# RIPARIAN PROTECTION AND SURFACE MINING PRACTICES ORDINANCE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Ahoopa_valley%3Ace70e276f1d3330c ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 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 (~. 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 | f . 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 ung fT “as C) Aoopa Valley Tribal Counect P.O, Box 1348 @ Hoopa, California 95546 @ (916) 625-4211 I. If. IIt. 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 1 a oo 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: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Ahoopa_valley%3Ace70e276f1d3330c. Public record. Not legal advice.