WHITE EARTH RESERVATION

WHITE EARTH RESERVATION

CHAIRMAN Michael Fairbanks SECRETARY- TREASURER Michael LaRoque

DisTRICT I Henry Fox DISTRICT Hl Eugene Sommers DISTRICT ill Laura Lee Erickson

NOTICE TO TRIBAL MEMBERSHIP

Date: August 19, 2024 ° Vy

From: Laurie York, Executive Director ——

Re: Natural Resources — Proposed Amendment to White Earth Environmental Code — Pesticide and Chemical

Ordinance

Attached please find the proposed amendment to the above referenced Code in the Environmental Code. Pursuant

to White Earth Reservation Business Committee Resolution No. 001-16-0174, this notice to membership will be

posted for a 15-day comment period, ending on September 3, 2024 at close of business. All comments may be made

in writing and shall be respectful and constructive. The proposed amendment is currently under consideration by

the White Earth Reservation Business Committee.

After completion of of the 15-day comment period, all comments will be considered by the White Earth

Reservation Business Committee. The comments will be summarized, this summary and summary responses will

be publicly posted.

Upon receipt of a final draft, the Executive Director will post another notice ot Tribal membership for an additional

15 days, after which the White Earth Reservation Business Committee will consider for a vote at a White Earth

Resrevation Business Committee meeting.

Thank you in advance for your consideration and input.

P.O. Box 418 | White Earth, Minnesota 56591 | Tel. (218) 983-3285 | Fax (218) 983-3641 | whiteearth.com

Page lof 2

WERBC Resolution

Natural Resources — Proposed Amendment to White Earth Environmental Code — Pesticide and Chemical Ordinance

WHITE EARTH RESERVATION BUSINESS COMMITTEE

WHITE EARTH BAND OF CHIPPEWA INDIANS

Resolution No.

WHEREAS, the White Earth Reservation Tribal Council is the duly elected governing body of the

White Earth Reservation pursuant to Article IV, Section |, of the revised constitution and

bylaws of the Minnesota Chippewa Tribe, as amended, and organized under Section 16,

of the Act of June 18, 1934 (48 Stat. 984), and

WHEREAS, the White Earth Reservation Business Committee is the duly authorized governing body

of the White Earth Band, and

WHEREAS, the White Earth Reservation Business Committee desires to amend the White Earth

Environmental Code Pesticide and Chemical Code §300.00 — 300.014 to better conform

with federal law and with the support of the Environmental Protection Agency, and

WHEREAS, the White Earth Reservation Business Committee adopted Resolution No. 001-16-017A

in part to provide a transparent process for the consideration and approval of Tribal

Ordinances, and

WHEREAS, the White Earth Reservation Business Committee determined the revised Pesticide and

Chemical Ordinance is ready to issue public Notice to Tribal membership which shall

commence a 15 day public comment period, and

WHEREAS, the White Earth Reservation Business Committee shall consider the received comments

and provide a public summary of responses no later than 30 days after the public

comment period, and

WHEREAS, the White Earth Reservation Business Committee shall publicly post the final version of

the White Earth Environmental Code’s Pesticide and Chemical Ordinance for an

additional 15 days before a work session for a final vote, now

THEREFORE BE IT RESOLVED, that the White Earth Reservation Business Committee hereby directs the

Executive Director to issue a public Notice pursuant to Resolution No. 001-16-17A to commence the

public posting comment period on August 19, 2024 and commence the process out}ined above.

We do hereby certify that the foregoing resolution was adopted by a vote of for, A,

against, 0 silent, a qBorum-being present at a regular meeting of the White Earth Reservation

Business Committee held o 2024 in Minnesota.

Page 2 of 2

WERBC Resolution

Natural Resources — Proposed Amendment to White Earth Environmental Code — Pestici id Chemical Ordinance

Zz

Michael A\\Fairbanks, Chairman

i Din p&>o

Michael LaRogdé, § Secretary/Treasurer

PROPOSED

W.E.E.C, 300.00 PESTICIDE AND CHEMICAL CODE

W.E.E.C. 300.01 Title

This section of the White Earth Environmental Code is known as the Pesticide and Chemical

Code. References herein to the “Code” refer to the Pesticide and Chemical Code.

W.E.E.C. 300.02 Scope

The Pesticide and Chemical Code applies to all Producers, Distributors, Sellers, Purchasers,

Transporters, Handlers, Storers, Applicators, Dealers or Disposers of Pesticides on land within

the exterior boundaries of the White Earth Reservation. This Code also applies to applications of

Fertilizer using Chemigation.

W.E.E.C. 300.03 Definitions

Subd. 1) Antisiphon Device has the meaning provided in W.E.E.C. § 102.00, Subd. 13.

Subd. 2) Applicator means a Person who is required to have a private or commercial applicator

certification or license under Minnesota Statute 18B et seq.

Subd. 3) Band has the meaning provided in W.E.E.C. § 102.00, Subd. 19.

Subd. 4) Body of Water has the meaning provided in W.E.E.C. § 102.00, Subd. 24.

Subd. 5) Certification means a certification required under Minnesota Statute § 18.36.

Subd. 6) Check Valve Device has the meaning provided in W.E.E.C. § 102.00, Subd. 36.

Subd. 7) Chemigation has the meaning provided in W.E.E.C. § 102.00, Subd. 37.

Subd. 8) Dealer means a Person who distributes a Pesticide within the exterior boundaries of the

White Earth Reservation to an end user. This action would commonly be called a retail sale.

Subd. 9) Defoliant means any substance or mixture of substances intended for causing the leaves

or foliage to drop from a plant, with or without causing abscission.

Subd. 10) Desiccant means any substance or mixture of substances intended for artificially

accelerating the drying of plant tissue.

Subd. 11) Distributor means a Person selling, bartering, shipping, delivering for shipment,

receiving, delivering for use, or offering to deliver Pesticides within the exterior boundaries of

the White Earth Reservation.

Subd. 12) Endangered Species has the meaning provided in W.E.E.C. § 102.00, Subd. 64.

Subd. 13) Fertilizer means a substance containing one or more recognized plant nutrients that is

used for its plant nutrient content and designed for use in promoting plant growth.

Subd. 14) License means a license required under Minnesota Statutes § 18.29-18.35.

Sub. 15) Non-Target Organisms has the meaning provided in W.E.E.C. § 102.00, Subd. 137.

Subd. 16) Person has the meaning provided in W.E.E.C. § 102.00, Subd. 147.

Subd. 17) Pesticide Coordinator has the meaning provided in W.E.E.C. § 102.00, Subd. 149.

Subd. 18) Pesticide has the meaning provided in W.E.E.C. § 102.00, Subd. 148.

Subd. 19) Pesticide Labeling means labeling meeting the requirements of 40 C.F.R. § 156.10.

Subd. 20) Plant regulator means any substance or mixture of substances intended, through

physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for

otherwise altering the behavior of plants or the produce thereof but shall not include substances

to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant

inoculants, and soil amendments. Also, the term “plant regulator” shall not be required to include

any of such of those nutrient mixtures or soil amendments as are commonly known as vitaminhormone horticultural products, intended for improvement, maintenance, survival, health, and

propagation of plants, and as are not for pest destruction and are nontoxic, nonpoisonous in the

undiluted packaged concentration.

Subd. 21) Registration means registered with the Environmental Protection Agency in

accordance with the requirements of 40 C.F.R. § 152 et seq.

Subd. 22) Reservation Business Committee means the duly elected governing body of the White

Earth Reservation pursuant to Article VI, Section 1, of the revised constitution of the Minnesota

Chippewa Tribe, as amended and organized under Section 16 of the Act of June 18, 1934 (48

Stat. 984).

Subd. 23) Restricted Area means Band forests, Minnesota state forests, Tamarac National

Wildlife Refuge, Hamden Slough National Wildlife Refuge, Wildlife Management Areas,

Waterfowl Production Areas, Aquatic Management Areas and Scientific and Natural Areas.

Subd. 24) Restricted-entry Interval (“REI’’) means the time after the end of a Pesticide

application during which entry to a treated area is restricted.

Subd. 25) Restricted Use Pesticide (“RUP”) has the meaning provided in W.E.E.C. § 102.00,

Subd. 170.

Subd. 26) Right-Of-Way has the meaning provided in W.E.E.C. § 102.00, Subd. 171.

Subd. 27) Spray Drift means the movement of pesticide dust or droplets through the air at the

time of application or soon after, to any site other than the area intended.

Subd. 28) Volatilization means the movement of pesticide vapors through the air. Volatilization

is different than pesticide movement by Spray Drift.

Subd. 29) Wetland means an area that is inundated or saturated by surface or groundwater at a

frequency and duration sufficient to support, and that under normal circumstances do support, a

prevalence of vegetation typically adapted for life in saturated soil conditions.

Subd. 30) White Earth Department of Natural Resources or Department means the agency with

delegated authority from the White Earth Reservation Business Committee to protect, restore and

regulate the natural resources of the Band and Band members in order to ensure environmental

and human health and spiritual, cultural and economic sustainability of the Band.

Subd. 31) White Earth Reservation has the meaning provided in W.E.E.C. § 102.00, Subd. 219.

W.E.E.C. 300.04 Authority of the White Earth Department of Natural Resources and the

Pesticide Coordinator

The White Earth Department of Natural Resources and Pesticide Coordinator, pursuant to the

Department’s delegated authority to protect, restore and regulate the natural resources of the

Band in order to ensure environmental and human health and spiritual, cultural and economic

sustainability of the Band are authorized to implement and enforce the provisions of this Code.

W.E.E.C, 300.05 Unlawful Acts It shall be unlawful under this Code for any Person to:

Subd.1) Interfere with the lawful enforcement of this Code.

Subd.2) Disturb, move, damage, obstruct or interfere with any equipment or activities of the

Pesticide Coordinator.

Subd.3) Sell, purchase, process, transport, handle, store, apply, dispose of or otherwise use a

Pesticide within the White Earth Reservation without a duly authorized License or Certification

from the Minnesota Department of Agriculture.

Subd.4) Make misrepresentations in applying for or renewing a License or Certification.

Subd.5) Fail to keep and submit records and annual reports as follows:

a.

Restricted Use Pesticide Application Records. In a reasonably accessible electronic

format, keep a record of Restricted Use Pesticide applications including the name and

address of the person for whom the Restricted use Pesticide was applied; the name

and certification number of the applicator that made the Restricted Use Pesticide

application; the date and time of Restricted Use Pesticide application; amount of

Restricted Use Pesticide applied (total and per acre); Restricted Use Pesticide dilution

rate; total acreage of Restricted Use Pesticide application; specific type of Restricted

Use Pesticide applied, including the brand or product name and Environmental

Protection Agency registration number of the applied Restricted Use Pesticide:

method of Restricted Use Pesticide application; location of Restricted Use Pesticide

application; crop, commodity, stored product, or site to which the Restricted Use

Pesticide was applied; and weather conditions, including wind speed. Application

records must include a legible map identifying Bodies of Water and Rights-of-Way

within one-quarter mile of Restricted Use Pesticide application site.

Restricted Use Pesticide Dealer records. In a reasonably accessible electronic format,

record and maintain at each individual dealership, records of each transaction where a

Restricted Use Pesticide is distributed or sold to any person. Records of each such

transaction must include all of the following information: name and address or

principle place of business of each certified applicator to whom the Restricted Use

Pesticide was distributed or sold; the certification number on certification document

presented to the seller evidencing the valid certification of the certified applicator

authorized to purchase a Restricted Use Pesticide; the expiration date of the

applicator’s certification; the category(ies) in which the applicator is certified relevant

to the pesticide(s) sold; the product name and Environmental Protection Agency

registration number of the Restricted Use Pesticide(s) distributed or sold in the

transaction, including the applicable emergency or State special local need

registration number; the quantity of the Restricted Use Pesticide(s) distributed or sold

in the transaction; and the date of the transaction.

Annual Reports. By November | of each year, in a reasonably accessible electronic

format, submit an annual report to the Pesticide Coordinator including all Restricted

Use Pesticide application records for the preceding year and planned agricultural

crops and Restricted Use Pesticide applications for the following year.

Record Retention. Keep all Restricted Use Pesticide sale, purchase, application, and

dealer records and annual reports in a reasonably accessible electronic format and

available for inspection by the Pesticide Coordinator for a period of at least five

years.

Subd.6) Make or maintain false or fraudulent records, invoices, or reports.

Subd.7) Apply or dispense any Pesticide on any Right-Of-Way without prior approval from the

Pesticide Coordinator.

Subd. 8) Apply Pesticides where Endangered Species are located.

Subd. 9) Apply a Pesticide in a manner inconsistent with Pesticide Labeling.

Subd.10) Make false or misleading statements during any inspection carried out under this Code.

Subd.11) Sell or apply any Pesticide or mixture of Pesticides that do not have accurate and

affixed branding or labeling.

Subd.12) Apply Pesticides in a manner that poses unreasonable negative impacts or health risks,

including through exposure from Spray Drift or Volatilization, for Non-Target Organisms,

including humans.

Subd.13) Sell or apply any Pesticide that is not Registered with the United States Environmental

Protection Agency or whose Registration has been canceled or suspended.

Subd.14) Fail to report, by telephone and email, spills of Pesticides, measuring five or more

gallons, to the Pesticide Coordinator within six hours. Email and telephone contact information

for the Pesticide Coordinator are available here:

https://whiteearth.com/divisions/natural_resources/contact.

Subd.15) Apply or dispense any Pesticide by aircraft or ground method within one-quarter mile

of a School Area unless the following conditions are met:

a) No school activities are being conducted/ no children or staff are present.

b) Pesticide Coordinator has been notified and approved the Pesticide application at least

forty-eight hours in advance. Notification to Pesticide Coordinator must include a

provision for an emergency landing and emergency dispensing of Pesticides or RUPs in a

manner which will not endanger persons or property.

Subd. 16) Apply or dispense any Pesticide by aircraft or ground method within one-quarter mile

of a Restricted Area without prior approval, at least 48 hours in advance, from the Pesticide

Coordinator.

Subd.17) Apply or dispense any Pesticide by aircraft or ground method within one-quarter mile

of an operating school bus.

Subd.18) Apply or dispense any Pesticide by aircraft within one-quarter mile or by ground

method within three hundred feet of a Body Of Water or Wetland without prior approval, at least

48 hours in advance, from the Pesticide Coordinator. Applications of Pesticides directly to

Bodies of Water or Wetlands are prohibited without an approved plan from the Pesticide

Coordinator.

Subd. 19) Use water directly from a Body of Water for mixing/loading Pesticides.

Subd. 20) Store empty Pesticide containers at a site within the exterior boundaries of the White

Earth Reservation for more than one year unless prior authorization is obtained from the

Pesticide Coordinator.

Subd. 21) Fail to notify persons or properly restrict entry of people and livestock into Pesticidetreated areas until the Restricted-entry Interval period associated with the Pesticide has lapsed.

Subd. 22) Apply Pesticides using Chemigation.

Subd. 23) Apply Fertilizer through Chemigation without a permit from the Minnesota

Department of Agriculture and an effective Antisiphon Device or Check Valve that prevents

backflow of fertilizer into water supplies during irrigation system failure or shut down. Before

operation, Antisiphon Devices or Check Valve Devices must be approved by the Pesticide

Coordinator.

W.E.E.C. 300.06 Civil Proceedings

In the event of a violation of this Code, the Pesticide Coordinator may institute civil proceedings

in the White Earth Tribal Court against any Person committing violations of the Code for any

appropriate remedies, including but not limited to, monetary relief, injunctive relief, seizure and

forfeiture, and the posting of bonds or sureties to ensure compliance.

W.E.E.C. 300.07 Civil Administrative Penalties

Any Person who violates any provision of this Code may be assessed a civil administrative

penalty of not more than $5,000 for each violation. Each day a violation exists constitutes a

separate violation.

W.E.E.C. 300.08 Criminal Penalties

Any enrolled White Earth Band Member who knowingly violates any provision of this Code

may be subject to a criminal penalty of not more than $10,000 per violation. Each day a violation

exists constitutes a separate violation.

W.E.E.C. 300.09 Enforcement Actions by the Pesticide Coordinator

The foregoing shall not be deemed to limit or restrict the Pesticide Coordinator from taking any

appropriate administrative or emergency action necessary to protect public health and safety and

natural resources including but not limited to issuance of warning notices, corrective action

orders, and stop-sale, use or removal orders.

W.E.E.C. 300.10 Right of Entry

For the purposes of carrying out this Code, the Pesticide Coordinator may enter premises at

reasonable times. Advance notice is not required in cases in which there is a significant threat to

human health or natural resources.

W.E.E.C. 300.11 Judicial Review

Subd. 1) Any Person affected by a notice, order or other final action taken or issued by the

Pesticide Coordinator pursuant to this Code may request and shall be granted an evidentiary

hearing on the matter before the White Earth Tribal Court. Such person shall file with the Court,

a written petition requesting the hearing including name, address, telephone number and a brief

statement of the grounds for the hearing. Such petition shall be filed within thirty days of the date

a notice, order or other final action is taken or served. Parties to the hearing include the petitioner

and the White Earth Department of Natural Resources. Parties may present evidence, cross

examine witnesses, and submit post-hearing briefs. A record of oral proceedings shall be made.

Subd. 2) After the hearing, the White Earth Tribal Court shall sustain, modify, or reverse a notice,

order or other final action taken by the Pesticide Coordinator based on the evidence provided at

the hearing. The decision shall include findings of fact and conclusions of law and shall be issued

in writing.

W.E.E.C. 300.12 Effective Date

This Ordinance shall take effect on the date of passage by the White Earth Reservation Business

Committee.

W.E.E.C. 300.13 Severability

If any provision of this Code is held invalid, the remainder of this Code shall remain in effect.

W.E.E.C. 300.14 Amendments

This Code may be amended by the White Earth Reservation Business Committee through a duly

adopted resolution. Additions to this Code shall become part of the Code thereafter for all

purposes and shall be codified and incorporated herein in a manner consistent with the

numbering and organization hereof.