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The Ute Mountain Ute Tribe
The Ute Mountain Ute reservation is located in the four corners area, spanning southwest Colorado, southeast Utah and part of northern New Mexico. The tribal headquarters is located in Towaoc, Colorado.
The Ute Mountain Ute Tribe operates under a constitution and a federal corporate charter consistent with the Indian Reorganization Act of June 18, 1934 and approved in 1940. Approximately 2,029 Tribal members live, work and use the reservation.
Although the Ute Mountain Ute Constitution does not contain explicit provisions concerning the environment or gas and oil regulation, it does contain provisions which are important to keep in mind when developing resources, including an article covering tribal jurisdictional, an article establishing the powers of the tribal council to make leases with the approval of the Secretary, and the authority of the tribal council to pass regulations which implicate gas and oil development within the reservation boundaries. The relevant portions of the Constitution include:
Art. I- Jurisdiction
Art. V-Powers of the Council
(a) To negotiate with Federal, State and local governments.
(b) To prevent the sale, disposition, lease or encumbrance of tribal lands, interests in lands, or other tribal assets, without the consent of the tribe. Leases shall be made by the Council, subject to the approval of the Secretary of the Interior, in accordance with the existing law, but no lease shall be made to a non-member of the tribe unless it has been approved by and authorized by the Council.
(h) To manage the tribal herds, particularly with regard to the selling of steers, lambs, wool, the purchasing of fresh stock, the distribution of the increase to the members as individual cattle and sheep owners, and the protection of the herds and the range against encroachments. (Emphasis added).
(j) To pass ordinances, subject to review by the Secretary of the Interior, covering the activities of voluntary associations consisting of members of the tribe organized for the purpose of cooperation or for other purposes, and to enforce the observance of such ordinances.
(p) To regulate by ordinance, subject to review by the Secretary of Interior, nonmembers doing business on the reservation.
Water Quality Codes & Regulations
Ground Water Protection Plan
The Ute Mountain Ute tribe relies on the springs in the Sleeping Ute Mountains and the aquifers under White Mesa, Utah, to supply tribal members, wildlife, livestock and to support traditional culture on the reservation. In recognition of the importance of this resource, the Ute Mountain Ute Tribal Council adopted a Ground Water Protection Plan in 2004. The Tribe’s Salt Cedar (Tamarisk) eradication program seeks to eliminate the consumption of ground water in riparian zones by those invasive plant species. By raising the ground water table, it is anticipated that it will have a positive impact on surface water quantity and quality. (See information about salt cedar on this website.)
Relevant excerpts of the Ground Water Protection Plan, 2004:
“The Ute Mountain Ute Tribe has lived on this Reservation for over 100 years, and through economic development, planning, and use of natural resources, they are building for the future. Groundwater and the replenishment of rivers and streams, as mountain snows melt and flow to near surface waters and the deep aquifers, are critical to the long-term vitality of the Tribe. Using that water wisely and protecting it for present and future generations is an important goal of the Tribe. Pesticides, heavy metals, hazardous and toxic substances, and pathogens are some of the threats that can degrade the Tribe’s ground and surface water resources. As the Tribe plans and builds for the future, this plan will assist in management and protection of its vital water resources. Ground and surface water will be maintained free of levels of contaminants at levels that threaten public health or the environment.”
“Economic vitality is critical to the future of the Tribe. The Tribe has a number of Tribal enterprises working to enhance the economic future for the Tribe and its members. The Tribal lands are on what's known as the Colorado Plateau, a high desert area with deep canyons carved through the mesas. This is a harsh land and there are no cities to provide services for the Tribe. So the Tribe must be self-sufficient by looking for other means of implementing progress and creating successful enterprises to serve the needs of the tribal members as well as create a healthy economy in which to live. The natural resources of the land provide the Tribe income. These resources include oil and gas, grazing land for cattle and sheep, and land and water for the new Farm & Ranch Enterprise south of the Sleeping Ute Mountain.”
“In modern society, many chemicals are used ranging from pesticides and petroleum products to cleaners and solvents. The Tribe recognizes that the pervasive nature of these types of contaminants necessitates balanced management. While it is not possible to extract gas and oil without some exposure to toxic chemicals, through management of produced waters and responses to spills the risk can be minimized. Similarly, the Tribe believes that proper management at Farm and Ranch and across the entire reservation can avoid ground water contamination by pesticides.”
“Special care must be exercised in some areas on the reservation. While weed control to protect the native vegetation of the Tribal Park might be appropriate, it requires an additional level of scrutiny and concern. Other areas, such as Sleeping Ute Mountain, and its culturally important springs require more protection and, thus, exposure to toxic chemicals such as pesticides or oil/gas development wastes only under the most tightly controlled conditions.”
“While the overall goal of the plan is to protect the ground and surface water resources of the Ute Mountain Ute Tribe, the reservation has been divided into eight regions each with special needs and concerns, and the Tribe’s off-reservation ranches are also considered an additional management sector.”
>Descriptions and Management Goals for Tribal Groundwater Regions
“As the major community, the goal is assure the highest level of projection for springs flowing into the community.”
“Any storage of petroleum products needs to be managed so as to avoid contamination of ground or surface water.”
“Hazardous and toxic substances either used, stored, or transported need to be managed so as to avoid contamination of ground or surface water. An emergency response plan needs to be in place to prevent contamination of ground or surface water in the event of a spill or other emergency.”
The Ute Mountain area is important spiritually, culturally and as the major watersheds for high quality water. This area should receive the highest level of protection.
“Springs and plant gathering areas should be maintained free of pesticides or other contaminants.”
“The use of any pesticide or toxic substance on the mountain should be prohibited unless, after a site specific environmental review, the Council determines that its use is justified; it will not cause undue environmental harm; and the use is beneficial to the Tribe and its members.
“Forest fire suppression and rehabilitation efforts and forestry management practices on Ute Mountain need to be conducted in a manner that does not jeopardize the natural resources of this culturally significant area.”
Mancos Creek Farm
“The Mancos Creek Farm is an important resource for the Tribe that depends upon scant irrigation water for its existence. It is the goal of management for this area to protect the creek and its riparian area from contamination by fertilizers, pesticides and animal waste.”
“Toxic and hazardous substances will not be stored or disposed of at the Mancos Creek farm area. Chemical storage, such as that for fuels and equipment maintenance supplies, will be conducted in a manner that employs appropriate spill prevention controls and countermeasures and emergency response plans.”
Tribal Park/ Mancos Canyon
“The Mancos Canyon and Mancos Creek is an important resource of the Tribe. The functioning of the stream and its interconnected ground water needs to be protected from pesticides, petroleum discharges or releases of hazardous and toxic substances.”
“Unless a pesticide or other toxic substance is to be used within the park, it shall be prohibited from the area.”
Southern Mesas & New Mexico lands on Reservation
“Ranching, existing and potential oil and gas development, coal mining, and farming, throughout the Middle San Juan River watershed and southern mesas area pose a moderate threat to ground and surface water and cultural resources from pesticides, petroleum releases and other toxic substances.”
“Measures shall protect the surface and ground water resources in the San Juan River watershed. Also, management should be conducted in a way that does not contaminate cultural resources with chemicals that may degrade the integrity of those resources.”
“Coal mining, if undertaken, and other mineral development shall be managed in manner that avoids contamination of ground water beyond the area directly impacted by the mining.”
West of Ute Mountain—Farm and Ranch Enterprise/ Lands with Oil and Gas leases
“The area west of the mountain is home to two major tribal enterprises: The Farm and Ranch Enterprise and several mineral development leases, overseen by the Tribe’s Energy Department, the Bureau of Indian Affairs, and the Tribe’s new Red Mountain Energy Company.”
“Oil and gas development will be managed to avoid contamination of ground or surface water, threatening wildlife or affecting public health. Mineral development leases stipulate that lessees, operators, and other field staff and subcontractors diligently conform to the laws of the Tribe and federal environmental laws. A violation of those laws is considered a breach of contract and can invoke severe civil penalties for water and soil pollution, waste of mineral resources, and subsequent loss of Tribal royalties.”
“Produced waters associated with oil and gas extraction shall be properly disposed of in a manner that will not threaten ground or surface water. Underground injection controls (UIC’s) are regulated and inspected by federal inspectors. Nonconformity with UIC regulations causes notices of noncompliance that, if not addressed, can have significant associated civil penalties and may also be grounds for breach of contract.”
Ranches—6 CO, 1 UT
“The Tribe owns and manages seven ranches located off the main reservation area in Colorado and Utah (See Table 1—Some of these ranches are adjacent to each other and considered to be one ranch, but listed separately in Table 1). These ranches include numerous high quality springs, seeps and creeks. One of the ranches provides high quality trout habitat. While the intended use is ranching, the Tribe has a goal to protect, maintain and enhance the quality of the ground and surface water on these areas.”
“Petroleum products or other toxic substances for use on the ranches shall be stored and used in a manner that will not adversely impact ground or surface water.”
Reservation (in General)
“The disposal of any pesticide, toxic or hazardous substance except as expressly permitted by the Tribe shall be prohibited.”
“The transportation of any pesticide, toxic or hazardous substance shall be the responsibility of the party responsible for manufacturing, transporting or owning the substance and any release shall be the strict, joint and severe liability of all parties responsible for the substance.”
“The area contains a number of naturally occurring chemicals that can adversely impact the use, enjoyability and environmental quality of the ground and surface water on the Reservation. These chemicals include but are not limited to leached arsenic, selenium, iron, manganese, sulfur and calcium-sulfate dominated salts, varying in different aquifers, respectfully. It is the goal of the Tribe to manage ground water in a manner that minimizes adverse impacts associated with the leaching and migration of these chemicals and does not threaten present or future uses
“In no case shall a pesticide contamination in ground water or surface water be allowed to exceed a maximum contaminant level, a health advisory or a water quality criterion.”
Sources and Management Goals
“It is the goal of the Tribe, through this plan, to address potential contamination of ground or surface water from activities associated with:
Legal Authority and Responsibilities
Tribal Sovereign Authority Under U. S. Law
The Ute Mountain Reservation (the “Reservation”) is located in the southwestern corner of Colorado with portions in New Mexico and Utah. The Reservation is approximately 933 square miles or 597,288 acres. The Colorado and New Mexico portions of the Reservation are one block of contiguous lands that are owned in trust by the United States for the benefit of the Tribe. The Utah portion of the Reservation is noncontiguous with the Colorado and New Mexico portions of the Reservation and includes land that is held in trust for the Tribe and land that has been allotted and is held in trust by the United States for the benefit of individual Tribal members. There are no lands within the boundaries of any portion of the Ute Mountain Reservation that are owned in fee by non-Indians.
Ute Mountain Tribe v. Navajo Tribe, 409 U.S. 809 (1972)
The land in Utah held by the United States in trust for either the Tribe or Tribal members qualifies as land over which the Tribe may assert jurisdiction for purposes of administering a pesticide management and ground water program (See map below). Although not within the boundaries of Tribe’s 1895 Reservation, the property in Utah has been subject to Tribal jurisdiction and recognized as part of the Reservation. See Constitution and Bylaws of the Ute Mountain Tribe of Ute Mountain Reservation in Colorado, New Mexico, Utah approved June 6, 1940, and subsequently amended. (underlining added); see also Article II, Section 1 of the Constitution and Bylaws of the Ute Mountain Tribe (providing that “the governing body of the Ute Mountain Tribe of the Ute Mountain Reservation. which includes Allen Canyon, shall be known as the ‘Ute Mountain Tribal Council.’ (underlining added). In addition to the above described land, the Tribe owns nine parcels of fee land, eight located in Colorado and one in Utah, that are not contiguous to the above described Reservation land. Such lands are included in this pesticide and groundwater management plan.
The Ute Mountain Ute Tribe is a recognized sovereign Indian Nation. As a sovereign nation the federal government has a trust responsibility and a treaty responsibility to protect the natural resources of the Tribe. Once a valid tribal interest, such as the Ute Mountain Ute Tribe’s interest in protecting groundwater, is established, a presumption arises that the Tribe has regulatory and adjudicatory jurisdiction unless that jurisdiction is affirmatively limited by federal law. No specific treaty provision or federal statute affirmatively limits the Tribe’s authority in this instance. The Constitution and By-laws of the Tribe and subsequent Tribal resolutions establish jurisdiction and regulatory authority. The exercise of Tribal sovereignty in the protection of groundwater and regulation of the use of pesticides, potentially toxic substances, is consistent with the interests of the U.S. federal government.
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