July 1, 1997

Chichagof Island

With clear-cuts as a backdrop, a logger begins to fell a tree on Chichagof Island near Hoonah four years ago. Hoonah tribal leaders said they hope to use Indian country powers to halt logging by their own Native corporation. (Anchorage Daily News file photo by Bill Roth.)

Tribes, not state, would hold sway on environment

On reservations, EPA serves as mediator

By Don Hunter
Daily News reporter

One of the promises the Venetie decision holds for Alaska tribes is greater control over environmental matters in Indian country. Instead of the state enforcing water- and air-quality regulations under federal supervision, the tribes -- if they wished -- could have that authority, also under federal supervision.

Instead of promise, state officials see calamity in the prospect of tribes wielding environmental enforcement powers. Some villages may ignore important state restrictions like logging setbacks along salmon streams, regulators say, or adopt standards that conflict with state regulations or the regulations of other tribes.

Alaska's Forest Practices Act, for example, requires that logging companies on privately owned land -- including land owned by village corporations -- leave 66-foot buffers of trees to inhibit erosion and protect salmon streams. If the state can't enforce its logging standards in Indian country, the likely result would be that no setbacks would be required, said Elizabeth Barry, a state assistant attorney general.

Many tribal leaders say the state isn't doing enough to protect the environment in rural Alaska, and want more enforcement, not less. But the potential loss of logging restrictions in Indian country troubles Barry.

''The feds don't have any sort of habitat protection like the forest practices act,'' Barry said. State attorneys would try to argue in court that the act should continue to apply in Indian country, but that might not work, she said.

Martha Welbourn, a deputy director with the state Division of Forestry, said logging operations in other states damaged salmon habitats before controls were put in place.

''We have been very fortunate in Alaska that we had (regulatory) revisions in place before there was a significant impact on our salmon runs,'' she said. Losing regulatory control of logging in Indian country could threaten runs.

Not necessarily, according to the tribes. In fact, there have been conflicts between tribal governments and Native-owned logging companies in some communities.

On Chichagof Island in Southeast Alaska, for example, tribal leaders from the village of Hoonah said looser logging restrictions are unlikely if land there becomes Indian country.

Hoonah Indian Association, the tribal government, for years has tried unsuccessfully to slow the pace of logging on land owned by its own village corporation. Indian country might provide the muscle the tribe needs, said tribal administrator Johanna Dybdahl.

Most of the shareholders of Huna Totem, the village corporation, actually live in Juneau, Anchorage or other states, and elect corporate directors who pursue corporate profits, Dybdahl said. The members of Hoonah Indian Association live in Hoonah and elect tribal leaders who are more interested in protecting old-growth forests that nurture the area's subsistence staples -- deer and salmon.

''The amount of logging that has taken place around the villages has been astronomical,'' Dybdahl said. ''I know, personally speaking, I believed and was so excited when we selected land around our village, that the land would be protected for generations yet to be born.''

If the Venetie decision stands, and if Hoonah Indian Association is able to demonstrate that Huna Totem land is Indian country, tribal leaders may finally have the leverage to stop logging and protect its remaining forest, Dybdahl said.

Rick Albright, director of the U.S. Environmental Protection Agency's Alaska office, said Barry is correct when she says there are no federal logging standards comparable to the state forest practices act. But water quality can be addressed through the federally mandated Clean Water Act, and tribes that log in Indian country in other states do so according to self-imposed standards ''that closely paralleled what the states had done,'' Albright said.

Albright said federal agencies including EPA have been working in concert with Lower 48 tribes on environmental regulation for more than a decade.

Instead of delegating to states the authority for enforcing federal standards like the Clean Water Act and the Clean Air Act, the EPA can enforce standards itself or delegate the authority to tribes. Like states, sovereign tribes that choose to take on the responsibility must create and adopt standards and enforcement programs that meet federal muster.

Many tribes, however, choose not to take on that responsibility and instead depend on the EPA or states to develop and enforce protection programs.

''Ten years into this issue where tribes have been able to assume environmental programs, of the 250 or so tribes in the Lower 48, 17 have adopted their own water quality standards,'' Albright said.

Developing and enforcing environmental standards is complicated and expensive. The EPA provides grants to tribes to help with the cost, but adopting and enforcing programs that must meet strict federal requirements -- for public comment, paperwork, testing, reporting and so on -- can be burdensome for people preoccupied with the demands of a subsistence lifestyle, Albright said.

Where tribes have adopted their own standards, most are remarkably similar to the state regulations they replaced, Albright said: ''No pollution-free zones, and no pollution havens.''

In situations where tribes adopt environmental standards in conflict with other tribes, or with states, the EPA mediates. The agency does the same thing to resolve environmental disputes among states.

Experience elsewhere suggests that state governments and tribal governments react to similar interests in similar ways, Albright said. The shift from state environmental control to tribal control likely will be less traumatic than feared, he said.

''They have the same issues that everybody else has: People that need the money, and people that want environmental protection. ... It's not in the interest of tribes to have someone come in and just devastate Indian country.''

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