ML20069F954
| ML20069F954 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 09/23/1982 |
| From: | Wapato S COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20069F951 | List: |
| References | |
| NUDOCS 8209280301 | |
| Download: ML20069F954 (21) | |
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In The Matter of Puget Sound
)
Power and Light, et al.
)
Docket Nos.
Amended Application for Construction )
Permits and Facility Licenses,
)
STN 50-522, 50-523 SKAGIT/HANFORD NUCLEAR PROJECT
)
MEMORANDUM IN SUPPORT OF APPEAL OF THE COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION
~.
On September 8,1982, the Atomic Safety and Licensing Board (Board) issued its memorandum and order rMarding the acceptability of the Petition to Intervene by the Columbia River Inter-Tribal Fish Commission (CRITFC) and the Yakima Indian Nation.
The Board denied the Petition to Intervene of CRITFC, finding that CRITFC had not shown sufficient justification to demonstrate standing to intervene and concluding that CRITFC simply has an academic interest in protecting tribal treaty rights.
From that decision l
l the CRITFC has appealed.
I.
History of Proceedings On May 5, 1982, the Columbia River Inter-Tribal Fish Commission (CRITFC) filed an untimely Petition to Intervene along with a Supplement to Petition to Intervene listing the contentions it wished to litigate. On May 19, 1982, and May 25, 1982, the Applicant and the NRC Staff, respectively, submitted their responses to the untimely ~ petition and contentions.
(Applicant's First Response) Both Applicant and Staff acknowledged that CRITFC met the " interest" and " specific aspect" requirements of 10 C.F.R. $ 2.714(a).
However, Applicant 0209280301 820923 PDR ADOCK 05000522 O
PDR objected to the CRITFC petition on grounds of untimeliness, whereas the Staff concluded that the balance of the five factors set forth in 10 C.F.R. 5 2.714(a)(1) weighed in favor of CRITFC being permitted to intervene in this proceeding.
Both Applicant and Staff, however, objected to certain specific contentions submitted by CRITFC in its Supplement to Petition to Intervene.
On July 2,1982, the Licensing Board issued a Memorandum and Order con-cerning CRITFC's late-filed petition to intervene.
The Board concluded that CRITFC's petition was technically deficient in that the requisite authorization from CRITFC's members was lacking and that the petition was not properly signed.
The Board further noted that it would rule on the admissibility of CRITFC's contentions after the deficiencies were corrected and the late filing question resolved.
On July 16, 1982,-CRITFC submitted its response to the Board's July 2, 1982, Memorandum and Order. The response included a clarification that CRITFC does not speak for the Columbia River treaty tribes, and an affadavit of Levi George, Sr., Vice-Chairman of the Commission, authorizing petitioning to intervene.
In addition, CRITFC submitted a " Motion for Admissioe of Second Supplement to Petition to Intervene" on July 16,1982,(Motion).
In this Motion, CRITFC listed and renumbered the contentions it wished to litigate, along with specific and additional bases for the contentions. Particularly, CRITFC submitted additional bases to support its initial contention (Contention No. 4 in the l
i May 5, 1982, Supplement) concerning the impact of the Skagit/Hanford Nuclear Project (S/HNP) on Columbia River fish resources and the potential infringement 1
on Indian treaty rights.
On July 30, the Applicant filed its Response in Opposition to the CRITFC's Motion for Admission of Second Supplement to Pet
- tion to Intervene.
(Applicant's Seco;1d Response)
In addition to raising objections to the untimely nature of the petitions based on the considerations of 10 C.F.R. 2.714(a)(1), the Applicant objected to certain contentions raised by CRITFC, and for the first time ob-jected to the standing of CRITFC.
On August 19, CRITFC moved for leave to reply to Applicant's response of July 30.
In the accompanying reply CRITFC elaborated upon its interest in the proceeding alleging i definite stake, stating that the inference that the tribe alone sustains injury due to loss of the treaty right is erroneous. On September 8, the Board served its Memorandum and Order.
II.
Tne Board Erred In Denying the CRITFC Petition to Intervene Based Upon Its Conclusion that CRITFC Has Not Shown Sufficient Justification To Demonstrate Standing.
In its Memorandum and Order, the Board concluded that judicial concepts of standing govern the determination of whether an alleged interest is sufficient to grant intervention as a matter of right. Memorandum and Order at 2-3.
The Board went on to state that two tests must be satisfied to acquire standing.
First, the petitioner must allege " injury in fact" and second the petitioner must allege an interest " arguably within the zone of interest" protected by the statute.
_Id., Citing Sierra Club v. Morton.405 U.S. 727, 739-740 (1971)
The Board goes on to conclude that the allegation of a "special interest" is insufficient to establish standing without a showing of particular harm.
Evidently surmising that the Columbia River treaty tribes do not constitute members of the CRITFC, the Board concluded that CRITFC may not derive its stand-ing to intervene from the interest of the Columbia River treaty tribes. This conclusion fundamentally misperceives basic governmental tenets of the Indians of the Columbia River Inter-Tribal Fish Comission.
Furthermore, the Boards restrictive application of standing requirements for national environmental groups misapplies the case and controversy requirement which exists to ensure concrete adversity within the judicial system.
a.
Nature of Petition:r's Organization The CRITFC members are the four Columbia River Treaty tribes, the Confederated Tribes of the Umatilla Reservation, the Nez Perce Tribe, the Confederated Tribes and Bands of the Yakima Indian Nation, and the Confederated Tribri of the Warm Springs Reservation. Constitution and Bylaws of the Columbia River Inter-Tribal Fish Comission at page 1.
The governing body of CRITFC is the comission, composed of the Fish and Wildlife Committees of each tribe as designated by tribal resolution.
Id. Among the powers of the comission is the power to "Ef]ormulate, in consultation and consent with local tribal councils, a broad general fisheries program designated to promote and coordinate the conservation practices of the members."
Id_. at 3.
Thus it is the general practice of the comission, acting as CRITFC to participate in a variety of administrative proceedings and consultations pertinent to the Columbia River Indian fisheries.
In this regard, CRITFC's activities include administrative appeal of U.S. Forest Service decisions, formal representation on the Salmon Plan Development Team of the North Pacific Fisheries Management Council, formal representation in the Columbia River Water Management Group, formal representation on the U.S.-Canada Salmon Interception Treaty delegation, formal representation on the fish and wildlife l
subcomittee of the Northwest Power Planning Council, and CRITFC is the Co'umbia River Tribal Coordinating Body and thus one voting member of the Salmon and Steelhead Advisory comission for the purposes of the Salmon and l
Steelhead Conservation Act of 1980, P.L.96-561, (Dec. 22,1980).
Evidently the Board has characterized the July 16, 1982, Response of l
l CRITFC to conclude that CRITFC may not derive its standing to intervene from the interests of the Columbia River treaty tribes. Memorandum and Order at 4-5.
While it is true that CRITFC does not represent the individual discrete 1
1
[
' positions of the tribes on all tr:aty matters, CRITFC does reprsstnt certain tribal interests insofar as the CRITFC, at the direction of the Fish and Wildlife comittees as the comission in consultation, and consent with local tribal councils has been delegated responsibility to programatically promote and coordinate the conservation practices of the tribes.
Perhaps more telling of CRITFC's role is an excerpt from the July 20, 1982, Statement of the Columbia River Inter-Tribal Fish Comission in Support of Intervention by the Yakima Indian Nation:
With regard to fishery issues, the Inter-Tribal Fish Comission has always enjoyed a close working relationship with the Yakima Indian Nation.
In this aspect, the comission would be willing to coordinate with the Yakima Nation where interests overlap.
Yet the comission does not represent the discrete interests of the Yakima Nation even with rqspect to fishery matters. The comission acts only according to the consensus position of the fish and wildlife comittees of the four Columbia River treaty tribes so as to promote and coordinate their conservation practices.
An essential aspect of promoting these conservation practices -is to ensure that particular similarly held. treaty rights :are not rendered nugatory. Thus the comission has determined to intervene in the Skagit/Hanford proceedings.
Each of the Columbia River treaty tribes has discrete imerests in fishery matters.
For instance, each tribe acting through its fish and wildlife comittee may establish and allocate fishing sites for individual tribal-members, establish resident trout fishing regulations within respective reservation boundaries and take action upon fishery conservation matters reflective of the individual tribe's assertion of its treaty right. The four Columbia River treaty tribes could individually intervene in the instant proceedings undoubtedly increasing the workload of all parties.
Yet the CRITFC exists to provide a coordinated voice on conservation activities to which there exists a comonly held shared interest, hence the involvement of CRITFC in activities such as negotiation of a salmon interception treaty with the Canadians.
In joining toegether to fonn the CRITFC, a basic recognition made by these tribes was "by unit.y of action we can best accomplish these things (inter alia, conservation
(
of the resource is dependent upon effective and progressive management) not only fc the benefit of our own people but for all people of the Pacific Northwest".
--J The CRITFC has a ' definite stake in the outcome of the Skagit/Hanford proceeding. The individual members of each Fish and Wildlife Comittee are members of the respective Co!..dia River treaty tribes. These committees individually and as CRITFC exercise treaty guaranteed sovereign rights to manage the fishery resource. The inference that the tribe alone sustains injury due to loss of the treaty right is erroneous. While the treaty fishing right is a property right of the tribe, Whitefoot v. United States, 293 F. 2d 658, 663 (Ct. C1. 1961), neverthelss individual tribal members do have standing to assert the treaty right.
F. Cohen, Handbook of Federal Indian Law, 451 (1982 ed.); Sohappy v. Smith, 302 F. Supp. 899, 912 (D. Or.1969), aff'd and remanded, 529 F. 2d 570 (9th Cir.1976). The right to fish is "not much less necessary to the existence of the Indians than the air they breathed." United States v. Winans, 198 U.S. 371, 381 (1905) (emphasis added).
The ruling in Sohappy is clearly consistent with the Supreme Court's holding in Sierra Club v. Morton and Data Processing v. Camp, that the interest require-ment may be satisfied by injury to any of a broad range :sf values including, aesthetic, conservational, recreational or spiritual. See Data Processing Service
- v. Camp, 405 U.S. 150, 154 (1969); Sierra Club v. Morton, 405 U.S. 727, 738 (1971). However it is characterized, the interest which individual Indians have in the preservation of their treaty rights is certainly sufficient to grant standing.
See Sohappy v. Smith 302 F. Supp. 899, 912 (D. Dr.1969). The question of whether an individual tribal member actually has authority to represent a treaty right need not be reached, although such authority appears to exist.
Id_.
The reason this question need not be reached is moreover that CRITFC by its intervention would seek to assure that treaty imposed duties are carried out and concomitantly that treaty rights are not rendered nugatory.
It can certainly be the case that a treaty violation has occurred even if treaty rights are not represented. The Board and all agencies of the Nuclear Regulatory Commission are bound by treaty imposed duties.
Tha parties to a treaty b::ar a duty to refrain from actions interferring with either the Indians' access to fishing grounds or the amount of fish present'.there.
Id_. (citing, United States v. State of Washington, 506 F. Supp. 187, 203 (W.D. Wash. 1980). The government constructed the irrigation project subject to that duty.
When its operation of the project threatened to further deplete an already low chinook salmon run, see United States
- v. State of Oregon, 657 F. 2d 1009 (9th Cir.1981), it violated its duties under Treaty..
Kittitas Reclamation District v. Sunnyside Valley District, No. 80-3505, at 5 (9th Cir. September 16,1982). The four Columbia River treaty tribes were party to United States v. State of Oregon, which inter alia concerned stocks utilizing the Hanford Reach of the Columbia River. United States v.
l State of Oregon, 657 F. 2d 1009.
(9th Cir. 1981). Thus CRITFC need not represent the treaty rights of the tribes,, insofar as the NRC as an agency of the federal government, is bound in any event by a treaty imposed duty.
CRITFC does assert in this proceeding an infringement of conservation and other fishery values. The indices of these values are the adjudicated rights and duties flowing from the 1855 treaties of the Columbia River treaty tribes. At the heart of CRITFC's interest is the programmatic protection, conservation, promotion and enhancement of the Columbia River anadromous fishery.
Indeed such interests are reflected in the Constitution and Bylaws of CRITFC.
By the 1855 Stevens treaties the Columbia River treaty tribes reserved the right to manage the fish resource to this end. See Settler v.
Lameer, 507 F. 2d 231, 237 (9th Cir. 1974).
Such interest has existed with the Columbia River Indians since time immemorial.
It should be of little surprise that the values and interests of the CRITFC are reflective of adjudicated treaty law.
Indeed this law provides the direction and basis for all the activities of CRITFC.
EThus] the sovereignty to protect the fishery resource is I
exercised in substantial part by the Fish and Wildlife Comittees of each tribe individually and as CRITFC. Typi-cally each Fish and Wildlife Committee is empowered to engage in programs or actions that will protect, promote, a
f,
or enhance wildlife rescurcas cn the rcservation or that wildlife off the reservation in which the Indian tribe has an interest by virtue of treaty reserved rights. Wildlife Code of the Confederated Tribes of the Umatilla Indian Reservation, Ch. 2, 8 6.
Additionally each Fish and Wildlife Comittee is typically authorized to enact rules and regu-lations. Ld. at 5 7.
By their actions as CRITFC, the Fish and Wildlife Committees exercise in a coordinated manner their sovereignty on matters affecting their collective interest in the Columbia River fishery.
CRITFC Motion for Leave to Reply at 7 (August 19,1982).
In light of the nature
~
of the CRITFC, it is readily apparent that not only does CRITFC have authority to represent certain affected interests of the Columbia River treaty tribes, and standing may be derived in this manner but also that CRITFC has interests of its own which may be affected.
In summary the interests of CRITFC include: (1) The interests of its member tribes, as limited by the scoe of delegated authority in the Constitution and Bylaws of the Columbia River Inter-Tribal Fish Commission; (2) The interests of the individual Fish and Wildlife Committees in protecting, promoting, and enhancing treaty reserved fisheries consistent with the treaty rights of the Columbia River treaty tribes; (3) The interests of the Indians of the Columbia River Inter-Tribal Fish Commission in conservation of the anadromous fish of the Columbia River consistent with Indian treaty rights; and (4) The interests of the individual Comissioners of CRITFC as their inMrest in treaty secured rights may be affected.
b.
CRITFC Interests Are Sufficient For Standing As A Matter of Right The Boards decision in its September 8 Memorandum and Order turned on its determinations of the nature of CRITFC's interest in the proceeding and that CRITFC's interest did not fall within judicial concepts of standing, namely Sierra Club v. Morton and Warth v. Seldon.
1
_g.
It is relativaly clear that no consititutional restrictions affect intervention in administrative proceedings.
3 Davis, Administrative Law Treatise 241 (1958); Koniag, Inc. v. Andrus, 580 F. 2d 601 (D.C. Cir.1978).
Indeed judicial precedent suggests that administrative agencies are encouraged to adopt creative approaches to maximize productive public participation in their proceedings.
Portland General Electric Co. et. al.
(Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-2T, 4 NRC 610, 615 (1976),
(citing) Office of Communication of United Church of Christ v. F.C.C., 359 F. 2d 994,1005-1006 (D.C. Cir.1966).
In this regard the NRC has determined that there is no legal impediment preventing administrative agencies from allowing wider participation in their proceedings than is required by statute.
_I_d_., at 614.
Inpart,theNRChasconcludedIhatcontemporaryjudicialconcepts d
of standing are generally accepted as useful quides in determining the kinds of interests a petitioner must establish, In the Matter of Edlow International, 3 NRC 563 (1976) (emphasis added), and should be applied in determining whether a petitioner is entitled to intervene as of right.
Portland General Electric, at 614. Accordingly the Nuclear Regulatory Comission has "always fcllowed a liberal construction of judicial standin9 tests in determining whether a petitioner is entitled to intervene as a matter of right in domestic licensing proceedings." Portland General Electric, at 616.
However, the question arises whether indeed the Board has followed a liberal or even appropriate construction of judicial tests in determining l
l the standing of CRITFC. The Board concluded that CRITFC simply has an academic interest, not sufficient justification to demonstrate standing to intervene.
It is quite clear that with respect to national environmental groups standing is derived from injury in fact to individual members. Sierra Club v. Morton, 405 U.S. 727 (1972).
In construing Sierra Club, the following excerpts from the final paragraphs of that decision are illuminating of the cope of the Court's holding.
l The Sierra Club is a large and long-established organization, with a historic comitment to the cause of protecting our Nation's natural heritage from man's depredations.
But if a "special interest" in this subject were enough to entitle the Sierra Club to comence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.
The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process.
It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a' direct stake in the outcome.
Here the court expresses particular concern that some interest, more than a "special interest." must be alleged by the party seeking review at least as a rougt, attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. The facts of Sierra Club cast the holding in a particular light.
Seeking review of inter alia a Forest Service decision, the Sierra Club specifically declined to rely upon individualized interest as a basis for standing.
Sierra Club, at 735-736, 8.
The Court characterized the Sierra Club position as follows:
The Club apparently regarded any allegations of individualized injury as superfluous, on the i
theory that this was a "public" action involving questions as to the use of natural resources, and that the Club's longstanding concern with and expertise in such matters were sufficient to give it standing as a " representative of the public."
_Id, at 736.
The facts of CRITFC's petition of the Board for intervention differ markedly from the position asserted by the Sierra Club.
If anything CRITFC exists to narrow r
g-w
'thm field of qu2stions to those administrativa settings nacassary to pro-gramatically conserve the anadromous fishery resource, consistent with beliefs and rights. of its member tribes, primarily'as these beliefs and rights are reflected in federal judicial decisions.
CRITFC does not purport to represent the public at large, the gamut of. fishery interests in the Pacific Northwest, the Indian tribes of the Pacific Northwest, or even the discrete individual interests of each Columbia River treaty tribe.
However, CRITFC does represent a certain interest flowing from the Columbia River treaty tribes through the Fish and Wildlife Comittees and the consensus requirements of the CRITFC constitution,in addition to other interests described heretofor. As such, the narrow interests asserted by CRITFC differ, markedly from the broad "public interest" asserted by the Sierra Club.
In ank event the Court's concern of limiting standing in Sierra Club is more appropriately characterized as a test of injury not interest.
Subsequent to the Sierra Club decision, the Supreme Court described the fundamental concepts of standing in Warth v. Seldon. Warth v. Seldon, 422 U.S.
490, 498-499 (1974). Here the court explained standing as follows:
In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a " case or controversy" between himself and the defendant within the meaning of Art.III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has
" alleged such a personal stake in the outcome of the controversy" as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his.
l behalf. Baker v. Carr, 369 U.S.186, 204 (1962).
The Art. III judicial power exists only to redress l
or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered "scme threatened or actual injury resulting from the putatively i
illegal action..."
Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973).
See Data Processing Service
- v. Camp, 397 U.S. 150, 151-154 (1970).
Thus the proper question in the instant setting resolves to whether the plaintiff itself has suffered some actual or threatened injury, not the obfuscated interpretation of "special interest." As stated in Sierra Club:
[B]roadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must have suffered an injury.
Sierra Club, at 738.
(The court previously cited with approval its position in Data Processing, 397 U.S. at 154 "in saying that the interest alleged to have been injured 'may reflect' aesthetic, conservational, and recreational as well 'as econo.aic vaiues'."
(Sierra Club, at 738.)
With regard to injury, it is clear beyond doubt that CRITFC and its members may be injured in fact.
By its constitution and bylaws CRITFC has the right to act to protect and conserve the treaty secured fishery resource of the Columbia River. See Settler v. Lameer, 507 F. 2d 231, 236 (1978). The injury to CRITFC flows from the injury to the Columbia River treaty tribes, the Fish and Wildlife Comittees, the Indians of the Columbia River Inter-Tribal Fish Comission, and the individual comissioners of CRITFC, members of each Fish and Wildlife Comittee and the respective Columbia River treaty tribes. The original petition filed by CRITFC made clear that the Columbia River treaty tribes are represented on the CRITFC.
Petition to Intervene at 1-2.
Furthermore the petition makes clear that CRITFC is composed of the four Fish and Wildlife Comittees of the Columbia River treaty tribes.
_I d. Considering the close nexus between CRITFC and the tribes, it is almost incomprehensible that the Board l
concluded CRITFC may not derive its interest from the Columbia River treaty tribes or that CRITFC had not otherwise established standing.
Evidently this l
conclusion was made by precipitately reacting to the statement that CRITFC does not represent the Columbia River treaty tribes, appearing in the July 16, 1982, Response of CRITFC. Though the nature of CRITFC was clarfied further in i
l J
the August 19, CRITFC reply, the Board nevertheless adhered to its unwarranted conclusion derived from the July 16 Response.
It must be questioned whether the Board has, in accord with its duty, construed the pleadings in favor of the petitioner. See Warth v. Seldon,422 U.S. 490, 501 (1974), citing, Jenkins
- v. McKeithen, 395 U.S. 411, 421-422 (1969). CRITFC avers that the Board did not comply with this duty.
Conclusion Any injury to the anadromous fish of the Columbia River, particularly the salmon and steelhead is an injury to the Columbia River treaty tribes, the Fish and Wildlife Committees of each tribe, thq Indians of the Columbia River Inter-Tribal Fish Commission and the individual commissioners of CRITFC. To each of these entities the Columbia River salmon are tantamount to life itself. The right to fish is "not much less necessary to the existence of the Indians than the atmosphere they breathed." United States v. Winans,198 U.S. 371, 381 (1905).
Any injury to these entities is injury to CRITFC. Whether this injury is characterized as inuring to CRITFC in a representational capacity or to CRITFC itself, CRITFC possesses the requisite standing to intervene.
Furthermore standing in a representational capacity follows from the Constitution and Bylaws of the Columbia River Inter-Tribal Fish Commission, and the consensus vote of the commission authorizing the petition by CRITFC.
Therefore CRITFC request the following relief:
1.
The Appeals Board Rule that CRITFC has the requisite standing to intervene in the above captioned proceedings and remand the i
CRITFC petition to the Board for further action; or Alternatively 2.
The Appeals Board remand the CRITFC petition to the Board for further clarification on the question of CRITFC's standing.
i
r.
i Respectfully Submitted, VM U+n S. Timothy Wapato/
Executive Director Columbia River Inter-Tribal Fish Commission 8383 N.E. Sandy Blvd., Suite 320 Portland, Oregon 97220 i
Dated This 23rd day of September,1982.
1 L
s'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In The Matter of Puget Sound
)
Power and Light, et al,
)
Docket Nos.
Amended Application for Construction )
Permits and Facility Licenses,
)
STN 50-522, 50-523 SKAGIT/HANFORD NUCLEAR PROJECT
)
)
CERTIFICATE OF SERVICE I hereby certify that I have this 23M d.ay of September 1982, served true copies of Petitioner, Columbia River Inter-Tribal Fish Comission's Notice and Memorandum in Support of Appeal by mail, postage prepaid, upon the following:
John F. Wolf, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board Panel 3409 Sheperd Street Chevy Chase, MD 20015 Mr. Gustave A. Linenberger Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Frank F. Hooper Administrative Judge Atomic Safety and Licensing Board Panel School of Natural Resources University of Michigan Ann Arbor, MI 48190 F. Theodore Thomsen, Esq.
Perkins, Cole, Stone, Olsen & Williams 1900 Washington Building 1325 Fourth Avenue Seattle, WA 98101 1
Richard L. Black, Esq.
Counsel for NRC Staff U.S. Nuclear Regulatory Conunission Office of Executive Legal Director Washington, DC 20555 James B. Hovis, Esq.
Yakima Indian Nation c/o Hovis, Cockrill & Roy 316 Box 487 Yakima, WA 98907 Washington Energy Facility Site Evaluation Council Nicholis D. Lewis, Chairman Mail Stop PY-ll Olympia, WA 98504 Darrell Peeples, Esq.
Administrative Judge Washington Energy Facility Site Evaluation Council Mail Stop PY-11 Olympia, WA 98504 Terrence L. Thatcher, Esq.
National Wildlife Federation and Oregon Environmental Council Dekum Building - Suite 708 519 S.W. 3rd Portland, OR 97204 Ralph Cavanagh, Esq.
Natural Resources Defense Council 25 Kearny Street San Francisco, CA 98108 Nina Bell, Staff Intervenor Coalition for Safe Power Suite 527, Governor Building 408 S.W. Second Avenue Portland, OR 97204
/
Robet CC.' Lothrop U l'
Columbia River Inter-Trib Fish Commission 8383 N.E. Sandy Blvd., Su te 320 Portland, OR 97220 J
0 O
EXHIBIT (A)
COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION CONSTITUTION & BY LA14S i
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l-I i
f 1
CONSTITUTIONANDBYLAWS OFT!E COUPBIA RIVER INTER-TRIPAL FISH COMISSION PREA%LE WE, THE INDIANS OF THE COLUMBIA RIVER INTER-IRIBAL FISH CG'lilSSICN, RECOGNIZE THAT 00R FISHERIES ARE A BASIC # 8 IMPORTANT NATURAL RESOURCE NO OF VITAL CONCERN TO THE If0!ANS OF THESE STATES NO TPAT THE CONSERVATION OF THIS RESOURCE IS DEPENDENT UPCN EFFECTIVE NO PROGRESSIVE MANAGEMEffT. AND THAT IT IS FURTHER RECOGNIZED THAT FEDERAL COURT DECISIONS HAVE SPECIFICALLY ESTABLISHED THAT THE IRIBES HAVE TREATY RIGHTS TO AN EQUITABLE SHARE OF THE COLLNBIA BASIN FISHERY RESOURCE. WE FURDiER BELIEVE THAT BY UNITY OF ACTION WE CN1 BEST ACCOMPLISH THESE THINGS, NOT ONLY FCR THE BEf!EFIT OF OUR OhN PEOPLE BUT FOR ALL OF THE PEOPLE OF THE PACIFIC UORTHWEST.
ARTICLE I
.NF E JHE NN4E OF THIS ORGANIZATION SHALL BE THE COLtf4BIA RIVER INTER-IRIBAL rISH C0f'tilSSION.
ARTICLE II - IEEERSHIP SECTION.1, MEMBERSHIP SHALL BE OPEN TO IflDIAN TRIBES VHO HAVE RATIFIED THE MEMORANDUM OF UNDERSTNiDING WITH BCt:NEVILLE P0wER AGi NISTRATION
? CIFIC N0gTreST REGIONAL COUNCIL (IHE bOVERNORS OF LDAHO, OREGCN, AND A
AND MASHINGTON) #1D hHO A.
ISRECOGNIZEDASATRIBEBYFEDERALTREATY, STATUTE,OR AN AGREEI4ENT, AND bHO B.
IS ORGANIZED AND OPERATING UTSER A CONSTITUTION AND BYLAWS, NO hHO C.
PATIFIES THIS CONSTITUTION N4D BYLAWS BY APPROPRIATE TRIBAL RESOLUTION.
ARTICLE III - GOVEPNIMG PIOY SECTION 1. THE GOVERNING BODY SHALL BE THE CG'firSSION. THE CCMilSSION SHALL CONSIST OF THE FISH CCM4ITTEES DESIGt1ATED BY TRIBAL RESOLUTION Frui EACH M64BER IRIBE.
SECTION 2. THE TERM OF OFFICE OF EACH CCAJilSSIONER SHALL BE DESIGt!ATED BY THE RESPECTIVE GOVERNING BODY OF EACH IRIBE.
SECTION 3. THE COMMISSION MEMBERS SHALL REPORT IN URITING TO THEIR RESPECTIVE GOVERNING BODY CN THE BUSINESS TRN1SACTED, INCLUDING RECG'FENDATIONS FOR fit!AL APPROVAL RELATIf;G TO #1Y CONTRACT OR AGREEMENT TO BE EtlTERED ON BEHALF OF met'EER IRIBES, BY THE CG'tilSSION.
)
l.
CWSTUlfilW AIO M.Avd
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PAGE2 SECTION 4. A SPECIAL MEETING OF THE C0f44ISS10N CAN BE CALLED BY THE CHAIRMAN AT THE REQUEST OF ANY COMMISSION MEMBER.
ARTICtf IV -IFFICERS ECTION 1. THE OFFICERS OF B E COMMISSION SHALL BE CHAIRMAN, VICE IRMAN, AND SECRETARY AND CHALL BE ELECTED BY THE MEMBERS OF THE CCittiSS10N.
SECTION 2. THE TERM OF OFFICE OF EACH OFFICER SHALL BE FOR Ot:E (1)
WA1 AND SHALL COMMENCE WITH THE REGULAR MEETING, EXCEPT THE FIRST ELECTED OFFICERS SHALL.. SERVE UNTIL THE FIRST REGULAR ELECTI0ti.
ARTICLE V - VACA!!CIES AE!D REF0 VAL SECTION1.
IF A C0t411SSIONER OF 0FFICIAL SHALL DIE, RESIGil, PERMANENTLY LEAVE THE STATE OF AREA hHICH HE REPRESENTS, OR SHALL BE FCUND GUILTY OF A CRIME OR MISDEMEANOR If4VOLVING DISHCNESTY BY ANY COURT, THE COMMISSION SHALL DECLARE THE POSITION VACANT AND SHALL REQUEST A REPLACEMEllT FOR THE BALANCE OF THE UNEXPIRED TERM FROM THE RESPECTIVE GOVERilING BODY.
ARTICLE VI - D!!flES OF OFFICERS SECTION 1r THE CHAIPl%N SHALL PRESIDE OVER ALL MEETINGS OF THE C0f 74ISSION SHALL PERFORM ALL DUTIES OF A CHAIRfMN AND EXERCISE ANY AUTHORITY DELEGATED TO HIM BY THE CG14ISSION AND SHALL HAVE AUTHORITY TO SIGN ALL DOCUMENTS FOR THE CCM1ISSION. HE SHALL VOTE IN ALL t%TTERS FOR HIS RESPECTIVETRIBE.
SECTION 2. THE VICe CHAIRMAN SHALL ASSIST THE CHAIRMAN hHEN CALLED UPON TO DO SO AND IN THE ABSEtlCE OF THE CHAIFl%ff HE SHALL PRESIDE. MIEN PRESIDING HE SHALL HAVE ALL THE RIGHTS, PRIVILEGES, N!D DUTIES AS WELL AS THE RESPONSIBILITIES OF THE CHAIRtMN.
SECTION 3. THE SECRETARY SHALL BE RESPONSIBLE FOR Mit!UTES OF ALL MEETINGS AND MEETING NOTICES.
SECTION 4. THE DUTIES OF THE OFFICERS AND ANY APPOINTIVE CG44ITTEES OR QFFICERS l%Y BE FURTHER DEFINED BY APPRCPRIATE RESOLUTIOil 0F THE LG'tilSS10N.
SECTION 5. THE EXECUTIVE DIRECTOR SHALL BE APPOINTED BY THE FISH C0ffilSSION.
(SEEATTACHMENTA: JOB DESCRIPTION.)
ARTICLEVII-MEETINGS SECTION 1.
A.
THE CONDUCT AND PROCEDURE OF THE t EETINGS f%Y BE FURTHER DEFINED BY APPROPRIATE RESOLUTION OF THE CCliilSSION.
B.
AQUORUjSHALLCONSISTOFONECGt11SSIONERFRCMEACH MEMBER 1 RIBE.
J
CONSTIMION AND BYLAWS PAGE3 C.
EACHMEMBERTRIBESHALLBEENTITLEDTOONEVOTE.
D.
ALL DECISIONS BY THE CGNISSION SHALL BE BY' UN#11MOUS VOTE.
ARTICLE VIII - POWERS OF THE COMISSION SECTION 1. THE CGNISSION SHALL HAVE THE FOLLOWING POWERS:
EORMULATE, IN CONSULTATION AND CONSENT WITH LOCAL TRIBAL COUNCILS, A BROAD GENERAL FISHERIES PROGRN1 DESIGNATED TO PRG10TE #1D COORDINATE THE CONSERVATION PRACTICES OF THE MEMBERS.
B.
REQUEST TECHNICAL ADVICE AND/OR ASSISTANCE FROM N!Y SOURCE hHATEVER FOR THE PURPOSE OF ASSISTING IrlDIAN FISHERIES AND TO CONSULT WITH At!Y AtlD ALL INDIVIDUALS, ORGANIZATIONS, INSTITUT(ONS, N1D GOVERf;MgflTS (TRIBAL, LOCAL, STATE, FEDERAL, NiD INTERNATIONAL) ON MATTERS PERTAINIt!G TO FISHERIES.
C.
TO RENDER ANY ASSISTANCE WITHIN THE AUTHORITY OF THE CGNISSION TO #4Y TRIBE RECUESTING SUCH ASSISTNICE.
D.
AS A NON-PROFIT ORGANIZATION TO ACCEPT FUNDS FROM STATE, FEDERAL, PRIVATE FOUt0ATIONS OR OTHER SOURCES FOR OPERATIONS, bHgN t;0T IN CONFLICT WITH FUNDING EFFORTS OF INDIVIDUAL IRIBES.
E.
TO PROVIDE PUBLIC INFOPl% TION.
SECTION 2. ANY MiD ALL RIGHTS NO POWERS VESTED IN THE MEMBER IRIBES SHALL NOT BE ABRIDGED BY THIS CONSTITUTION.
ARTICLE IX - AWJHITS THIS CONSTITUTION AND BYLAWS fMY BE NiErlDED BY UNANIMOUS VOTE OF THE MEMBER IRIBES UPON AT LEAST 15-DAYS f!0TICE PRICR TO SUCH MEETING TO CONSIDER A PROPOSED #1EtlEMENT SUEMITTED TO MEMBER IRIBES.
ARTICLE X - RATIFICATION THISCONSTITUTIONANDBYLAWSSHAp.BEINFULLFORCEAf;DEFFECTbHEN RATIFIED BY ALL MEMBER IRIBES.
rASSED THIS DAY OF
.1977, AT
CONSTI111 TION NO BYlES Paas 4 h
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