Title 4 Property Code

Chapter 4.01 Trespass to Land

4.01.010 Findings and Purposes

(a) The Tribal Council finds that -

(1) The Tribe possesses the inherent sovereign power to exclude unauthorized persons and entities from its lands; and

(2) The adoption of a trespass to land ordinance will strengthen Tribe sovereignty.

(b) Purposes.

The purposes of this ordinance are to strengthen Tribe sovereignty and protect its right to exclude unauthorized persons from the tribal lands.

4.01.020 Authority

The Tribal Council enacts this Ordinance pursuant to its inherent sovereign authority and its authority under Art. VI, Sections 1 (j), and (s) of the Tribe's Constitution.

4.01.030 Definitions

As used in this Act:

"Parcel" means a tract of Tribal land as described in a deed or other instrument recorded with the Bureau of Indian Affairs or Ashland County, Wisconsin.

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

"Tribal court" means the Bad River Tribe of Lake Superior Chippewa court.

"Tribal land" means any tract, or interest therein, in which the surface estate is owned in whole or part by the Tribe or a member 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. or in fee simple status within the Reservation

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

4.01.040 Civil Trespass

(a) A person commits civil trespass who intentionally and without the Tribe's consent -

(1) Enters tribal land or causes a thing or a third person to do so, or

(2) Remains on tribal land, or

(3) Fails to remove from tribal land a thing which he is under a duty to remove.

(b) In any action to enforce this ordinance, the defendant shall bear the burden of proof on the issue of consent.

4.01.050 Failure to Remove Thing Placed on Tribal Land

A trespass is committed by the continued presence on tribal land of a structure, chattel, or other thing which the actor or his predecessor in legal interest has placed on the land pursuant to a license or other privilege if the actor fails to remove it after the privilege has been terminated by the accomplishment of its purpose or otherwise.

4.01.060 Separate Acts of Trespass

A separate violation of this ordinance is committed with respect to each parcel of land on which a trespass is committed under Sections 201 and 202.

4.01.070 Remedies

(a) Civil Penalties and Sanctions.

A person found liable for trespass under this ordinance is subject to the following civil penalties and sanctions for each act of trespass:

(1) Federal common law remedies, including ejectment, accounting for rents and profits and damages;

(2) A fine not to exceed the greater of

(A) $5000 for each day that a trespass occurs; or

(B) Three times the property taxes due because of the presence of the structure, chattel or other thing on tribal land; and

(D) Damages equal to the costs of removal.

(b) Disposition of Property on Tribal Land in Violation of Ordinance

The Tribe shall have the right to seize, hold and exclude the owner from using property that the Tribe determines has been intentionally placed or left on tribal land in violation of this ordinance.

At the conclusion of legal proceedings, the Tribe shall:

(1) In the event of a judgment of no liability, return the property to the defendant as ordered by the court;

(2) Continue to hold and exclude the defendant from using the property pending the defendant's payment in full of any fines, damages or costs imposed by the court;

(3) In the event the defendant fails, within 90 days, to pay in full any fines, damages or costs imposed,

(A) Sell the property and credit the proceeds against the judgment; or

(B) Assume ownership of the property and credit its value, as determined by the court, against the judgment, provided that if the value of the property exceeds the judgment, the Tribe shall pay the excess to the defendant.

4.01.080 Enforcement

(a) Tribal Conservation Enforcement Officers may execute this ordinance and serve warrants and processes issued by the Tribal Court; or

(b) The Tribal Attorney may enforce this ordinance by initiating a civil complaint in the Tribal Court.

4.01.090 Jurisdiction

The Tribal Court shall have exclusive jurisdiction to enforce this ordinance.

Chapter 4.02 Tribal Leases

4.02.010 Purpose

The purpose of this chapter is to provide for the public health, safety, and welfare by establishing an orderly procedure for the residential leasing of tribal land to tribal members.

4.02.020 Authority

This chapter is adopted pursuant to Art. VI, sec. 1 (c) and (w), Bad River Constitution.

4.02.030 Maximum Lot Size

No lease of tribal land to a tribal member for residential purposes shall exceed three acres in size.

4.02.040 Procedure Established

No agreement for the residential leasing of tribal land to a tribal member shall be entered into except as provided in this chapter.

4.02.050 Administrator's Duties

The administrator of this chapter shall be responsible for assisting applicants with applications, for making all necessary inter-departmental and inter-agency contracts with regard to particular applications, for certifying to the Tribal Council or denying all lease applications based on the standards provided in this chapter, for maintaining the Official Lease Map, and for executing all other tasks specifically assigned to him by this chapter.

4.02.060 Administrator Established

The Environmental Health Community Health Representative shall serve as the administrator of this chapter.

4.02.070 Procedure

(a) Application. The administrator shall make lease site application forms available to any tribal member seeking a residential lease. An applicant seeking a residential lease site shall complete an application on the form provided him by the administrator. The applicant may list in order of priority up to three desired lease sites. The applicant shall describe the lease sites as completely as possible and shall include a legal description if available. If necessary for adequate identification the administrator shall make a visit with the applicant to the proposed lease sites.

(b) Legal Description. If the applicant is unable to supply a complete legal description of any proposed lease site, the administrator shall request one from the Bureau of Indian Affairs before proceeding further in the certification process for that site.

(c) Zoning. The administrator shall check the proposed lease site against the Official Zoning Map, the Official Lease Map, and the Official Forestry Map, and shall verify on the application that the site is tribal property, is not otherwise leased, is within a residential district, is independent of shoreland/wetland restrictions, and is outside the boundaries of any forestry development project. If the site is encroached by shoreland/wetland restrictions but is partially usable for residential site, the administrator shall so note on the application and inform the applicant. The applicant may then choose to have the administrator continue the certification process of the site so encroached, or may request the administrator to proceed with the certification process on an alternate site.

(d) Flood Plain. The administrator shall check the proposed site against the Official Flood Map. If the site is within a 100 year flood plain the administrator shall so note on the application and inform the applicant. The applicant may then choose to have the administer continue the certification process of the site or may request the administrator to proceed with the certification process on an alternate site. If the applicant directs the administrator to proceed with the certification process of the flood plain site, the applicant shall sign a statement declaring that he is aware that he will be ineligible for tribal or Indian Health Service assistance in the installation of sewer and water facilities. The site shall not, however, be denied certification solely because it is within a 100 year flood plain.

(e) Percolation. The administrator shall refer a site not within a flood plain and meeting the criteria specified in Section 4.02.070(c) to the Indian Health Service to perform a percolation test and to determine the feasibility of locating at the site a private sewer disposal system and well meeting the requirements of Chapter 402. Based on Indian Health Service reports and recommendations the administrator shall determine if the site is suitable for an approved private sewer disposal system and well under Chapter 402. For sites within a flood plain, the applicant shall privately secure and convey to the administrator the information required by this subsection.

(f) Certification - Denial. If the proposed site fails to prove suitable under Section 4.02.070(e), the site shall be denied certification, the applicant shall be so informed, and the administrator shall commence the certification process for an alternative site listed on the applicant's application, or shall consult the applicant to determine his wishes.

(g) Certification - Granted. If the proposed site is found suitable for a private sewer system and well under Section 4.02.070(e), the administrator shall instruct the Bureau of Indian Affairs to prepare a lease for the site. The lease shall specify the type of private sewer disposal system permitted at the site.

(h) Tribal Council Approval. The administrator shall submit to the tribal council for approval the completed lease application, the lease prepared by the Bureau of Indian Affairs, and a draft resolution approving the lease. If the Tribal Council approves the lease resolution, the administrator shall submit all necessary papers to the Bureau of Indian Affairs for execution and recording.

(i) Recording on Official Lease Map. Upon execution and recording of the lease, the administrator shall record on the Official Lease Map the approved lease site, and shall set down the verbal information as required by Section 4.02.080.

(j) Appeal of Administrator Denial. Any denial of lease-site certification made by the administrator may be appealed to the Tribal Council by submitting to the Council the lease application, the administrator's denial of certification and a statement of reasons why the denial should be overridden. The Council in determining any appeal shall apply the provisions of this chapter and Chapters 401 and 402. For purposes of appeal any failure by the administrator to certify or to proceed further in the certification process because of a 403.7(c) conflict or 403.7(e) failure shall be construed as a denial.

4.02.080 Official Lease Map

The administrator shall maintain the Official Lease Map of the Bad River Tribe. The Map shall have no legal effect but shall be used as an administrative tool to locate, identify, and pictorially record lease sites. The Map shall not be altered except by the Administrator upon the execution or expiration of a lease. The Map shall contain, along with a pictorial representation of each site, the following information for each site: Name(s) of lessee(s); date of execution and term of each lease, legal description of each site, and yearly monetary consideration for each lease. The Map shall be available for inspection to Tribal members and the administrator's office, in his presence during regular business hours.

4.02.090 Flow Chart

The flow chart attached to this chapter as Appendix A is intended to provide a graphic representation of the procedures prescribed herein. It is not a part of this chapter and is of no legal effect. In any case of conflict between the procedures as depicted on the flow chart and the procedures described in this chapter, the latter shall be controlling.

4.02.100 Application Form

The application form attached to this chapter as Appendix B shall be the official application form for residential leases for tribal members. The application form may be modified by the administrator provided such modification is submitted to the Tribal Council for review at the next subsequent regular Tribal Council meeting.

4.02.110 Effective Date

This chapter shall be effective on the date following Tribal Council approval.

4.02.120 Termination of Leases

Any lease executed hereunder may be terminated for violation thereof, in accordance with 25 CFR Part 131. Without implying limitation by enumeration, it is expressly stated that ground for termination of any residential lease executed hereafter shall be lessees failure to construct and complete permanent residential improvements within a period of two years from the date of the lease.

APPENDIX B TO CH. 403 - BAD RIVER ORDINANCES

BAD RIVER TRIBE RESIDENTIAL LEASE SITE APPLICATIONS

(a) Applicant(s) Name:

(b) Address:

Phone:

(c) Please describe the residential lease site(s) desired. Listing more than one site may expedite approval if your first choice is denied. If you list more than one site please do so in the order in which you desire them. If you know a complete or partial legal description of the site(s) you are listing, please provide it:

(1) First Choice:

(2) Second and third choices (optional):

(d) I (we) hereby make application for the above lease site to be used for residential purposes

Signature Date

FOR OFFICE USE

(e) Legal description complete? Yes ______ No ______

BIA contacted for description: Date

Complete description:

(f)(1) Zoning Map: Tribal property? Yes ______ No ______

If no, inform applicant. Recommend for second choice.

(2) Zoning Map: State district:

(3) Zoning Map: Shoreline/Wetland encroachments on site?

Yes ______ No ______ If yes, describe type and extent:

(4) Lease Map: Conflict with existing lease?

Yes ______ No ______

(5) Forestry Map: Conflict with forestry project?

Yes ______ No ______

(g) If answer to 6(c) is yes, inform applicant. Does applicant wish to proceed or to go to second choice?

(h) If answer to 6(b) is not residential or if answer to 6(d) or 6(e) is yes, inform applicant, recommend second choice. Applicant informed: Date

(i) Flood plain map: Within flood plain?

If yes, inform applicant. Date

Does applicant wish to proceed or go to second choice.?

Proceed Second Choice

If proceed, applicant(s) must sign the following statement:

I (we) have been informed by the Bad River Lease Administrator that the residential lease site I (we) am (are) seeking is within a flood plain and understand that the site will be ineligible for assistance from the Indian Health Service or the Tribe for in installing or maintaining any sewer or water facilities.

Applicant Date

(j) Perc Test: Outside flood plain: Referred to IHS date

Within flood plain: Applicant informed of information required.

Date

(k) Results:

(l) Type(s) of private sewer disposal systems permitted on site:

(m) Lease Administrator Date

(1) Denial. The lease site described in line 5 of this application is denied certification for the following reasons:

Applicant informed:

Action taken: Second Choice Appeal

Other

(2) Certification. I, the Bad River Lease Administrator, certify that the lease site described in line 5 of this application meets all the standards for issuing a residential lease as prescribed by this chapter, Bad River Ordinances.

Lease Administrator Date

(n) Referred to BIA for lease preparation: Date

(o) Referred to Tribal Council for approval: Date

(p) Tribal Council action: Approve Disapprove

Date

(q) Applicant informed of Tribal Council action:

Date

(r) Papers forwarded to BIA for execution and recording. Date

(s) Lease executed.

Date

Attach copy of executed lease.

(t) Official Lease Map modified.

Date

SUPPLEMENTARY FORM FOR ALTERNATIVE SITE APPLICATION

(u) Name of applicant(s):

(v) Address: Ph. #

(w) Date of Application:

(x) Second Third Choice (cross out one).

(y) Complete legal description of proposed site:

(z) I (we) hereby make application for the above lease site(s) to be used for residential purposes.

Signature Date

FOR OFFICE USE

(aa) Legal description complete? Yes _______ No _______

BIA contacted for description: Date

Complete description:

(bb)(1) Zoning Map: Tribal property? Yes _______ No _______

If no, inform applicant. Recommend next choice.

(2) Zoning Map: State district:

(3) Zoning Map: Shoreline/Wetland encroachments on site? Yes _______ No _______

If yes, describe type and extent:

(4) Lease Map: Conflict with existing lease? Yes _______ No _______

(5) Forestry Map: Conflict with forestry project? Yes _______ No _______

(cc) If answer to 6(c) is yes, inform applicant. Does applicant wish to proceed or to go to next choice?

Proceed __________ Next choice

(dd) If answer to 6(b) is not residential or if answer to 6(d) or 6(e) is yes, inform applicant, recommend next choice.

Applicant informed: Date

(ee) Flood plain map: Within flood plain?

If, yes, inform applicant. Date:

Does applicant wish to proceed or go to next choice?

Proceed Next choice

If proceed, applicant(s) must sign the following statement:

I (we) , have been informed by the Bad River Lease Administrator that the residential lease site I (we) am (are) seeking is within a flood plain and understand that the site will ineligible for assistance from the Indian Health Service or the Tribe in installing or maintaining any sewer or water facilities.

Applicant Date

(ff) Perc Test: Outside flood plain: Referred to IHS. Date

Within flood plain: Applicant informed of information required.

Date

(gg) Results:

(hh) Type(s) of private sewer disposal systems permitted on site:

(ii) Lease Administrator Date

(1) Denial. The lease site described in line 7 of this application is denied certification for the following reasons:

Applicant informed

Action taken: Next choice Appeal

Other

(2) Certification. I, , the Bad River Lease Administrator, certify that the lease site described in line 7 of this application meets all the standards for issuing a residential lease as prescribed by this chapter, Bad River Ordinance.

Lease Administrator Date

(jj) Referred to BIA for lease preparation:

Date

(kk) Referred to Tribal Council for approval

Date

(ll) Tribal Council action: Approve Disapprove

Date

(mm) Applicant informed of Tribal Council action

Date

(nn) Papers forwarded to BIA for execution and recording.

Date

(oo) Lease executed

Date

Attach copy of executed lease.

(pp) Official Lease Map modified

Date

Chapter 4.03 Bad River Utilities

4.03.010 Purpose

The purpose of the Bad River Utility Department will be to manage, operate, and maintain utility systems of the Bad River Indian Tribe.

4.03.020 Place of Business

The Utility Department will maintain an office in New Odanah, Wisconsin. It's address will be:

Bad River Utility Department

P.O. Box 39

Odanah, WI 54861

4.03.030 Services Offered

(a) Water Services: The Utility Department is responsible to provide safe, adequate water for a fee to those houses connected to the mainlines of community water systems. Responsibility for maintenance will include water sources, storage tanks, controls, mainlines, valves and hydrants, and services lines to curb stops only and water meter installation and servicing. The service line from the curb stop to the house and interior house plumbing are the responsibility of the customer.

(b) Sewerage Service: The Utility Department is responsible to provide sanitary disposal of domestic waste for a fee to those houses connected to the mainlines of community sewerage systems. Responsibility for maintenance will include treatment facilities, pumping stations, mainline and manholes, and service lines to the property lines only. The service line from the property line to the house and interior house plumbing are the responsibility of the customer.

(c) Septic System and Holding Tank Pumping: The Utility Department shall, upon request of the customer, pump septic tanks and holding tanks for a fee, as specified below.

(d) To ensure the provision of adequate water and sewerage service to its customers, the Utility Department will retain qualified personal on duty or on call at all times. The Department will respond quickly to breakdown and other emergencies.

(e) Other Services: The Utility Department may agree to perform under contract with governmental, tribal, or private bodies construction or operating and maintenance services.

4.03.040 Systems Covered

This section may be amended as necessary as an Attachment A to this ordinance by Resolution of the Tribal Council. On the date of renumbering of this ordinance as this chapter, the systems are covered as follows:

(a) Water (Community Systems)

(1) New Odanah

(2) Diaperville

(3) Birch Hill

(4) Frank's Field

(b) Sewerage (Community Systems)

(1) New Odanah

(2) Diaperville

(3) Birch Hill

(4) Frank's Field

4.03.050 Maintenance Schedule

The Utility Department will develop and follow a regular schedule of maintenance services for each water and sewage system. These services will include, but not be limited to, the following:

(a) Water Systems

(1) Inspect and operate valves and hydrants.

(2) Inspect and repair water mains for leaks and damage.

(3) Flush water lines.

(4) Inspect storage tanks and level indicators.

(5) Adjust and service controls.

(6) Insure proper residuals of chlorine and fluoride in the system.

(b) Sewerage Systems

(1) Flush sewer mains.

(2) Remove debris for manholes.

(3) Control weeds and erosion at lagoons.

(4) Inspect and service lift station and mechanical aerators.

4.03.060 Rate Schedule

This section may be amended as necessary as an Attachment A to this ordinance by Resolution of the Tribal Council. Upon installation of water meters, the Department shall establish and charge base rates and usage rates as recommended by the Department and approved by the Tribal Council. Such rates may be adjusted from time to time upon recommendation of the Department and approval of the Tribal Council and shall be published as an Attachment A to this ordinance:

(a) Residential

(1) Water Service $12.50/month

(2) Sewer Service $12.50/Month

(3) Re-connection after shut-off $40.00

(b) Water and Sewer Monthly Charges for Commercial/Administrative Buildings

(1) Administration Building $450.00

(2) Clinic $125.00

(3) Casino $350.00

(4) New Odanah Fire Hall $50.00

(5) Birch Hill Fire Hall $50.00

(6) Bad River Day Care $125.00

(7) Bad River Head Start $125.00

(8) Bad River Tribal Garbage $50.00

(9) Bad River Tribal Center $150.00

(10) Bad River Heritage Building $50.00

(11) Bad River Lodge $300.00

(12) Bad River Warehouse $50.00

(13) Community Center $125.00

(14) Bad River Housing Authority $4,255.00

(d) Septic System and Holding Tank Pumping and Cleaning/Maintenance Fees

(1) Septic Systems: $180.00 per system, up to 2000 gallons. Additional gallons pumped will be charged a pro-rata share of the $180.00.

(2) Holding Tanks: $90.00 per holding tank, up to 2000 gallons. Additional gallons pumped will be charged a pro-rata of the $90.00.

(3) Cleaning and Maintenance Fees shall be charged at an hourly rate of ______________ as well as the cost of part replacement.

4.03.070 Billing and Collection

(a) The Utility Department will maintain a complete and up-to-date record of all customers served by those systems operated by the Department. Additions and deletions will be made as soon as the Department learns of change.

(b) Water meters will be read according to a schedule established by the Department.

(c) The Utility Department will type and mail to each customer his bill for services on the 1st date of the month. Payment will be due on the 10th day of the month. Non-payment by the 20th day of the month will be cause for the Utility Department to shut off the customer's water services. 10% will be added to any delinquent bills.

(d) Customers may make payments by cash, check or money order to the Tribal Accounting Office, Accounting Clerk, located at the Chief Blackbird Center, P.O. Box 39, Odanah, Wisconsin 54861.

(e) Customers who live in houses managed by the Tribal Housing Authority will continue to make water and sewer payments as part of the rent or house payment. The Housing Authority collecting the payments then will pay the Utility Department for its housing occupants. The Housing Authority will receive a receipt for this payment.

(f) If a customer's water service is discontinued he/she must pay all of this delinquent charges plus the re-connection fee before the Department will restore his water service.

4.03.080 Enforcement

(a) The Utility Department is hereby authorized by the Bad River Tribal Council to shut off services for non-payment.

(b) The Utility Department shall enforce its regulations and fee collections by shutting off water services and any and all violators and delinquent bill-payers. The Utility Department shall not seek to attach customer's property, nor seek to have fines assessed by Tribal Court, except in limited cases of blatant or continued abuses or destruction of property.

4.03.090 Bookkeeping and Handling of Funds

(a) The Tribal Accounting Office shall collect Water and Sewer fees and shall perform bookkeeping functions for the Department.

(b) Actual handling of the Utility Department's funds will be performed by the Tribal Treasurer, or his/her designated agent.

(d) Reserve Accounts. The Utility Department shall cause to be established and the Tribal Accounting Department shall maintain the following reserve accounts, funded through collection of Utility rates:

(1) Sludge Disposal Reserve Account: An amount estimated to meet the needs for periodic final disposal of sludge through duly licensed land application methods or other means of legal disposal.

(2) System Maintenance Reserve Account: An amount estimated to meet the needs of routine maintenance of the systems and replacement of parts as necessary.

4.03.100 Management

(a) The Department will establish a job description for the Water and Sewer Maintenance Worker which will authorize him/her to execute the Bad River Utility Department Plan of Operation.

(b) The Water and Sewer Maintenance Worker will manage the daily operations of the Utility Department. He / She shall establish an orderly functioning of the office and operation and maintenance of the utility systems.

4.03.110 Customer Complaints and Problems

The Utility Department should serve the people of the Bad River Reservation. All meetings of the Utility Department shall be open to the public and notice of such meetings will be posted. Customers with particular problems or complaints should bring them to the Utility Department.

4.03.120 Mandatory Hook-up

(a) The owner or lessee of each parcel of land adjacent to a sewer main on which there exists a building useable for human habitation or in a block through which such system is extended, shall connect to such system with 90 days of notice in writing from the Utility Department. Upon failure to do so, the Utility Department may cause such connection to be made and bill the property owner or lessee for the costs of the hook-up.

(1) If such costs of hook-up are not paid within thirty (30) days, notice shall be made to the owner or lessee the Utility Department intends to seek a redress in the Bad River Tribal Court, notwithstanding subSection 4.03.080B, for recovery of the costs hook-up.

(2) Within 30 days of issuance of such notice, the owner or lessee may file a written statement with the Utility Department proposing a payment plan, not to exceed two (2) years from the date of notice, by which the costs of hook-up will be paid by the owner or lessee. The Utility Department shall accept such payment plan unless it is determined to be unreasonable or does not provide for full recovery of the costs of hook-up. If the payment plan is accepted, the Utility Department shall notify the owner or lessee in writing within 30 days, shall institute the payment plan at the time of notice is issued, and shall refrain from seeking redress in the Tribal Court unless and until the owner fails to follow the payment plan from the Utility Department.

(3) This chapter ordains that the failure to connect to the sewer system is contrary to the minimum health standards of the Bad River Band of Lake Superior Tribe of Chippewa Indians and fails to assure preservation of the health, comfort, and safety of the Bad River Reservation population and environment

4.03.130 Water Meters

All facilities/structures that are connected to the community water system are required to install a water meter. All meters for measurement of utility services provided shall be installed in accordance with the requirements of the Department in such locations as determined by the Department. All water meters shall be the property of the Utility Department and shall be maintained by it. All meters shall remain accessible to Department personnel and no person shall obstruct, damage or tamper with any meter. Such obstruction, damage or tampering shall be a violation of this ordinance and subject the violator to actual damages and civil penalties under this ordinance. The assignee of the property on which the meter is located shall be responsible for all damage to or tampering with the turn off/on water valve, and remote readout attached to such meter.

4.03.140 Emergency Plan

The Utility Department shall develop and maintain an Emergency Plan for the Bad River Water/Wastewater System. The most recent copies of the Emergency Plan shall be maintained at the Utilities Department, the Tribal Operations Manager, the Bad River Fire Department, and the Bad River Police Department.

4.03.150 Amendments or Revisions

The Plan of Operation may be amended by a simple majority of Tribal Council members in attendance at a meeting called for that, purpose and thereafter by the Bad River Tribal Council as provided by law.

Chapter 4.04 Private On-Site Wastewater Treatment and Disposal Systems Ordinance

An ordinance regulating the design, location, installation, renovation, operation, maintenance, and inspection of individual, cluster, commercial and institutional wastewater treatment and disposal systems; requiring permits therefore; and prescribing penalties.

4.04.010 Introduction and Authority

(a) Title. This Ordinance shall be known as the Bad River Band of Lake Superior Tribe of Chippewa Indians (the "Band" or the "Tribe") Private On-Site Wastewater Treatment and Disposal Systems Ordinance.

(b) Authority. The Bad River Tribal Council is authorized by Article VI of the Bad River Constitution to adopt regulations governing the use and management of the lands and other resources located within the exterior boundaries of the Bad River Reservation as set forth in Article II of the Treaty of 1854, September 30, 1854, 10 Stat. 1109.

(c) Purpose and Intent. The purpose of this Ordinance is to develop a Tribal code for individual septic systems and other types of individual wastewater treatment and disposal systems in order to protect the health, safety and welfare of the people of the Bad River Reservation and other affected communities by improving the groundwater and surface water quality on the Bad River through regulation of individual wastewater systems and preventing future negative impacts on the groundwater and surface water quality. Furthermore, the development of this Ordinance will help protect wildlife, fish and aquatic organisms in the streams, rivers, lakes and wetlands within the Bad River Reservation.

(d) Scope and Date of Applicability. This Ordinance shall govern within the boundaries of the Bad River Reservation and apply immediately upon enactment to any new installation or any renovation of private on-site wastewater treatment and disposal systems (POWTS) and the operation, maintenance, correction and inspection of such systems, as well as holding tanks, engineered systems, experimental systems, privies and other non-plumbing systems. Existing systems shall have one (1) year from the date of enactment of this chapter to come into compliance with its terms evidenced through acquisition of an Inspection Certificate for an adequate system or repair, upgrade, or replacement of a failing or inadequate system. POWTS owners who anticipate not being able to bring their system into compliance within one year of the date of enactment to enter into a compliance schedule agreement with the POWTS Inspector. Systems subject to such a compliance schedule agreement shall have three years from the date of enactment to come into full compliance.

(e) Interpretation. In the interpretation and application of this Ordinance, its provisions shall be held to be the minimum requirements and shall be construed so as to fully effect its purpose and shall not be deemed a limitation or repeal of any other power by law or Ordinance except as specifically provided herein. In the event conflicting requirements are imposed by this Ordinance or by other Ordinances of the Band, the most restrictive provisions shall apply. The POWTS Inspector shall rule on what is more restrictive, and appeals from such decisions, as well as other interpretations, may be made in accordance with Section 4.04.100E herein.

(f) Reference and Inclusion of Wisconsin Administrative Code, Department of Commerce and Department of Natural Resources Regulations and Wisconsin Statutes Annotated. Applicable provisions of the Wisconsin Administrative Code (WAC) Department of Commerce Regulations (Comm), including Comm. 83, 84, 85, and 91, and Department of Natural Resources Regulations (NR), and Wisconsin Statutes Annotated (WSA) Section 145, are hereby incorporated into this Ordinance as tribal law. The most recent version of such provisions in effect on the date action is taken pursuant to this Ordinance shall apply. In the event such provisions are no longer the applicable regulations for the State of Wisconsin, this Ordinance shall adopt the regulations then in place for the State of Wisconsin, or, if none exists, the most recent version of such provisions prior to deregulation. Inclusion of WAC and WSA provisions by reference shall not serve to submit the Band or its members to the jurisdiction of the State of Wisconsin.

(g) Construction. Words used in the present tense include the past and future tense; the singular includes the plural and the plural includes the singular; the word "shall" is mandatory, and the word "may" is permissive; the masculine gender includes the feminine gender.

(h) Federal Law. Nothing in this Ordinance is intended to modify or supercede requirements of federal law. Pemits will not be issued under this Ordinance until all required federal approvals and permits have been obtained.

4.04.020 Definitions

(a) "Applicant" shall mean a person who submits an application for a permit for the installation or renovation of a POWTS.

(b) "Board" shall mean the POWTS Board.

(c) "Compliance Order" shall mean an order issued by the POWTS Inspector, which shall provide in detail remedial measures, including a sequence of interim requirements and target dates (for instance actions, operations, or milestone events) that lead to compliance with this Ordinance of a Court Order.

(d) Compliance schedule" shall mean that schedule for meeting interim and final requirements agreed to with the POWTS Inspector or issued through a Court order.

(e) "Department" shall mean the Bad River Natural Resources Department.

(f) "Engineered System" shall mean a system designed outside the defined parameters of this Ordinance. The engineered system design plans and calculations must demonstrate equivalency to this Ordinance. An engineered system shall require a variance.

(g) "Experimental System" shall have the same meaning as in WAC Comm 83 as referenced by Section 4.04.010F, above.

(h) "Failing System" shall have the same meaning specified under WSA Section 145.245(4).

(i) "Human Habitation" shall mean the occupying of a structure as a dwelling or sleeping place, whether intermittently or as a principal residence.

(j) "Imminent Threat to Public Health or Safety" shall mean situations that pose an immediate or potential threat to public health or safety. Such situations include, but are not limited to: discharge of sewage to the ground surface, surface water or a groundwater source; any system causing sewage backup into a dwelling, or other establishment; or other situation that prohibits the system from functioning as intended and which poses an immediate or potential threat to public health or safety.

(k) "Inspection Certificate" shall mean a certificate issued by the POWTS Inspector, pursuant to Section 4.04.040, below, for the use of a system that has passed an inspection ensuring the POWTS is of adequate size for the premises being served and is functioning properly, and which includes performance standards, time limitations, maintenance requirements, and other conditions as may be required by the POWTS Inspector to evaluate and assure adequate system performance.

(l) "Installation" shall mean the construction or placement of a sewage treatment system on real property.

(m) "Journeyman Plumber" shall mean any person licensed and registered as a Journeyman Plumber in accordance with WSA Section 145.07.

(n) "Maintenance" shall mean such regular inspection and care for the system as may be determined by the POWTS Inspector in order to ensure safe, healthful operation consistent with the intent of this Ordinance.

(o) "Master Plumber" shall mean any person licensed and registered as a Master Plumber in accordance with WSA Section 145.07.

(p) "Non-plumbing Sanitation System" shall mean sanitation systems and devices within the scope of WAC Comm91, which are alternatives to water carried waste plumbing fixtures and drain systems; including, but not limited to, incinerating toilets, composting toilets and privies.

(q) "Non-Tribal member" shall mean someone whose name does not appear on the membership rolls of the Bad River Band and who is not eligible for membership in the Bad River Band.

(r) "Performance Standards" shall mean requirements and conditions applied to the issuance of an Inspection Certificate or Sanitary Permit for the purpose of evaluating system performance. Performance factors may include, but are not necessarily limited to fecal coliform, BOD, flow rates and other related factors designated in the operating permit.

(s) "Performance System" shall mean any individual wastewater treatment system to which performance standards are applied to used to evaluate performance as a condition of an Inspection Certificate or Sanitary Permit.

(t) "Person" shall mean an individual, partnership, firm, corporation, or association, or other legal entity, the state, or any other political subdivision thereof or governmental entity, but not including the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(u) "POWTS Board" shall mean that board appointed by the Tribal Council to initially recommend fees and rates to the Tribal Council, amend and set fees and rates following the initial schedule adoption, establish a Policies and Procedures Manual, and hear appeals of decisions of the POWTS Inspector.

(v) "Plumbing Apprentice" shall mean any person other than a journeyman or master plumber who is engaged in learning and assisting in the installation of plumbing and drainage.

(w) "Private On-Site Wastewater Treatment System" or" POWTS" shall mean a sewage treatment and disposal system serving a single structure with a septic tank and soil absorption field located on the same parcel as the structure (a cluster system), a system serving more than one structure or a system located on a different parcel than the structure. This term also means an alternate sewage system approved by the Department including a substitute for the septic tank or soil absorption field, or a holding tank. A POWTS may be owned by the property owner or by a special purpose district or management entity.

(x) "Privy" shall mean an enclosed non-portable toilet into which non-water-carried human wastes are deposited.

(y) "Privy-pit" shall mean a privy with a subsurface storage chamber which is not watertight.

(z) "Privy-vault" shall mean a privy with a subsurface storage chamber which is watertight.

(aa) "Privy Permit" shall mean a permit that is issued by the POWTS Inspector for the use of a privy system that includes performance standards, time limitations, maintenance requirements, and other conditions as may be required by the POWTS Inspector to evaluate and assure adequate system performance.

(bb) "Property Owner" shall mean any person who has an ownership interest in the premises upon which the system is located and shall include leaseholders and tenants if such leaseholder or tenant is responsible for home maintenance or construction, and shall also include any person in possession of the premises or who holds an ownership interest in any structures served by the system.

(cc) "Rebuilt" shall mean the construction which takes place after a structure being served by the POWTS is demolished or damaged to the extent of fifty percent (50%)or greater of its current equalized assessed value.

(dd) "Registered Learner" shall mean a person, other than a Restricted Plumber Licensee, who is learning a limited type of plumbing and is engaged in assisting a Restricted Plumber Licensee.

(ee) "Renovation" shall mean activity involving the extension, alteration, reconstruction, or repair of a sewage disposal system in whole or in part.

(ff) "Repair" shal mean the repair or replacement of damaged or faulty component part

of a POWTS such that completion of such repair will return the system to its original operable condition.

(gg) "Residential System" shall mean any POWTS serving a private residence.

(hh) "Restricted Plumber Licensee" shall mean any person licensed as a master plumber (restricted) or a journeyman plumber (restricted) under WSA Section 145.14.

(ii) "Sanitary Permit" shall mean a permit issued for the construction, installation repair or modification of an individual septic system by the POWTS Inspector under authority of the Band.

(jj) "Site Evaluator" shall mean any person who conducts an evaluation of a site proposed for a POWTS and who meets the requirements of licensing and certification set forth in Section 4.04.060 of this Ordinance.

(kk) "Soil and Site Evaluation Application" shall mean an application submitted for the purpose of requesting POWTS Inspector verification of a Soil and Site Evaluation Report.

(ll) "Standards" shall mean any POWTS standards as adopted and amended from time to time by the Band.

(mm) "Standard System" shall mean any POWTS which utilizes at least thirty-six inches (36") of soil, natural or imported, and is constructed and sized in accordance with recognized prescriptive standards and Department recommendations.

(nn) "Transfer, sale, or conveyance" shall mean all transfers, sales, or conveyance's of the original owner's or lessee's interest in the buildings, structures or land which is served by a POWTS or upon which a POWTS is located, regardless of form, so long as the owner or lessee is divested of all rights of ownership or leasehold interest, or as exempted by Section 4.04.040.J.5, below.

(oo) "Variance" shall mean any modification or relief from this Ordinance where it is determined that, by reason of exceptional circumstances, the strict enforcement of the provisions of this Ordinance would cause unnecessary hardship as defined in Section 4.04.070 of this Ordinance.

(pp) "Wetlands" shall mean the presence of hydric soils, surface and subsurface hydrology, and hydrophytic vegetation.

4.04.030 General Requirements

(a) Structure Applicability. All structures or premises within the exterior boundaries of the Bad River Reservation that are permanently or intermittently intended for human habitation or occupancy, whether private residential, institutional, or commercial, which are not serviced by a public wastewater treatment system, shall have a system for holding or treatment and dispersal of sewage and wastewater which complies with the provisions of this Ordinance.

(b) Treatment. No building structures, area or premises shall be constructed or maintained for human occupancy, use or assembly without adequate facilities for sanitary and safe treatment and disposal of all human excreta, sewage and all liquid waste that could offer a hazard to the public or create objectionable nuisance conditions.

(c) Dispersal. Regardless of the type of treatment technology used, all sewage must be dispersed below grade in such a matter as to allow no sewage discharge to the ground surface or otherwise create an imminent health threat.

(d) Capacity. POWTS shall be designed to receive all sewage from the dwelling(s) or other establishment(s) served by the system, including laundry waste and basement floor drainage. Surface water, roof drainage, water softener, back flush water, spa/swimming pool water, foundation drainage, and other storm water shall not be allowed to enter any part of the system.

(e) Applicability. The requirements of this Ordinance shall apply to all land within the exterior boundaries of the Bad River Reservation.

(f) Limitations.

(1) All commercial, institutional, and domestic wastewater shall enter a private or public sewage system unless otherwise exempted by the Band through this Ordinance.

(2) A non-plumbing sanitation system may be permitted when the structure or premises served by the non-plumbing sanitation system is not provided with an indoor plumbing system. If plumbing is installed in the structure or water under pressure is supplied to the structure, an acceptable method of sewage disposal other than, or in addition to, a non-plumbing sanitation system must be provided.

(3) A holding tank may be used as a POWTS unless soil and site conditions allow the installation of any of the following POWTS components:

(A) At Grade

(B) In ground non-pressurized system

(D) Mound system

(E) Pretreatment Systems

(F) Alternative Systems

(G) Variance Systems

(H) Engineered Systems.

(4) A thorough soil and site evaluation shall be completed in all areas in order to comply with Section 4.04.040.C.

(g) Expansion. Where it can reasonably be anticipated that the construction of additional structures, dwellings, or bedrooms, or the installation of additional equipment or services will affect the operation of the existing system, a new system shall be installed or a renovation of the existing system shall comply with the applicable requirements for such additional needs.

(h) Replacement Area. All occupied properties shall provide and maintain sufficient undisturbed land area to allow for the replacement of a wastewater treatment system serving any structures, dwellings, or premises on the parcel. This area must meet, or exceed, the minimum site requirements for the treatment and disposal of the wastewater generated. A mound and an at grade system may be considered their own replacement area if no other area is available on the parcel to retain for future use.

(i) Proximity to Public Sewer. No POWTS or other means of sewage or excreta disposal shall be maintained or used on property located adjacent to a sewer main for a public wastewater treatment system or in a block through which such system is extended. Exception to this prohibition shall only be granted in accordance with Chapter 4.03, Bad River Utilities Ordinance.

(j) Location. All on-site sewage systems shall be located wholly upon the property served, except as specifically approved by the POWTS Inspector and included as a condition of the permit. A valid recorded easement shall exist for any part of the system not wholly located upon the property served. Such easement shall allow for access by the POWTS Inspector and other enforcement and maintenance personnel.

(k) Maintenance. It shall be the responsibility of the owner of any premises using a POWTS, Engineered or Experimental System, holding tank, privy or non-plumbing system to provide for the periodic maintenance of such system as necessary to assure adequate function. See Section 4.04.090 for Maintenance Program Requirements. Failure to maintain shall result in civil fine or forfeiture.

(l) Correction: Ineffective Systems. When the POWTS Inspector, based upon inspection, determines any individual sewage treatment system, whether a POWTS, Engineered or Experimental System, holding tank, privy or non-plumbing system, is not operating in an approved manner and is in need of correction, he/she shall notify the owner in writing, through issuance of a compliance order, that the problem shall be corrected within a period of time as defined by the POWTS Inspector. Further, the POWTS Inspector may, upon failure of an individual to follow the compliance order, enter such property, upon authority of the Band, for the purpose of proper closure, restoration or cleanup of pollution as stated in the compliance order.

(m) New Systems in Conjunction with Old Systems. A new code compliant POWTS may be used in conjunction with an existing POWTS in an alternating configuration if the existing POWTS is code compliant and if the piping configuration is such that each system may be used independently and the homeowner is able to alternate between each system.

(n) Repair of POWTS. No permit is required for system repair if the repair does not alter the original are, dimensions, or concept of the system. However, written notice of any repair is required to be sent to the POWTS Inspector within ten (10) days of the repair completion.

(o) Failing Systems. Failing systems shall be brought into compliance within the period of time required by the POWTS Inspector's order. In the case of an imminent public health threat, abatement of the threat must be accomplished within ten (10) days of notification. Pump and haul may be required at the discretion of the POWTS Inspector, including in cases of ponding.

(p) Provisional Permit. Where weather or other conditions prevent permanent correction of an imminent public health threat within 60 days or abatement within 10 days, a provisional permit for a temporary holding tank or other method of treatment may be issued, including the use of an existing tank if such tank is in sound condition. The length of the provisional permit shall not exceed 150 days.

(q) Abandonment of Private Sewage Systems.

(1) When public sewers approved by the Band become available to the structure or premises served, in accordance with Chapter 4.03 of the Tribal Code, the private sewage system shall be disconnected within one year and a connection made to the public sewer. The POWTS Inspector shall determine whether the sewer is available. Abandonment of the disconnected private sewage system shall be done in accordance with this Ordinance and the provisions of WAC Comm 83.

(2) The components of an existing private sewage system that are not part of the approved design of a replacement system shall be abandoned at the time of installation of the replacement system by the plumber installing the new system. The abandonment shall comply with this Ordinance and provisions of WAC Comm. 83.

(3) The POWTS Inspector may impose additional requirements for individual sites which may not be abandoned satisfactorily under the provisions of WAC Comm 83.

(4) Previously abandoned POWTS shall be confirmed by the POWTS Inspector to have been abandoned in conformance with this Ordinance, or, if not in conformance, shall be properly abandoned within one of the enactment of this Ordinance. Owners shall bear all costs of abandonment.

(r) Privy Permits and Abandonment of Privies.

It is the policy of the Bad River Tribe to discourage the use of privies, whether pit or vault privies.

(1) A privy shall be permitted only when the structure or premises served by the privy is not served by an indoor plumbing system. If plumbing is installed in the structure or water under pressure is supplied to the structure, an acceptable method of sewage disposal other than a privy must be provided. All privies must meet the requirements of WAC Comm 91.

(2) Existing and new privies must be permitted by the POWTS Inspector. Owners of privies in existence at the time of enactment of this Ordinance must apply for, comply with all requirements of this Ordinance for privies, and receive a privy permit within one year of the date of enactment of this Ordinance. Owners intending to construct a privy must obtain a permit prior to beginning any construction.

(3) Applications for privy permits shall be on forms supplied by the POWTS Inspector and shall contain all information required by the POWTS Inspector, including, but not limited to, a Soil and Site Evaluation Report and an abandonment plan. Permits and applications shall generally follow the requirements for POWTS permits in this Ordinance. Applicants must pay a permit application fee, as stated in Exhibit A, at the time of submission of the application. There shall be no refunds of application fees for retracted, deficient, or denied applications.

(4) Permits shall be valid for a period of one (1) year from the date of issuance. Permit holders must renew privy permits yearly and pay a yearly privy fee, allow for yearly inspection of the privy by the POWTS Inspector or his or her designee, and provide such tests as are required by the POWTS Inspector to ensure the health and safety of the Reservation residents and resources are protected. The POWTS Inspector may refuse to renew a permit and require proper abandonment or repair of a privy where the system does not meet minimum requirements for the protection of health and safety and the environment.

(5) Abandonment. Privies shall be abandoned in accordance with WAC Comm 91.

4.04.040 Inspection Certificates, Permits and Applications

(a) Inspection Certificate. All private wastewater treatments systems, whether a POWTS, Engineered or Experimental system, holding tank, privy or non-plumbing system, whether newly constructed or existing, must have a current Inspection Certificate issued by the POWTS Inspector.

(1) Inspection Certificates shall be issued to owners of POWTS and other systems which have been inspected by the POWTS Inspector and have been found to be of adequate size, meet all Performance Standards, and function properly.

(2) POWTS and other systems not meeting such criteria shall not receive an Inspection Certificate and are subject to a Compliance Schedule Agreement or Compliance Order.

(3) Inspection Certificates shall initially be valid for a period of one (1) to three (3) years based upon an inspection schedule determined by the POWTS Inspector and POWTS Board, to allow for a rotating schedule of inspection. Thereafter, Inspection Certificates shall be valid for a period of three (3) years from the date of renewal if the system passes inspection and the Inspection Certificate is not suspended or revoked.

(4) The POWTS Inspector may enter the property at any reasonable time to inspect the system to ensure the POWTS is functioning properly or to investigate the adequacy of the system.

(5) The POWTS Inspector may suspend or revoke any Inspection Certificate upon a finding of system failure or inadequacy.

(b) Requirement. No person shall construct, install, renovate or use any type of individual sewage treatment system within the Bad River Reservation without first obtaining the required permit or permits from the POWTS Inspector applicable to the specific activity to be undertaken. All construction permits issued shall expire within 24 months after the date of issue. Permits are not transferable from one site to another. No system permit of any type shall be issued except following compliance with the provisions contained herein.

(1) Soil, site evaluations and design plans shall be complete prior to the issuance of permits as specified in this Ordinance, in compliance with WAC Comm 83, 85 and 91.

(2) Soil test pits shall be constructed which allow adequate visual observation, in the opinion of the POWTS Inspector, of the soil profile in place.

(3) Thee must be verification of the Soil and Site Evaluation Report by the POWTS Inspector. This will be done prior to the issuance of a sanitary permit. Verification may result in the following:

(A) Issuance of the permit, provided all information on the application, plans and calculations are correct and complete and the site otherwise meets all provisions of this Ordinance;

(B) Establishment of a file indicating site suitability;

(C) Holding the application pending clarification of information or new information by the owner, the plumber, or the certified soil tester; or

(D) Denial of the permit if the site does not meet all the provisions of this Ordinance.

(4) The POWTS Inspector may request verification of a Soil and Site Evaluation Report by a certified soil tester before a complete sanitary permit application is submitted. Application for this verification shall contain all information required in this section.H and 406.4.1 on forms provided by the POWTS Inspector, the original copy of the Soil and Site Evaluation Report and as many copies as are required by the POWTS Inspector.

(d) Sanitary Permits

(1) Every instance of construction, installation, repair or modification of a private sewage system shall require a separate application and sanitary permit immediately upon enactment of this Ordinance, unless otherwise exempted by this Ordinance. A sanitary permit shall be obtained by the property owner, prior to the installation, establishment or construction of any structure which requires a private sewage system. Any property owner, his agent or contractor, who starts construction prior to obtaining a sanitary permit is in violation and may be subject to citation or other enforcement action.

(2) A sanitary permit shall be obtained by the property owner, except as permitted in Section 4.04.030.N, before any private sewage system or part thereof may be installed, replaced, repaired, reconnected or modified.

(3) If any part of a private sewage system has failed or requires replacement or modification, the entire system shall be evaluated for compliance with existing Codes and Ordinances prior to sanitary permit issuance.

(4) If any part of the system is found to be defective or not in conformance with the applicable provisions of this Ordinance, the sanitary permit application shall include specifications for the repair, renovation, replacement or removal of that part, except as exempted by Section 4.04.030.N.

(5) All sanitary applications and soil and site evaluations must be submitted to the POWTS Inspector's office. The applications must be original documents and written in ink.

(e) Permit Expiration.

(1) A sanitary permit for a private sewage or non-plumbing sanitation system which has not been installed, modified, or reconnected and approved shall expire two years after the date of issuance. Permits may be renewed following written application to the POWTS Inspector by the property owner, his agent or contractor, prior to the expiration date of the original permit.

(2) There shall be a fee for renewal of a sanitary permit.

(3) The renewal shall be based on Ordinance requirements in force at the time of renewal.

(4) Changed Ordinance requirements may impede or prohibit the renewal.

(5) The property owner shall return the original permit prior to receiving a renewal permit.

(6) All sanitary permits issued prior tot he effective date of this Ordinance shall expire two years from the date of issuance unless renewed.

(7) A new sanitary permit shall be obtained by the owner or his agent prior to beginning construction if a sanitary permit has expired.

(f) Permit Denial. When applicable provisions of this Ordinance have not been complied with when applying for a sanitary permit, or if the system will not meet the standards of this Ordinance, the permit shall be denied. Reasons for the denial shall be forwarded to the plumber, landowner and when appropriate the POWTS Board or Bad River Tribal Council. The POWTS Inspector must approve or deny a permit, or request additional information or clarification, within thirty (30) days of receipt of the permit application.

(g) Permit Fees. The Fee Schedule shall be set initially by the Bad River Tribal Council upon enactment of this Ordinance. Thereafter, the POWTS Board shall have the sole authority to amend rates and fees. The Fee Schedule shall be attached to this chapter as Exhibit A. There shall be no refunds of application fees for retracted, deficient, or denied applications.

(h) Application Requirements.

(1) A Soil and Site Evaluation Report.

(2) Work on existing systems shall require a report by a licensed plumber relative to the condition and capacities of all other system components, and other systems on the parcel.

(3) Work on existing systems shall require a report by POWTS Inspector stating that the new system will relieve the problems of the old, now failing, system.

(4) The application shall also include the following:

(A) Legal description, lot dimensions and driving directions to the proposed site;

(B) Name and address of property owners and of persons performing the permit activity;

(D) Sketch of the proposed system;

(E) Description of water supply, well depth, proximal location of bedrock and water table when available.

(F) Building use (single family, duplex, etc.); and

(G) Any other information required by the POWTS Inspector.

(5) Each permit application shall be kept on file with any permit issued pursuant to this Ordinance.

(6) The POWTS Inspector shall, at his/her discretion, perform site visits or require additional information as necessary to evaluate or clarify information contained in the permit application with regard to the requirements contained herein.

(i) System Plans. System plans shall be submitted for approval of the POWTS Inspector in accordance with this Ordinance. Plans shall comply with the requirements of this Ordinance, except as otherwise provided.

(1) Plans submitted to the POWTS Inspector shall include the original and as many copies as are required by the POWTS Inspector.

(2) Plans submitted shall be clear, legible and permanent copies.

(3) Plans submitted shall comply with this Ordinance and include the following:

(A) The name of the property owner and the legal description of the site;

(B) Estimated daily wastewater flow and design wastewater flow;

(D) Details and configuration layouts depicting how the system is to be constructed;

(E) Provide a contingency plan in the event that the proposed plan fails and cannot be repaired or an alternate area may be provided; and

(F) Sufficient supporting information to ensure the proposed private sewage system or modification complies with the Ordinance.

(4) A copy of the approved plan shall be available at the construction site until completion of the private sewage system.

(5) A final "as built" copy of the plans shall be submitted to the POWTS Inspector and kept in a permanent file for the system.

(6) A modification to the design of the private sewage system which has previously been approved shall be submitted to the POWTS Inspector. Plan revisions must be approved before revision construction begins. Only modifications which affect the treatment of the sewage/effluent (such as downsizing the mound, change in loading rate, any additional pretreatment such as an aerator in the tank) shall require plan revision. Revision is not required for modifications that do not alter the original area, dimensions or concept of the system.

(j) Transfer of Ownership. In order to ensure the provisions of this Ordinance are complied with, upon transfer of ownership of a property for which a valid sanitary permit exists, the following shall apply:

(1) Any person transferring, selling, or conveying a building or dwelling, or land upon which a building or dwelling is located, shall report such transfer, sale, or conveyance fifteen (15) days prior to said transfer, sale or conveyance to the POWTS Inspector. Reporting shall be by such person, such person's agent, or any real estate agent.

(2) Prior to such transfer, sale or conveyance of any building or dwelling, the transferor, seller or conveyer shall have conducted an evaluation of the existing private waste disposal system, if said structure is served by the same. An evaluation of the private waste disposal system shall be done by the POWTS Inspector or any other person certified as a POWTS maintainer, inspector, and soil tester (all inclusive). Evaluation shall be conducted in accordance with and on forms furnished by the POWTS Inspector. All evaluations shall be submitted to the POWTS Inspector for review. The POWTS Inspector is empowered to investigate any system so evaluated.

(3) If, upon inspection, the existing system meets the criteria of a "failing private sewage system" as defined in this Ordinance or WSA Sec. 145.245(4), an order for replacement is issued under this Ordinance or WSA Sec. 145.20(2)(e), (f), and (g), said new system shall be installed within one year of the sale or conveyance date by the transferee unless by written agreement the transferor has retained the obligation to replace the system. Any such agreement shall be filed with the POWTS Inspector and shall be enforceable by the POWTS Inspector against the transferor.

(4) The following changes in ownership shall require an inspection: Gifts through addition of another person to ownership, unless the last inspection was completed within twenty-four (24) months of the transaction; addition of children to a deed; transfer to an irrevocable trust; land contracts; addition of a name to property owners, except between spouses; proposed transfers which fall through, dating from the original transfer notification requirement.

(5) The following changes in interest shall not require an inspection at the time of transfer: life estates until the transferor is divested of all rights of ownership; transfer of marital estate between spouse, except transfer of individually classified property from one spouse to another; transfer of property to or from a revocable living trust; a lease-option until the option is exercised; subtraction of a name from ownership; a transfer within twenty-four (24) months of a passing inspection, at the discretion of the POWTS Inspector.

(6) The sanitary permit shall be returned to the POWTS Inspector so that a new permit may be issued noting the new property holder;

(7) Because the permit runs with the property, transfer of property shall not affect the expiration date unless a renewal is also requested; and

(8) A transfer filing fee of the correct amount as listed in Exhibit A shall be paid at the time of filing.

(k) Change of Plumbers.

(1) When an owner wishes to change plumbers during construction, it will be necessary for him to furnish the POWTS Inspector with the applicable change form signed by the new plumber. New plans must also be submitted by the plumber, designer, or engineer.

(2) The transfer of a sanitary permit shall take place prior to the installation of the private sewage system.

(3) A transfer filing fee of the correct amount as listed in Exhibit A shall be paid at the time filing.

4.04.050 Reconnection and Construction

(a) Reconnection and Construction.

(1) A reconnection permit shall be obtained prior to:

(A) Construction of a structure to be connected to an existing private sewage system;

(B) Disconnection of a structure from an existing private sewage system and connection of another structure to the system; or

(2) Prior to issuance of a reconnection permit, the existing private sewage system shall be examined, including soil, tanks, and components to:

(A) Determine if it is functioning properly and whether it is a failing system; and

(B) Determine if it will be capable of handling the proposed wastewater flow and contaminant load from the building to be served.

(3) Application for a reconnection permit shall include the following:

(A) All items in Sections 406.4.H and I.

(B) For all systems that utilize soil for treatment or disposal, a Soil and Site Evaluation Report verifying that the vertical separation distance between the infiltrative surface of the existing treatment or dispersal component and estimated high groundwater elevation and bedrock complies with applicable provisions of this Ordinance, unless a valid report meeting these criteria is on file with the POWTS Inspector;

(C) A report provided by a licensed plumber, certified septage servicing operator or a POWTS Inspector relative to the condition, capacities, baffles, RISERS and manhole covers for any existing treatment or holding tanks;

(D) A report provided by a licensed plumber or POWTS Inspector relative to the condition and capacities of all other components and verifying that the system is not a failing system;

(E) A plot plan prepared by a plumber including information specified in Section 4.04.040.H and I; and

(F) Complete plans, as specified in Sections 406.4.H and I for any system components which will be modified or replaced.

(4) In addition, the following may also be required:

(A) Reconnection to existing holding tanks may require a new servicing contract and an updated holding tank agreement which meets the requirements of this Ordinance; and/or

(B) Reconnection to an existing system other than a holding tank may require a new maintenance agreement or contract.

(5) Replacing a structure with a new or different structure within two years of the date of permit issuance will only require a statement that the system has not been altered, a statement that a modification in a wastewater flow or contamination load will not occur, and a plot plan that documents all setbacks between the structure and system components.

(6) When reconnection to an undersized system is permitted by WAC Comm 83 and 84, an affidavit for the use of the undersized system must be recorded in the POWTS Inspector's office.

(7) Systems may be inspected at the time of reconnection, prior to backfilling, at the discretion of the POWTS Inspector to insure that proper materials and methods are being used.

(b) Construction Affecting Wastewater Flow or Contaminant Load.

Prior to commencing the construction of an addition to or modification of a structure which will affect the wastewater flow and/or contaminant load to an existing private sewage system, the owner(s) of the property shall:

(1) Possess a sanitary permit to construct a new private sewage system or modify an existing private sewage system to accommodate the modification in wastewater flow or contaminant load; or

(2) Provide the following to the POWTS Inspector:

(A) Documentation that a private sewage system of adequate capability and capacity to accommodate the wastewater flow and contaminant load already exists to serve the structure, as specified in this Ordinance;

(B) Documentation showing that the location of the proposed structure conforms to the applicable setback distances for the existing private sewage system components. (See WAC Comm 83 and Wisc. NR111, 112); and

(3) If the existing private sewage system is found to be undersized, construction of the building addition or modification shall be allowed only if it could be permitted by WAC Comm 83 and 84 and an affidavit for the use of the undersized system is recorded in the Tribe's Realty Office or the Ashland County Register of Deeds if non-trust property. An affidavit for the use of the undersized system must also be recorded with the POWTS Inspector.

(4) Any installation, addition or modification of a system must be completed and accepted before the addition or modified area of the structure may be occupied.

Prior to commencing construction of any structure or addition to a structure on a site where there exists a private sewage system when such will not affect the wastewater flow or contaminant load, the owner or his agent shall still determine that the proposed structure conforms with applicable setback limitations of Comm 83, as adopted by Band law. Documentation shall be submitted to the POWTS Inspector.

(d) Permit Fees.

Reconnection permit fees shall apply as established by Exhibit A.

4.04.060 Licensing

Requirement. No person shall engage in or perform any aspects of the business or perform for others the service of site evaluation, design, installation, pumping, maintenance, or renovation of individual sewage treatment systems within the exterior boundaries of the Bad River Reservation without first obtaining a Master Plumber or the appropriate classification of Master Plumber-Restricted, as defined as Restricted Plumber Licensee, license under WSA Chapter 1.35 from the State of Wisconsin and submitting a copy of the license to the POWTS Inspector. Installer licensees shall be authorized to construct, install, renovate, and repair individual sewage treatment systems only as their license permits. Licensed Journeyman Plumbers may install a system without continual supervision, subject to a Master Plumber or Master Plumber-Restricted Licensee inspecting and approving, signing-off in writing, and taking responsibility for all of the work. Plumbing Apprentices and Registered Learners shall at all times be supervised by a Master Plumber.

4.04.070 Variances

(a) The POWTS Inspector shall consider and may grant a variance to a provision of this Ordinance only upon applicant demonstrating equivalency of the proposed varying system to a qualifying system.

(b) The POWTS Inspector may not approve a petition for variance for an existing POWTS which is determined to be a failing system.

(c) A property owner may apply to the POWTS Inspector for a variance. The applicant shall have the burden of establishing a hardship that is unique to the land in question. An unnecessary hardship may exist when compliance with the strict letter of the Ordinance would unreasonably prevent the applicant from using the property for an allowable purpose or would render compliance with such restrictions unnecessarily burdensome. Financial impact is not considered for a hardship variance. Any hardship shall be weighted against the danger to the health and safety of the environment and the Tribal membership.

4.04.080 Inspections

(a) Inspections: General

An inspection schedule shall be developed within the Policies and Procedures Manual, which may provide for more frequent inspections. The following shall serve as a minimum inspection schedule.

(1) All systems must be inspected at least once during construction.

(2) Notice for final inspection shall be given to the POWTS Inspector for all POWTS when installation, modification, or reconnection are complete.

(3) These POWTS shall be inspected by the POWTS Inspector, or another approved licensed inspector with prior notice tot he POWTS Inspector, for compliance with this Ordinance. If inspection is conducted by anyone other than the POWTS Inspector, a copy of the inspection results must be filed with the POWTS Inspector within ten (10) days of the inspection.

(4) Notification for final inspection shall be given in accordance with the requirements of WAC Comm 83, as adopted by this Ordinance.

(5) When a private sewage system is ready for inspection, the plumber in charge shall make arrangements to enable the inspector to inspect all parts of the systems. The plumber shall provide the proper apparatus, equipment, and necessary assistance to make a proper inspection.

(6) Private sewage systems shall be inspected periodically, but not less than one (1) time every three years, after the initial installation inspection(s) and/or after the system is operative, as deemed necessary by the POWTS Inspector.

(b) Inspections: Site Constructed Holding Tanks.

(1) All site constructed holding tanks shall be inspected after the floor is poured and the keyway and water stop are installed or after the forms for the tank walls have been set but in all instances before any concrete for the walls has been poured.

(2) Concrete walls may be poured only after it has been determined that the tank, as formed, complies with the approved plans.

(3) This inspection shall not eliminate the need for an inspection after the installation has been completed.

(1) The plumber installing the mound shall notify the POWTS Inspector the working day prior to the installation, excluding Saturdays, Sundays and holidays.

(2) Mound systems may be inspected at the time the ground surface is plowed, before aggregate is placed in the distribution cell, at the time the distribution piping installation has been completed and after all work has been completed. At least one inspection prior to completion is required.

(d) Inspections: At-Grade Systems.

(1) The plumber installing the at-grade for the owner shall notify the POWTS Inspector the working day prior to installation, excluding Saturdays, Sundays and holidays.

(2) At-grade systems may be inspected at the time the ground surface is plowed, at the time the distribution piping installation has been completed and after all work has been completed. At least one inspection prior to completion is required.

(e) Re-inspection.

(1) Re-inspection may cause the assessment of a fee when a system fails the initial inspection or is incomplete. Additional re-inspections of the system shall require a fee.

(2) The re-inspection fee shall be due within ten (10) working days of written notification by the POWTS Inspection. Failure to pay this fee within that period shall constitute a violation of this Ordinance.

(f) Testing.

(1) If testing of new systems or new system components is required by this Ordinance, or as a condition of a plan approval, notice shall be given to the POWTS Inspector as specified in 406.8 so that the Inspector may make an inspection during the test.

(2) The Inspector shall verify that required testing has been completed by:

(A) Performing an inspection during the test;

(B) Requiring written verification from the responsible person; or

4.04.090 System Management and Maintenance

(a) Maintenance and Management.

(1) All POWTS shall be managed and maintained in accordance with this Ordinance and the standards of WAC Comm 83.

(2) The property owner shall report to the POWTS Inspector each inspection, maintenance or servicing event, in accordance with this Ordinance and WAC Comm 83.

(3) The property owner shall submit a copy of an appropriate maintenance agreement and/or servicing contract to the POWTS Inspector prior to sanitary permit issuance.

(4) The property owner shall submit a new maintenance agreement and/or servicing contract to the POWTS Inspector whenever there is a change to such document(s).

(5) The property owner shall submit a new maintenance agreement and/or servicing contract to the POWTS Inspector prior to expiration of any existing maintenance agreement and/or servicing contract.

(b) Holding Tank Maintenance Agreement.

(1) The owner of the holding tank shall enter into a Maintenance Agreement with the POWTS Inspector guaranteeing that a private contractor, who has also signed the agreement, will service the holding tank if the owner fails to have the holding tank properly serviced in response to orders issued by the POWTS Inspector. The Maintenance Agreement shall be binding upon the owner, the heirs of the owner, and assignees of the owner. The Maintenance Agreement shall be filed with the POWTS Inspector and shall be recorded in a manner which will permit the existence of the agreement to be determined by reference to the property where the holding tank is installed.

(2) The owner or agent shall submit a copy of the holding tank Maintenance Agreement when plans are submitted to the POWTS Inspector for review.

(3) Pumping records shall be filed at least quarterly with the POWTS Inspector.

(4) The POWTS Inspector may inspect pumping records and the site for compliance and overflow at all reasonable times.

(5) The POWTS Inspector may require a pumping schedule and/or a meterting or monitoring device on the system.

(6) Holding tanks which are connected to public sewer systems and which serve individual premises and not the entire system are considered to be owned by the individual served by the holding tank and fall within the requirements of this Ordinance. Therefore, servicing requirements and Maintenance Agreements are required for owners of such holding tanks connected to public sewer systems.

4.04.100 Administration and Enforcement

(a) Administration. The POWTS Inspector shall be responsible for the administration and enforcement of this Ordinance. The POWTS Inspector may delegate his/her responsibilities to personnel employed by the Department. The POWTS Inspector shall follow the provisions below, as well as those provided in a Policies and Procedures Manual, to be developed and approved by the POWTS Board, or developed by the POWTS Inspector and approved by the Tribal Council in the event no POWTS Board is in place.

(b) Powers and Duties. In the administration of this Ordinance, the POWTS Inspector shall have the following powers and duties:

(1) Delegate duties to and supervise clerical staff and other employees to ensure full and complete compliance with this Ordinance;

(2) Prepare reports and recommendations regarding any additional sanitary measures he/she deems necessary to implement the purpose of this Ordinance.

(3) Obtain assistance and cooperation from other Bad River Tribal departments and committees, and other federal, state and local health, legal and policy officials in the administration and enforcement of this Ordinance.

(4) Cooperate with federal, state, tribal and local personnel in the enforcement of this Ordinance and state regulations, rules and requirements relating to sewage treatment.

(5) Arrange for the enforcement of any and all rules, orders, permits and other requirements established herein or issued pursuant to this Ordinance.

(6) Interpret the provisions of this Ordinance as provided in Section 4.04.010.E. (7) Advise applicants concerning the provisions of this Ordinance and assist them in preparing permit applications;

(7) Review and approve or disapprove all plans for private sewage systems;

(8) Issue sanitary permits and inspect properties for compliance with this Ordinance;

(9) Keep records of all sanitary permits issued, inspections made, work approved and other official actions;

(10) Issue compliance orders and report continuing violations of this Ordinance to Tribal Conservation Wardens and Law Enforcement and the Office of the Tribal Prosecutor; Enter into compliance schedule agreements with POWTS owners, pursuant

(11) to Section 4.04.010.D., above, and enforce the terms of such agreement to ensure compliance schedule milestones are adhered to.

(12) Have access to any premises for the purpose of performing official duties between 8 a.m. and 8 p.m. or at other times set by mutual agreement between the property owner or his agent and the POWTS Inspector or upon issuance of a special inspection warrant. Application for any permit or inspection certificate under this Ordinance is considered for the purposes of this Ordinance as the owner's consent to enter the premises;

(13) Upon receipt of reliable evidence of a real or potential threat to the environment or public health, the POWTS Inspector may enter upon any premises within the boundary of the Bad River Reservation to inspect the property for violation of this Ordinance. Tribal law enforcement personnel may accompany the POWTS Inspector or enter unaccompanied upon request of the POWTS Inspector to enforce the terms of this Ordinance;

(14) Upon reasonable cause or question as to proper compliance, revoke or suspend any sanitary permit and issue cease and desist orders requiring the cessation of any construction, alteration or use of a building which is in violation of the provisions of this Ordinance until compliance with this Ordinance is obtained;

(15) Issue and enforce orders to plumbers, pumpers, property owners, their agents or contractors or the responsible party, to assure proper compliance with all provisions of this Ordinance;

(16) Withhold permit(s) or approval(s) pursuant to this Ordinance where the applicant, owner or licensed contractor is in violation of this or any Ordinance administered by the Band and for any parcel(s) of land which have an outstanding violation until the violation(s) have been corrected.

(17) Cooperate with the Office of the Tribal Attorney to commence actions on behalf of the Band seeking legal and/or equitable relief.

(18) Perform other duties regarding private sewage systems as considered appropriate by the POWTS Inspector, POWTS Board, or the Tribal Council.

(1) The Bad River Tribal Council shall, at its discretion, establish a POWTS Board and policies governing such Board, with the following general duties and authority, which shall be more specifically described and governed by By-Laws adopted by the POWTS Board and approved by the Tribal Council;

(2) Recommend rates and fees under this Ordinance to the Tribal Council for the initial Fee Schedule, and thereafter amend and set fees and rates;

(3) Recommend Ordinance amendments/revisions to the Tribal Council;

(4) Establish a Policies and Procedures Manual with such provisions as are necessary to meet the requirements of this Ordinance and to allow the POWTS Inspector to operate on a day to day basis under approved guidelines.

(5) Hear appeals from administrative decisions of the POWTS Inspector and determine whether to uphold or overturn the decision of the POWTS Inspector; and

(6) Incorporate as necessary to acquire grant funding to accomplish the purpose of this Ordinance.

(d) The POWTS Board shall not have the authority to:

(1) Oversee the day-to-day operations of the POWTS Inspector;

(2) Alter decisions of the POWTS Inspector without an opportunity for a hearing on the matter;

(3) Create permit conditions or issue permits;

(4) Impose monetary penalties upon persons in violation of this Ordinance.

(e) Requests for Reconsideration and Appeals

(1) Any person who alleges that there is an error in any order, requirement or decision made in the administration and enforcement of this Ordinance may request reconsideration and appeal the decision. Any request for reconsideration or appeal shall begin by filing a notice of reconsideration or appeal on forms furnished by the POWTS Inspector within 30 days of the date of the administrative action in question or the date of the written decision of the POWTS Inspector on a request for reconsideration.

(2) The timely filed request for reconsideration must specify the reasons for the request and the administrative remedy requested. The POWTS Inspector shall issue a written decision within forty-five (45) days of the request for reconsideration. Parties dissatisfied with the reconsideration decision of the POWTS Inspector may request an appeal as specified in this section.

(3) The timely filed notice of appeal must specify the reasons for the appeal and the administrative remedy requested. Upon receipt of a notice of the appeal, the POWTS Board shall provide notice, opportunity for a hearing, and a timely decision, which shall include the following:

(A) Notice

(i) Fix a reasonable time for the hearing;

(ii) Publish a notice, posted in at least three public places, specifying the date, time, place and subject of the hearing;

(iii) Ensure that the notice shall be mailed certified mail to parties in interest and the POWTS Inspector at least ten (10) days in advance of the hearing.

(B) Hearing

(i) Any party may appear in person or by agent or attorney;

(ii) Decide appeals of the decisions of the POWTS Inspector.

(i) Be made within reasonable time;

(ii) Be sent to the POWTS Inspector and Appellant within ten (10) days of the decision;

(iii) Be a written determination signed by the chairperson or secretary of the POWTS Board;

(iv) State the specific facts which are the basis for the POWTS Board's decision;

(v) Either affirm, reverse, vary or modify the order requirement, decision or determination appealed, in whole or in part, or dismiss the appeal;

(vi) Include the reasons or justifications for granting an appeal, with a description of the hardship or practical difficulty demonstrated by the applicant in the case of a variance, clearly stated in the recorded minutes of the Board proceedings.

(vii) Appeal to Tribal Court: Any party wishing to appeal decisions of the POWTS Board must file a claim with the Bad River Tribal Court in accordance with the Rules and Procedures of the Bad River Tribal Court.

(viii) Each party shall bear their own costs of appeal unless the POWTS Board or Tribal Court determines a party's actions to be frivolous or abusive of the process, in which case the POWTS Board or Court may award costs and attorney fees to the other party.

(f) Jurisdiction/Enforcement

(1) The Bad River Tribal shall have jurisdiction to hear all matters brought pursuant to this Ordinance, including citizen suits.

(2) The POWTS Inspector and all Tribal law enforcement and conservation enforcement personnel, shall be empowered to enforce this Ordinance.

(3) The POWTS Inspector shall issue compliance orders. Failure to comply with such an order shall constitute a separate violation of this ordinance in addition to any other violations of this ordinance. Failure to comply will result in the matter being referred to the Tribal Conservation Officers and Law Enforcement for enforcement of the terms of this Ordinance and the Compliance Order.

(4) Actions for violations of this chapter may be commenced in Tribal Court by conservation citation or by summons and complaint.

(5) Violations of this Ordinance shall be prosecuted by the Office of the Tribal Attorney.

(6) Any person may bring suit in Tribal Court to enjoin a violation of this chapter.

4.04.110 Violations

(a) Any person who fails to comply with the provisions of this Ordinance, or any order of the POWTS Inspector or Tribal Court issued in accordance with this Ordinance, or resists enforcement, shall be subject to the penalties and forfeitures herein.

(b) Any construction which is in violation of this Ordinance shall cease upon written orders from the POWTS Inspector, Tribal Court or the placement of notification of violation at the site by authorized persons in the event of imminent threat.

(d) Each day of any continuing violation may be charged as a separate violation and a separate forfeiture may be imposed.

4.04.120 Injunctions, Civil Damages, Civil Forfeitures, and Other Remedies

(a) Injunctions, Civil Damages, Civil Forfeiture, Other Remedies

The Bad River Tribal Court may impose any of the following for violations of this chapter, singly or in any combination:

(1) Immediate injunction;

(2) Restitution for damages caused by violations, including civil damages for any harm to any Tribal resource;

(3) Civil forfeiture not exceeding $5,000. Each day of any continuing violation may be charged as a separate violation, and a separate forfeiture may be imposed.

(4) In addition to a civil forfeiture, any personal property, including vehicles and other equipment, which has been used in connection with the violation of this Ordinance, may be seized and forfeited pursuant to the appropriate sections of the Tribal Court Code. Seizure of tanks installed equipment and materials or other items which are too impracticable to move may be effected by posting a copy of the citation on or near the item seized until an appropriate remedy or practicable removal method is determined.

(5) Restitution for costs of enforcement incurred by the POWTS Inspector, Conservation Wardens, Tribal Law Enforcement and the Tribal Court.

(b) Citizen Suit Damages

(1) The Bad River Tribal Court may award damages to individuals who successfully bring suit demonstrating harm from the actions of any person found in violation of this chapter.

(2) Citizen suit damages are separate from and may be in addition to and may duplicate any damages requested by the Tribe under this section.

In the event of imminent threat to persons or the environment, the POWTS Inspector, or other authorized persons may issue immediate cease and desist orders, injunctions, and closures and may post premises with such orders. Administrative review of such action shall be held within ten (10) days of the action. The POWTS Inspector or other authorized persons and the Tribe shall not be liable for damages incurred by good faith action on their part in addressing real or perceived imminent threats or harm.

Chapter 4.05 Interim Land Use Controls (Formerly Unnumbered)

4.05.010 Statement of Policy

The Bad River Tribal Council recognizes that the land within its jurisdiction represents a unique confluence of cultural, historical, and environmental resources. Home to the ancestors of the Bad River Band for over three centuries, the land is an irreplaceable habitat for the wealth of fish, waterfowl, and mammal life from which the Chippewa Indians have traditionally derived their sustenance. Where the rivers widen, wild rice stands stretch out to the high ground and down to the Lake, and contribute to a delicate ecosystem about with life. Upstream, the Bad River Falls are the site of pictographs created by the ancestors of those Indians who still fish the Falls today. Throughout the territory traditional burial grounds are scattered, spiritual wellsprings of the Bad River Band and visible reminders of the Band's ancient attachment to the area now known as the Bad River Reservation.

Reminders of man's more recent and continuing impact on the land are also visible. Wrought by tribal members and non-members alike, sometimes beneficial to the Bad River Band and sometimes not, sometimes in harmony with the land and sometimes not, these artifacts are lasting mementos of man's presence. Timber sites, roads, utility rights-of-way, government buildings, stores, houses, taverns, motels, hunting shacks, quarries, dumps, mills - all have left a mark of more or less permanence whether appropriately placed and productively used or not.

The Bad River Tribal Council, aware of its responsibility to guard for future generations the enjoyment of the resources that so many past generations of Chippewa Indians have enjoyed, is equally aware of increasing pressures on those resources. The demand for wooded and shoreline land is rapidly growing, as greater numbers of the general population seek sites for homes, vacation sites, and commercial development. Meanwhile the Bad River Band seeks an improved economic base to establish the financial security of itself and its members.

In limited areas the Band currently has the capability of controlling development. Tribal members have requested leases of tribal land in delicate areas to establish home sites for their families. The Council has denied these leases and by doing so has preserved these lands, to the immediate detriment of some tribal members.

The Council cannot, however, control the development of the reservation solely in its capacity as lessor. Regrettably, through the unwise actions of the United States government in previous years, much of the Reservation lands are no longer in tribal hands. Either as restricted allotments or as fee-title land, this property is beyond the proprietary control of the Band. Only through the exercise of the Band's regulatory authority can the majority of Reservation lands be subject to controlled, planned development, to the mutual reciprocal benefit of all.

The development of a land use plan, encompassing the 125,000 acres that constitute the Bad River Reservation, cannot spring full-blown overnight. On the other hand, developmental pressures will not cease while the Council deliberates. In order therefore to forestall any action which may limit the Band's regulatory prerogatives, in order to notify those with an interest in any Reservation lands that a comprehensive land use plan is under consideration, in order to establish a process for the creation of such a plan, and in order to establish interim controls pending the approval of such a plan, this ordinance is adopted.

4.05.020 Definitions

(a) "Activity" means any unskilled, semi-skilled, technical or professional labor performed by any person, including the employees of a corporation, during any eight-hour period.

(b) "Commission" means the Interim Land Use Commission consisting of the Tribal Planner and two other members of the Bad River Band appointed by the Tribal Chairman.

(d) "Council" means the Tribal Council of the Bad River Band of Lake Superior Chippewa Indians.

(e) "Land Use Change" means any topographical or use change leading to commercial or industrial development, including the commercial logging of lands not held primarily for that purpose on March 4, 1981, and including the construction of any housing built for the occupancy of one other than the owner at the time of construction. If housing is rented or sold within one year of completion of construction it will be presumed to have been built for the occupancy of one other than the owner at the time of construction.

(f) "Reservation" means all lands within the boundaries of the Bad River Indian Reservation.

4.05.030 Changes Prohibited

(a) Except as otherwise provided, no person shall engage in any activity causing a land use change within the boundaries of the reservation.

(b)(1) Upon written application to the commission, a permit for land use change may be granted.

(A) The Commission shall establish a form for applications and procedures by which applications shall be considered.

(B) The Commission may impose reasonable conditions on the granting of a permit.

(C) The Commission may suspend any permit for failure to comply with its conditions and may revoke any permit for cause shown.

(2) Final decisions of the Commission may be appealed within ten days to the Council. The Council shall hear all such appeals in regular session. The Council's decision in all appeals shall be final.

(d) Any articles of whatever description located within the jurisdiction of the Tribal Court, used in the commission of a breach of Section 3.1 may be seized and ordered forfeited.

(e) Citations for violations of Section 3.1 may be issued by the tribal conservation office, the tribal prosecutor, or the tribal attorney.

4.05.040 Land Use Committee Established

(a) A land use committee is hereby established for the purpose of preparing and presenting to the Council a permanent land use plan.

(b) The committee shall consist of the Tribal Planner, Tribal Attorney, and one Tribal member at large.

(1) At the April Council meeting the committee shall present a proposed base map, showing topographical, use, and ownership patterns.

(2) At the June Council meeting the committee shall present the revised base map and proposed zoning map and ordinance.

(3) At the July Council meeting the committee shall present the revised zoning map and ordinance.

(d) The committee shall invite public participation at all stages of the zoning procedure.

4.05.050 Sunset Clause

Unless extended by Council action, the provisions of Section 3 shall expire one year from date of passage of the ordinance, except that such provisions shall apply to any housing constructed during the effective period of this ordinance for one year following the completion of any such housing.

4.05.060 Repeal of Inconsistent Prior Ordinances

All prior inconsistent ordinances or parts thereof are hereby repealed.

4.05.070 Effective

This ordinance shall become effective upon posting at the Bad River Community Center and publication of notice of passage in the Ashland Daily Press.

4.05.080 Severability

If any provision of this ordinance on its face or as applied is held invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected.

Chapter 4.06 Right-of-Way Maintenance Method Ordinance

4.06.010 Purpose and Policy Statement

The Right-of-Way Maintenance Method Ordinance establishes guidelines for clearing right-of-way vegetation on the Reservation. This ordinance prohibits the use of chemical treatments to clear vegetation from right-of-ways without expressed Tribal permission through a permit. This ordinance is enacted to preserve the health of water, wildlife, and plant resources of the Bad River Tribe as well as the health of tribal members.

4.06.020 Authority

This chapter is promulgated pursuant to Article VI, sections 1 (j), (n), (q) and (w) of the Bad River Constitution.

4.06.030 Applicability

This chapter shall apply to all right-of-way maintenance activities of members, non- members, residents and non-residents undertaken within the exterior boundaries of the Bad River Reservation.

4.06.040 Non-Chemical Treatment Alternatives to Maintain Right-of-Ways:

All right-of-way maintenance activities shall utilize non-chemical treatment alternatives. Such non-chemical alternatives shall adhere to the following guidelines:

(a) Roadsides, Roadside Appurtenances, Pipelines, Utility Lines:

(1) Mowing: Mowers may be used to reduce brush and herbaceous weeds. Cut no shorter than 6 inches to prevent bare ground resulting in erosion.

(2) Trimming: Use of hand labor or gas-powered devices to trim brush woody vegetation in right-of-way area. Adequate stumpage shall be left to prevent erosion.

(3) Planting of native grasses and flowers: Native species should be introduced to discourage undesirable woody vegetation and other species that require high-maintenance. The planting or seeding of invasive exotic species is prohibited.

(b) Railroads:

(1) Mowing and hand and power trimming shall be the first alternatives pursued.

(2) Controlled burns may be used to eliminate vegetation around railways provided that:

(A) The Tribe is informed prior to the burn.

(B) The burn must be supervised at all times.

(C) Special permission must be obtained during dry seasons and burning is banned during the Tribal burn bans under the Tribe's burning ordinance.

(3) Mowing and trimming should be used for maintaining visibility and at crossings and any additional areas that are not suitable for controlled burning.

4.06.050 Prohibition and Exceptions

In the event that a non-chemical treatment maintenance alternative is not feasible:

(a) The use of herbicides on non-designated right-of-way areas is prohibited.

(b) A Person shall be permitted to use chemical treatment for maintenance of right-of-ways on the Bad River Reservation only upon issuance of a permit for such application by the Bad River Tribal Council.

(d) Bad River Natural Resources Department and Great Lakes Indian Fish and Wildlife Department programs may utilize chemical treatments for control of exotic invasive species when such use is part of an overall control plan approved by the Bad River Tribal Council.

4.06.060 Obtaining a Permit

(a) Any person requesting to use chemicals to maintain a right-of-way must first obtain written permission from the Tribal Council by:

(1) Submitting a written proposal to the Natural Resources Department requesting permission to use chemical treatment to maintain the right-of-way which provides the following information:

(A) Area to be treated, including a map, acreage and description of right- of-way;

(B) Time period of treatment, including start and finish dates, days of week, and times during the day treatment is proposed;

(C) A description of what chemicals will be used and in what quantities, and whether requesting party has certification to use such chemicals;

(D) Evidence demonstrating why non-chemical treatment alternatives are not available or feasible;

(E) The name, address, and phone number of the individual responsible for the request, his or her employer, and his or her title; and

(F) A notarized statement that the requesting party at all times claims ownership of any and all chemicals used, through proper disposal; that the requesting party shall has all required certifications and licensing for application of the chemical and provide records of transportation, storage and proper disposal of the chemical; and that the Tribe, Tribal employees, and the landowner(s), if different than requesting party, shall at no time be considered or alleged by the requesting party to be the owner or applicator of the chemicals used.

(2) The written proposal must be submitted to the Natural Resources Department at least two weeks prior to the next regularly scheduled Tribal Council meeting. Requesting parties may be required to attend the Tribal Council meeting.

(3) The Natural Resources Department shall recommend a grant or denial of the request to the Tribal Council.

(4) The Natural Resources Department or Tribal Council may request additional information prior to making a recommendation or approving a request, including, but not limited to information on environmental impacts of the application.

(5) A vote of approval of the Tribal Council is necessary for a permit to be granted.

(6) The Tribal Council may condition the approval of a request for a permit upon the receipt of proof of adequate insurance and certifications as it deems necessary for the protection of the health of the Tribe's resources and members.

(7) An approval in the form of a letter permit or written denial will be provided to the requesting party by the Natural Resources Department following Tribal Council action.

(8) Appeals must be in writing and presented to the Tribal Council within 10 business days of notification of the initial Tribal Council decision. The Tribal Council will address the appeal at its next regularly scheduled meeting or at prior scheduled special meeting at the Council's option.

(b) Each permit is valid only for each approved chemical treatment application. Each additional application requires a new proposal, Tribal Council approval, and permit.

(c) No permit shall be granted within 3000 feet of an open water source or within one mile of residential areas, tribal communities, farms, or fish hatcheries. In addition, an environmental assessment will be required for any proposed spraying in all watershed areas.

4.06.070 Rules of Chemical Application

Upon written permission from the Tribal Council and under tribal supervision the following will apply:

(a) Workers applying the herbicides must possess a current license or equivalent certification in worker protection training and relevant chemical application.

(b) All areas to be treated must be marked at least once every quarter-mile with appropriate signage to warn the public of the application of chemicals and such signage shall be left in place for an appropriate time period to prevent contact of the public with herbicides.

(c) No herbicides shall be applied which are not approved by the USEPA for such application and all application shall be in compliance with applicable Tribal, State, and Federal regulations or guidelines.

(d) All spray records must be kept on file and sent to Bad River Natural Resources Department.

(e) All herbicides shall be applied in the fall.

(f) Applicators must spray in the morning before the wind exceeds five miles per hour to prevent drift. The applicator must contact the Bad River Natural Resources Department the morning of application to assure the wind speed.

(g) All remaining chemicals, contaminated materials, and contaminated materials, and contaminated water must be disposed of in compliance with applicable Tribal, State and Federal regulations. Proof of proper disposal of the above shall be provided to the Natural Resources Department within thirty (30) days of the completion of the application of the herbicide.

4.06.080 Effective Date and Severability

(a) Effective Date. This Ordinance shall be effective upon the date of adoption by resolution of the Bad River Tribal Council, until amended or otherwise expressly invalidated by the Tribal Council.

(b) Severability. If the Bad River Tribal Court judges any section, provision, or portion of this Ordinance unconstitutional or invalid, the remainder of this Ordinance shall not affected.

4.06.090 Enforcement/Evidence

(a) The Bad River Conservation Wardens and the Bad River Police Department are authorized to enforce the provisions of the Chapter.

(b) The Bad River Conservation Wardens and the Bad River Police Department are authorized to enter all right-of-ways upon private property, Tribal, trust, allotted, or leased property at all reasonable times to inspect for use of chemical maintenance methods.

4.06.100 Jurisdiction/Penalties

(a) The Bad River Tribal Court shall have jurisdiction to hear all matters prosecuted pursuant to this chapter.

(b) The Bad River Tribal Court may impose any of the following penalties for violations of this chapter, singly or in any combination:

(1) Immediate injunction against the use of chemical treatment for right-of-way maintenance;

(2) A civil forfeiture not to exceed $1,000.00. Each day of any continuing violation may be charged as a separate violation and a separate forfeiture may be imposed;

(3) In addition to a civil forfeiture, any personal property, including vehicles and other equipment, which has been used in connection with the violation of this chapter may be seized and forfeited pursuant to the appropriate sections of the Tribal Court Code.

(4) The court may order restitution for damage to personal health or to natural resources caused by the use of chemical treatment for right-of-way maintenance.

4.06.110 Definitions

(a) Applicator: Any permitted party, including an individual or entity which contracts with or employs another to apply the chemical treatment to the right-of-way.

(b) Natural Resources Department: Shall mean the Bad River Natural Resources Department.

(d) Chemical treatment of right-of-way: The use of herbicides to reduce herbaceous weeds, brush, and trees within right-of-ways.

(e) Hand labor: The use of shovels, saws and axes to cut back vegetation or remove it completely, including grubbing and girdling.

(f) Herbaceous weeds: Plants or plant parts that are fleshy and wither after each growing season, as opposed to plants such as trees that grow woody stems and are persistent.

(g) Herbicides: Chemicals that kill plants or inhibit their growth.

(h) Member: An enrolled member of the Bad River Tribe, including those eligible for enrollment.

(i) Open Water Source: Any river, lake, stream, marsh, bog, slough, or any other area with exposed water.

(j) Particle drift: The particulate matter released when spraying that is distributed beyond the target area by wind.

(k) Reservation: All lands and waters within the exterior boundaries of the Bad River Reservation.

(l) Right-of-way: An easement or servitude over Tribal land conferring a right of passage, including, but not limited to: the strip of land over which is built a public road; the land occupied by a railroad; the land used by a public utility.

(m) Trees: Woody plants, including brush and shrubs, that exceed 10 feet in height.

(n) Tribal Council: The elected body governing the Bad River Tribe.

(o) Tribal Council: The elected body governing the Bad River Tribe.

(p) Vegetation: Refers to herbaceous plants, brush, and trees.

(q) USEPA: The United States Environmental Protection Agency

(r) Watershed: The land area that drains into a stream; the watershed for a major river may encompass a number of smaller watersheds that ultimately combine at a common point.

(s) Wetland: An area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.

Chapter 4.07 Energy Product Facility Rights of Way and Service Lines

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.

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.

(5-15-18-1029.)

Prior Codifications

§4.07.010 was formerly codified as 423.01

Commentary

For sub. (a)(1) - The 2016 regulations became effective April 21, 2016. See Final Rule 80 Fed. Reg. 72492.

For sub. (e) - 25 C.F.R. § 169.9 provides that tribal law applies to ROWs if not inconsistent with federal law and that ROWs "are generally not subject to State law or the law of a political subdivision thereof."

For sub. (g) - Where terms are defined in Section 6 - Chapter 403 - Leasing (adapted from 25 C.F.R. §162.003), the same definitions are adopted here.

For sub. (g) (Definition of "Effect") - Cf. 40 C.F.R. § 1508.8

For sub. (g) (Definition of "Mitigate" or "Mitigation") - Cf. 40 C.F.R. § 1508.20

For sub. (g) (Definition of "Public") - This is intended to resemble NEPA requirements.

For sub. (g) (Definition of "Service Line") - Based on 25 C.F.R. § 169.051

For sub. (g) (Definition of "Trust Land") - See also, Section 6 - Chapter 403 - Leasing.

4.07.020 Administration

(a) Tribal Council

The Tribal Council shall -

(1) Approve all realty-related interests authorized by this ordinance, as evidenced by the signature of the Chairperson on all such documents; and

(2) Adopt rules, policies, forms, and procedures, consistent with this Ordinance, governing the issuance of Rights-of-Way and Service Line Agreements consistent with this ordinance.

(b) Realty Officer

The Realty Officer shall –

(1) Provide information to interested persons or entities regarding the process for obtaining a Right-of-Way and make available to such persons forms of Rights-of-Way and Service Line Agreements that conform with the requirements of this ordinance;

(2) Process applications for Rights-of-Way and Service Line Agreements for submission to the Tribal Council for final approval;

(3) Facilitate the approval and recording of documents by the BIA to the extent required by federal law;

(4) Maintain an inventory of Tribal Lands and develop and maintain a land records system for the filing and recording of documents that affect interests in Tribal Land;

(5) Serve as the custodian of Tribal Lands for those lands designated by the Tribal Council;

(6) Record all Rights-of-Way and Service Line Agreements under a land records system approved by the Tribal Council; and

(7) Perform such additional duties as may be necessary in order to fulfill the purposes of this ordinance.

The Director shall -

1 perform the environmental reviews and other environmental functions required under this ordinance; and

2 Adopt policies and procedures, including time lines, and forms for the purposes of carrying out his or her duties under this ordinance

(d) Tribal Attorney

The Tribal Attorney shall -

(1) perform the legal reviews and other legal functions required by this ordinance; and

(2) adopt policies and procedures, including time lines, and forms for the purposes of carrying out his or her duties under this ordinance.

4.07.030 Rights of Way

(a) Definitions

Terms not defined in this ordinance shall have the meanings set forth at 25 C.F.R. Part 169.

(b) Application

(1) An applicant for Right-of-Way Agreement shall submit to the Realty Officer a complete application, including

(A) The applicant's name and address;

(B) The purpose of the Right-of-Way and a statement describing the Public Interest(s) it serves;

(D) The permanent Improvements associated with the Right-of-Way and the proposed responsibility for constructing, operating, maintaining, and managing permanent Improvements and how the applicant proposes to meet the due diligence requirements prescribed at 25 C.F.R. § 169.105;

(E) The proposed ownership and disposition of Improvements upon termination of the Right-of-Way;

(F) An accurate legal description of the Right-of-Way, its boundaries, and parcels associated with the Right-of-Way;

(G) A map of definite location of the Right-of-Way;

(H) Bonds, insurance, and/or other security meeting the requirements of Section 4.07.030(d) and federal regulations;

(I) If the applicant is a corporation, limited liability company, partnership, joint venture, or other legal entity, except a Tribal Entity, information such as organizational documents, certificates, filing records, and resolutions, demonstrating that:

(i) The representative has authority to execute the application;

(ii) The Right-of-Way will be enforceable against the applicant; and

(iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located;

(J) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements.

(1) An applicant who owns, operates, licenses or otherwise benefits from, unauthorized existing facilities on Tribal Land, or any applicant who is the successor-in-interest of such owner, operator, licensee or beneficiary, shall include in the application a notarized statement describing -

(A) the date and the circumstances under which the facilities were placed on Tribal Lands,

(B) whether the facilities whether the siting of the facilities on Tribal Lands was approved;

(D) copies of any documentation related to the above matters.

(2) No Right-of-Way application shall be considered complete for an applicant described under paragraph (a) unless the applicant first pays to the Tribe the surcharge amount described below, multiplied by the length (in feet) of the unauthorized energy product line or other facility, multiplied by the diameter of the line or other facility, multiplied by the number of years, or fraction thereof, that the facility was present without authorization. The Council, may, at its discretion, agree to a lesser amount in the public interest, such as for facilities providing service to the Tribe or its members:

(A) The surcharge amount for applications otherwise complete and filed before January 31, 2020 shall be $0.10.

(B) The surcharge amount for applications otherwise complete and filed after January 31, 2020 shall be $0.15 and shall be indexed annually for inflation each year thereafter.

(d) Security Document Requirements

(1) Unless the Tribe determines that the best interests of the Tribe will be served by waiving the requirement, an applicant must provide bonds, insurance or alternative forms of security in amounts that cover:

(A) The highest annual rental specified in the grant, unless compensation is a one-time payment made at the time the Right-of- Way is approved;

(B) The estimated damages resulting from the construction of any Improvements;

(C) The estimated damages and remediation costs from any potential release of contaminants, explosives, hazardous material or waste;

(D) The operation and maintenance charges for any land located within an irrigation project;

(E) The restoration of the premises to their condition at the start of the Right-of-Way or reclamation to some other specified condition if agreed to by the landowners.

(2) The bond or other security must be deposited with and made payable to the Tribe and may not be modified without the approval of the Tribe. Any insurance must identify both the Tribe and the United States as additional insured parties.

(3) The Right-of-Way Agreement will specify the conditions under which the bond, insurance, or security requirements may be adjusted to reflect changing conditions.

(4) The Tribe may require that the surety provide any supporting documents needed to show that the bond, insurance, or alternative form of security will be enforceable, and that the surety will be able to perform the guaranteed obligations.

(5) The bond, insurance, or other security instrument must require the surety to provide notice to the BIA and the Tribe, at least 60 days before canceling a bond, insurance, or other security.

(6) Bonds or alternative security must satisfy the requirements of 25 C.F.R. § 169.103.

(e) Due Diligence

(1) If permanent Improvements are to be constructed, the Right-of-Way Agreement must include due diligence requirements that require the grantee to complete construction of any permanent Improvements within the schedule specified in the Right-of-Way grant or general schedule of construction, and a process for changing the schedule by mutual consent of the parties. If construction does not occur, or is not expected to be completed within the time period specified in the grant, the grantee must provide the Tribe and BIA with an explanation of good cause as to the nature of any delay, the anticipated date of construction of facilities, and evidence of progress toward commencement of construction.

(2) Failure of the grantee to comply with the due diligence requirements of the grant is a violation of the grant and may lead to termination of the Right- of-Way Agreement.

(f) Compensation

(1) Subject to subparagraph (2), the Right-of-Way Agreement shall provide for annual payment of just compensation that is in the Public Interest, as determined by the Tribe, but not less than $ 0.25 per year, indexed annually for inflation, multiplied by the length (in feet) of the energy product line or other facility, multiplied by the diameter of the line or other facility.

(2) The Tribe may require or permit alternatives to monetary compensation that it deems in the Public Interest, including, but not limited to:

(A) in-kind consideration;

(B) payments based on throughput or percentage of income;

(C) payments at specific stages during the life of the Right-of-Way grant, such as fixed annual payments during construction, payments based on income during an operational period; or

(D) bonuses.

(3) Payments due under a Right-of-Way Agreement shall be made directly to the Tribe.

(g) Mandatory Provisions

(1) Each Right-of-Way Agreement must address:

(A) The permissible uses of the Right-of-Way;

(B) Whether the Right-of-Way may be assigned or mortgaged and the associated consent requirements;

(D) The duration of the Right-of-Way and the conditions, if any, for renewal.

(2) Every Right-of-Way Agreement shall include substantially the following provisions:

(A) The Tribe maintains its existing jurisdiction over the land, activities, and persons within the Right-of-Way and reserves the right to reasonable access to determine grantee's compliance with consent conditions or to protect public health and safety;

(3) The grantee has no right to any of the products or resources of the land, including but not limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the Right-of- Way Agreement;

(4) If historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with the Right-of-Way Agreement, all activity in the immediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact the Tribal Historic Preservation Office and the BIA to determine how to proceed and appropriate disposition;

(5) The grantee must:

(A) Construct and maintain Improvements within the Right-of- Way in a professional manner consistent with industry standards;

(B) Pay promptly all damages and compensation, in addition to bond or alternative form of security prescribed in the Right- of-Way Agreement, determined by the Tribe to be due as a result of the granting, construction, and maintenance of the Right-of-Way;

(C) Upon completion of construction, restore the land as nearly as possible to its original condition, to the extent compatible with the purpose for which the Right-of-Way was granted, or reclaim the land if agreed to by the Tribe;

(D) Clear and keep clear the land within the Right-of-Way, to the extent compatible with the purpose of the Right-of- Way, and dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project;

(E) Comply with all applicable laws and obtain all required permits;

(F) Not commit waste;

(G) Operate, repair and maintain Improvements consistent with the Right-of-Way grant;

(H) Build and maintain necessary and suitable crossings for all roads and trails that intersect the Improvements constructed, maintained, or operated under the Right-of- Way;

(I) Upon cancellation or termination of the right-or-way, restore the land to its original condition, to the maximum extent reasonably possible, or reclaim the land if agreed to by the Tribe;

(J) At all times keep the Tribe informed of the grantee's address;

(K) Refrain from interfering with the Tribe's use of the land, provided that the Tribe's use of the land is not inconsistent with the Right-of-Way;

(L) Comply with due diligence requirements imposed by the Right-of-Way Agreement;

(M) Notify the Tribe and the BIA if it files for bankruptcy or is placed in receivership;

(N) Hold the United States and the Tribe harmless from any loss, liability, or damages resulting from the applicant's use or occupation of the premises; and

(O) Indemnify the United States and the Tribe against all liabilities or costs relating to the use, handling, treatment, removal, storage, transportation, or disposal of hazardous materials, or release or discharge of any hazardous material from the premises that occurs during the term of the grant, regardless of fault, with the exception that the applicant is not required to indemnify the Tribe for liability or cost arising from the Tribe's negligence or willful misconduct.

(h) Assignments, Amendments and Mortgages

Unless otherwise specifically provided in the Right-of-Way Agreement, a Right- of-Way may be assigned, amended or mortgaged only with the approval of the Tribe.

(i) Right to impose taxes, fees and assessments

The Tribe reserves the right to impose fees, taxes or assessments in connection with an application for Right-of-Way Agreement or in connection with a grantee's use of a Right-of-Way pursuant to a Right-of-Way Agreement. The Tribe may also agree in a particular Right-of-Way Agreement to waive such taxes, fees and assessments.

(j) Initial Realty Officer Review

Within fifteen business days after receipt of a complete application, the Realty Officer shall

(1) Deliver a copy of the application packet to the Director for review pursuant to Section 4.07.050;

(2) Prepare a form of Right-of-Way Agreement; and

(3) Deliver a copy of the application packet to the Tribal Attorney for legal review.

(k) Legal Review

The Tribal Attorney shall review and make appropriate modifications to the Right-of-Way Agreement and provide the Realty Officer with a written report including the attorney's statement whether the Right-of-Way Agreement complies with this ordinance, including its Public Interest requirements, and any recommendations or concerns.

(l) Environmental Review

The Director shall assess the environment impact of a proposed Right-of-Way in accordance with the standards of Section 4.07.050. In the event that a proposed Right-of-Way is not categorically excluded, the Director shall:

(1) request any additional information needed from the applicant that may be needed to complete an environmental review, and;

(2) perform an environmental review, and

(3) report the results of his or her determination to the Realty Officer.

(m) Final Realty Officer Review

(1) After receipt of the final environmental review report prepared pursuant to Section 4.07.050D., the Realty Officer shall determine whether the applicant has satisfied all application requirements of this ordinance. If the Realty Officer identifies deficiencies in the application, the Realty Officer shall:

(A) so advise the applicant and provide a reasonable period of time for the applicant to cure the deficiencies, and;

(B) determine the extent of deficiencies and the necessary recourse action, which may require revisions to the environmental review, and/or;

(2) If the Realty Officer determines that the application meets the requirements of this ordinance, the Realty Officer shall submit the application packet, together with the environmental review report, to the Tribal Council for a final decision whether to approve or disapprove the Right-of-Way Agreement. The application packet submitted to the Tribal Council shall include:

(A) the proposed Right-of-Way Agreement document(s), together with the Realty Officer's recommendation, if any, whether to approve the Right-of-Way Agreement;

(B) the application submitted to the BIA pursuant to 25 C.F.R. § 169.102:

(D) the Director's environmental review statement, including the recommendations;

(E) any documents that the Tribal Council may specifically request; and

(F) any other relevant documents.

(n) Tribal Council Decision

(1) The Tribal Council shall have the sole authority to approve or disapprove the Right-of-Way Agreement application by resolution based on its judgment whether the benefits of the Right-of-Way Agreement outweigh any identified adverse impacts and whether the Right-of-Way is in the Public Interest.

(2) Triplicate originals of an approved Right-of-Way Agreement shall be executed by the Chairperson, on behalf of the Tribe, and by the applicant.

(o) Realty Officer's Post Execution Duties

Following the execution of an approved Right-of-Way Agreement by the Chairperson, the Realty Officer shall:

(1) provide an original Right-of-Way Agreement to the BIA for recording and return to the Tribe;

(2) provide an original or certified copy of the Right-of-Way Agreement to the applicant;

(3) preserve original and digital copies of executed Right-of-Way Agreement documents;

(4) if the BIA grants a Right-of-Way pursuant to the Tribe's Right-of-Way Agreement, obtain and record a copy of the approved Right-of-Way; and

(5) in coordination with tribal technical staff monitor the grantee's compliance with the Right-of-Way.

4.07.040 Service Line Agreements

(a) Requirement

Before a utility provider may begin any work to construct Service Lines across Tribal Land, the utility provider must enter into a Service Line Agreement in accordance with this chapter and federal regulations set forth at 25 C.F.R. Part 169, Subpart B or successor regulations of the BIA.

(b) Application

(1) A service provider shall submit to the Realty Officer a proposed Service Line Agreement, including

(A) applicant's name, address, phone number, email address;

(B) services the provider will supply;

(D) proposed avoidance, minimization, and/or mitigation of any damages incurred during construction and the restoration of the premises at the termination of the agreement, if appropriate.

(2) If the service provider does not provide a proposed Service Line Agreement, the Realty Officer may prepare a form of Service Line Agreement.

Within 15 days after receipt of a complete application for Service Line Agreement, the Realty Officer shall -

(1) determine whether to require a survey or, alternatively, to identify the relevant premises by means of a legal description, survey-grade positioning system or other description prepared by a registered land surveyor sufficient to describe the premises.

(2) unless a categorical exclusion applies, deliver a copy of the application packet to the Director for review pursuant to Section 5;

(3) deliver a copy of the application packet to the Tribal Attorney for legal review.

(d) Legal Review

The Tribal Attorney shall review the proposed Service Line Agreement and provide the Realty Officer with the attorney's recommendations or concerns, if any.

(e) Environmental Review

The Director shall assess the environment impact of a proposed Service Line Agreement in accordance with the standards of Section 4.07.050. In the event that a proposed Right-of-Way is not categorically excluded, the Director shall:

(1) request any additional information needed from the grantee that may be needed to complete an environmental review, and;

(2) perform an environmental review, and;

(3) report the results of his or her determination to the Realty Officer.

(f) Final Realty Officer Review

(1) Within fifteen business days after receipt of the final environmental review report prepared pursuant to Section 4.07.050, the Realty Officer shall determine whether the applicant has satisfied all requirements of this chapter. If the Realty Officer identifies deficiencies in the application, the Realty Officer shall:

(A) so advise the applicant and provide a reasonable period of time for the applicant to cure the deficiencies, and

(B) determine the extent of deficiencies and the necessary recourse action, which may require revisions to the initial environmental review, and/or;

(2) If the Realty Officer determines that the application meets the requirements of this section, the Realty Officer shall submit the application packet, together with the environmental review report, to the Tribal Council for a final decision whether to approve or disapprove the Service Line Agreement. The application packet submitted to the Tribal Council shall include:

(A) the proposed Service Line Agreement, together with the Realty Officer's recommendation, if any, whether to approve the Service Line Agreement;

(B) the Tribal Attorney's statement as to legal compliance and any comments or recommendations;

(D) any documents that the Tribal Council may specifically request; and

(E) any other relevant documents.

(g) Tribal Council Decision

(1) The Tribal Council shall have the sole authority to approve or disapprove a Service Line Agreement based on its judgment whether the benefits of the agreement outweigh any identified adverse impacts and whether the agreement is in the Public Interest.

(2) Triplicate originals of an approved Service Line Agreement shall be executed by the Chairperson, on behalf of the Tribe, and by the service provider.

(h) Realty Officer's Post Execution Duties

Following the execution of an approved Service Line Agreements by the Chairperson, the Realty Officer shall:

(1) Provide an executed copy of the Service Line Agreement together with a plat or diagram, to the BIA within 30 days after the date of execution for recording in the LTRO. The plat or diagram -

(A) Must show the boundary of the ownership parcel and point of connection of the Service Line with the distribution line; and

(B) include the signatures of the parties if the plat is on a sheet separate from the Service Line Agreement.

(2) Provide an original or certified copy of the Service Line Agreement to the applicant;

(3) preserve original and digital copies of the executed Service Line Agreement; and

(4) assure proper recording in accordance with this ordinance.

4.07.050 Environmental Review

(a) Draft Environmental Review Statement

(1) Except in the case of categorical exclusions, the Director shall prepare a draft environmental review statement in connection with each proposed Right-of-Way or service line agreement, which statement shall include:

(A) statement of the purposes for which the right-of-way or Service Line Agreement is sought;

(B) a description of the physical environmental conditions in the vicinity of the property affected;

(C) a description of all significant short-term and long-term effects, including specific identification of any significant effect that cannot be avoided and any significant effect that would be irreversible if the application were approved;

(D) recommendations, where appropriate, of conditions that should be placed on the applicant's activity to minimize and mitigate detrimental effects and statements of whether the conditions are needed to avoid significant detrimental effects;

(E) the Director's determination whether the proposed activity will create significant detrimental effects after the inclusion of the recommended avoidance, minimization, and mitigation measures; and

(F) in the event of a finding of no significant detrimental effects, the Director's reasons for such finding.

(2) In determining whether an effect is significant, the Director shall consider both local and broader impacts of the proposed activity and the intensity of the activity, taking into account:

(A) the potential impact on public health or safety;

(B) the potential impact on sites that are sacred or of cultural significance to the Tribe;

(C) the potential impact on sites used by Tribal Members for hunting, fishing, gathering, cultural practices, religious activities or recreation;

(D) the unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wild rice waters, wild and scenic rivers, ecologically critical areas, Outstanding Tribal Resource Waters, Wetland of International Importance, Sites of International Importance (Ramsar Site) and North American Wetland Conservation Act (NAWCA) lands;

(E) whether the proposed activity is related to other actions with individually insignificant but cumulatively significant impacts;

(F) the potential impact on sites, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, archeological, cultural, or historical resources;

(G) the potential impact on endangered or threatened species or their habitat that has been determined to be critical under Tribe law or under the federal Endangered Species Act;

(H) whether the action may violate federal or Tribal Environmental Laws;

(I) the potential impact on air quality;

(J) the potential impact on water resources, including surface and ground water, water quality, water quantity, water uses and rights, fisheries, floodplains and/or wetlands;

(K) the potential impact on biological resources, including wildlife, vegetation, ecosystems and biological communities;

(L) the potential impact on visual resources, scenic views, and wilderness values;

(M) potential generation of excessive noise, vibrations, light, or glare; and

(N) potential impact on transportation networks.

(3) The Director may adopt as a Tribal environmental review statement an environmental review prepared in accordance with the National Environmental Policy Act by another agency, entity, or person, provided that-

(A) the Director supplements such environment review with an evaluation of effects under Tribal Environmental Laws; and

(B) the public comment and response requirements of this section are substantially complied with.

(b) Categorical Exclusions

(1) Except as provided in subsection (c), the approval of the following categories are excluded from the environmental review requirement:

(A) There is an earlier environmental review statement and finding of no significant impact prepared not more than twenty-four months earlier for a substantially identical right – of — way related activity on the same site.

(B) single family home sites, including up to four dwelling units in a single or separate buildings, and associated Improvements, including, but not limited to, construction of homes, outbuildings, access roads, and utility lines, provided (i) the activity encompasses five acres or less of contiguous lands and (ii) such sites and associated Improvements do not adversely affect any Tribal cultural resources or historic properties and are in compliance with applicable Federal and Tribal laws.

(D) Up to two acres for ground-mounted solar facilities that do not involve removal of a substantial number of healthy trees that are mature or scenic and provided such facilities do not adversely affect Tribal cultural resources or historic properties;

(E) operation, repair, maintenance or minor alteration of existing structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of entering into the propose agreement, e.g., (i) alterations of interior partitions, plumbing, electrical conveyances, or gutters; (ii) restoration or rehabilitation of deteriorated or damaged structures, facilities, or mechanical equipment; (iii) demolition and removal of small structures; and (iv) minor repairs;

(F) Replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same size, purpose and capacity as the structure replaced;

(G) Construction of a limited number of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the construction or placement of minor accessory (appurtenant) structures such as small above-ground utility facilities shelters, on-premises signs, small parking lots, and fences, provided such facilities do not adversely affect Tribal cultural resources or historic properties;

(H) Minor alterations in the condition of land and/or vegetation which do not involve removal of a substantial number of healthy trees that are mature or scenic, such as (i) grading on land with a slope of less than 10 percent, (ii) landscaping installation and maintenance, (iii) filling of earth into previously excavated land with material compatible with the natural features of the site, and (iv) minor trenching and backfilling where the surface is restored;

(I) Minor additions to existing buildings or other structures where the addition does not increase the original size by more than 25% and provided such actions do not adversely affect Tribal cultural resources or historic properties;

(J) Cleanup actions taken under the supervision of the Tribe to avoid, minimize, stabilize, mitigate, or eliminate the release or threat of release of an existing hazardous waste or substance;

(K) Activity that does not involve changes in the use of land and that is aligned with tribal interest;

(L) Rights-of-Way inside another right-of-way, or amendments to rights-of-way where no deviations from or additions to the original right-of-way are involved and where there is an existing NEPA analysis covering the same or similar impacts in the right-of-way area;

(M) Service line agreements to an individual residence, building or well from an existing facility where installation will involve no q clearance of vegetation from the right-of-way other than for placement of poles, signs (including highway signs), or buried power/cable lines; and

(N) Renewals, assignments and conversions of existing rights-of-way or service lines where there would be essentially no change in use and continuation would not lead to environmental degradation.

(2) The Realty Officer and the Director must concur, in writing, that a proposed Right-of-Way or Service Line Agreement qualifies for a categorical exclusion.

(3) Exceptions to Exclusions

(A) Notwithstanding the categorical exclusions listed in subsection (a), the Director shall prepare an environmental review statement if he or she has reason to believe that approval of the proposed Right-of- Way or service Line would adversely impact the interests addressed under this section.A.2.

(B) Notwithstanding the categorical exclusions listed in subsection (a), the Tribal Council may, at its discretion, direct that an environmental review statement be prepared.

A notice of availability of the draft environmental review statement shall be published in a manner calculated to reach the Public, following Section 1 - Chapter 1.01 - General Provisions - Section 101.6 - Administrative Procedure: Notice of Intent to Adopt a Code or Availability of Draft Environmental Review Statement Ordinance, Section.

(d) Final environmental review statement

(1) After the expiration of the comment period, the Director shall:

(A) prepare a written response to all relevant and substantive public comments, which response may address similar comments jointly;

(B) make such revisions to the draft environmental review statement as may be warranted based on public comments;

(D) post the final environmental review statement on the Tribe's public website; and

(E) forward copies of the final environmental review statement to the Realty Officer and the Tribal Attorney.

(2) The Director may make a recommendation whether the potential significant detrimental effects of the activity under the proposed Right-of- Way Agreement or Service Line Agreement justify denial of the application.

(3) In cases in which no environmental review statement is required, the Director shall provide a report stating the reasons and, in addition, providing the Director's comments and recommendations, if any, on the application under consideration

4.07.060 Enforcement

(a) Jurisdiction

The Court shall have exclusive jurisdiction over actions to enforce this ordinance and actions involving interests created pursuant to this ordinance, provided that this ordinance shall not be deemed a waiver of the Tribe's immunity from suit and the Tribe may not be named as a defendant in any action brought under this ordinance.

(b) Trespass

A person occupying Tribal Land without authorization is subject to immediate removal and the penalties provided in the Section 5 - Chapter 4.01 - Trespass to Land Ordinance. The Tribe shall have no liability for loss or damage to personal property.

(1) Upon violation of the terms of any Right-of-Way Agreement or Service Line Agreement, and the expiration of any cure period, the Tribe may initiate proceedings to terminate the Occupancy Right of the person in violation by filing a verified complaint, which shall include:

(A) The name of the person allegedly in violation and each person or entity claiming an interest through such person, as a defendant;

(B) A concise statement of the facts concerning the alleged default(s) and such other facts as may be necessary to constitute a cause of action;

(C) True and correct copies of the document by which the Occupancy Rights were conferred, and any related note, mortgage, or other recorded real property security instrument, and any assignment of any of these documents; and

(D) Any applicable allegations concerning compliance with any relevant requirements and conditions prescribed in (i) federal statutes and regulations, (ii) Tribal codes, ordinance and regulations, and/or (iii) provisions of the document by which the Occupancy Right was conferred.

(2) A copy of the summons and complaint shall be served on all defendants in accordance with Tribal law.

(3) An action to terminate an Occupancy Right shall be heard and decided in a prompt and reasonable time period not to exceed sixty (60) days from the date of service of the complaint on the defendants. If the plaintiff establishes grounds to terminate the Occupancy Right, the Court shall enter judgment, which shall include, as appropriate:

(A) Declaration of the plaintiff's right to recover the premises;

(B) Termination of the defendant's right of occupancy;

(C) A writ of restitution directing one or more Enforcement Officers to immediately remove the defendant(s) and all other occupants, and their personal property, from Tribal Land they have occupied unlawfully or pursuant to the terminated Right-of-Way Agreement or Service Line Agreement; and/or

(D) Monetary damages, which may include damages to the Tribal Land, the revenues derived from the unlawful occupancy and liquidated damages of $1,000 per day.

(4) Emergency Expedited Hearing

In the event that activities or conditions on Tribal Land pose a threat to the health, safety or welfare of the community, the Tribe or other party with a legal interest in the property may initiate termination proceedings without regard to otherwise applicable procedural requirements. In such event, the Court shall expedite termination proceedings and the Court shall order such interim or permanent relief as may be necessary, including, if warranted, removal of the defendant from the premises or immediate cessation of activities or alleviation of conditions.

(d) BIA Enforcement.

In addition to the Tribal remedies described in this section, the BIA may, at its discretion and upon reasonable notice from the Tribe, enforce or cancel any Right-of-Way Agreement or Service Line Agreement.

Chapter 4.08 Bad River Low Flow Ordinance

4.08.010 Purpose

(a) The idea of water conservation ordinance focusing on low-flow plumbing fixtures is to encourage water conservation at the tap by requiring all new construction and repair or renovation of existing building to utilize low-flow plumbing fixtures, such as low-flow faucets, washing machines and dishwashers, and toilets.

(b) Water quality is of paramount concern to the Tribe. Reduction in water use is necessary to ensure that the Tribe's wastewater treatment facilities are able to function without threat of overload and to prevent overloads of private or individual sewerage systems such as septic systems and holding tanks. Most water coming from the tap goes directly down the drain. Because no distinction can be made between clean, "gray" or "black" water, all of the water becomes "black" and must be treated. Although the water meets strict effluent standards, it is not as "pure" as the water originally came out of the tap. The Tribe's wastewater treatment facilities are also limited in the amount of flow they can adequately treat, as are septic systems. Too much water can cause these systems to fail to meet effluent standards. Holding tanks are limited in capacity and must be pumped out. The material pumped out must then be treated in some system. By reducing the amount of water coming out of the faucet, individuals can reduce the amount of clean water entering the waste treatment system, and, consequently, help maintain or improve the quality of the Tribe's water system.

4.08.020 Policy

(a) Minimum low-flow requirements

(1) Residential minimum low-flow compliance requirements.

(A) All mixing faucets shall be designed to deliver a maximum of 1.5 gallons per minute or equipped with low flow control devices that deliver a maximum of two gallons per minute;

(B) All shower heads shall be of a type that deliver a maximum of three gallons per minute or equipped with low flow devices that deliver a maximum of three gallons per minute;

(D) Evaporative cooling systems shall be equipped with water recycling or re-use systems;

(E) All water fountains, waterfalls and other decorative, water-using facilities shall be equipped with water recycling or reusable systems.

(2) Commercial minimum low-flow compliance requirements.

(A) All shower heads shall be of a type that delivers a maximum of 2.5 gallons per minute;

(B) All water closets shall be designed to use a maximum of 1.6 gallons per minute;

(C) All public-use lavatories shall be equipped with either spring loaded faucets that are equipped with metering valves that closes automatically after delivering a maximum of one gallon, except public rest rooms may be equipped with faucets designed for use by the physically handicapped.

(D) All mixing faucets shall be designed to deliver a maximum of 1.5 gallons per minute or must be equipped with flow control devices that deliver a maximum of 1.5 gallons per minute;

(E) All fountains, waterfalls, and other decorative, water-using facilities shall be equipped with water recycling or re-use systems;

(F) All urinals designs shall use a maximum of one gallon per flush. No urinals shall be installed which use a timing device to flush periodically, irrespective of demand.

(3) Governmental minimum low-flow compliance requirements.

(A) All shower heads shall be of a type that delivers a maximum of 2.5 gallons per minute;

(B) All water closets shall be designed to use a maximum of 1.6 gallons per minute;

(C) All public-use lavatories shall be equipped with either spring loaded faucets that are equipped with metering valves that closes automatically after delivering a maximum of one gallon, except public rest rooms that may be equipped with faucets designed for use by the physically handicapped.

(D) All mixing faucets shall be designed to deliver a maximum of 1.5 gallons per minute or must be equipped with flow control devices that deliver a maximum of 1.5 gallons per minute;

(E) All fountains, waterfalls, and other decorative, water-using facilities shall be equipped with water recycling or re-use systems;

(F) All urinals designs shall use a maximum of one gallon per flush. No urinals shall be installed which use a timing device to flush periodically, irrespective of demand.

(b) Time Frame for meeting requirements.

(1) Owners or managers of property shall install or require the installation of low-flow devices by January 1, 2012.

(2) All contractors and sub-contractors shall install low-flow devices where required.

(3) Low-flow fixtures are required in all new construction of structures.

(4) Low-flow fixtures shall be installed with renovations of structure's plumbing, septic and/or heating systems where total project costs exceed $100.

(5) Replacement of failed current fixtures must be done with fixtures that meet low-flow standards as aforementioned.

(6) Low-flow fixtures shall be installed prior to the time of sale of a structure.

4.08.030 Applicability

This chapter shall apply to all new construction, repair, renovation of commercial and residential structures owned by members, non-members, residents and non-residents undertaken within the boundaries of the Bad River Reservation and shall apply to all contractors and subcontractors undertaking the installation or replacement or repair of plumbing fixtures as prescribed in 433.2.B.

4.08.040 Effective Date, Severability and Incentives

(a) Effective Date: This ordinance shall be effective upon the date of adoption by resolution of the Bad River Tribal Council, until amended or otherwise expressly invalidated by the Tribal Council.

(b) Severability: If the Bad River Tribal Court judges any section, provision or portion of this ordinance unconstitutional or invalid, the remainder of this ordinance shall not be affected.

(c) Incentives: The Tribal Council may enact incentives for free or low cost fixtures or issue a rebates for water savings at the end of the utility year.

4.08.050 Enforcement/Evidence

(a) The Bad River Construction Projects Manager, Conservation Wardens and the Bad River Tribal Environmental Systems Coordinator are authorized to issue citations for violations of this chapter.

(b) The Bad River Construction Projects Manager, Conservation Wardens and the Bad River Tribal Environmental Management Systems Coordinator are authorized to enter private property, tribal, trust, allotted, or leased property at all reasonable times; after a twenty-four hour notice has been given; to inspect new construction, repair, and replacement work.

4.08.060 Jurisdiction/Penalties

(a) The Bad River Tribal Court shall have jurisdiction to hear all matters prosecuted pursuant to this chapter.

(b) The Bad River Tribal Court may impose any of the following penalties for violations of this chapter, singly or in any combination:

(1) Immediate mandate requiring installation of low-flow plumbing fixtures;

(2) A civil forfeiture of not to exceed $1,000.00. Each day of any continuing violation may be charged as a separate violation and a separate forfeiture may be imposed;

4.08.070 Authority

This chapter is promulgated pursuant to Article VI, sections 1 (j), (n), (q) and (w) of the Bad River Constitution.

4.08.080 Definitions

(a) Bad River NRD: The Natural Resources Department of the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(b) Black water: Wastewater from toilets, garbage disposals, and industrial processes.

(c) Commercial Structures: Any building engaged in Commerce, for example, in interchange of goods or commodities, lodging and/or entertainment.

(d) Contractor: A person who contracts to furnish, supply, or perform work at a certain price or rate.

(e) Evaporative Cooling System: System that cools by means of high velocity air and evaporation.

(f) Faucet aerator: Device that can be installed in a sink to reduce water use (Jensen, 1991).

(g) Gray Water: Domestic wastewater composed of wash water from kitchen sinks, bathroom sinks and tubs, clothes, washers, and laundry tubs (USEPA, 1989).

(h) Low-flow plumbing: Plumbing equipment that uses less water than was considered standard prior to Dec. 1, 2001.

(i) Low-flow showerhead: A showerhead that requires 3 gallons of water per minute or less.

(j) Low-flush toilet: A toilet that requires 1.6 gallons of water per flush or less.

(k) Members: The Bad River Band of Lake Superior Tribe of Chippewa Indians. Any person who is enrolled or is eligible for enrollment in the Tribe, or who is recognized as a member of the Tribe by the Tribal Council.

(l) Mixing Faucet: A single outlet for water from separately control hot water and cold water taps.

(m) Non-members: Any person who does not come within the definition of member.

(n) Non-residents: Any person who does not have a permanent place of abode on the Reservation, except as hereafter provided. Non-resident does mean any temporary or seasonal resident, and does mean any place of business.

(o) Person: Means any natural or legal person, both members of the Bad River Band of Lake Superior Chippewa Indians and non-members.

(p) Reservation: Refers to all areas within the exterior boundaries of the Bad River Indian Reservation.

(q) Residential Structures: Building suited for or characterized by private residence, a place in which a person lives or resides.

(r) Residents: A person who resides on or in the boundaries of the Bad River Reservation.

(s) Respondent: Refers to any person accused of violating the prohibitions described below.

(t) Retrofit: Replacement of existing equipment with equipment that uses less water (Jensen, 1991).

(u) Sub-contractor: A person or a business firm contracted to do part of another's work.

(v) Toilet displacement device: Object placed in a toilet tank to reduce the amount of water per flush; for example, weighted plastic jugs filled with water or toilet dams that hold back a reservoir of water when a toilet is flushing (USEPA, 1991b).

(w) Tribal Court: Refers to the Bad River Tribal Court and its appellate court.

(x) Tribe: Refers to the Bad River Band of the Lake Superior Tribe of Chippewa Indians.

(y) Warden: Refers to any officer authorized to enforce the terms of this ordinance.

(z) Wastewater: Spent or used water from individual homes, a community, a farm, or an industry that contains dissolved or suspended matter.

(aa) Waters: Refers to any waters within the exterior boundaries of the reservation, including but not limited to rivers, lakes, streams, creeks, ponds, sloughs, and wetlands.

(bb) Water Closet: An enclosed room or compartment containing a toilet bowl fitted with a mechanism for flushing.

(cc) Water use efficiency: Employing water-saving practices to reduce costs to slow the depletion of water supply to ensure future water quality (Kromm and White, 1990)

Chapter 4.09 Leasehold Mortgage Regulations

4.09.010 Introduction

The purpose of this ordinance is to make available to the Bad River Band of Lake Superior Tribe of Chippewa Indians and its members opportunities for purchasing or constructing family residences on trust land within the Bad River Reservation. This ordinance accomplishes that purpose by setting up procedures for the orderly recording, lien prioritization, foreclosure and eviction with respect to leasehold mortgages given to secure loans.

4.09.020 Lien Priority

All mortgage loans recorded in accordance with the recording procedures set forth in this Code, including Leasehold Mortgages, and including loans made, guaranteed, insured or held by a governmental agency, shall have priority over any lien not perfected at the time of such recording and any subsequent lien or claim excepting a lien or claim arising from a tribal leasehold tax assessed after the recording of the mortgage. (In those cases where the government direct, guaranteed or insured mortgage is created as a second mortgage, the loan shall assume that position.)

4.09.030 Recording of Mortgage Loan Documents

(a) The Tribal Recording Clerk shall maintain in the Tribal Real Estate program a system for the recording of mortgage loans and such other documents as the Tribe may designate by laws or resolution.

(b) The Tribal Recording Clerk shall endorse upon any mortgage loan or other document received for recording:

(1) The date and time of receipt of the mortgage or other document;

(2) The filing number to be assigned by the Tribal Recording Clerk, which shall be a unique number for each mortgage or other document received, and;

(3) The name of the Tribal Recording Clerk or designee receiving the mortgage or document.

Upon completion of the above cited endorsements, the Tribal Recording Clerk shall make a true and correct copy of the mortgage or other document and shall certify the copy as follows:

Bad River Band of Lake Superior Tribe of Chippewa Indians

Bad River Reservation, Wisconsin

I certify that this a true and correct copy of a document received for recording this date.

Given under my hand and seal this _______ day of ____________________.

(Signature)

(Date)

The Tribal Recording Clerk shall maintain the copy in the records of the recording system and shall return the original of the mortgage loan or other document to the person or entity that presented the same for recording.

(c) The Tribal Recording Clerk shall also maintain a log of each mortgage loan or other document in which there shall be entered:

(1) The name(s) of the Borrower/Mortgagor of each mortgage loan identified as such;

(2) The name(s) of the Lender/Mortgagee of each mortgage loan, identified as such;

(3) The name(s) of the grantor(s), grantee(s) or other designation of each party named in any other documents filed or recorded;

(4) The date and time of receipt;

(5) The filing number assigned by the Tribal Recording Clerk; and

(6) The name of the Tribal Recording Clerk or designee receiving the mortgage or document.

(d) The certified copies of the mortgage loan and other documents and the log maintained by the Tribal Recording Clerk shall be made available for public inspection and copying. Rules for copying shall be established and disseminated by the Tribal Recording Clerk.

(e) All mortgages will be recorded with the BIA in addition to any Tribal recording provisions.

4.09.040 Foreclosure Procedures

(a) A Borrower/Mortgagor shall be considered to be in default when he or she is thirty (30) days past due on his or her mortgage payment(s) or is in violation of any covenant under the mortgage for more than 30 days to the Lender/Mortgagee (i.e. the 3 1 ^st day from the payment due date).

(b) When a Borrower/Mortgagor is thirty days past due on his or her mortgage and before a foreclosure action or activity is initiated, the Lender/Mortgagee shall complete the following:

(1) Make a reasonable effort to arrange a face-to-face interview with the Borrower/Mortgagor. This shall include at least one trip to meet with the Borrower/Mortgagor at the mortgaged property.

(2) Lender/Mortgagee shall document that it has made at least one phone call to the Borrower/Mortgagor (or the nearest phone as designated by the Borrower/Mortgagor, able to receive and relay message to the Borrower/Mortgagor) for the purpose of trying to arrange a face-to-face interview.

(c) Lender/Mortgagee may appoint an agent to perform the services of arranging and conducting the face-to-face interview specified in this action.

(d) When the Borrower/Mortgagor is past due on three installment payments and at least ten (10) days before initiating a foreclosure action in Tribal Court, the Lender shall advise the Borrower/Mortgagor in writing by mail or by posting prominently on the unit, with a copy provided to the Tribe, as follows:

(1) Advise the Borrower/Mortgagor that information regarding the loan and default/delinquency will be given to credit bureaus.

(2) Advise the Borrower/Mortgagor of homeownership counseling opportunities/programs available through the Lender or otherwise.

(3) Advise the Borrower/Mortgagor of other available assistance regarding the mortgage/default.

(4) In addition to the preceding notification requirements, the Lender/Mortgagee shall complete the following additional notice requirements: (i) notify the Borrower/Mortgagor that if the Leasehold Mortgage remains past due on three installment payments, the Lender/Mortgagee may ask the applicable governmental agency to accept assignment of the Leasehold Mortgage if this is an option of the governmental program; (ii) notify the Borrower/Mortgagor of the qualifications for forbearance relief from the Lender/Mortgagee, if any, and that forbearance relief may be available from government; and (iii) provide the Borrower/Mortgagor with names and addresses of government officials to whom further communications may be addressed, if any.

(e) If a Borrower/Mortgagor is past due on three or more installment payments and the Lender/Mortgagee has complied with the procedures set forth in the first past of this section, the Lender/Mortgagee may commence a foreclosure proceeding in the Tribal Court by filing a verified complaint as set forth in Section 4.09.050 of this Code.

4.09.050 Foreclosure Complaint and Summons

(a) The verified complaint in a mortgage foreclosure proceeding shall contain the following:

(1) The name of the Borrower/Mortgagor and each person or entity claiming through the Borrower/Mortgagor subsequent to the recording of the mortgage loan, including each Subordinate Lienholder (except the Tribe with respect to a claim for a tribal leasehold), as a defendant;

(2) A description of the property subject to the mortgage loan;

(3) A concise statement of the facts concerning the execution of the mortgage loan and in the case of Leasehold Mortgage the lease; the facts concerning the recording of the mortgage loan or the Leasehold Mortgage; the facts concerning the alleged default(s) of the

Borrower/Mortgagor; and such other facts as may be necessary to constitute a cause of action;

(b) True and correct copies of each promissory note, mortgage, deed of trust or other recorded real property security interest (each a "security instrument") and any other documents relating to the property and if a Leasehold Mortgage, a copy of the lease and any assignment of any of these documents; and

(c) Any applicable allegations concerning relevant requirements and conditions prescribed in: (i) federal statutes and regulations; (ii) tribal codes, ordinances and regulations; and/or (iii) provisions of the promissory note, security instrument and if a Leasehold Mortgage, the lease.

(d) The complaint shall be verified by the Tribal Court Clerk along with a

Summons specifying a date and time for appearance for the Defendant(s).

4.09.060 Service of Process and Procedures

Any foreclosure complaint must be in writing, and must be delivered to the Borrower/Mortgagor in the following manner:

(a) Delivery must be made by an adult person and is effective when it is:

(1) Personally delivered to a Borrower/Mortgagor with a copy sent by mail, or

(2) Personally delivered to an adult living in the property with a copy sent by mail, or

(3) Personally delivered to an adult agent or employee of the Borrower/Mortgagor with a copy sent by mail.

(b) If the notice cannot be given by means of personal delivery, or the Borrower/Mortgagor cannot be found, the notice may be delivered by means of:

(1) Certified mail, return receipt requested, at the last known address of the Borrower/Mortgagor, or

(2) Securely taping a copy of the notice to the main entry door of the property in such a manner that it is not likely to blow away, and by posting a copy of the notice in some public place near the premises, including a tribal office, public store, or other commonly-frequented place and by sending a copy first class mail, postage prepaid, addressed to the Borrower/Mortgagor at the premises.

(c) The person giving notice must keep a copy of the notice and proof of service in accordance with this section, by affidavit or other manner recognized by law.

4.09.070 Cure of Default

Prior to the entry of a judgment of foreclosure, and Borrower/Mortgagor or a Subordinate Lienholder may cure the default(s) under the Mortgage by making a full payment of the delinquency to the Lender/Mortgagee and all reasonable legal and court costs incurred in foreclosing on the property. Any subordinate Lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such Subordinate Lienholder to cure the default(s), plus interest on such amounts at the rate stated in the note for the mortgage. There shall be no right of redemption in any Leasehold Mortgage Foreclosure proceeding.

4.09.080 Judgment and Remedy

This matter shall be heard and decided by the Tribal Court, in a prompt and reasonable time period not to exceed sixty (60) days from the date of service of the complaint on the Borrower/Mortgagor. If the alleged default has not been cured at the time of trial and the Tribal Court finds for the Lender/Mortgagee, the Tribal Court shall enter judgment:

(a) Foreclosing the interest of the Borrower/Mortgagor and each other defendant, including Subordinate Lienholder, in the mortgaged property and

(b) Granting title to the property to the Lender/Mortgagee or the Lender's

Designated Assignee; in the case of a Leasehold Mortgage, the Lease and the and the Leasehold Estate will be assigned to the Lender/Mortgagee or the Lender's Designated Assignee, subject to the following provisions:

(1) The lender shall give the Tribe the right of first refusal on any acceptable offer to purchase the Lease and the Lessess's leasehold interest in the property described in the lease which is subsequently obtained by the Lender or Lender's Designated Assignee.

(2) The Lender or Lender's Designated Assignee may only transfer, sell or assign the Lease and Lessee's leasehold interest in the property described in the Lease to a Tribal member, the Tribe, or the Tribal Housing Authority;

(3) The mortgagee has the right to convey the leasehold interest to the Secretary of HUD without providing the right of first refusal to the Tribe for Section 248.

4.09.090 Foreclosure Evictions

Foreclosure evictions shall be handled according to the general eviction process set forth below.

(a) Jurisdiction. The provisions of this section H. shall apply to all persons and property subject to the governing authority of the Tribe as established by the Tribal Constitution, Tribal Code, or applicable federal law.

(b) Unlawful Detainer. A Lessee, Sublessee, or other occupant of a Leasehold Estate subject to a Leasehold Mortgage shall be guilty of unlawful detainer if such person continue in occupancy of Leasehold Estate without the requirement of any notice by the Lessor, after such person's Leasehold Estate has been foreclosed in a Leasehold Mortgage foreclosure proceeding in the Tribal Court;

(c) Complaint and Summons. The lender or Federal Agency (which made, guaranteed or insured the mortgage loan) as appropriate, shall commence an action for unlawful detainer by filing with the Tribal Court, in writing, the following documents:

(1) A complaint, signed by the lender or Federal Agency, or an agent or attorney on their behalf:

(A) Citing facts alleging jurisdiction of the Tribal Court;

(B) Naming as defendants the mortgagors and any other record owner (including Sublessees and subordinate lienholders), of which the complainant has record notice (except the Tribe with respect to a claim for a Tribal tax on the Leasehold Estate subject to the Leasehold Mortgage);

(D) (iv) Stating the facts concerning (1) the execution of the lease and the Leasehold Mortgage; (2) the recording of the Leasehold Mortgage; and (3) the facts upon which he or she seeks to recover;

(E) Stating any claim for damages or compensation due form the

the persons to be evicted; and

(F) Otherwise satisfying the requirements of the Tribal Court.

(2) A copy of the summons, issued in accordance with established Tribal Court procedures, requiring the defendants to file a response to the complaint by the date specified in the summons. The deadline specified in the summons for filing a response shall be no less than 6 nor more than 30 days from the date of service of the summons and complaint. The summons shall notify the defendants that judgment will be taken against them in accordance with the terms of the complaint unless they file a response with the court by the date specified in the summons.

(d) Service of Summons and Complaint. A copy of the summons and complaint shall be served upon the defendants in the manner provided by the Tribal Court rules for service of process in civil matters. In the absence of such Tribal Court rules, the summons and complaint shall be served by one of the following two methods.

(e) Procedures for Service of Notice. Notices required or authorized in the immediately preceding section shall be given in writing either by:

(1) delivering a copy personally to the Borrower/Mortgagor or to any other occupant under color of law, or to any adult residing on the leasehold Estate and, if applicable, to any Sublessee; or

(2) posting said notice in a conspicuous place near the entrance to said Leasehold Estate, and sending an additional copy to the Lessee or to any other occupant under color of law, and, if applicable, to the Sublessee, by certified mail, return receipt requested, property addressed, postage paid.

Proof of service may be made by affidavit of any adult person stating that he has complied with the requirements of one of the above methods of service.

(f) Powers of the Tribal Court. The Tribal Court shall enter of Order of Repossession if:

(1) Notice of suit is given by service of summons and complaint in accordance with the procedures provided herein; and

(2) The Tribal Court shall find during pre-trial proceedings or at trial that the lessee, Sublessee, or other occupant under color of law of the Leasehold Estate subject to the Leasehold Mortgage is guilty of an act of unlawful detainer. Upon issuance of an Order of Repossession, the Tribal Court shall have the authority to enter a judgment against the defendants for the following, as appropriate: (1) back rent, unpaid utilities, and any charges due the Tribe, Tribal Housing Authority, other public Housing Authority, or Sublessor under any sublease or other written agreement (except for a Leasehold Mortgage); (2) any and all amounts secured by the Leasehold Mortgage that are due the lender (or Federal Agency); and (3) damages to the property caused by the defendants, other than ordinary wear and tear. The Tribal Court shall have the authority to award to the prevailing party its costs and reasonable attorney's fees in bringing suit.

(g) Enforcement. Upon issuance of an Order of Repossession by the Tribal Court, Tribal Law Enforcement officers shall help plaintiffs enforce same by evicting the defendants and their property from the unlawfully occupied Leasehold Estate. In all cases involving the lender or Federal Agency, the Order of Repossession shall be enforced no later than 45 days after a pre-trial proceeding or trial in which the Tribal Court finds against defendants, subject to Paragraph (h) below, and provided, that no party exercised the right to cure a default or right of first refusal as described in Paragraphs F and G above.

(h) Continuances in Cases Involving the Lender or Federal Agency. (Which originally made, insured or guaranteed the mortgage loan). Except by agreement of all parties, there shall be no continuances in cases involving the lender or Federal Agency that will interfere with the requirement that the Order of Repossession be enforced not later than 45 days after a pretrial proceeding or trial in which the Tribal Court finds against defendants, subject to the sound discretion of the Court.

4.09.100 No Merger of Estates

There shall be no merger of estates by reason of the execution of a Lease or a Leasehold Mortgage or the assignment or assumption of the same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the Leasehold Mortgage.

4.09.110 Certified Mailing to Tribe

In any foreclosure proceedings on a Leasehold Mortgage where the Tribe is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribe by certified mail, return receipt requested, within five (5) days after the issuance of the summons. If the lessor is not the Tribe, this notice will also be mailed to the lessor at the same time the notice is mailed to the Tribe. If the location of the lessor cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the lessor in care of the Superintendent of the applicable agency of the Bureau of Indian Affairs.

4.09.120 Intervention

The Tribe or any Lessor may petition the Tribal Court to intervene in any Lease or Leasehold Mortgage foreclosure proceeding under this Code. Neither the filing of a petition for intervention by the Tribe, nor the granting of such petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.

4.09.130 Appeals

Appeals under this code shall be handled in accordance with the general tribal appellate provisions.

Chapter 4.10 Tax

4.10.010 Findings and Purposes

(a) The Tribal Council finds that the power to tax the significant electric facilities and energy product facilities that are present on its reservation is -

(1) an essential attribute of tribal sovereignty;

(2) a necessary instrument of self-government and territorial management; and

(3) a means for the Tribe to raise revenue to fund essential governmental services.

(b) Purposes The purposes of this ordinance are to strengthen tribal sovereignty, strengthen tribal control over tribal territory and raise revenue to fund essential governmental services.

4.10.020 Authority

The Tribal Council enacts this Ordinance pursuant to its inherent sovereign authority and its authority under Art. VI, Sections 1(h), (j), and (s) of the Tribe's Constitution.

4.10.030 Scope

This Ordinance applies to all electric facilities and energy product facilities located on the reservation.

4.10.040 Definitions

As used in this Act:

"Electric facility" means all personal property and real property used or capable of being used to transmit or distribute electrical power or energy.

"kV" means kilovolts or 1,000 volts

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

"Personal property" means all goods, wares, merchandise, chattels, and effects, of any nature or description, having any real or marketable value, and not included in the term "real property."

"Reservation" means all land within the exterior boundaries of the Bad River Band of Lake Superior Chippewa reservation established under the authority of the 1854 Treaty of La Pointe.

"Real property" means land as well as all structures and other improvements thereon, and all fixtures and rights and privileges appertaining thereto.

"Service lines" 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 an electric facility, 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.

"Tribal Court" means the Bad River Band Tribal Court, including the Tribe's court of appeals.

"Tribal instrumentality" means any housing authority, utility, corporation, partnership or other entity that is owned whether in whole or in part by the Tribe and whose board of directors or other managers includes at least one director or manager that is appointed, directly or indirectly, by the Tribal Council. An entity's directors or managers are indirectly appointed by the Tribal Council if the entity is within a hierarchy of affiliated or subsidiary entities whose management is ultimately subject to the Tribal Council's appointment and removal authority.

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

4.10.050 Tax

(a) Property Taxes Taxes shall be levied, under this chapter, upon all electric facilities and energy product facilities except those that are exempt from taxation. Real property interest taxes and personal property taxes are deemed to be levied when the tax roll in which they are included has been delivered to the Tribal treasurer. When so levied such taxes are a lien upon the property against which they are charged. That lien is superior to all other liens, except a purchase money real estate mortgage that is recorded before the lien is filed under this section, or a 2nd or subsequent mortgage that is recorded before the lien is filed under this section.

(b) Exemptions The following shall be exempt from the property tax under this ordinance:

(1) A personal or real property interest of the Tribe, a Tribal instrumentality or member of the Tribe

(2) A personal or real property interest of the United States;

(3) A personal or real property interest of the State of Wisconsin; and

(4) A real property or personal property interest that has been granted an express property tax exemption in a lease, right-of-way agreement, or other agreement with the Tribe.

(5) Service Lines that are under 34 kv and/or that serve as a personal or real property of the Tribe. (DOE United States Electricity Industry Primer, July, 2015).

(1) Any electric facility equal to $.01 multiplied by the length (in feet) of the portion(s) of the electric facilities that are subject to taxation under this ordinance multiplied by the kilovolt rating of the electric facility.

(2) Any energy product facility equal to $.065 multiplied by the length (in feet) of the portion(s) of the energy product facilities that are subject to taxation under this ordinance multiplied by the diameter of energy product facility line.

(d) Due Date and Late Payment Fee All taxes assessed under this ordinance shall be due within 30 days of assessment. Late payments shall accrue an interest charge of one (1) percent per month.

(e) Assessor The Tribe shall appoint a qualified person to make assessments under this ordinance.

(f) Judicial Review The Tribal Court shall be the exclusive forum to obtain judicial review of any dispute arising under this ordinance, including, but not limited to, challenges relating to the Tribe's jurisdiction and the assessments made by the Tribe's assessor. The taxpayer shall have the right to contest any assessment with competent evidence.

4.10.060 Effective Date, Severability and Repealer

(a) Time of Taking Effect This Ordinance shall take effect on January 1, 2019.

(b) Severability If any provision of this ordinance or application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable.

Chapter 4.11 Electrical Facility Rights of Way and Service Lines

4.11.010 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 electricity.

(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.

"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.

"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.

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

"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.

"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.

(5-15-18-1029.)

Prior Codifications

§4.11.010 was formerly codified as 422.01

Commentary

For sub. (a)(1) - The 2016 regulations became effective April 21, 2016. See Final Rule 80 Fed. Reg. 72492.

For sub. (e) - 25 C.F.R. § 169.9 provides that tribal law applies to ROWS if not inconsistent with federal law and that ROWs "are generally not subject to State law or the law of a political subdivision thereof."

For sub. (g) - Where terms are defined in Section 6 - Chapter 403 - Leasing (adapted from 25 C.F.R. §162.003), the same definitions are adopted here.

For sub. (g) (Definition of "Effect") - Cf. 40 C.F.R. § 1508.8.

For sub. (g) (Definition of "Mitigate" or "Mitigation") - Cf. 40 C.F.R. § 1508.20.

For sub. (g) (Definition of "Public") - This is intended to resemble NEPA requirements.

For sub. (g) (Definition of "Service Line") - Based on 25 C.F.R. §169.051.

For sub. (g) (Definition of "Trust Land") - See also, Section 6 - Chapter 403 - Leasing.

4.11.020 Administration

(a) Tribal Council The Tribal Council shall -

(1) Approve all realty-related interests authorized by this ordinance, as evidenced by the signature of the Chairperson on all such documents; and

(2) Adopt rules, policies, forms, and procedures, consistent with this Ordinance, governing the issuance of Rights-of-Way and Service Line Agreements consistent with this ordinance.

(b) Realty Officer The Realty Officer shall -

(2) Process applications for Rights-of-Way and Service Line Agreements for submission to the Tribal Council for final approval;

(3) Facilitate the approval and recording of documents by the BIA to the extent required by federal law;

(4) Maintain an inventory of Tribal Lands and develop and maintain a land records system for the filing and recording of documents that affect interests in Tribal Land;

(5) Serve as the custodian of Tribal Lands for those lands designated by the Tribal Council;

(6) Record all Rights-of-Way and Service Line Agreements under a land records system approved by the Tribal Council; and

(7) Perform such additional duties as may be necessary in order to fulfill the purposes of this ordinance.

(1) perform the environmental reviews and other environmental functions required under this ordinance; and

(2) Adopt policies and procedures, including time lines, and forms for the purposes of carrying out his or her duties under this ordinance

(d) Tribal Attorney The Tribal Attorney shall -

(1) perform the legal reviews and other legal functions required by this ordinance; and

(2) adopt policies and procedures, including time lines, and forms for the purposes of carrying out his or her duties under this ordinance.

4.11.030 Rights of Way

(a) Definitions Terms not defined in this ordinance shall have the meanings set forth at 25 C.F.R. Part 169.

(b) Application

(1) An applicant for Right-of-Way Agreement shall submit to the Realty Officer a complete application, including

(A) The applicant's name and address;

(B) The purpose of the Right-of-Way and a statement describing the Public Interest(s) it serves;

(E) The proposed ownership and disposition of Improvements upon termination of the Right-of-Way;

(F) An accurate legal description of the Right-of-Way, its boundaries, and parcels associated with the Right-of-Way;

(G) A map of definite location of the Right-of-Way;

(H) Bonds, insurance, and/or other security meeting the requirements of § 422.03(D) and federal regulations;

(i) The representative has authority to execute the application;

(ii) The Right-of-Way will be enforceable against the applicant; and

(iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located;

(iv) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements.

(A) the date and the circumstances under which the facilities were placed on Tribal Lands,

(B) whether the facilities whether the siting of the facilities on Tribal Lands was approved;

(D) copies of any documentation related to the above matters.

(2) No Right-of-Way application shall be considered complete for an applicant described under paragraph (a) unless the applicant first pays to the Tribe the surcharge amount described below, multiplied by the length (in feet) of the unauthorized power line or other facility, multiplied by the kilovolt rating of the power line, multiplied by the number of years, or fraction thereof, that the facility was present without authorization. As represented as an equation:

Fee = sa × l × kV × y, where:

sa = the appropriate surcharge amount from Section 4.11.030(c)(2)(A)-(B).

l = length (in feet) of the unauthorized power line or other facility

kV = kilovolt rating of the power line

y = number of years, or fraction thereof, that the facility was present without authorization

The Council may, at its discretion, agree to a lesser amount in the public interest, such as for facilities providing service to the Tribe or its members.

(A) The surcharge amount for applications otherwise complete and filed before January 31, 2020 shall be $ 0.10.

(B) The surcharge amount for applications otherwise complete and filed after January 31, 2020 shall be $ 0.15 and shall be indexed annually for inflation each year thereafter.