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Water Code - Confederated Tribes of the Umatilla Indian Reservation

Water Code - Confederated Tribes of the Umatilla Indian Reservation

STATUTES

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 05-027 (March 7, 2005) E. Compliance Orders. Whenever, on the basis of available information, the Director finds that any person, Indian or non-Indian, is in violation of any condition or limitation of a permit and/or certification issued under this Code, or is in any violation of any of the Water Quality Standards, the Director, on behalf of the Confederated Tribes, may issue an order requiring such person to comply with such conditions or limitations. 1. If the Director issues a compliance order which will specify the nature of the violation, the violation shall be corrected within fifteen (15) days. If the violation is not corrected within fifteen (15) days, the Department shall issue a citation to the violator. 2. In any case under this under this Code where an order is issued to a corporation, a copy of the order shall be served upon any appropriate corporate officer. F. Warnings. In any case where the Enforcement Officer in his/her discretion determines that issuance of a warning instead of a citation as provided in this Chapter is appropriate, the Officer may issue such warning. The content of the warning shall include the following: 1. A statement that the warning represents a determination that a violation has been committed by the person named in the warning; 2. A statement that a violation is a non-criminal offense; 3. A statement of the specific act or omission for which the warning was issued and the specific violation alleged; and 4. A statement that future or continuing violations of the same offense may result in the imposition of a fine or other remedy as provided by this Code. G. Stop Work Orders. If the violation observed is one which requires immediate remedial action to prevent irreparable harm, injury, loss or damage to Tribal property or resources or is a threat to health and/or human safety, the Director may issue a written order directing that work, action, or use of equipment which is violating this Water Code, or regulations promulgated there under, stop immediately. Any such order shall specify the person or entity to whom it was issued, when it was issued, where it was issued, by whom it was issued and shall specify the facts which warranted immediate action. If the Director exercises his stop work authority under this section, he shall file a petition for a temporary restraining order as provided in this Water Code by the end of the next business day. A stop work order shall remain in effect until the end of the third business day following issuance of the order or until the Tribal Court issues a temporary restraining order with the Umatilla Tribal Court upon the filing of a petition as provided in this Chapter. The scheduling of a hearing shall not prevent enforcement of the order pending the hearing. The Confederated Tribes may be represented by the Tribal Attorney. SECTION 5.03. HEARINGS AND CIVIL FINES A. Hearings - Rules of Practice. 1. All violations that are not resolved pursuant to Section 6.02 of this Code shall be determined by a hearing before the Umatilla Tribal Court pursuant to this Section. The Court shall notify the defendant in writing of the time, place, and date of the hearing. The date of the hearing shall be not less than fourteen (14) days from the date the Notice of Hearing is mailed, except by agreement of all parties. 2. Any person subject to proceedings under this Section may be represented by counsel admitted to practice before the Umatilla Tribal Court, provided that the Confederated Tribes shall not have any duty to either appoint counsel for or compensate a person for his/her attorney's fees. The Tribal Prosecutor, or in the case of conflict of scheduling or interest, such other counsel for the Confederated Tribes as the Board of Trustees may designate, shall represent the Confederated Tribes in all actions under this Code. WATER CODE PAGE 55

STATUTES of the CONFEDERATED TRIBES of the UMATILLA INDIAN RESERVATION As Amended Through Resolution No. 05-027 (March 7, 2005) 3. Hearings held under this Subsection to contest the determination that the violation took place shall be as follows: a. A hearing shall be held without a jury; b. The Court may consider the citation and any other written report made under oath submitted by an Enforcement Officer who issued the citation, or whose written statement formed the basis for the issuance of the citation in lieu of the officer's personal appearance at the hearing, provided that the person named in the citation may subpoena witnesses, including the officer, and has the right to present evidence and examine witnesses in Court; c. The burden of proof is on the Confederated Tribes to establish the commission of the violation by a preponderance of the evidence; d. After consideration of the evidence and argument the Court shall determine whether the violation was committed. Where the Court finds that the violation was not committed, an order dismissing the case shall be entered in the Court's records. Where the Court finds that the violation was committed, an appropriate order shall be entered in the Court's records. The court shall also send a copy of the order to all parties to the case by regular mail to the last know address of such party; e. Any person found to have committed a violation may appeal the Court's order to the Umatilla Tribal Court of Appeals. When an appeal is filed, under this section, the Umatilla Tribal Court of Appeals shall hereby retain jurisdiction over any violation of this Code. 4. Hearings held under this Section to explain mitigating circumstances shall be as follows: a. A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of a violation shall be for the purpose of assisting the Court in making a determination on the amount of fine and/or the nature of any other remedy; b. After the Court has heard the explanation of the circumstances surrounding the commission of the violation, the Court may affirm the Civil Fine established for the violation or may reduce the Civil Fine as the circumstances dictate; c. There shall be no appeal from the Court's determination under this Subsection. 5. Additional procedures for hearings provided for under this Subsection may be established by rule of the Umatilla Tribal Court. B. Civil Fines/Liquidated Damages. 1. As directed by the Board of Trustees, the Director shall prepare for the approval of the Board, and from time to time shall review and, as necessary, propose revisions to a schedule of Civil Fines consisting of a dollar determination(s) calculated to closely approximate the cost of providing equitable restitution to the Confederated Tribes for the damage or loss which would be caused by specified violation(s) of this Code or regulation adopted thereunder. In calculating a Civil Fine, the Board of Trustees may consider, in addition to any other factors they reasonably deem relevant: a. The cost to the Confederated Tribes of producing and/or protecting the Tribal property or interest affected; b. The cost of replacing or restoring the Tribal property or interest affected; WATER CODE PAGE 56

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