2.25 Subsoil means that part of the soil which is below

the topsoil.

35.2.26 Topsoil means the upper part of the soil profile

that is relatively rich in humus, which in the field of

agronomy is known as the A-horizon of the soil profile.

35.2.27 Toxic Substance means any organic compound, certain

metal cations, certain anions, and other inorganic substances,

including biostimulants, which singly, or upon combining with

other substances, create a condition that will inhibit or

destroy the growth or function of any living organism.

35.2.28 Tribe means the Hoopa Valley Tribe acting through

the Tribal Council and its authorized entities and programs.

ESTABLISHMENT OF REVIEW COMMITTEE; -DUTIES, FUNCTIONS,

AND AUTHORITIES

35.3.1 There is hereby established a Review Committee for

purposes of carrying out the environmental and other review

processes, permit issuance, and reclamation plan review

process established by this Ordinance. The Review Committee

shall consist of three persons: the Tribal Forestry Director

or his representative; the Water Quality Coordinator from the

Planning Department; Tribal Fisheries Director or his

representative. The Review Committee shall establish its own

rules of procedure. The Review Committee is authorized and

encouraged to arrive at decisions by consensus, but may vote

by simple majority if consensus is not possible. In carrying

out its responsibilities under this Ordinance, the Review

Committee shall consult with the Office of Tribal Attorney,

and the Office of Tribal Attorney is authorized and directed

to make sufficient time available to assist the Review

Committee in the performance of its functions.

35.3.2 The Review Committee shall have the authority to

specify document submission and record keeping requirements to

be adhered to by all permitted operators or applicants for

permits. the Reivew Committee shall also establish criteria

for the assessment of application and processing fees.

35.3.3 The Review Committee shall administer mining,

mineral development, and other permits and review procedures,

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 10

35.4

as set forth in this Ordinance.

35.3.4 Upon adoption and implementation of this Ordinance,

the Review Committee shall establish a listing of

categorically excluded projects. Such list shall be subject

to the concurrence of the Council, subject to annual review

and revision, and shall be readily available to the interested

public.

35.3.5 The Review Committee shall conduct an initial study

for each and every activity for which a permit is required

under this Ordinance, and if appropriate shall prepare, or

require the applicant to prepare, an Environmental Assessment

of such proposed activity, including but not limited to any

surface mining activity or any other non-excluded activity

proposed for the Trinity River or Klamath River riparian areas

to determine its potential to affect, at a minimum, the river

bed, river flow, fishery values, water quality, and ceremonial

and cultural values and activities, and to determine whether

an Environmental Impact Statement is necessary. No permit

Shall be issued, nor Reclamation Plan approved, for any

activity that does not comply with the requirements of this

Section.

PERMIT REQUIREMENTS

35.4.1 Any person who proposes to engage in surface mining

operations as defined in this Ordinance shall, prior to the

commencement of such operations:

(a) Apply for and obtain a valid permit from the Tribal

Council, subject to the review and recommendations

of the Review Committee;

(b) Obtain approval of a Reclamation Plan, in

accordance with the provisions set forth in Section

35.6 of this Ordinance.

35.4.2 A fee, as established by the Review Committee and

approved by the Council, for the permitted uses shall be paid

to the Tribe at the time of filing.

35.4.3 All submissions of a Reclamation Plan for approval

shall be made on forms provided by the Review Committee.

35.4.4 Permit applications, any required environmental

documents, and Reclamation Plan proposals must demonstrate

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page

35.5

35.6

Ll

compliance with applicable Tribal and federal regulations,

including but not limited to those pertaining to water

quality, hazardous substances, environmental impact

evaluations, and stream bed alterations.

35.4.5 The applicant is responsible for compliance with

applicable federal permit requirements and regulations.

RECLAMATION PLAN PURPOSE

35.5.1 The basic purpose and objectives of the reclamation

of mined lands are to ensure protection of fundamental tribal

interests in the riverbed, river flow, water quality, and

ceremonial and cultural values, and to provide for continued

beneficial alternative uses of mined and reclaimed lands. The

purpose of the reclamation plan is to provide a program by

which to attain these objectives.

35.5.2 New mining operations offer the greatest opportunity

for planning and designing for, and carrying out effective

reclamation activities. In determining the degree or level of

reclamation to be effected, the applicant shall consider a

number of factors, including but not limited to those set

forth in Section 35.6 of this Ordinance.

RECLAMATION PLAN REQUIREMENTS

36.6.1 The applicant shall be responsible for preparing and

submitting to the Review Committee a Reclamation Plan which,

as a minimum, conforms to the requirements of this Ordinance;

applicant shall also be responsible for making any revisions,

modifications, or conditions for approval deemed necessary by

the Review Committee and Council.

35.6.2 At a minimum, the following factors shall be taken

into account in determining the level, character, and detail

of the reclamation plan design:

(a) The size and area of the proposed mined lands;

(b) The complexity of the operation and the manner and

degree to which the mines are disturbed;

(c) The site potential for mineral and other uses;

(ad) The environmental setting of the operation site and

the effect that reclaimed site conditions may have

C)

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 12

upon the existing and future uses of surrounding

lands;

(e) The effect that the proposed reclamation activity

may have upon the site's remaining unmined

resources and/or upon continued mining on adjacent

lands;

(f) The public health and safety, giving consideration

to the degree and type of present and probable

future exposure of the public to the. site,

including but not limited to:

(1) likelihood of direct contact with safety

hazards or toxic substances;

(2) potential for contamination of drinking water

by toxic substances, due to groundwater or

surface water contamination;

(3) potential for public exposure to toxic

substances in dust from ore pilings, tailings,

waste piles, or other project-related sources.

(g) The potential for impacts to the riverbed, river

flow, ground and surface water quality, fishery

values, and ceremonial and cultural values and

uses. .

35.6.3 The longevity of mining operations varies greatly.

In some operations the reclaiming of mined areas will be

undertaken concurrently with the mining of adjoining lands,

whereas in many operations much of the reclamation can be

effected only after the mining is completed. In those cases

where concurrent reclamation is possible, the Review Committee

shall require:

(a) a time table for commencing such operations;

(b) periodic submittal of updated progress reports for

concurrent reclamation operations.

35.6.4 The operator shall, in the Reclamation Plan, propose

what the end condition of the site will be, and propose

reasonable and practicable uses of the reclaimed site. Such

proposals shall be in conformance with the policies and

regulations contained herein, and with the policies anda

O

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 13

35.7

35.8

35.9

regulations of other applicable Tribal ordinances.

35.6.5 Instructions for preparation of Reclamation Plans

and Reclamation Plan Forms shall be prepared and provided by

the Review Committee.

REVIEW PROCEDURE

35.7.1 The Review Committee shall review the permit

application and the Reclamation Plan and shall schedule a

public hearing within 30 days of the filing of both the permit

application and the Reclamation Plan, and all necessary

environmental documents. Such public hearing shall be held by

the Review Committee for the purpose of consideration of the

issuance of a permit for the proposed surface mining

operation.

35.7.2 AS a condition of approval for a Permit or

Reclamation Plan, or both, a schedule for periodic inspections

of the site shall be established to evaluate continuing

compliance with the Permit Reclamation Plan, and applicable

regulations. The Review Committee may, however, conduct

unannounced spot checks pursuant to the provisions of Section

35.10 of this Title.

PERFORMANCE BOND

Upon a finding by the Review Committee that a

supplemental guarantee for the reclamation of the mined land

is necessary, and upon the determination by the Review

Committee of the cost of the reclamation according to the

Reclamation Plan, a surety bond, lien, or other security

guarantee conditioned upon the faithful performance of actions

as described in the Reclamation Plan shall be filed with the

Review’ Committee. Such surety shall be executed in favor of

the Hoopa Valley Tribal Council, and reviewed and revised, as

necessary, biannually. Such surety shail be maintained in an

amount equal to the cost of completing the remaining

reclamation of the site as prescribed in the approved

Reclamation Plan.

MINING AND RECLAMATION PRACTICES

The following subsections set forth minimum acceptable

practices to be followed in mining and reclamation operations:

35.9.1 80il Erosion Control

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3,

Subject:

Page 14

(a)

(b)

(Cc)

(a)

1992

Riparian Protection and Surface Mining Practices

The removal of vegetation and overburden in advance of

mining shall be kept to the minimum.

Stockpiles of overburden and minerals shall be managed to

minimize water and wind erosion. This may include, but

is not limited to covering stockpiles with netting,

canvas, or other materials to prevent detachment and

transport loose material by water or wind.

Erosion control facilities such as retarding basins,

settling ponds, ditches, streambank stabilization, and

diking shall be constructed and maintained where

necessary to control erosion.

Grading and revegetation shall be designed to both

prevent excessive erosion and to convey surface runoff to

natural drainage devises or interior basins designed for

water storage. Basins that will store water during

periods of surface runoff shall be designed to prevent

downward erosion of spillways when these basins have

outlet to lower ground.

35.9.2 Water Quality and Watershed Control

(a)

(b)

(Cc)

(d)

(e)

A method of compliance with the U.S. Environmental

Protection Agency, Tribal, and other applicable

regulations and requirements is hereby incorporated into

the review process under this Ordinance.

Settling ponds or basins shall be constructed downstream

from areas of potential erosion at operations where they

are necessary to protect water quality and comply with

tribal water quality regulations, or where they will

provide significant benefit to water quality.

Temporary stream or watershed diversion shall be restored

in final reclamation in a manner which will prevent undue

erosion and water quality degradation.

At sites where ground-water recharge is a significant

consideration, operations shall be conducted to

substantially prevent siltation of recharge areas.

Infiltration of toxic substances into groundwater basins

shall be prevented where such basin may contribute to

domestic or agricultural water supplies.

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 15

35.9.3 Flood Control

Compliance with the applicable requirements of other agencies

in addition to the Review Committee, including the Tribal

Fisheries Department and federal flood control agencies is

required when operations occur in or near streams and other

drainage channels.

35.9.4 Protection of Fish and Wildlife Habitat

All reasonable measures shall be taken to protect the habitat

of fish and wildlife, and to prevent alteration of the river

channel and river flow. The Review Committee and Fisheries

Departments shall prescribe measures as deemed necessary to

better protect such resources.

35.9.5 Disposal of Mine Waste Rock and Overburden

{a) Permanent piles or dumps of mine waste rock and

overburden shall be stable and shall not restrict the

natural drainage without suitable provisions for

diversion.

(b) Stable slopes at angle of repose shall be permitted as a

final slope.

(c) Mining wastes shall be removed or buried, as appropriate,

and old equipment shall be removed.

(d) Toxic material shall be removed or protected to prevent

leaching.

(e) Under some conditions, covering of part or all of the

mine waste piles with overburden, fine waste and soil may

be desirable.

(f) Where reasonable choices exist, dumps shall be located in

least visible location. "Controlled placement" of this

material with relationship to topography, hydrology, and

end use features can greatly enhance the results of a

reclamation program.

35.9.6 Soil Salvage

(a) The salvage of existing topsoil is an important factor in

revegetation and thus is a crucial part of the

reclamation process.

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3,

Subject:

Page 16

(b)

(Cc)

(d)

(e)

1992

Riparian Protection and Surface Mining Practices

A detailed soil survey may be necessary to determine soil

type, and soil chemistry. The complexity of such a

survey will depend upon site geology, vegetation, areal

extent, and post-mining uses.

In areas of good soil development, topsoil is a valuable

asset and should be segregated for future use in

revegetation. In some areas, because of poor or very

limited soil conditions, it may be impractical or

impossible to salvage soil.

When the reclamation plan calls for resoiling, coarse

hard mine waste shall be leveled and covered with a layer

of finer material and weathered waste. A soil layer

shall then be placead on this prepared surface.

Mining operations that did not salvage soil during their

initial operations shall attempt, where feasible, to

upgrade remaining native materials. The use of soil

conditioners, mulches, or imported topsoil shall be

considered where revegetation is part of the reclamation

plan and where such measures appear necessary. It is not

justified, however, to denude adjacent areas of their

soil, for any such denuded areas must in turn be

reclaimed.

35.9.7 Final Slope Gradient

(a)

(b)

The designed steepness and proposed treatment of the

final slopes of the mined lands shall take into

consideration the physical properties of the slope

Material, its probable maximum water content, landscaping

requirements, and other pertinent factors.

The maximum stable slope angle might range from 90° ina

sound limestone, igneous rock, or similar hardrock to

less than 20° in highly expansive clay. In all cases,

reclamation plans shall specify slope angles flatter than

the critical gradient for the type of material involved.

The Review Committee may require an engineering analysis

of the slope stability. Special emphasis on slope

stability and design will be necessary when public safety

or adjacent property may be affected.

35.9.8 Backfilling and Grading

OO)

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 17

(a) Most backfilling and grading is undertaken to store mine

waste rock and overburden, to produce designed slopes, to

establish drainage, or to raise the ground surface above

the local water table. Any area mined to produce

additional materials for backfilling and grading must

also be included in the reclamation plan.

(b) Settlement of filled areas must be considered in all

reclamation plans. Where probable ultimate site uses

include roads, building sites, or other improvements

sensitive to settlement, the reclamation plans shall

include compaction of the fill materials in conformance

with good engineering practice to avoid excessive

settlement. Fill placement shall conform to local

grading ordinances or, in their absence, the Uniform

Building Code.

35.9.9 Revegetation

Before final revegetation is undertaken, the operator shall

make use of the available research addressing revegetation

methods and the selection of species having good survival

characteristics, for the topography, resoiling

characteristics, and climate of the area. Native species are

required wherever possible. Reclamation plans may also

include development of screens and roadside plantings at mines

currently in operation, where such screens and plantings are

practicable and desirable.

35.10 AUTHORITY TO ENTER AND INSPECT PREMISES AND RECORDS

35.10.1 In order to carry out the purposes of this

Ordinance, any duly authorized representative of the Tribe has

the authority to enter and inspect any property, premises, or

facility involved in any mining or other activities on any

lands within the exterior boundaries of the Reservation. Such

inspection may include:

(a) Obtaining samples or soil, rock, vegetation, air,

water, or other substances deemed necessary;

(ob) Setting up and maintaining monitoring equipment for

the purpose of assessing compliance with applicable

regulations, or health or safety hazards.

(c) Photographing any equipment, sample, activity, or

environmental condition, provided that:

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 18

(1) the Review Committee shall notify the person

whose operation was photographed prior to

public disclosure of such photographs;

(2) upon request of that person, the Review

Committee shall allow such person to inspect

any such photograph prior to public disclosure

to determine whether trade secret information

would be revealed by the photograph.

(ad) Reviewing and obtaining copies of required records.

35.10.2 The Review Committee or Tribal Council on behalf of

the Tribe are authorized to obtain from the Tribal Court a

warrant for such entry and inspection if necessary, including

for inspection of premises that may be located on: lands

privately owned by non-members of the Tribe.

35.11 ENFORCEMENT

-The provisions of this Chapter shall be enforced by the

Department of Public Safety and Emergency Services. It shall

be an civil offense, for which a fine of not less than $100.00

shall be assessed, to obstruct or otherwise interfere with

investigative or other activities of any agent or officer of

the Tribe.

35.12 APPEALS AND JUDICIAL REVIEW

35.12.1 Any person aggrieved by any act or decision of the

Review Committee or Council shall have the right to seek

administrative review before the Review Committee, provided

that any appeal or complaint must be filed within thirty (30)

days after effective date of written decision. The Committee

shall conduct a hearing on any appeal, and develop a decision

record that is adequate for judicial review.

35.12.2 Any person may seek judicial review of an order or

decision by the Review Committee pursuant the rules of the

Tribal Court. The Court shall sustain the decision of the

Review Committee if based on substantial evidence in the

record before the Review Committee. The Court shall issue any

and all orders reasonably necessary to carry out the

provisions of this Ordinance, and may assess civil fines for

conduct of operations in violation of permit or reclamation

plan terms and conditions. The Court may also order the

impoundment of equipment used in persistent or serious

©)

a

Ordinance No. 3-92, As Amended and Permanently Reauthorized

August 3, 1992

Subject: Riparian Protection and Surface Mining Practices

Page 19

violation of the requirements of this Ordinance.

35.13 SEVERABILITY

If any provision of this Ordinance or its application to any

person or circumstance is held invalid, the remainder of the

Ordinance or application of its provisions to other persons or

circumstances shall not be affected, and to this end, the

provisions of this Ordinance are severable.

35.14 SOVEREIGN IMMUNITY PRESERVED

Except as judicial review is authorized in this Ordinance,

nothing in this Ordinance shall be interpreted as a waiver of

the Tribe's sovereign immunity from unconsented lawsuit, or as

authorization for a claim for monetary damages from the Tribe.

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 six (6) were present,

constituting a quorum, at a Special Meeting thereof, duly and

specially called, noticed, convened, and held on this third (3rd)

day of August, 1992; that this Ordinance was duly adopted by a

vote of four (4) in favor, none (0) opposed, and one (1)

abstaining; and that since its approval this Ordinance has not

been rescinded, amended, or modified in any way.

(LE

a R ING, SR., CHAIRMAN

HOOPA’VALLEY TRIBAL COUNCIL

DATED THIS 3rd DAY OF AUGUST, 1992.

ATTEST: Uae i e

CHRISTINA PHILLIPS, EXECUTIVE SECRETARY

HOOPA VALLEY TRIBAL COUNCIL

080392\epa\riparian.ord

hvt ord. 3-92

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HOOPA VALLEY TRIBAL COUNCIL

Natural Resources Department

F : if) DC, ‘4 °

P.O. Box 368 ® Hoopa, CA 95546 © (916) 625-4284 © FAX (916) 625-4230

DATE: 2 February 1993

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FROM: Richard Harris, Forest Manager RA

SUBJECT: GRAVEL PERMITS

TO: All Departments

Effective February 1, 1993, the Forestry Department is once again

responsible for issuing gravel permits. For your information,

attached is a copy of the Interim Procedures for Tribal Gravel

Permits that was put into effect 02/01/93.

If you have any questions, feel free to contact me.

Attachment

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Aoopa Valley Tribal Counect

P.O, Box 1348 @ Hoopa, California 95546 @ (916) 625-4211

I.

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HOOPA VALLEY TRIBE

Dale Risling neFhuradaye ofeach Monin

Chairman

INTERIM PROCEDURES FOR TRIBAL GRAVEL PERMITS

PURPOSE.

This Interim Procedure for Tribal Gravel Permits is intended

to provide guidance for issuing and. administering gravel

permits which are not regulated. under Ordinance No. 3-92,

Riparian Protection and Mining Practices. These procedures

shall remain in. effect until additional..appropriate action

related to the resources regulated herein.is undertaken by the

Tribal Council.

ISSUANCE AND OVERSIGHT OF PERMITS.

The Tribal Forestry Department shall be responsible for

issuing, administering and overseeing Tribal gravel permits in

accordance with this Interim Procedure. All concerns relating

to gravel permits shall be referred to the Forestry

Department. The Forestry Department is responsible:for making

recommendations to the Tribal Council as may be needed to

properly administer and carry out this procedure.. The Tribal

Forestry Department shall maintain a. current list of the

number of permits issued and the quantity and estimated value

of gravel authorized for removal and submit a monthly report

of activity to the Tribal Council. .

PERMIT QUANTITIES, ELIGIBILITY AND COSTS OF PERMITS.

All permits shall identify the designated area from which the

gravel is authorized to be removed. The Tribal Forestry

Department is responsible for periodic monitoring and

verifying that the amount of gravel authorized for removal

under a Tribal permit is not exceeded.

A. FREE USE PERMITS

Only enrolled Tribal members are eligible to receive free use

gravel permits. Justification for use of gravel under a

Tribal permit shall be as follows:

1. 0 - 50 cubic yards - No justification required.

2. 51 - 150 cubic yards - The permittee is required to

provide justification for such gravel volumes to

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the Tribal Forestry Department. . Based on the

discretion of the Tribal Forestry Manager, or his

authorized representative, the justification may

include a site inspection to determine that the

volume of gravel requested is justified.

Gravel volumes in excess of 150 cubic yards require

approval by the Tribal Council. The Tribal Forest

Manager shall make’ a recommendation to the Tribal

Council whether the permit should be approved.

B. NON-MEMBER AND COMMERCIAL PERMITS

Non-member and Commercial permits may be issued by the

Tribal Forestry Department for an amount not to exceed

150 cubic yards for a cost of $2.00 per cu. yd. for unprocessed and $5.00 per cu. yd. for processed gravel.

Permits requested for gravel in excess of 150 cubic yards

require approval by the Tribal Council.

IV. RESPONSIBILITY FOR LOADING AND HAULING.

It is the responsibility of the permittee to load and haul

gravel authorized under a Tribal gravel permit. The permittee

may arrange for the gravel to be hauled by a Tribal department

based on the established equipment rental rate for that

department.

APPROVED:

Lbh A.calang, ha. Li 2 - 1-93

DALE RISLING, S&, CHAIRMAN DATE APPROVED

HOOPA VALLEY TRIBAL COUNCIL: