4.07.010 General

(a) Purpose

The purposes of this Ordinance are –

(1) to take advantage of opportunities for greater self-determination presented by the BIA's 2016 revision of right-of-way regulations;

(2) to strengthen Tribal sovereignty and increase Tribal control over Tribal lands and resources; and

(3) to provide rules governing eligibility the issuance of rights-of-way and service line permits over Tribal Lands.

(b) Authority

The Tribal Council enacts this Ordinance pursuant to its authority under Art. VI, Sections 1(c) and (w) and Article VIII, Section 12 of the Tribe's Constitution.

(c) Effective Date

This Ordinance shall apply to all facilities present on the Reservation as of June 1, 2018 or installed thereafter.

(d) Scope

This ordinance governs right-of-ways and service line agreements over Tribal Lands, relating to the transmission of energy products.

(e) Applicable Law

This ordinance and other laws of the Tribe shall govern all matters arising under this ordinance to the extent not preempted by federal law. In the absence of applicable Tribal or federal law, the Court may apply common law principles in interpreting any matter arising under this ordinance.

(f) Sovereign Immunity

The Tribe, by adoption of this Ordinance, does not waive its sovereign immunity in any respect.

(g) Definitions

The following terms, wherever used or referred to in this Ordinance, shall have the following meanings, unless a different meaning clearly appears from the context:

"Avoid" or "Avoidance" means not taking a certain action or parts of an action to eliminate the environmental impact of an activity.

"BIA" means the Bureau of Indian Affairs.

"Chairperson" means the person elected to that position pursuant to Art. III, Section 3 of the Tribe's Constitution. The Vice-Chair may act for the Chairperson as provided in the Constitution.

"Court" means the judicial branch of the Tribe's government.

"Director" means the director of the Tribe's Natural Resources Department appointed by the Tribal Council. The Director may delegate his or her duties to designated personnel within the Natural Resources Department.

"Effect" means a material and demonstrable impact on the environment on or near Tribal Land. Effects include (a) direct effects, which are caused by the action and occur at the same time and place and (b) indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

"Enforcement Officer" means a Tribal law Enforcement Officer, Tribal Conservation Warden or other agent of the Tribe authorized to carry out evictions under this ordinance.

"Improvements" refer to permanent structures affixed to the land. Improvements do not include mobile homes and other movable personal property, except if those mobile homes and/or other movable property has any associated infrastructure, such as private onsite waste/water treatment system (POWTS), well, and/or slab.

"LTRO" means the Land Titles and Records Office of the BIA.

"Member" means an enrolled member of the Tribe.

"Minimize" or "Minimization" means an action taken to diminish the environmental impact of an activity by limiting the degree or magnitude of the action and its implementation.

"Mitigate" or "Mitigation" means an action taken to diminish the environmental impact of an activity when avoiding the impact altogether by not taking a certain action or parts of an action and minimizing impacts by limiting the degree or magnitude of the action and its implementation, have already been applied to the extent practicable. Mitigation may include (a) rectifying the impact by repairing, rehabilitating, or restoring the affected environment, (b) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action and (c) compensating for the impact by replacing or providing substitute resources or environments.

"Natural Resources Department" means the Tribe's Natural Resources Department.

"Occupancy Right" means the right to enter and occupy or use Tribal Land pursuant to this ordinance.

"Person" includes a natural individual, partnership, corporation, association, other legal or fiduciary entity, and a public entity.

"Public," used as a noun, means Members of the Tribe and other persons or entities upon whom a Right-of-Way-related activity may reasonably be expected to have a particular and material impact.

"Public Interest" means the interest of the Tribe's current and future Members, including strengthening Tribal sovereignty, preserving and promoting Tribal culture and traditions, safeguarding Tribal air, water and other natural resources and developing and assisting the Tribe's public and private sector economy, all as determined by the Tribal Council.

"Real Estate Office" means the office of within the Natural Resources Department designated by the Director to carry out the duties prescribed by this ordinance, under the direction of the Realty Officer.

"Realty Officer" means the person appointed by Tribal Council to carry out the Realty Officer duties prescribed by this ordinance. The Realty Officer may delegate his or her duties to Real Estate Office personnel.

"Right-of-Way Agreement" means the authorization and agreement for right of way prescribed by 25 C.F.R. § 169.107, or successor regulation, constituting Tribal consent for the BIA's grant of a Right-of-Way over Tribal Land.

"Right-of-Way" means an easement or a legal right to go over or across Tribal Land for a specific purpose, including but not limited to building and operating a line or road. Right-of-way does not include Service Lines.

"Secretary" means the Secretary of the Interior of the United States or his or her designee.

"Service Line" means a line that branches off from facilities for which a Right-of- Way must be obtained. A service line is a utility line running from a main line, transmission line, or distribution line that is used only for supplying telephone, water, electricity, gas, internet service, or other utility service to a house, business, or other structure. In the case of a power line, a service line is limited to a voltage of 14.5 kv or less, or a voltage of 34.5 kv or less if serving irrigation pumps and commercial and industrial uses.

"Service Line Agreement" means the agreement between the Tribe and a service provider required by 25 C.F.R. Part 169, Subpart B, pursuant to which a service provider may install a Service Line over Tribal Land to provide services to the owners or authorized occupants or users of land.

"Tribe" means the Bad River Band of Lake Superior Chippewa Indians

"Tribal Attorney" means the Tribe's chief legal officer.

"Tribal Council" means the Tribe's governing body.

"Tribal Entity" means (i) the Tribe's designated housing entity for purposes of the Native American Housing Assistance and Self-Determination Act, 25 U.S.C. 4101 et seq., (ii) a for-profit entity owned and controlled, directly or indirectly, by the Tribe, (iii) a nonprofit entity controlled, directly or indirectly, by the Tribe, (iv) an entity formed by the Tribe for the purpose of developing, financing and operating an energy production or distribution facility, or (v) an entity formed for the purpose of developing, financing and/or operating Housing for Public Purposes. For purposes of this definition, "control" means appointment of board members, "directly" means by the Tribe government and "indirectly" means by an entity that is ultimately owned and controlled by the Tribal government.

"Tribal Environmental Laws" means Tribal laws, regulations and procedures relating to the environment, including Tribal laws relating to air, water, land, including drainage, significant and rare animal and plant species, and historic, traditional, or cultural properties.

"Tribal Land" means any tract, or interest therein, in which the surface estate is owned in whole or part by the Tribe in fee simple status within the Reservation or in trust or restricted status, including the surface estate of lands held by the United States in trust for a Member or for a corporation chartered by the Tribe under section 17 of the Indian Reorganization Act, 25 U.S.C. §§ 461 et seq.

"Trust land" means any tract, or interest therein, held in trust status. Trust status means the United States holds title to the tract or interest in trust for the benefit of the Tribe or a Member.