1.    Addition of Chapter 7-5, Elder and Adult Protection Act for comments 4/13/06; reposted for comments 10/29/08 and 1/28/09

2.  Amend Chapter 4-5, Domestic Relations § 4-5-36 Time and Standard for Modifying Custody Decree was posted for comments.  The comments which were received by L&O Subcommittee are being considered.

3.   Amend Chapter 5-1 by adding a statement of purpose to the start of the chapter was posted for comments. The comments which were received by L&O Subcommittee are being considered.

4. Addition of Title 14 Environmental Protection Code comments due January 8, 2010.

This act shall be known and may be cited as the "Nez Perce Tribe Elder and Adult Protection Act".

The purpose of this Act is to protect the elders and vulnerable adults within the jurisdiction of the Nez Perce Tribe from abuse or neglect as defined by this Act.

In this Act, unless the context otherwise requires:

1. "Abuse" means:

(a) Infliction of physical injury, emotional harm or mental injury, or

(b) Injury or harm caused by negligent acts or omissions, or

(c) Unreasonable confinement, or

(d) Sexual abuse or sexual assault;

7. "Officer" shall mean any Nez Perce Tribal Police Officer;

A. In the process of carrying out the responsibilities and duties in this Act, the Nez Perce Tribe Social Services Program may request the assistance of the staffs and resources of all appropriate tribal departments, agencies, commissions, or health directors, and may utilize any other appropriate and available tribal, state, public or private agencies, groups or individuals. Interagency cooperation shall include the involvement, when appropriate, of law enforcement personnel, department personnel, medical personnel, state personnel and any other person or entity deemed necessary due to their specialized training in providing services to elders or vulnerable adults. Interagency cooperation may also include access to client information necessary for the provision of services to elders or vulnerable adults. Interagency staffing and sharing of client and facility information shall be used, when necessary, to provide services to elders and vulnerable adults.

B. Nothing in this Act shall be construed to mean that a vulnerable adult or elder is abused, neglected or in need of protective services for the sole reason that he/she relies on treatment from a recognized religious method of healing in lieu of medical treatment, nor shall the provisions of this Act be construed to require any medical care or treatment in contravention of the stated or implied objection of an elder or vulnerable adult, except as noted.

A. The duties of the Nez Perce Tribe Social Services Program shall include, but not be limited to, the following:

4. Identify any other criminal activity that may be occurring; or

A Nez Perce Tribe Social Service Program worker may gain emergency access to the residence of the client for the purpose of conducting a protective investigation if:

2. The client is unwilling to consent to entry; or

3. The care giver is unwilling to consent to entry; and

A. If a report issued pursuant to Subsection D of § 7-5-5 contains a finding of self-neglect involving an elder or vulnerable adult, the Nez Perce Tribe Social Services Program shall work with the Tribal prosecutor or other appropriate authority to petition the court for the appointment of a temporary or permanent guardian or conservator as provided for in the Nez Perce Tribal Code or other duly-enacted Tribal law or ordinance.

B. In an emergency, an elder or vulnerable adult suffering from self-neglect shall be transported to an appropriate medical facility. A presumptive finding of self-neglect may be made at the scene.

A. Any person making a complaint, furnishing a report, information or records required or authorized by this Act, or participating in a judicial or administrative proceeding or investigation resulting from reports, information or records submitted or obtained pursuant to this Act is immune from any civil, criminal, or licensing sanction liability by reason of such action, unless the person acted with malice, bad faith, gross negligence, conducted perjury or unless such person has been charged with or is suspected of incapacitating, abusing, exploiting or neglecting the vulnerable adult or elder in question.

B. The physician-patient privilege, therapist-patient, husband-wife privilege or any other privilege, except the attorney-client privilege, provided for by the Nez Perce Tribal Code shall not pertain in any civil or criminal litigation in which a vulnerable adult's or elder's exploitation, abuse or neglect is an issue, nor shall they pertain in any investigation of a vulnerable adult's or elder's exploitation, abuse or neglect.

A. Any professional, including but not limited to physicians, dentists, psychologists, social workers, emergency response personnel, or other person who has responsibility for the care of a vulnerable adult or elder and whose examination or observation of the vulnerable adult or elder yields a reasonable basis to believe that abuse, neglect, self-neglect, or exploitation of the vulnerable adult, elder, or the property of the vulnerable adult or elder has occurred, shall immediately report or cause reports to be made of such to an Officer or the Nez Perce Tribal Social Services Program.

B. Any guardian or conservator of a vulnerable adult or elder who becomes aware or suspects abuse, neglect, self-neglect, or exploitation of the vulnerable adult, elder, or the property of the vulnerable adult or elder to which they act as guardian or conservator has occurred, shall immediately report or cause reports to be made of such reasonable basis to an Officer or the Nez Perce Tribal Social Services Program.

C. Any attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax or other financial records of a vulnerable adult or elder, or a person who has responsibility for any other action concerning the use or preservation of a vulnerable adult's or elder's property and who, in the course of fulfilling that responsibility, discovers cause to believe that abuse, neglect, self-neglect or exploitation of the vulnerable adult, elder, or vulnerable adult's or elder's property has occurred, shall immediately report or cause reports to be made of such to an Officer or the Nez Perce Tribal Social Services Program.

D. All of the reports required in subsections A, B or C of this section, shall be made immediately in person or by telephone to an Officer or the Nez Perce Tribal Social Services Program.

E. Reports pursuant to this section should contain:

F. Any person, including any caretaker, other than one required to report or cause reports to be made in accordance with this section, who has a reasonable basis to believe that abuse, neglect, self-neglect, or exploitation of a vulnerable adult, elder or the property of a vulnerable adult or elder has occurred, has a duty to report the information to an Officer or the Nez Perce Tribal Social Services Program as soon as possible.

G. The name of the reporting party who reports any abuse, neglect, self-neglect or exploitation as required by this Act shall remain confidential and shall not be released to any person unless the reporting party consents to such release or such release is ordered by the Nez Perce Tribal Court.

A. Any officer shall arrest and take into custody persons whom the officer has probable cause to believe abused or neglected an elder or vulnerable adult. No warrant is required to make such arrest. This mandatory arrest provision means that the victim need not sign a complaint for an arrest to occur. Further, under this provision an Officer shall arrest under probable cause even though it may be against the express wishes of the victim. An officer shall arrest and take into custody, a person whom the officer has probable cause to believe has violated a court order for protection, restraining the person from contact with the victim or excluding the person from the residence, if the existence of the court order can be verified. Regardless of whether the person violating the court order was invited back into the home, an arrest shall be made.

B. Arrest of a person exploiting an elder, vulnerable adult or the property of an elder or vulnerable adult is not mandatory, but is discretionary. If no arrest is made, the investigating Officer shall file a written report in accordance with subsections E of § 7-5-12.

C. Any person arrested under this Act shall be held without bail in the custody of the Nez Perce Tribal Police Department for a period of at least twelve (12) hours, as a mandatory "cooling-off’ period.

D. Any Officer taking action to arrest a suspect under authority of this section shall be immune from any civil, criminal, or other liability by reason of such action, unless the Officer acted with malice, bad faith, gross negligence, conducted perjury or unless such Officer has been charged with or is suspected of abusing, exploiting or neglecting the vulnerable adult or elder in question.

A. A person having custody or control of medical or financial records of a vulnerable adult or elder, from whom a report is required or authorized under this section, shall make such records, or a copy of such records, available to an Officer or the Nez Perce Tribal Social Services Program investigating the abuse, neglect, self-neglect or exploitation of the vulnerable adult, elder or the property of the vulnerable adult or elder, upon written request for the records signed by the Officer or Nez Perce Tribal Social Services Program. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation required or authorized under this Act.

B. If records, required or authorized by this section, are received by a Officer, he/she shall notify the designated Nez Perce Tribal Social Services Program as soon as possible and make such information available.

C. A person required to prepare reports pursuant to this Act may take or cause to be taken photographs of the vulnerable adult or elder and the vicinity involved. Medical examinations, including radiological examinations of the vulnerable adult or elder may

also be performed. Accounts, inventories or audits of the exploited vulnerable adult's or elder's property may be performed. The department, agency, or court that initiates such photographs, examinations, accounts, inventories or audits shall pay the associated costs in accordance with existing statutes and rules. If any person is found to be responsible for the abuse, neglect or exploitation of a vulnerable adult or elder in a criminal or civil action, the Nez Perce Tribal Court may order the person to make restitution as the court deems appropriate.

D. If psychiatric, substance abuse or other mental health records are requested pursuant to this section, the custodian of the records shall notify the attending clinician, who may, before the records are made available, excise the following:

1. Personal information about individuals other than the patient; and

E. If any portion of a psychiatric record is excised pursuant to subsection D of this section, the Nez Perce Tribal Court may, upon application of a Officer or Nez Perce Tribal Social Services Program, order that the entire record or any portion of such record containing information relevant to the reported abuse, neglect, self-neglect or exploitation be made available to the Officer or Nez Perce Tribal Social Services Program investigating the abuse, neglect, self-neglect or exploitation.

A. Any Caretaker, Relative, or other person or institution who has been employed to provide care, or who has assumed a legal duty to provide care, or who has been appointed by a court to provide care to a vulnerable adult or elder and who causes or permits the life of the vulnerable adult or elder to be endangered, his/her health to be injured or to be imperiled by abuse, neglect or exploitation is guilty of a criminal offense, punishable by imprisonment for a period not to exceed 365 days or a fine not to exceed $5,000.00, or both.

B. Any Caretaker, Relative, or other person or institution who aids, abets or otherwise assists or condones the acts or omissions of another person who abuses, neglects or exploits a vulnerable adult or elder shall be treated as if such person committed the offenses himself or herself.

C. A vulnerable adult or elder whose life or health is being or has been endangered, injured or imperiled by neglect, abuse or exploitation may cause to be filed a civil action in tribal court, either by themselves, their guardian, conservator, or any other interested party, against any Caretaker, Relative, or other person or institution that has been employed to provide care, that has assumed a legal duty to provide care or that has been appointed by a court to provide care to such vulnerable adult or elder for having caused or permitted such conduct.

D. The Tribe, through the Tribal Prosecutors' Office, may file an action pursuant to this Act on behalf of those vulnerable adults or elders who have been abused, neglected or exploited and in such action may seek to prevent, restrain, or remedy the conduct prohibited in this Act.

E. The Nez Perce Tribal Court has jurisdiction to prevent, restrain and remedy the conduct prohibited in this Act.

F. Prior to a determination of liability in any civil action authorized by this Act, the Nez Perce Tribal Court may issue orders that include, but are not limited to, the following relief.

1. Restraining or protection orders;

2. Temporary injunctions;

3. Setting satisfactory performance bonds;

4. Creating receiverships;

5. Appointing qualified receivers; or

6. Enforcement of constructive trusts.

G. After a determination of liability in any civil action authorized by this Act, such court orders may include, but are not limited to:

H. A defendant convicted in any criminal proceeding is precluded from subsequently denying the essential allegations of the criminal offense of which he/she was convicted in any civil proceeding. For the purposes of this subsection, a conviction may result from a verdict or plea, including a plea of no contest.

I. The initiation of civil proceedings pursuant to this Act shall be commenced within three years after actual discovery of the cause of action.

J. The standard of proof in actions brought pursuant to this Act is the preponderance of the evidence.

K. The tribal prosecutor may, upon timely application, intervene in any civil action or proceeding brought under this Act if the tribal prosecutor certifies that, in his/her opinion, the action is of special public importance. Upon intervention, the tribal prosecutor may assert any available claim and is entitled to the same relief as if the tribal prosecutor had instituted a separate action.

L. In addition to the Tribes' right to intervene as a party in any action under this Act, the tribal prosecutor may appear as a friend of the court in any proceeding in which a claim under this Act has been asserted or in which the court is interpreting this Act.

M. A civil action authorized by this Act is remedial and not punitive and does not limit and is not limited by any other civil remedy or criminal action or any other provision of law; civil remedies provided under this title are supplemental and not mutually exclusive.

N. The cause of action or the right to bring a cause of action pursuant to this Act shall not be limited or affected by death of the neglected, abused or exploited elder or vulnerable person.

If any of the provisions of this Act are ruled, by a court of competent jurisdiction, to be unconstitutional, illegal, or otherwise unenforceable, the remaining provisions of this Act shall remain in full force and effect to the extent that the purpose of this Act shall remain.

2.  Amend Chapter 4-5, Domestic Relations § 4-5-36 Time and Standard fro Modifying Custody Decree posted for comments which are due 9/23/09.

(a) No motion to modify a custody decree may be made earlier than two (2) years after its date, unless the Court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health; except that nothing in this section shall be construed to prevent the Court from reconsidering a custody decree entered upon legal separation in the event of application before the expiration of two (2) years by either party for a decree terminating the marriage.

(a) No custody decree, issued by the Nez Perce Tribal Court or any other Court that is recognized or granted full faith and credit by the Nez Perce Tribal Court will be modified earlier than two (2) years after its date except for the following reasons:

(b) No modification decree shall be entered except upon a showing that a permanent material change has occurred since the prior decree and that it is in the best interests of the child that the decree be modified.

3.   Amend Chapter 5-1 by adding a statement of purpose to the start of the chapter posted for comments which are due 9/23/09.

Add to the beginning of Chapter 5-1 Minors in Need of Care a purpose statement:

5-1 PURPOSE

(a) Purpose - it is the purpose of the Nez Perce Tribe’s Code to:

    (1) Recognize that the children of the Nez Perce Tribe, which includes those that are enrolled, enrollable, and children of Nez Perce Tribal members are the Tribe’s most important resource and that their welfare is paramount;

    (2) Secure for each child before the Court the care and guidance that is in the best interest of the child and consistent with the customs, cultural values, and laws of the Nez Perce Tribe;

    (3) Whenever possible, preserve and strengthen family ties and a child’s cultural and spiritual identity to help the child become a productive and well-adjusted community member;

    (4) Protect the peace, safety and security of the Nez Perce Tribe and its community members;

    (5) Foster cooperative intergovernmental relations between the Nez Perce Tribe, tribes and other states, including the State of Idaho with regard to the welfare of the children and families; and

    (6) Protect the rights of the Nez Perce parents and the sovereign and traditional right of the Nez Perce Tribe to determine the best interests of its children and families.

4.    Addition of Title 14 Environmental Protection Code comments due January 8, 2010.

                                                                                N O T I C E

                                            AMENDMENTS TO THE NEZ PERCE TRIBAL CODE

This notice is being posted October 30, 2009, according to the Nez Perce Tribal Code § 1-4-2 to request written comments for the following proposed amendments (see attached):

Proposed addition of Title 14 – Environmental Protection Code.

STATEMENT OF PURPOSE: The purpose of this Title is to protect the health of Reservation residents, and to protect and enhance the quality of the Reservation environment by prohibiting actions that harm the environment, and directing the Natural Resources Department to develop Guidance documents implementing the terms of the Code.

WRITTEN COMMENT PERIOD:

The Law and Order & Intergovernmental Affairs Subcommittee, in conjunction with the Natural Resources Subcommittee, will be accepting written comments on the proposed amendment being applied to the Code. Copies of the Code and/or related implementing Guidance documents may be obtained from the Water Resources Division of the Natural Resources Department (contact Kevin Brackney for information on how to obtain copies).

Please submit written comments to: Tonia Garcia, Jr., Chair, Law and Order Subcommittee; and Brooklyn Baptiste, Chair, Natural Resources Subcommittee; P.O. Box 305, Lapwai, ID, 83540; or email to toniag@nezperce.org and brooklynb@nezperce.org; or fax to (208) 843-7354 or hand deliver to the NPTEC offices in Lapwai. The deadline for receipt and consideration of such comments is January 6, 2009, at 4:30 p.m.
 

TITLE 14-1:  ENVIRONMENTAL PROTECTION CODE 

CHAPTER 14-1-1 FINDINGS AND PURPOSE 

Preamble 

The Ni Mii Puu people have lived, utilized and relied upon the natural resources of present-day north-central Idaho, southwestern Washington, northeastern Oregon and western Montana for subsistence, ceremonial, commercial and religious purposes since time immemorial.  In Article III of the Treaty of 1855, the Tribe reserved the continued use of much of this territory for fishing, hunting, gathering and pasturing animals.  Treaty of June 9, 1855, with the Nez Perce Tribe, 12 Stat. 957 (1859).  Protecting these treaty-reserved rights is the highest priority of the Tribe and necessarily requires tribal management of the lands and waters that support these rights.  

§ 14-1-1-1 Objectives of the Code.  The Nez Perce Tribe and all of its departments and subdivisions shall seek to further, the objects of this Code, which are: 

(a) To protect tribal treaty-reserved rights and the resources on which these rights are based; 

(b) To protect the people of the Nez Perce Reservation from adverse human health effects resulting from contamination of the land, air,and water; 

(c) To protect and promote the ability of the Nez Perce Reservation to serve as a homeland for the Ni Mii Puu people;   

(c) To prevent, reduce, minimize, and where practicable, eliminate harm to the environment by fostering relationships to encourage and assist action by industry, public authorities and the community aimed at pollution prevention, clean production and technologies, reduction, re-use and recycling of material and natural resources, and waste minimization; and           

(d) To coordinate activities, policies and programs necessary to prevent, reduce, minimize or eliminate environmental harm and ensure effective environmental protection, restoration and enhancement;           

(e) To coordinate with other governments to create appropriate intergovernmental arrangements promoting greater uniformity and effectiveness in environment protection; and           

(f) To prevent potentially harmful activities and to progressively make environmental improvements (including reduction of pollution or changes in activities). 

§ 14-1-1-2 Sovereign Immunity 

The Nez Perce Tribe, and all its constituent parts are immune from suit in any jurisdiction, except to the extent that such immunity has been expressly and unequivocally waived by the Tribe in this Title or elsewhere.  Nothing in this Chapter shall be construed as waiving the sovereign immunity of the Tribe or any of its constituent parts.  Nothing in this Title, nor any appeal to the Tribal Court, nor any enforcement action taken pursuant to this Chapter, shall constitute a waiver of such sovereign immunity as to any claim for damages, attorneys fees or costs, regardless of whether any such claim arises out of the same transaction or occurrence, or in any other respect.  Nothing in this Title shall be construed as a legislative acknowledgement of tribal liability under federal, tribal or state environmental laws or as a waiver of tribal sovereign immunity with respect thereto. 

CHAPTER 14-1-2 Responsibility to protect the Environment 

§ 14-1-2-1 Prevention of Environmental Harm and Protection of the Environment 

(a) A person shall not undertake an activity that will, or has the possibility, to pollute or harm the environment unless the person takes all reasonable measures to prevent or minimize any resulting environmental harm. 

(b) In determining what measures are required to be taken under subsection (a), regard is to be had, amongst other things, to: 

            (1) The nature of the activity and the potential harm and the sensitivity of the receiving environment; and 

            (2) The current state of technical knowledge and likelihood of successful application of the various measures that might be taken. 

(c) Where environmental harm can only be minimized through the application of reasonable and practical measures, the person causing the harm should mitigate for the harm by replacing, restoring or acquiring equivalent resource services as those lost or potentially lost due to the harm. 

§ 14-1-2-2 Site Contamination           

(a) Site contamination is considered an environmental harm.  For the purposes of this Title, site contamination exists at a site if: 

(1) Pollution is present on or below the surface of the site in concentrations above the background concentrations (if any); and 

(2) The pollution has, at least in part, come to be present there as a result of an activity at the site or elsewhere; and           

(3) The presence of the pollution in those concentrations has resulted in:           

(i) Actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses; or

                        (ii) Actual or potential harm to water that is not trivial; or

(iii) Other actual or potential environmental harm that is not trivial, taking into account current or reasonably potential land uses.           

(b) For the purposes of this Title, pollution can result in environmental harm regardless of whether: 

            (1) The harm is a direct or indirect result of the presence of the pollution; and 

            (2) The harm results from the presence of the pollution alone or the cumulative effects of the presence of the pollution and other factors.           

(c) Where site contamination exists due to a violation of the duty of reasonable care with respect to substances with the potential to pollute the environment and cause an environmental harm, site contamination may be considered environmental negligence. 

§ 14-1-2-3 Cleanup of Contaminated Sites 

NPTEC directs the Natural Resources Department to develop an Environmental Protection Guidance related to the proper cleanup and remediation process for contaminated sites on the Reservation. 

§ 14-1-2-4 Action by Tribe in Case of Unauthorized Release of Pollutant 

(a) Where the Tribe knows of, or has reason to suspect, the unauthorized release or deposition of a pollutant into surface water, groundwater, or onto the land, and is of the opinion that the pollutant has harmed or is likely to harm the environment, the Tribe may take appropriate actions to abate the harm as necessary under the circumstances in order to protect the public health and welfare, and the beneficial uses of the environment.   

§ 14-1-2-5 Storage Tanks; Potential for Environmental Harm; Direction from NPTEC 

The Nez Perce Tribal Executive Committee (NPTEC) finds and declares that the release of petroleum products and other hazardous substances from storage tanks presents a significant danger to public health, safety, welfare, the economy, natural resources, and the environment of the Nez Perce Reservation by contaminating surface water, groundwater, subsurface soils and by their potential to create fires and explosions.   

Therefore, it is the intent of NPTEC to protect the public health, safety, welfare, the economy, natural resources, and the environment to create a Guidance document for the proper installation, use, maintenance, and monitoring of above and below ground storage tanks on the Nez Perce Reservation.  NPTEC directs the Water Resources Division to develop such a Guidance, which should cover processes and procedures for the appropriate installation, operation, retrofitting, upgrading, removal and abandonment of storage tanks, cleanup actions as well as closure and post closure care for leaking tanks, and financial assurances for facilities using qualifying tanks.   

§ 14-1-2-6 Compliance with Other Laws 

Compliance with this Title does not obviate the need to comply with other applicable laws, nor does compliance with this Title necessarily indicate that a common law duty of care has been satisfied. 

§ 14-1-2-7 Territorial and Extra-Territorial Application of the Code 

(a) This Code extends in application to all waters and lands of the Reservation, including the air above and substances beneath all lands and waters. 

(b) Where a person causes significant environmental harm to occur within the Reservation by conduct engaged in outside the Reservation; and the conduct would, if engaged in within the Reservation, constitute a contravention of this Title, the activity shall be considered in contravention of this Title.           

(c) For the purposes of subsection (b), a reference to engaging in conduct includes a reference to failure to act. 

§ 14-1-2-8 Authority to Promulgate Environmental Protection Guidance 

In furtherance of the objectives of this Title, any department or division of the Nez Perce Tribe may draft environmental protection guidance to clarify the scope and extent of this Title.   

(1) Process for Promulgation of Guidance.  Before drafting guidance, unless otherwise directed by NPTEC, the proposing department or division should bring the issue to NPTEC for review and approval.  Once administrative approval is received, the department or division may create the draft guidance.  The draft should be circulated through the other Tribal departments or divisions for review and comment for a period of forty-five (45) days.  The proposing department or division should attempt to incorporate comments received to the extent practicable, while still accomplishing the goals of the draft guidance.  If a dispute arises between Tribal departments or divisions, both parties shall appear before the Natural Resource Subcommittee of NPTEC, with the Subcommittee having final say on how to resolve the dispute.  If no dispute arises, the department or division should bring the proposal to both the Natural Resources and Law and Order Subcommittees for approval to present to NPTEC.  NPTEC shall make the final decision whether or not to approve the draft proposal.   

(2) Final Approval.  Draft guidance becomes official upon the signing of the Resolution to approve by the Chairman and Secretary of the Tribal Council.    

CHAPTER 14-1-3 SURFACE WATER AND GROUNDWATER QUALITY 

[Reserved] 

CHAPTER 14-1-4 PROCESS FOR THE ADOPTION OF TRIBALLY APPROVED BEST MANAGEMENT PRACTICES FOR ENVIRONMENTAL PROTECTION 

§ 14-1-4-1 Purpose. 

Best Management Practices designed to protect the environment allow for efficient and effective regulation of potentially harmful practices.  In order to ensure consistency within the Departments/Divisions within the Tribe, and to formalize the process of adopting Best Management Practices to further the environmental protection measures mandated by this Title, NPTEC adopts this Chapter.  Best Management Practices must be adopted pursuant to the terms of this Chapter in order to be officially endorsed by the Nez Perce Tribe. 

All Best Management Practices approved pursuant to the terms of this Chapter may be attached to this Chapter as additional Sections.   

§ 14-1-4-2 Nature and Contents of Best Management Practices           

(a) Best Management Practices (BMPs) may be made in accordance with this Chapter for any purpose directed towards securing the objects of the Nez Perce Tribe Environmental Protection Code, Title 14-1, et seq.   

(b) A BMP may do one or more of the following according to its terms: 

            (1) Set out matters to be taken into account by the Tribal Resource Departments;                       

(2) Set out requirements, standards, goals and guidelines;           

(3) Specify that certain requirements or standards (mandatory provisions) are to be enforceable under the terms of the Environmental Protection Code. 

(c) Where a best management practice contains a mandatory provision, the BMP may contain provisions that: 

(1) Prevent the granting of an exemption from compliance with a mandatory provision; or 

(2) Specify the circumstances in which such an exemption may be granted or the conditions that must be attached to it, or both. 

(d) The provisions of a BMP may: 

            (1) Be of general application or limited application;           

(2) Make different provisions according to the matters or circumstances to which they are expressed to apply;                       

(3) Provide that a matter or thing is to be determined according to the discretion of the Tribal Resource Departments or another administering division. 

(e) The use of the abbreviation BMP in this Chapter shall interchangeably refer to an individual best management practice, or a set of logically grouped best management practices, as is applicable.   

§ 14-1-4-3 Procedure for Adopting Best Management Practices.  This section sets out the normal procedure to be followed in adopting BMPs.  For a BMP to become an official Nez Perce authorized BMP, it must be approved through this process. 

(a) Authority to Prepare.  The Tribal Resource Departments may prepare draft BMPs. 

(b) Preliminary Briefing.  Before commencing to prepare a draft BMP, the Tribal Resource Departments must brief NPTEC, or the designated NPTEC subcommittee, on the general purpose and intended effect of the proposed BMP. 

(c) Preparation of Summary Report.  The Tribal Resource Departments must, when they have prepared a draft BMP, prepare a brief report containing: 

            (1) An explanation of the purpose and effect of the draft BMP; and 

            (2) A summary of any background and/or issues relevant to the draft BMP and of the analysis and reasoning applied in formulating the BMP. 

(d) Input from Other Tribal Departments/Divisions.  After preparing the report, the Tribal Resource Department must forward the report and draft BMP package to the other Tribal Resource Departments, and their subdivisions for input and comment. 

(e) Formal Submission to NPTEC.  The Tribal Resource Department must then present the report, draft BMP package, and any substantive comments to NPTEC for consideration whether to approve the BMP.  After taking into account the report and any recommendations of the Tribal Resource Department on the matter, NPTEC can: 

            (1) Approve the draft BMP; or 

            (2) Alter the draft BMP and approve the draft BMP as altered; or 

            (3) Decline to approve the draft BMP. 

(f) Official Nez Perce BMPs.  A draft BMP approved by NPTEC shall become an official BMP of the Nez Perce Tribe, and shall be labeled and described as such.  Approved BMPs shall be a required management practice on the reservation where activities fall within the scope of the purpose of the BMP. 

CHAPTER 14-1-4-4 [RESERVED FOR FUTURE USE] 

§ 14-1-5 Definitions.  In this Code, unless the contrary intention appears: 

(1) Activity includes the storage or possession of a pollutant; 

(2) Air includes any layer of the atmosphere; 

(3) Amenity Value of an area includes any quality or condition of the area that conduces to its enjoyment; 

(4) Chemical Substance means any organic or inorganic substance, whether a solid, liquid or gas (or combination thereof), and includes waste; 

(5) De Minimis means having no measurable or cumulative adverse effect on the environment; 

(6) Document means a paper or record of any kind, including a disk, tape or other article from which information is capable of being reproduced (with or without the aid of another article or device); 

(7) Environment means land, air, water, organisms and ecosystems, and includes: 

(a) Human-made or modified structures or areas; and

(b) The amenity values of an area; 

(8) Environmental Harm.  For the purposes of this Title, environmental harm is any action that actually or likely results in injury to the environment (of whatever duration), which is not de minimis. 

(a) For the purposes of this Title, term “environmental harm” specifically includes:           

(a) Environmental negligence; 

(b) An environmental nuisance; and 

(c) Anything declared by Code amendment, regulation, or environmental protection guidance issued by any Tribal Resource Department pursuant to the procedures described in this Chapter to be environmental harm. 

(b) For the purposes of this Title, potential harm includes risk of harm and future harm.           

(c) For the purposes of this Title, environmental harm is caused by pollution or actions:                       

(1) Whether the harm is a direct or indirect result of the pollution or actions; and 

(2) Whether the harm results from the pollution or action alone, or from the cumulative effects of the pollution or action and other factors. 

(9) Environmental Nuisance means: 

(a) Any adverse effect on an amenity value of an area that: 

(i) Is caused by pollution; and

(ii) Unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or 

(b) Any unsightly or offensive condition caused by pollution; 

(10) Environmental Negligence means the failure to meet the duty of reasonable care with respect to potentially hazardous or environmentally harmful substances or activities. 

(11) Injury means an observable or measurable adverse change in a natural resource or impairment of a natural resource service.  Injury may occur directly or indirectly to a natural resource and/or service.  Injury can include adverse changes in the chemical or physical quality, or viability of a natural resource (i.e., direct, indirect, delayed, or sub-lethal effects).  Potential categories of injuries include adverse changes in: survival, growth, and reproduction; health, physiology and biological condition; behavior; community composition; ecological processes and functions; physical and chemical habitat quality or structure; and services to the public.  Injury can also occur to non-living natural resources (e.g., oiled sand on a recreational beach), as well as injuries to natural resource services (e.g., lost use associated with a fisheries closure to prevent harvest of tainted fish, even though the fish themselves may not be injured) 

(12) Land means, according to context: 

(a) Land as a physical entity, including land covered with water; or

(b) Any legal estate or interest in, or right in respect of, land; 

(13) Noise includes vibration; 

(14) Occupier, in relation to a place, includes a person with a right to occupy the place or a licensee or any holder of a right to use or carry on operations at the place, but does not include a mortgagee in possession unless the mortgagee assumes active management of the place; 

(15) Place includes any land, water, premises or structure; 

(16) Pollutant and Pollution means: 

(a) Chemical, biological, or biogeochemically active substances including sediment, sludges, or byproducts with the potential to adversely alter soil, surface water, or groundwater geochemistry, that is not a planned consequence of an approved best management practice, including pH alterations, mobilization of metals or ions, depletion of dissolved oxygen in surface or groundwater, and leaching of nutrients (e.g. boiler ash, cement truck washouts, poorly managed wood waste, compost, manure piles,  and other substances likely to produce adverse biogeochemical conditions); or

(b) Noise; or

(c) Heat; or

(d) Anything declared by an environment protection guidance to be a pollutant; 

(17) Pollute means: 

(a) Discharge, emit, deposit or disturb pollutants; or

(b) Cause or fail to prevent the discharge, emission, depositing, disturbance or escape of pollutants, 

(18) Site means an area of land (whether or not in the same ownership or occupation); 

(19) Vehicle includes any vessel or aircraft; 

(20) Waste means: 

(a) Any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or

(b) Anything declared by regulation or by an environment protection policy to be waste, whether of value or not; 

(21) Water means: 

(a) Water occurring naturally above or under the ground; or

(b) Water introduced to an aquifer or other area under the ground; or

(c) An artificially created body of water or stream that is for public use or enjoyment;