Excerpts from The Campo Indian Landfill War: The Fight for Gold in California's Garbage

Summary:

    ... The editors of the Stanford Environmental Law Journal are pleased to share with our readers two chapters from The Campo Indian Landfill War: The Fight for Gold in Californials Garbage, a new book by Dan McGovern, a former Regional Administrator of the United States Environmental Protection Agency region that includes California. ... The Campo Indian Landfill War: The Fight for Gold in Californials Garbage explores the topic of environmental justice
through the story of an Indian tribels struggle to control its own destiny and to develop its isolated and impoverished reservation by building a solid waste landfill to serve the cities of southern California. ... Coronals contribution to the cause was crafting the constitutional theory that Peace would invoke in support of his legislation: State regulation of reservation waste projects is consistent with the Supreme Court's decisions concerning tribal sovereignty because California has a legitimate and profound interest in protecting the off-reservation environment from the "spill-over" effects of contamination originating on a reservation. ... While its author now professed to prefer a compromise, AB 240 remained alive and as uncompromising as ever for the time being. ... In letters to Assembly members asking them to vote against AB 240 when it reached the floor, and reiterating the tribels willingness to enter into a cooperative agreement, Campo Chairman Ralph Goff added that "we have asked the United States Congress to examine this issue.

TEXT: 

    The editors of the Stanford Environmental Law Journal are pleased to share with our readers two chapters from The Campo Indian Landfill War: The Fight for Gold in Californials Garbage, a new book by Dan McGovern, a former Regional Administrator of the United States Environmental Protection Agency region that includes California. Mr. McGovern's fascinating study explores the complex issues of equity, exploitation, and sovereignty that surround one Indian tribe's attempt to authorize and manage a landfill on its reservation. As an examination of the intersection of two current topics of enormous public concern - Indian sovereignty and environmental justice - this book offers a thoughtful analysis of difficult issues and tells a compelling story. The two chapters excerpted here tell the legislative part of the story, as Mr. McGovern's introduction explains.

    The Campo Indian Landfill War, which will be published this summer by the University of Oklahoma Press, has received advance praise by Interior Secretaries and EPA Administrators from five presidential administrations.

Introduction

    The Campo Indian Landfill war: The Fight for Gold in Californials Garbage explores the topic of environmental justice through the story of an Indian tribels struggle to control its own destiny and to develop its isolated and impoverished reservation by building a solid waste landfill to serve the cities of southern California.

    The environmental justice movement was born of the conviction that the waste industry has targeted minority communities for facilities that they can no longer locate in the backyards of those with greater access to political power. The anomaly of the Campo case is that the tribe is unified in supporting the proposed landfill, while the project is opposed by its mostly white neighbors. The opponents of the project are convinced that it would contaminate the aquifer that is the sole source of drinking water for 400 square miles, making the entire region uninhabitable.

    The Campo case has caused a rift between environmental justice advocates and advocates of Indian sovereignty. The environmental justice community, including many Indians, charges that the waste industry is trying to exploit the poverty of the Campos and other tribes, making them offers they cannot refuse for projects that no one else wants, no one should want. The Campos admit the danger of exploitation, but contend that it is paternalistic - indeed, racist - to assume that Indians are not smart enough to protect themselves in dealings with whites or wise enough to protect their reservation environment and their own long-term interests.

    Why are the Campos making their stand on a landfill? Why are they reduced to fighting for the right to dispose of other people's garbage on their land? Why are they so determined to resist assertions of state jurisdiction? Why do they so mistrust the motives of the neighbors? Why did grassroots opposition not arise among the Campos, as it has among other tribes that have considered commercial waste projects?

    To answer these questions, I inquire into the history of the Campos - their relationship to the land and to the people who took it from them. I then chronicle the Campo landfill war's many battles.  One of the major fronts in the war has been the controversy over the environmental impact study. Because Indian reservations are considered to be held in trust by the federal government for the benefit of tribes, the lease of reservation land for a commercial waste project requires the approval of the Department of Interior's Bureau of Indian Affairs. Because this landfill project was a political landmine, the question of the Campo lease was ultimately decided by Interior Secretary Bruce Babbitt himself, who approved the lease while announcing guidelines to "prevent the wholesale targeting of tribal lands across America for waste disposal."

    In the chapters excerpted here, I describe the bruising two-year battle over proposed California legislation that would have asserted state jurisdiction over reservation waste projects.

Chapter 7

Peace Declares War on the Campos

    One of the two major fronts in the Campo landfill war was the California legislature, where Steve Peace, a young Democrat who represented the Campo area in the California Assembly, tried to stop the Campo project by introducing legislation to prohibit the disposal of waste in a reservation landfill unless the facility were licensed by the state.

    J. Stephen Peace is one of the most controversial members of the legislature. According to the California Political Almanac, Peace "was once known for two things: He was the producer of the cult film, 'Attack of the Killer Tomatoes,' and he was [Assembly Speaker] Willie Brown's man to see in San Diego."  Although apparently back in the speaker's good graces by the time this legislation was being considered, Peace had turned on his patron a few years earlier, participating in a palace revolution by what the press dubbed the "Gang of Five," and the intriguers themselves called the "Five Amigos." Trying to account for Peace's participation in the doomed revolt, another Democratic member of the Assembly mused that "this is the first time in his Assembly careerthat Steve Peace has had four friends at the same time."  Peace's lack of popularity among his colleagues is attributable, according to the California Journal, to the fact that he is given to angry outbursts that go "beyond both legislative protocol and common decency."  "When Peace disagrees with you, he's very unpleasant, complained a (fellow] Democratic member. "He doesn't just argue; he questions your intelligence, your judgment and your integrity."  To demonstrate how inaptly Peace is named, the story most often told involves his attack upon a venerable state senator, whom he called a "senile old pedophile." 

    The California Journal rates state lawmakers, based on a survey of the Sacramento press corps, lobbyists, legislative staff, and the legislators themselves. Among the qualities rated are intelligence and integrity. Peace is consistently rated as being among the lawmakers with the most intelligence and the least integrity.  However unpopular and distrusted he may be, Peace is acknowledged by other lawmakers to be a relentless and effective sponsor of legislation. Describing him as "manic and insatiable," one colleague said that Peace has a tendency to "get into your face and stay there until he gets what he wants."  Peace's effort to stop the Campo landfill project would demonstrate both his worst and best qualities.

    Steve Peace's response to BAD's cry for help was quick and specific. Even before BAD held its second major event, the presentation to the chamber of commerce in Campo, Peace had written to Donna Tisdale that he was preparing legislation that was intended to thwart the Campo project.  The task of drafting the bill fell to Peace's chief of staff, David Takashima. Because Indian law is a very specialized field, Takashima consulted Rudy Corona, a personal friend who is a member of the California Attorney Generalls Office.  Characterized by a Campo supporter as a "noted Indian fighter," Corona had participated in a landmark United States Supreme Court case three years earlier in which the California Attorney Generalls Office had argued, unsuccessfully, that the state had authority to regulate bingo games on Indian reservations. 

    Convinced that some tribal leaders are "totally willing to desecrate their land in order to make a couple of dollars," Rudy Corona was concerned that "horrendous, cataclysmic" environmental problems might result if the Campos or other California tribes were allowed to develop commercial waste projects that were not subject to the same strict regulations applicable elsewhere in the state. Invoking popularized Indian imagery, Corona points out that "the winds that blow and the waters that run do not stop at reservation border lines."  Corona counseled Takashima that any legislation asserting state jurisdiction over reservation waste projects would be challenged and the case would almost certainly wind up in the U.S.-Supreme Court. "We knew," Takashima says, "even if we passed this bill the way that we wanted it, that it would fly in the face of Indian sovereignty."  Coronals contribution to the cause was crafting the constitutional theory that Peace would invoke in support of his legislation- State regulation of reservation waste projects is consistent with the Supreme Court's decisions concerning tribal sovereignty because California has a legitimate and profound interest in protecting the off-reservation environment from the "spill-over" effects of contamination originating on a reservation.

    The legislation - Assembly Bill 3477 - that Peace introduced on February 28,  1990, did not directly assert state jurisdiction over reservation waste projects, but rather forbade potential customers from doing business with waste facilities not regulated by the state. "While the state cannot directly overrule the tribels plan, "We can make it very difficult for them" Peace said. The assemblyman crafted the bill to penalize any local agency that attempts to dispose of its waste on a Native American reservation."  During the next three months, AB 3477 sailed through the Assembly, passing the Committee on Environmental Safety by a vote of 13-0, the Committee on Ways and Means by 21-0, and the full Assembly by 68-0. By the time the bill reached the Senate Committee on Toxics and Public Safety, however, a potential roadblock had arisen. The legislature's own lawyer, the legislative counsel, had issued a written opinion advising Senator Art Torres, the committee chairman, that the bill, if enacted, would be struck down in court.

    Although Peace had made a transparent effort to sidestep the jurisdictional issue, the question addressed by the legislative counsel was whether California has authority to regulate waste facilities on Indian reservations. Stated differently, the question was whether Indian tribes retain sovereign authority over the subject of waste regulation, to the exclusion of state jurisdiction.

Tribal Sovereignty: The Case Law

    In ordinary usage, sovereignty refers to the supreme authority an independent nation exercises over both its domestic affairs and its foreign relations. As we shall see, the decisions of the U.S. Supreme Court resolving conflicts in tribal/state jurisdiction tend to be subject-matter specific. An opinion by the Supreme Court upholding a state tax on cigarettes sold in reservation stores to non-Indians, for example, may offer little guidance as to whether the high court will sustain state regulation of hunting and fishing by non-Indians on reservations. Nevertheless, the following fundamental principles underlie the high court decisions analyzing and demarking the limits of tribal sovereignty: Before they were conquered by the Europeans, the Indian tribes of North America were fully sovereign. Conquest, first by European powers and then by the United States, deprived tribes of external sovereignty - that is, their power to enter into treaties with foreign nations - but did not in itself affect tribal authority over their people and their territory. The domestic sovereignty tribes retain, however, is of a "unique and limited character"; it "exists only at the sufferance of Congress and is subject to complete defeasancell or nullification by Congress.  On the one hand, "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States."  On the other hand, Congress may withdraw sovereign authority over reservation matters from tribes and confer it upon states.
 
Worcester v. Georgia: The Supreme Court's Gravest Crisis

    The reach of state jurisdiction in Indian country was first considered by the U.S. Supreme Court in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), precipitating what one leading historian of the high court called "the most serious crisis" in its history.  In 1830, Congress passed the Indian Removal Act, authorizing the president to exchange U.S. territory west of the Mississippi River for the lands of the Cherokees and other eastern tribes. While President Andrew Jackson sought to convince the tribes to move voluntarily, the state of Georgia asserted its jurisdiction over the Cherokees, enacting laws that purported to abolish the Cherokee government, to extend Georgia law to Cherokee country, and to distribute all Cherokee lands among five Georgia counties. 

    The first case to reach the U.S. Supreme Court testing Georgials assertion of jurisdiction over the Cherokees involved the conviction in a Georgia court of George Tassel, a Cherokee, for a murder committed on Cherokee land. The Supreme Court granted a writ to review the conviction but Georgia refused to honor the writ, and Tassel was hanged. 

    Next, the Cherokees filed suit in the Supreme Court seeking to enjoin the execution of Georgia laws in the Cherokee nation. The Supreme Court held that it lacked jurisdiction to hear the merits of the case because the Cherokee nation was not a foreign state within the meaning of the constitutional provision giving the court original jurisdiction over suits between states and foreign nations. 

    The issue of Georgials jurisdiction over the Cherokees was finally joined before the Supreme Court in Worcester v. Georgia. When missionaries published resolutions in defense of the Cherokees, the Georgia legislature responded by enacting a law that made it a criminal offense for whites to reside in the Cherokee portion of Georgia without taking an oath of allegiance to the state and obtaining a special permit from the governor. A white missionary, Samuel Worcester, was convicted under the law and sentenced to hard labor for four years. Again, the case was appealed to the Supreme Court; again, Georgia refused to appear.

    In an opinion by Chief Justice John Marshall, the Supreme Court reversed Worcester's conviction, finding the Georgia law to be "repugnant to the constitution, laws and treaties of the United States." Indian tribes, the Court held, were sovereign nations before being conquered by the United States, and they retained sovereign authority over their territory insofar as the individual  states were concerned, unless the federal government provided to the contrary. "The Cherokee nation, then, is a distinct community occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." 

    Though scholars disagree over whether he actually made the statement, President Jackson was quoted as saying of the Worcester decision, "John Marshall has made his law; now let him enforce it." In any event, the judgment of the high court was not enforced by the executive branch. The standoff between the Court and Georgia came to an end the following year when the governor pardoned Worcester and another missionary in return for their agreement to leave the state.

Rice v. Rehner: State Authority over Reservation LiquorSales

    One hundred and fifty years after its decision in Worcester v. Georgia, the U.S. Supreme Court issued the opinion upon which Peace, Takashima, and Corona principally relied - Rice v. Rehner, 463 U.S. 713 (1983). The question presented in Rice v. Rehner was whether the state of California could require a federally licensed Indian trader, who operated a general store on the Pala Indian reservation in San Diego County, to obtain a state license in order to sell liquor for off-premises consumption. The high court noted that, despite the emphasis in Worcester v. Georgia on the importance of tribal self-government, "Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall." 

    In order to answer the ultimate question of whether Indian tribes retain sovereign authority over liquor sales on reservations to the exclusion of state jurisdiction, the Rice court unbundled the inquiry into three distinct but related questions.

    First, did Indian tribes traditionally exercise such sovereign authority?  The answer to this question, the Court held, was no. The colonists had regulated trading of liquor with Indians before the United States was founded. Consistent with this tradition, Congress had imposed prohibition on reservations early in the nineteenth century. Moreover, the federal government not only permitted the states to regulate liquor sales on reservations, it sometimes required them to do so. For example, as a condition of entry into the Union, Arizona, New Mexico, and Oklahoma were required by Congress to enact prohibitions against the sale of liquor to Indians and the introduction of liquor to Indian country.

    Second, does the activity the state seeks to regulate likely have a substantial spill-over effect beyond the reservation? The Court answered this question in the affirmative. "Liquor sold by Rehner to other Pala tribe members or to nonmembers can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the State does not wish to possess alcoholic beverages."

    Finally, is state jurisdiction over the subject matter preempted by federal law? The answer, the Court held, was clear. "Our examination of [the pertinent federal statute] leads us to conclude that Congress authorized, rather than pre-empted, state regulation over Indian licfuor transactions."

    Section 1 of AB 3477, the bill introduced by Peace, summarized the three-part test articulated in Rice v. Rehner and asserted that state regulation of reservation waste projects was justified under that test.

    The Legislature hereby finds and declares that there is no tribal tradition in the handling of solid waste, hazardous waste, asbestos, or other regulated waste material. The health and welfare of the citizens of the state require the proper management and monitoring by local authorities, state authorities, or federal authorities. There is no federal preemption granted the Native American to operate or host solid waste or hazardous waste facilities. Groundwater and air do not stop at the reservations, boundaries. In the interest of protecting the environment and the citizens of the state from solid waste and hazardous waste facilities on reservation land, the Legislature enacts this act to clarify that these facilities are required to meet all applicable state and federal statutes, regulations, and standards.

    While Peace and his allies relied upon the earlier Rice v. Rehner decision involving state jurisdiction over liquor sales on reservations, the opponents of AB 3477 countered that the controlling precedent was the case that Corona and the California Attorney Generalls Office had lost in the Supreme Court California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

California v. Cabazon: State Authority Over ReservationGambling

    The assertion of state authority over reservation gaming in Cabazon, like AB 3477's assertion of state authority over reservation waste projects, was predicated upon a federal statute known as Public Law 280. Public Law 280 transferred criminal and, to a limited extent, civil jurisdiction over Indian lands from the federal to state governments in several states, including California. According to the Senate Report, the primary concern of Congress in enacting the statute was lawlessness on the reservations and the accompanying threat to non-Indians living nearby. Prior to enactment of Public Law 280, law enforcement on reservations was, in the words of one commentator, "irrationally fractionated."

    If a non-Indian committed a crime against another non-Indian or a crime without an apparent victim, such as gambling or drunk driving, only state authorities could prosecute him under state law. But if either the offender or victim was Indian, the federal government had exclusive jurisdiction to prosecute .... Finally, if offender and victim were both Indians, the federal government had exclusive jurisdiction if the offense was one of the "Ten Major Crimes"; otherwise, tribal courts had exclusive jurisdiction. Since federal law enforcement was typically neither well-financed nor vigorous, and tribal courts often lacked the resources and skills to be effective, the result, described by House Indian Affairs subcommittee member Wesley D'Ewart, of Montana, was "the complete breakdown of law and order on many of the Indian reservations."

    The states covered by Public Law 280 were granted broad criminal jurisdiction over offenses committed by or against Indians on reservations within those states. However, the statute's grant of civil jurisdiction was more limited. Public Law 280 states were granted jurisdiction over private civil litigation involving Indians, but they were not given "general civil regulatory authority" over tribes.  The test for determining whether a law is criminal in nature, and thus within the scope of the jurisdiction granted to the states under Public Law 280, was clarified by the Supreme Court in California v. Cabazon Band of Mission Indians.

    Having earlier established the nation's first Indian card room on their seventeen-hundred-acre reservation near Palm Springs, the twenty-five-member Cabazon band, along with the Morongo band, brought suit in federal court for a declaratory judgment that California had no authority to regulate bingo played an Indian reservations within the state. The Supreme Court held that if the intent of a state law is generally to prohibit certain conduct, it falls within Public Law 280's grant of criminal jurisdiction. However, if the state law generally permits the conduct in question, subject to regulation, the statute must be classified as civil/regulatory, and Public Law 280 does not authorize its enforcement on an Indian reservation. Since California regulated, rather than prohibited, gambling in general and bingo in particular, Public Law 280 provided no basis for the state's asserted jurisdiction over the playing of bingo on reservations.

    So far, the lesson of Cabazon for AB 3477 would seem to be clear. Since California regulates, rather than prohibits, the disposal of hazardous and solid waste, AB 3477 would not appear to be authorized by Public Law 280. However, the Cabazon court indicated that the inquiry should not stop there. "Our cases have not established an inflexible per se rule precluding state jurisdiction over tribes and tribal members in the absence of express congressional intent."  The ultimate question is whether state authority over reservation activities is preempted by federal law. State jurisdiction is preempted if it interferes with federal and tribal interests, unless those interests are outweighed by the state's interests.  There were important federal interests at stake in Cabazon, the Court held - "the.Congressional goal of Indian self-government, including its "overriding goal, of encouraging tribal self-sufficiency and economic development."  The federal government promoted tribal bingo enterprises, the Court noted, by approving tribal ordinances establishing and regulating gaming activities, and by providing financial assistance to such undertakings.

    The Cabazon and Morongo reservations contain no natural resources that can be exploited, the high court noted. The tribal games supplied the sole source of revenue for the operation of the tribal governments and the provision of tribal services. They were also the major sources of employment on the reservations.  Self-determination and economic development were not within reach, the Court continued, if the tribes could not raise revenue and provide employment for their members. 

    The Supreme Court rejected Californials contention that the tribes were merely marketing an exemption from state gambling laws. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980), the Court had held that the state of Washington could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and thereby substantially reduce revenue used to provide tribal services, because the tribes had no right to "market an exemption from state taxation to persons who would normally do their business elsewhere."

    The Colville court stated that "it is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest." 

The Cabazon court distinguished Colville on the ground that:

    Here ... the Tribes are not merely importing a product onto the reservations for immediate resale to non-Indians. They have built modern facilities which provide recreational opportunities and ancillary services to their patrons, who do not simply drive onto the reservations, make purchases and depart, but spend extended periods of time there enjoying the services the Tribes provide. The Tribes have a strong incentive to provide comfortable, clean, and attractive facilities and well-run games in order to increase attendance at the games.

    The Cabazon court found the bingo halls on the Cabazon and Morongo reservations analogous not to the smokeshops in Colville but to the hunting and fishing resort that the Mescalero Apache tribe operates on its reservation. In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), the U.S. Supreme Court had held that New Mexico could not regulate hunting and fishing by non-Indians on the Mescalero reservation. The Mescalero tribe was not merely marketing an exemption from state hunting and fishing regulations, the Court held, but was instead earning revenue for essential tribal services and providing employment for tribal members through the "concerted and sustained" management of reservation land and resources.  "Similarly," the Cabazon court held, "the Cabazon and Morongo Bands are generating value on the reservations through activities in which they have a substantial interest."

    The Cabazon court gave short shrift to Californials reliance on Rice v. Rehner, distinguishing that case on the grounds that "Congress had never recognized any sovereign tribal interest in regulating liquor traffic and that Congress, historically, had plainly anticipated that the states would exercise concurrent authority to regulate the use and distribution of liquor on Indian reservations." By contrast, the Cabazon opinion continued, "there is no such traditional federal view governing the outcome of this case, since, as we have explained, the current federal policy is to promote precisely what California seeks to prevent," namely, tribal gaming enterprises.  The state's asserted interest in preventing the infiltration of tribal games by organized crime was not sufficient, the Court held, to outweigh the federal and tribal interests in tribal self-government and economic self-sufficiency.

Lower Court Decisions Dealing with Federal Waste Laws

    In addition to Cabazon, the opponents of AB 3477 relied upon two lower federal court decisions to support their argument that the proposed legislation would be preempted by federal law. In State of Washington, Dept. of Ecology v. United States Environmental Protection Agency, 752 F. 2d 1465 (9th Cir. 1985), the state of Washington asked EPA to confer upon it primary jurisdiction over the federal hazardous waste program throughout the state, including Indian lands. while otherwise approving Washington's application, EPA retained to itself jurisdiction to manage the federal hazardous waste program on Indian lands in the state. Upon petition for review, the U.S. Court of Appeals for the Ninth Circuit affirmed EPA's decision.  Both the federal hazardous waste law and its legislative history were silent on the issue of state regulatory jurisdiction on reservations. Therefore, under established principles of statutory construction, the court was compelled to defer to the interpretation of the agency responsible for administering the statute, provided that interpretation were reasonable. Buttressing its conclusion that EPA's construction of the statute was reasonable, the court said, was the well-settled principle that states are generally precluded from exercising jurisdiction over reservations unless Congress has clearly expressed an intention to permit it. Moreover, the court noted, excluding state jurisdiction was consistent with the federal government's policy of encouraging tribal self-regulation in environmental matters. The court recognized that the state of Washington has a vital interest in effective hazardous waste management throughout the state, including Indian lands. However, preemption of state regulatory jurisdiction over reservations would not leave a regulatory vacuum, the court held, because EPA would remain "responsible for ensuring that the federal statutes are met on the reservations. Those standards are designed to protect human health and the environment. The state and its citizens will not be without protection."

    In determining that it was the policy of the federal government to encourage tribal self-regulation in environmental matters, the court relied upon a 1980 EPA policy. That policy was reaffirmed by Administrator William D. Ruckelshaus in 1984, shortly after argument was heard in Washington Dept. of Ecology. The "EPA Policy for the Administration of Environmental Programs on Indian Reservations" is based on, among others, the following principles: EPA recognizes tribal governments as sovereign entities with primary authority and responsibility for their reservations and their peoples, and not as political subdivisions of states. Within the constraints of its authorities and resources, EPA assists interested tribal governments in assuming responsibility on reservation land for the sorts of federal environmental programs that EPA delegates to states for nonreservation lands. Until tribal governments are willing and able to assume full responsibility for delegable programs, EPA retains responsibility for managing federal environmental programs on reservations. As to this last point, the EPA policy recognizes an exception where a state has "express grant of jurisdiction from Congress" to assume responsibility for a delegable federal program on a reservation.

    Washington Dept. of Ecology involved the hazardous waste provisions of the federal Resource Conservation and Recovery Act, known by its acronym RCRA. Blue Legs v. United States Environmental Protection Agency, 668 F. Supp. 329 (D.S.D. 1987) involved the solid waste provisions of RCRA. In Blue Legs, the Oglala Sioux tribe operated several open dumps on the Pine Ridge Reservation. The plaintiffs, who were members of the tribe, brought suit under RCRA's citizens' suit provisions against the tribe, the Bureau of Indian Affairs, the Indian Health Service, and EPA for violations of RCRA's open dump prohibitions.

    The federal district court noted in Blue Legs that EPA's authority under RCRA was not the same for hazardous as for solid waste. While the statute gave EPA direct regulatory authority over hazardous waste, it merely authorized the agency to provide technical and management assistance to states for the development of management plans for solid waste. Therefore, the court granted EPA's motion for summary judgment in its favor. on the other hand, the court held that the tribe has the responsibility, stemming from its inherent sovereignty, to regulate, operate, and maintain landfills on the reservation.

    Accordingly, the tribe was ordered to bring the dumps into compliance with RCRA.  The Bureau of Indian Affairs and the Indian Health Service were also made subject to the court's order, because the two agencies were using the tribes open dumps for solid waste generated by them and their personnel.

What Are the Lessons -for This Case?

    Read together, Cabazon, Washington Dept. of Ecology, and Blue Legs provided considerable support for the conclusion that AB 3477, if enacted, would be preempted by federal law. state jurisdiction, Cabazon held, is preempted if it interferes with federal and tribal interests, unless those interests are outweighed by the state's interests. The same important federal interests were at stake in both the Campo and Cabazon cases - "the Congressional goal of Indian self-government, including its "overriding goal, of encouraging tribal self-sufficiency and economic development."  The Cabazon and Morongo tribes, having no natural resources on their reservations, turned to gaming to generate revenue for tribal services and to provide tribal employment. The Campo tribe is more disadvantaged economically than the Cabazon and Morongo tribes, because not only does the Campo reservation lack natural resources, but its remote location precludes even gaming as a source of tribal income and jobs. The landfill project, the tribe contends, is a last resort in its struggle to attain the self-sufficiency and economic development it is the policy of Congress to foster.

    Unlike the tribes in Colville, the Campos could make a strong argument that they were not merely marketing an exemption from state laws, but would be deriving their income from a project in which they would have a "significant interest." Indeed, the Campo landfill would constitute a much greater capital investment than the gaming halls on the Cabazon and Morongo reservations. Moreover, if the Cabazon and Morongo tribes "have a strong incentive to provide comfortable, clean, and attractive facilities and well-run games in order to increase attendance at the games," the Campo tribe would seem to have an even stronger incentive to manage the landfill properly, not only to maximize its income potential but also to prevent contamination of the reservation environment.

    The state of California has an undeniable interest in preventing reservation landfills from contaminating the off-reservation environment. However, the opponents of the Peace bill argued, the lesson of Washington Dept. of Ecology is that state jurisdiction over reservation waste projects would be inconsistent with the federal government's policy of encouraging tribal self-regulation in environmental matters. Moreover, although Blue Legs did not consider the question of whether landfills on reservations are subject to state regulation, the district court did hold that tribes have the responsibility - stemming from their inherent sovereignty - to maintain, operate, and regulate reservation landfills. Finally, the opponents of AB 3477 contended, the state's interests would be protected by the federal government, because the Secretary of Interior would have to be satisfied with the safety of a landfill project before approving the lease.

    The strongest legal argument available to the proponents of AB 3477 was that Cabazon had reiterated that state jurisdiction is not preempted if the state's interests at stake outweigh those of the federal and tribal governments.  The state's interest in preventing the contamination of the Campo areals sole source of drinking water was greater than the state's interest in preventing the infiltration of Indian gaming by organized crime, so the argument ran, and outweighed the federal and tribal interests in tribal economic development and environmental self-regulation.

    However, in the days preceding the hearing in the Senate Committee on Toxics and Public Safety Management, Steve Peace, rather than relying on this argument, attacked the character, intelligence, and motives of his opponents. "Peace says that arguments that his bill will encroach upon Indian sovereignty are simply political "cover' for the fact that the tribes are marketing their regulatory independence to East Coast garbage companies - some of them unscrupulous and possibly Mob-connected - as a way to get around stringent state and local controls."  The Campos' claim that his bill was an "insult" to their sovereignty, Peace responded, was "ludicrous," intended simply to "deflect attention from the garbage industry guys who want to go around regulations by going on the reservations. They are using the Indians for cover. That's what's insulting. They're manipulating them."

    In the hearing before the Senate Toxics Committee, the initial questions asked by the committee chairman, Senator Art Torres, seemed to suggest that AB 3477 faced "overwhelming odds" because of the legislative counsels opinion that it would be preempted by federal law. However, the momentum of the hearing shifted when Peace offered a "parade of sometimes emotional witnesses to buttress his arguments that the Campo case is part of a nationwide strategy by large solid-waste companies to use Indian sovereignty as a way around strict state and local standards for hazardous waste sites and garbage dumps."

AB 3477 Supported By Environmentalists and Some IndianActivists

    The credentials of the allies that Peace and Donna Tisdale had enlisted in support of AB 3477 made it difficult to dismiss the proposal as Indian-bashing. The most important institutional advocate was the Planning and Conservation League (PCL). The oldest environmental lobbying group in California, PCL is a nonpartisan alliance of individuals and more than 180 conservation groups, including organizations as diverse as the Wilderness Society, the Society for California Archaeology, the California Native Plant Society, and the Bay Area Chapters of the Audubon Society. The general counsel of PCL, Corey Brown, testified in support of the bill at every legislative hearing, arguing that it would close "a very dangerous loophole in California's toxics and waste laws."

    However, given the Campos' claim that the legislation was motivated by anti-Indian bias, the most effective witness testifying in favor of the bill was Katherine Saubel of the Los Coyotes tribe. The Los Coyotes are another small San Diego County tribe. The tribe was deeply divided over a commercial landfill project being championed by the tribal chairman. Katherine Saubel, the spokesperson for the dissidents, supported AB 3477, as well as a bill sponsored by Congressman Duncan Hunter that would have declared a moratorium on commercial waste projects on San Diego County reservations. In chapter eleven, we will compare the two cases in an effort to understand why the Los Coyotes, unlike the Campos, split over their landfill project, the dissenters making common cause with non-Indian opponents of the project.

    In an interview, Saubel declared that she was "not educated at all."  When she was eight years old a "government man" had told her father that she would have to go away to an Indian school; concerned that she "would lose my language and everything else like a lot of Indians," she talked her father into letting her remain at home. "That is why I have retained my language, fluently. I have written books on a lot of things that pertain to the Indian people. I really understand who I am, what lineage I belong to and what clan I am a member of. I really know myself."

    With her short gray hair, large glasses, direct bearing, and natural dignity, Katherine Saubel was "one of the most powerful witnesses" PCL's Corey Brown had seen in twelve years of lobbying.  The Los Angeles Times agreed.

     The most poignant moments [in the hearing before the Senate Toxics Committee] came when 70-year-old Katherine Saubel, a Cahuilla Indian from the San Diego-area Los Coyotes reservation, said the bill is necessary to "stop the exploitation" of her tribe, which is also entertaining the idea of leasing its land for a dump.

    "They are told by their so-called leaders to accept controversial proposals such as landfills by waving dollar bills in front of their eyes," said Saubel, her testimony creating a hush in the hearing room. "When it is too late, the Indians will realize what they gave up: the land they valued so much before the clean water, the unpolluted water, even facing the possibility of themselves becoming sick."

    The Times noted that the "often acerbic (Committee Chairman] Torres seemed particularly touched by Saubells comments."  Steve Banegas, a member of the Barona tribe in San Diego County and a leader of southern California's Coalition for Indian Rights, also testified in support of AB 3477, saying, "We should not poison ourselves and our families tomorrow for a small profit today."

    In the face of these appeals, the Campos' argument, supported by the legislative counsel opinion, that the proposed legislation would be nullified by the courts, was unavailing, as was the Campos' assertion that their landfill regulations would be as strict as or stricter than the statels. AB 3477 passed the Toxics Committee by a vote of 5-1. Kevin Gover, the lawyer who represents the Campo tribe, said that he had expected the committee to vote for the bill all along. "It's clear that the prospect of losing a lawsuit doesn't deter anyone here .... This is tough politics for anyone to vote against more regulation of hazardous waste. We're in the ultimate political forum, and it is going to be tough for us to win" in the legislature.  Five weeks later, though, AB 3477 was rejected by the Senate Appropriations Committee by a margin of 6-2.

    The Los Angeles Times reported that there was "more than enough innuendo and allegation" to satisfy devotees of "gossip columns and sensationalistic magazines" at the Appropriations Committee hearing on the bill. "The Indians and at least one senator were upset about the "cheap shot' insinuation that the Campos and other tribes were easy dupes for well-heeled and corrupt East Coast garbage companies," the Times observed. Peace was even "more vocal than usual," the Times continued, in charging that "sleaze merchants" from Chicago and the East Coast were the secret force behind the opposition to his bill. Ralph Goff, the chairman of the Campos, commented: "It was a cheap shot .... We aren't going to be taken in by organized crime."  This time Peace's tactics may have backfired, resulting in his defeat in the Appropriations Committee. The mood of the committee appeared to shift after one senator, in announcing his opposition to the bill, commented that Peace had implied that the Indians were being bought off. However, Peace lived to fight another day; after the negative vote, he persuaded the committee to schedule AB 3477 for reconsideration the following week. "Peace was undeterred, saying he will return next week with his own contingent of witnesses. He said he was unable to get them organized in time for Monday's hearing. "My people don't have a big corporation to pay money to run them up to Sacramento, said Peace, throwing a last verbal jab at the firms he says are behind the Indians."   Later, Donna Tisdale ruefully reflected upon the fact that she and Ed had flown from San Diego to Sacramento to testify at all the hearings except one, the one they lost.

    During the recess between hearings, the lobbyists remained in session. Corey Brown of the Planning and Conservation League wrote to members of the Senate Appropriations Committee: "A vote against AB 3477 is a vote against protecting public health and Californials groundwater supplies."

    Kevin Gover was also writing to members of the committee, exhorting them to "stick with your negative vote" on the bill when it was reconsidered. In his letters, Gover reiterated his contention that the proposed legislation would be struck down by the courts. "It is true, of course, that lawyers may reasonably disagree on the likely outcome of litigation; when, however, the state legislature's own lawyer concludes that the tribes are likely to win, the tribes, case must be unusually strong."

    Gover asked that the Campo project be considered on its own merits, and not be lumped in with other cases where tribes might be acting less responsibly.  Regarding the allegations that the Campos were unwitting pawns of corrupt landfill developers, Gover said that such allegations were impossible to respond to because "whatever we say, the bill's supporters will claim that we are being duped."  However, he pointed out, the landfill companies with which the Campos were negotiating were the largest waste management companies in the nation, many of them already operating waste facilities in California. "If these companies are organized crime fronts, then the state already is overrun with organized crime in the solid waste industry."

    Gover argued that AB 3477 was unnecessary because the Campo landfill would be covered by three other layers of regulations. First, in reviewing the federal environmental impact statement that was being prepared on the project, the Interior Department would likely impose "numerous and strict" controls on the proposed facility before giving the Campos approval to lease the site to a developer. Second, the Campo tribe would abide by, and would require a developer to abide by, EPA's criteria and [*3951 guidelines for the siting and operation of landfills; if the tribe or the developer failed to do so, they would be subject to suit under the citizens, suit provisions of the federal Resource Conservation and Recovery Act (RCRA). Third, the Campos were developing tribal landfill regulations that would be as strict as or stricter than the statels.  "We have no interest in fouling the reservation environment; it is the Indians, after all, who will feel the impacts of the landfill most directly."

    Compromise Proposed By Campos: Voluntary Agreement WithState Finally, Gover argued that the jurisdictional dispute was unnecessary. It was the policy of the Campo tribe, he stated, to accommodate the state if we can do so without giving up the fundamental right to decide what will and will not take place on tribal lands. For this reason, we have put a lot of energy into negotiating an agreement with the state by which the state agencies would have free access to the project for inspections and would receive all the information required to allow those agencies to evaluate the environmental quality of the landfill's construction and operation. I would emphasize that we do not have to do this; the Band has determined, however, that it will further the environmental goals of the Band to procure - at considerable expense, I might add - the expertise of these state agencies to support the private sector expertise that we have retained to advise the Band and to assist in the enforcement of tribal laws. We are disappointed and, very frankly, feel a deep sense of betrayal that agencies such as the Attorney Generalls office, the San Diego County Board of Supervisors, and the Solid Waste Management Board would support this legislation at the same time they pretend to be negotiating with us in good faith. Nevertheless, because we believe that the state agencies have expertise that will further our environmental goals, we will resume negotiations with the state agencies on the final defeat of AB 3477.

    This last point is critical because if it is true that the Campos intended to regulate the proposed.landfill as strictly as the state would, and were prepared to enter into a voluntary agreement with state agencies to achieve that end, a compromise that respected tribal sovereignty while protecting the off-reservation environment would seem to have been possible.

    Mike Connolly recalls that the Campos initiated discussions with county and state officials concerning a voluntary agreement well before AB 3477 was introduced in the legislature. In those discussions, the representatives of the Campos emphasized that they intended to regulate the project as stringently as the state would, and were prepared "to set up a process where the state could come in and make sure that things were being done right."  Connolly attended a meeting with the staff of the San Diego Regional Water Quality Control Board soon after the project was announced, to discuss a cooperative agreement. The Campos offered to reimburse the regional water board for assistance in establishing the tribal regulatory program. The idea was scotched, Connolly says, because Steve Peace, BAD, and the San Diego County Board of Supervisors convinced the regional water board that a cooperative agreement would give the tribels environmental protection program credibility and thereby facilitate the project. Steve Peace also argued that the regional water board should not work with the Campo Environmental Protection Agency until the issue of tribal sovereignty was resolved. The regional water board "was under so much political heat that they decided to stay'out of it," Connolly concluded. 

    In a letter endorsing the Peace legislation, Art Coe, the executive director of the regional water board, acknowledged that the board staff had been negotiating a cooperative agreement with the Campo Environmental Protection Agency to provide technical assistance on the proposed landfill. The regional water board decided to break off the negotiations, Coe said, because it believed that "its limited resources will be better utilized addressing those water quality issues and problems over which the Board has clear regulatory authority."

    In an interview conducted after the dust of the legislative battle had settled, Coe said that the Campos had been "open to just about anything that we would propose as far as some kind of cooperative oversight agreement, including their actually reimbursing us for some of the staff costs associated with that oversight role .... Just to editorialize a little bit," Coe continued, "in this whole proceeding ... my feeling is, and the (State Water Resources Control Board) staff working with us have echoed the same feeling, that there are very few ... groups that we have worked with that are as cooperative and as willing to try to make things work, as the people involved with the Campo landfill."  Mike Connolly, in particular, Coe observed, had been easy to work with. "I suspect," Coe concluded, "that if it hadn't been for the jurisdictional issue and the potential problem of butting our heads against a problem and not having the authority to resolve it, we probably would have been able to work out a cooperative agreement without the state legislation."

    However, when John Grattan, a lobbyist for the Campos, had broached the idea of a cooperative agreement between the tribe and the state as a means of resolving the jurisdictional conflict raised by AB 3477, the reaction of David Takashima, Peace's chief of staff, had been an "indulgent chuckle."

    It is a tribute to Steve Peace's legislative skills and dogged tenacity that when the Senate Appropriations Committee reconsidered AB 3477, he not only snatched victory from the jaws of defeat but did so by a unanimous vote. The Los Angeles Times attributed the turnaround to Peace's having "used testimony from a Riverside County prosecutor and cleverly written amendments to blunt the opposition and resurrect the bill, sending it to the full Senate for a vote." The testimony of the Riverside County prosecutor concerned an investigation of illegal dumping of several hundred truckloads of lead-contaminated soil in a dry riverbed on the Soboda Indian reservation. The prosecutor told the committee that failure to enact AB 3477 would leave the policing of Indian landfills to the Environmental Protection Agency and the Bureau of Indian Affairs, agencies he characterized as quick to claim jurisdiction but slow to respond in the Riverside County case.

    One of Peace's amendments limited the reach of the bill to counties with a population of more than 125,000. This took the heat off legislators representing twenty-six sparsely populated counties, mostly in northern California, whose relatively large Indian constituencies had been pressuring them to oppose the bill. one of those legislators, "Sen. James W. Neilson (R-Rohnert Park) abstained after voting against the bill last week. The Peace amendments exempted 18 of the 34 reservations in his district."  To placate the central and southern California legislators who represented the other Indian reservations in the state, Peace amended the bill to require a finding that a proposed reservation waste project would adversely affect the environment or public health outside the boundaries of the reservation. "The effect, Peace explained after the hearing, was to make it politically impossible to vote against the bill."  Peace himself, the Times reported, "closed the testimony with an impassioned speech that sounded more like a Sunday sermon.... 'The only reason these companies are here, arguing, attempting to hide behind ... the veil of Indian representatives, is they want to build substandard landfills and hazardous waste facilities.'"  Following the vote, a lobbyist for the Campo tribe gave Peace a backhanded compliment, saying that he had been 'very emotional, very sensational and very effective." Mike Connolly was more direct; asked how Peace had been able to get the committee to reverse itself, Connolly replied, "By lying through his teeth." 

    Less than two weeks later, Peace parlayed the vote in the Appropriations Committee to resounding victories in the full Senate, as well as the Assembly. Donna Tisdale sensed, however, that the proponents of the bill might have won the battles only to lose the war. After meeting with Pat Kenady, a representative of Governor George Deukmejian, Tisdale expressed concern that the governor might veto the legislation.  "Kenady didn't want to hear anything we had to say" she said. "It was very frustrating." Showing her frustration, Tisdale said of the Campos, "Unfortunately, they ... have no love of the land.  They just want to make a cfuick buck off of it."  On September 30, 1990, Governor Deukmejian did veto AB 3477, expressing concern that the bill interfered with tribal sovereignty, conflicted with federal law, and was of questionable constitutionality. 

Law of the Land Irrelevant for Lawmakers

    It is remarkable how little significance the legislators appear to have attached to the legislative counsel opinion that AB 3477 was preempted by federal law. Indeed, lawyer-lobbyists on both sides of the issue believe that the legislative counsel opinion was completely irrelevant to the legislative battle. It is not that the legislators disagreed with the legislative counsel; they apparently just did not care whether the proposed legislation would be struck down by the courts. "I don't think any legislator voted for or against the bill because of the (legislative counsel] opinion," says Corey Brown, general counsel of PCL. Legislative decisions are "not so much based upon the legal issues, but rather the combination of the policy issues and the political support on one side or the other.... (The legislative counsel opinion] was a factor to consider in developing policy arguments, and a tool that can be used in the political process, but I don't think it was a decisive factor in any single vote." 

    John Grattan, who lobbied for the Campos, agrees with Brown. In particular, Grattan discounts the possibility that the initial vote in the Senate Appropriations Committee, the vote the Campos won, was influenced by the legislative counsel opinion. Indeed, Grattan suspects that the members of the committee may not have known exactly what they were voting against. "There was a fair amount of confusion on the part of committee members as to what the bill did, didn't do." Because a deadline was approaching for getting bills out of the committee, "they were hearing literally hundreds of bills that day. It was a complex legal issue and a complex policy issue; and confusion aids those who want "no votes, so confusion aided us. What happened in the meantime was that Steve Peace had access to the members, and he just did a better job of getting votes." 

    For idealists who want to believe that those who make and execute the law are guided by it, the action of Governor Deukmejian in vetoing AB 3477 and the grounds stated for the veto seem reassuring. However, the participants on both sides profess to hold no such illusions. An environmental advocate who supported AB 3477 believes the governor vetoed the bill neither out of deference to the highest court in the land nor out of concern for Indian sovereignty, but simply because he was a "complete Neanderthal," who was against anything the environmental community favored. A lobbyist who opposed the bill agrees that the veto may not have been a principled act. Rather, he says, it was an "easy veto" for the governor. Governor Deukmejian was a Republican; Peace was a Democrat, and one not well liked by the Administration. Moreover, Attorney General John Van de Kamp, whose office had supported AB 3477, had campaigned unsuccessfully for the Democratic nomination to succeed Deukmejian. Finally, there was, reportedly, the Armenian connection, which was said to account for many of the governor's actions. The San Diego Union quoted "legislative sources" as predicting that Deukmejian would veto the bill because of "his close ties to Armenian-Americans in the waste management industry who helped elect him governor."  Of course, this is all speculation, perhaps base speculation, about the governor's motives, but at least it tells one a great deal about the state of mind of those whose business it is to influence legislation.

    The veto provided the climax for what turned out to be merely the first act of a legislative cliffhanger. Deukmejian's motivation soon became irrelevant. The role of governor was about to be recast.

Chapter Eight

An Armed Truce

    Two months after George Deukmejian vetoed AB 3477, Pete Wilson was inaugurated as governor of California. Less than two weeks after that, Steve Peace reintroduced his bill, which in the new legislative session was given the number AB 240.

    Donna Tisdale says that Peace did not have to be persuaded to resume the fight; "he was very gung ho about it." The last impediment to the enactment of the legislation may have been removed with Wilson's election, Donna hoped, because he had once been the mayor of San Diego. San Diego, like other southern California cities, is dependent upon imported water; therefore, Wilson might be more sympathetic to the argument that the state has an overriding interest in protecting the sole source of drinking water for a substantial number of San Diego County residents. 

    Corey Brown of the Planning and Conservation League also saw reason for optimism. As a mayor and as a United States senator, Wilson had a good record on the environment, certainly much better than Deukmejian's; he could be expected to give the proponents of AB 240 a fair hearing.  David Takashima thought the personal chemistry would be better, too. Steve Peace had a personal relationship with the new governor dating back to the time Wilson had been mayor of San Diego, and Takashima knew members of the gubernatorial staff.  With the substitution of Wilson into the cast, there was reason to hope that the last act of the drama might be rewritten. The opening scenes were repeated, however, with the familiar lines being delivered with even greater vehemence.

    Before AB 240 was first heard in committee, Ralph Goff, chairman of the Campo tribe, wrote to lawmakers in response to the "misrepresentations, half-truths and falsehoods" he reported finding in Peace's recent "dear colleague" letter to them. Denouncing AB 240 as a "groundless, politically opportunistic attempt to gut our efforts to safely achieve economic self-sufficiency," Goff repeated that the tribe had no interest in fouling their reservation environment or that of the surrounding area. Accordingly, Goff said, the tribe had adopted landfill regulations that were at least as strict as the statels. Finally, he reiterated the Campos, willingness to enter into some sort of oversight arrangement with the state, so long as the tribels sovereignty was respected.

    We have initiated negotiations toward an agreement with the state by which state agencies would have free access to the project for inspections and would receive all the information required to allow those agencies to evaluate the environmental quality of the landfill's construction and operation.  We have determined that it will further the environmental goals of the Band to procure and utilize the expertise of these state agencies to augment the private sector specialists that we have retained to assist in the enforcement of tribal laws.  That policy of openness will continue.  Yet we cannot and shall not relinquish the fundamental right to decide what will and will not take place on tribal lands. 

    In a statement announcing a press conference to be held the day before the first committee hearing, Steve Peace refiled his charges against the tribes and the waste companies. "The garbage gold rush is on targeting Indian Reservations with promises of cash for turning their land heritage into waste dumps." The motivation of waste companies proposing to build facilities on reservations was simple, Peace alleged: "dodging state environmental safeguards and safety standards." 

    At the news conference itself Katherine Saubel, whose struggle to stop the landfill project on the Los Coyotes reservation was approaching a climax, was again the legislation's most compelling spokesperson. "Landfill people come in and do as they please on our reservation, and we have nothing to say about it," Saubel complained. "So that's why we want this bill to pass, those of us that are fighting to preserve our land so that it will be pure for our children and our future. Especially the water. We have all these animals that live there, the food that we eat there, that's all going to be destroyed. And that's the [land] that our Creator gave to us so that we could live from it."  Following the press conference, AB 240 sailed through the Assembly Committee on Environmental Safety on a 10-2 vote, and within the month had also passed the Assembly Committee on Natural Resources by an 11-1 margin. Coming out of the Natural Resources Committee, Peace appeared to be driving a juggernaut. The list of organizations supporting and opposing AB 240 suggested that Peace had not only retained his base but had broadened it significantly. As before, the two state agencies primarily interested in the legislation - the state water and waste boards - endorsed it. Peace's campaign to convince legislators that AB 240 was a thoughtful response to an environmental problem of statewide concern, rather than an expression of bias or NIMBYism, received a boost when the Sierra Club joined the Planning and Conservation League in lobbying for the bill. Moreover, the support of environmentalists for the bill was complemented by endorsements from two major waste management firms - Laidlaw Environmental Services and Waste Management of North America - as well as the California Manufacturers Association. The support of the business community appeared to provide the governor ample political cover.

    The environmental organizations and the waste companies not operating on Indian reservations had a common interest in keeping the regulatory playing field as level as possible. If waste companies operating on reservations did not have to meet Californials strict standards, waste companies operating elsewhere in the state would be at a competitive disadvantage; waste would flow to the less strictly regulated, lower-cost reservation facilities, undermining the effectiveness of the strict state standards. A lawyer for the waste companies stated the argument as follows:

    AB 240 is of critical importance to the California waste industry. California facility operators have made enormous capital investments to comply with Californials rigorous environmental requirements. If facilities are allowed to operate on Indian lands, meeting only the more lenient federal standards, existing California facilities, which comply with California laws, will be placed at a serious economic disadvantage.

    AB 240 is equally important to California environmental groups. Both the Sierra Club and the PCL have worked with industry and state regulatory officials to develop California hazardous waste treatment and disposal standards that, in many cases, are far more stringent than federal requirements. In fact, many wastes deemed "hazardous" under California law may be handled as ordinary, solid wastes under the federal requirements. Absent AB 240, large volumes of "California only" hazardous wastes would flow to Indian lands, where the more lenient federal standards would apply. This would create a huge loophole in California law, effectively destroying the additional health and environmental protection afforded by California law.  

    Nevertheless, when AB 240 reached the Assembly Committee on Ways and Means, which had passed AB 3477 by a margin of 21-0, it ran into real trouble. What had happened in the interim? For one thing, despite the presence of Katherine Saubel at Steve Peace's side, the Campos had made considerable progress in elevating the issue of tribal sovereignty.

 
Attack on Tribal Sovereignty Laid to Racism
 

    LaDonna Harris has been one of the most influential Indian leaders on the national scene for decades. On behalf of Americans for Indian Opportunity, she wrote to legislators that the effort "to deny the Campo Tribe their right to decide what to do on their own lands is an insult to all Native peoples.  We consider this a form of genocide equal to that of California's slaughter of Indians in the 1800's." 

    Eddie Brown, the assistant secretary of Indian affairs in the Department of Interior and himself an Indian, wrote directly to Governor Wilson. Reminding Wilson that former Governor Deukmejian had vetoed AB 3477 on the ground that regulation of reservation waste projects was preempted by federal law, Brown expressed dismay that the California legislature was considering a bill that failed "to rectify the flaws of its predecessors."

    The sovereignty issue also drove at least a thin wedge into the environmental bloc. Writing in opposition to AB 240, Bradley Angel of Greenpeace Action said that he had - at their request - assisted dozens of Indian groups and tribes to organize grassroots tribal opposition to proposed waste projects on reservations. "Indian people have succeeded in defeating dozens of proposals for waste facilities, while at the same time protecting their sovereignty," Angel declared. "Promoting legislation which would apply state law to Indian land will only further polarize the situation, and create a "white vs. Indian' situation that will set back the efforts of those of us, Indian and non-Indian, who are working together in this struggle," he warned.

    Black and Latino members of the legislature who had previously voted for AB 3477 might well have been given pause this time by the Campos' repeated assertions that they were the victims of racial bias and stereotyping. The Campos and their representatives made that case most compellingly in a professionally produced video. In it, Jim West, a Cheyenne who serves as the Campos, financial adviser, protested that the assumption made by the proponents of AB 240 "is that Indian people, as a race, are unable to develop (such a project] responsibly or to regulate it. Therefore, in my mind, AB 240 is clearly a racist piece of legislation."

    Mike Connolly also appeared in the video, recounting an experience that seemed to him to confirm Jim West's impression. Mike said that at a public hearing a few months earlier he had been asked by a non-Indian, "Well, whols in control of the regulatory system?" Mike replied, "The tribe is.,, "Okay, that's fine, but whols really in control?" Mike repeated, "The tribe is." "No, no, no. I mean whols really in control?" The clear implication, Mike concluded, was that "it's not a legitimate regulatory agency if there isn't a white guy standing there that says, 'I'm the final say in this matter.' "

    Kevin Gover, the Pawnee who serves as the Campos' lawyer, makes the closing argument in the video.

    One of the biggest problems we've had to deal with in this political fight is just overcoming stereotypes and people's predispositions about how smart Indians are. We've had to spend an awful lot of time just convincing people that Indians are smart enough to deal with waste companies, and Indians are smart enough to regulate landfills and manage the environment. And that's the sort of thing you shouldn't have to prove in this day and age.

    Indian people have been told all their lives that they're lazy, that they're ignorant, that they don't really want to do anything to improve themselves. And here we are at Campo, we're trying to create jobs, we're trying to create income. We're trying to build houses, we're trying to build clinics, we're trying to get the kids into college. And yet there are still people who want to keep us down. 

    According to John Grattan, a lobbyist for the Campos, the support for and opposition to AB 240 had come to "cut across all political stripes and cloths."  Grattan says one of the leading conservatives in the assembly, Tom McClintock, said, "It's very simple.  Either you believe in sovereignty, or you don't. It's all (the Indians] have left. We've taken everything else away from them.'"  Some liberals, with whom McClintock agreed on very little else, joined him in opposing the bill on this ground. However, for those liberals whose defining concern is the environment, the gap in the state's strict environmental laws was the paramount issue. They argued, according to Grattan, that the sovereignty issue was being overblown: "Come on. Let's not talk about a nation here. 'There are tribes with as few as twelve members!'"

The Tide Turns

    The legislature was.called upon to choose between equally legitimate but seemingly incompatible interests. On the one hand was the Campos' interest in regulating the use of their own land, developing their desperately limited economic resources, and exercising responsibility for their reservation environment. On the other hand was the state's interest in preventing reservation projects from jeopardizing the health and endangering the environment of neighboring communities. However, when the Assembly Ways and Means Committee met on May 22, the outcome may have been determined less by a careful balancing of the respective interests than by the fact that the lobbyists for the developer of the proposed Campo landfill, Mid-American, simply had more clout than the lobbyists supporting the bill. The scales may also have been tipped by the fact that Assembly Speaker Willie Brown had not completely forgotten nor forgiven Steve Peace's treachery a few years earlier.

    Having passed the Ways and Means Committee unanimously in the previous legislative session, the Peace bill appeared headed for defeat this time, losing a test vote early in the day. Three of Peace's fellow Democrats joined the opposition, including his coauthor on AB 3477. After five hours of what one reporter characterized as "behind the scenes intrigue," the committee ultimately reversed itself and passed AB 240 by a vote of 14 to 8. This time, however, it was not victory that Peace snatched from the jaws of defeat. It was the possibility of compromise. He'dissuaded the committee from killing his bill only by pledging to participate in negotiations - which the governor's office had offered to broker - that might lead to legislation authorizing the state to enter into a voluntary agreement with the Campos that would give the state some sort of oversight role in regulating the landfill.

    The San Diego Union reported that the necessity of compromise became clear after a "fierce daylong lobbying battle in which Assembly Speaker Willie Brown's reported opposition to the bill played a pivotal role." Representatives of the Campo tribe confirmed that Brown had met with them several times in the preceding months and had told them that he opposed AB 240, despite having voted for AB 3477. In addition to the speaker's opposition, Peace attributed his difficulties to heavy lobbying by the politically influential firm of Spencer-Roberts.  Karen Spencer represented Mid-American but Peace's allies are convinced that it was her father Stu, a campaign manager for Ronald Reagan, who opened the most important doors for Mid-American.

    Trying to put his own spin on the outcome, Peace claimed that he had always preferred a voluntary agreement between the Campos and state regulators, rather than legislation that would wind up in court, but that the Campos had previously refused to bargain seriously. "Without a live bill, Peace Questioned whether there would be good-faith negotiations toward a compact that would ensure adequate safeguards against environmental damage to the reservation and surrounding properties." Kevin Gover responded that it was Peace who had refused until then to negotiate. "We forced (Peace) to the table today. That's what happened."

    The battle between Steve Peace and the Campos was far from over. While its author now professed to prefer a compromise, AB 240 remained alive and as uncompromising as ever for the time being. And uncompromising was the way the bill's proponents preferred it. The Planning and Conservation League, for example, continued to lobby the full assembly to pass it. And BADIS ultimate objective was to stop the Campo project, not to ensure state oversight of it;
regardless of how well constructed and regulated the landfill might be, BAD was convinced, it would eventually rupture and poison their water supply.

    The Campos were proceeding on the two tracks laid down by the legislature
trying to kill the bill outright while expressing their willingness to enter into a voluntary agreement providing for a state regulatory role. At the same time, the tribe was trying to arrange a head-on collision by seeking federal legislation that would make it unmistakably clear that the states had no jurisdiction over reservation waste projects. In letters to Assembly members asking them to vote against AB 240 when it reached the floor, and reiterating the tribels willingness to enter into a cooperative agreement, Campo Chairman Ralph Goff added that "we have asked the United States Congress to examine this issue. Congress, of course, exercises plenary powers in Indian affairs .... We are hopeful that the Congress, as a body detached from the local political prejudices that drive AB 240, will see the benefits that both tribes and the states will realize from tribal waste projects.

    The Campos lost the vote on the Assembly floor by a better than two-to-one margin. However, their threat of congressional intervention gained credibility when Senator John McCain of Arizona introduced legislation - "The Indian Tribal Government Waste Management Act of 199111 - that was cosponsored by, among others, Senator Daniel K. Inouye of Hawaii, the chairman of the Senate Select Committee on Indian Affairs. The bill declared that the overriding goals of federal Indian policy are tribal economic self-sufficiency and self-government, affirmed the inherent authority of tribal governments to operate waste facilities on their reservations as a means of achieving economic self-sufficiency, and specifically recognized the inherent authority of tribes operating such facilities to accept waste generated off their reservations.

    To drive the message home, Senator Inouye attended a conference in Sacramento sponsored by the National Congress of American Indians. Inouye warned that the federal government would step in if the California legislature did not find a means of resolving the dispute without encroaching upon tribal sovereignty. "If matters of this sort are not resolved at this level, then there's an irresistible temptation on the part of the federal government to get involved," he cautioned. Peace was to have addressed the conference, too, but canceled out, saying that he was busy with other matters. United States senators do not customarily pay calls on state legislators, but Senator Inouye went to Peace's office. In their private meeting he presumably delivered much the same message that appeared in the Los Angeles Times headline the next day: "U.S. Senator Says Peace Bill on Indian Lands Is Doomed."  After his meeting with Inouye, Peace reported that the two sides were still far apart on "fundamental, substantive, serious issues." Crafting a compromise would not be easy, Peace said. "This is as delicate as any international negotiations that take place around the world. It's not any different than trying to negotiate tearing down the Berlin Wall."

Time to Compromise

    By the time AB 240 reached the California Senate, the tide was clearly running against it. Although the legislative counsel opinion regarding AB 3477 had been, at most, a makeweight in the debate over that bill, the longer, more closely reasoned, and equally negative legislative counsel opinion concerning AB 240 had become, in John Grattan's phrase, "the rhinoceros in the living room that couldn't be ignored." After all, whatever his actual motivation, Governor Deukmejian had relied on the reasoning of the legislative counsel opinion in explaining his decision to veto AB 3477.

    Despite his earlier optimism concerning the fate of the legislation under the new governor, PCL's Corey Brown had begun to fear that Governor Wilson would veto AB 240 unless it were amended to incorporate the cooperative agreement approach that the California Environmental Protection Agency (Cal/EPA), headed by a Wilson appointee, was pushing for. Paul Helliker, who was the legislative affairs director for Cal/EPA, confirms that the agency saw "potential constitutional problems" with AB 240, the same problems cited by Governor Deukmejian in vetoing AB 3477.  Moreover, there was no guarantee that an uncompromised bill, which Brown still preferred, would pass the Senate. Brown had seen too many environmental bills pass the Assembly, only to die in the upper house. Now, he sensed, the interest groups lobbying against AB 240 simply had more influence in the Senate than did the bill's supporters. Finally, even if AB 240 were passed by the legislature and signed by the governor, it might be nullified by the courts or Congress.

    These considerations, especially the growing likelihood of a second veto, cannot have been lost on Peace, whom many regard as (*4101 unscrupulous but none consider dense. As one of the opponents of AB 240 put it: "For a legislator, especially one playing to the homefolks, one veto is fine; you appear to be principled. But to have your bill vetoed twice makes you seem ineffectual."

 
    In the days leading up to the hearing in the Senate Toxics Committee, representatives of several of the interested parties - Peace, the Campo and La Posta tribes, the Cal/EPA, and the California Attorney Generalls Office - engaged in negotiations to amend the bill to provide for cooperative agreements.  When the Toxics Committee met on August 21, 1991, Peace agreed to amendments, which he said he hadn't even read, merely to keep his bill alive as negotiations continued.  The next day the negotiations were temporarily derailed when the host, an aide to Californials new Republican Attorney General Dan Lungren, refused admittance to lobbyists for the Sierra Club and two waste companies, prompting Peace's legislative assistants to walk out, too. Peace's reaction was in character. "This is not the Soviet Union - unless there was a
coup that I missed putting Dan Lungren in charge of the state of California."  Attendance had been limited to representatives of the state and of the tribes because the Campos had insisted upon conducting the negotiations on a government-to-government basis. The impasse was resolved when the Campos agreed to sit at the table with the interested nongovernmental groups, as well.

    AB 240 passed the Senate, but the Assembly refused to concur in the Senate amendments providing for cooperative agreements between tribes and the state. This set the stage for a conference committee hearing to try to draft a compromise bill that both houses could accept. Steve Peace chaired the conference and was the dominating force; other legislators came and went as the hearing, which began at 10:00 a.m., wore on into the early hours of the following day. The manner in which the hearing was conducted was unique in the experience of the participants. The harshest of partisans up to this point, Peace now adopted the role of a mediator, presiding over a marathon negotiating session in which all of the interested parties, in full view of the public and the press, worked through their differences. Instead of the usual practice of having the parties testify to the committee, Peace had them sit around the table, where the legislators usually sat, facing one another and confronting the divisive issues one by one. Each of the parties, including Peace, threatened to walk out at one point or another, but by 4:00 a.m. a compromise had been forged that everyone was prepared to support.

    "If you had asked me 48 hours ago if we thought we could get to this point, I would have said no," Peace commented at the time.  Two years later Corey Brown of PCL recalls the experience as "one of the best negotiating processes I've ever seen," and Joel Mack, lawyer for Mid-American, says he is still amazed that there was the political will on everyone's part to reach agreement.  During that long night, clearly, the former antagonists came to respect one another insofar as each of them contributed to their now-common goal. The Campos, lobbyist John Grattan says that Peace, once he had decided he wanted a veto-proof bill, was "masterful" in facilitating the compromise. Corey Brown says that whenever the parties came close to impasse, Mid-American's Joel Mack would find a way of bridging the differences. Paul Helliker, who represented Cal/EPA and its constituent state agencies, credits Mike Connolly as "a reason why the negotiations ended up being as successful as they were." Mike, Helliker says, is "a very competent individual, and he assembled a good team. He's a low-key ... congenial person. I think that helped a lot."

    Four days after the compromise was reached, AB 240 was overwhelmingly passed by both houses, and Governor Wilson signed it on October 10, 1991.

Agreeing to Disagree But Cooperate

    These are the key elements of a state-tribal cooperative agreement under AB 240:

 
Jurisdiction
 
    The parties preserve their positions on jurisdiction. That is, they agree to disagree over the question of whether the state has authority to regulate a reservation waste project in the absence of the tribels consent. The war is not over; the parties have simply entered into an armed truce. As Taylor Miller, the lawyer for the Campo EPA, puts it: "Everyone keeps their powder dry." We shall return to this point.
Functional equivalency
 
    In order to enter into a cooperative agreement with a tribe, the state environment secretary must make a good-faith determination, based on the advice of the state water, air, and waste boards, that the tribal regulatory program for hazardous or solid waste is functionally equivalent to the state's - that is, that it provides "at least as much protection for public health and safety and the environment as would the state requirements."
 
Permit review
 
    In addition to determining whether the tribal regulatory program itself is functionally equivalent to the statels, the state will review draft permits issued by the tribe for the construction or operation of the waste facility to determine whether they:

    1. meet the functionally equivalent standards set forth in the agreement;

    2. provide not less than the level of protection for public health, safety, and the environment that a state permit would require; and

    3. implement all feasible measures to mitigate the adverse environmental consequences of the project.

 
State Enforcement

    The state may exercise its enforcement powers over a reservation waste facility if the following conditions are satisfied:

    1. a violation of the applicable standards or regulations has occurred or is occurring;

    2. the violation has been brought to the attention of the tribe and of the owner and operator of the facility in writing; and
 
    3. the tribe, after having received notice, has failed to take action to correct the violation within a reasonable time.

    However, the state may take enforcement action immediately, if immediate action is required to avoid an imminent and substantial threat to public health or the environment, and the tribe has been notified.

 
Access and Data

    The tribe is to allow state agency personnel reasonable access to the reservation for the purposes of carrying out their responsibilities under the agreement, and the parties are to share with one another such information as inspection reports and monitoring data.

 
Technical assistance
 
    Subject to reimbursement, the state will provide the tribe with technical assistance in designing and implementing its permitting, monitoring, and enforcement programs.
 
Dispute Resolution

    The state or the tribe may bring a civil action to enforce the terms of the cooperative agreement, and the parties waive their sovereign immunity for the purposes of such suits. Alternative dispute resolution mechanisms, like mediation, are to be included in a cooperative agreement, so that litigation will be a last resort.

    The Campo Environmental Protection Agency (CEPA) submitted a proposed cooperative agreement to the California Environmental Protection Agency on March 21, 1992, thereby initiating the formal review, comment, and decision period provided under AB 240. Recall that a finding of functional equivalency is a prerequisite to a cooperative agreement. That is, the secretary of Cal/EPA must be satisfied, based on the advice of the state water, air, and waste boards, that the tribal regulatory program will provide "at least as much protection for public health and safety and the environment as would the state requirements."  Paul Helliker of Cal/EPA coordinated the comments of the state boards. According to Helliker, Mike Connolly and his advisers "kind of bent over backwards" to make the tribal solid waste code conform to the statels. "In fact, every time the California regulatory staff would say, well, this is how we think you ought to write it, [the Campos] would make a modification" to the tribal code.

    After a series of formal negotiations between Cal/EPA and Campo EPA, the proposed agreement was released for public comment and review, including a public hearing in a community near the reservation. On December 10, 1992, Secretary James M. Strock, the head of the Cal/EPA, signed a finding that the proposed cooperative agreement met the requirements of AB 240. Campo EPA's regulatory system, Secretary Strock found, is very closely patterned on Californials, with no material differences between the two. At the signing ceremony for the cooperative agreement itself, Secretary Strock commented that the Campo tribe had adopted stringent standards for the design, construction, and operation of the proposed facility, standards that are "at least as protective, and in some cases more so, than those in effect throughout California. To complement these tough standards, we expect CEPA to be diligent in enforcing them," continued Strock.  "[CEPA Director Mike] Connolly has assembled a well-trained team at CEPA, and I have confidence that he and his staff are prepared for the task. However, we stand ready to step in, should Cal/EPA action be required to prevent environmental contamination problems."  Strock concluded by expressing the hope that the agreement would serve as a model of environmental partnership between states and tribes, largely eliminating jurisdictional disputes as a source of the conflicts that have marred state-tribal relations in the past.

Assessments of the Cooperative AgreementProcess

    Two years after they bought into the compromise that resulted in the enactment of AB 240 and made the cooperative agreement between the state and the Campo tribe possible, the interested parties, with the notable exception of BAD, express no buyers' remorse. Corey Brown is the most guarded. Reiterating the view he expressed after he emerged from the marathon negotiating session, Brown says, "If the state agencies are vigilant, it's a good bill; if the state gencies are not vigilant, it's not a good bill." 

    Karen O'Haire is a lawyer for the state water board, one of the agencies upon whose vigilance Corey Brown and other environmentalists are counting. In order to assess the value of a cooperative agreement under AB 240, she says, you must consider the alternative. Because of the jurisdictional conflict, state agencies have found it difficult, if not impossible, to obtain the information and access necessary to investigate suspected environmental problems on reservations. Under the cooperative agreement, the Campos have agreed to provide the necessary information and access. The greatest benefit, though, is the open dialogue that has developed between the state and the tribe. That will save everybody time and money. The cooperative agreement process, in O'Haire's view, is a "win-win." 

    Taylor Miller, along with his partner John Grattan, was a lobbyist for the Campo tribe. A lawyer, Miller now represents the Campo Environmental Protection Agency. He emphasizes that AB 240 in its final form is respectful of tribal sovereignty. Cooperative agreements are not mandated by the statute; they are voluntary .Under the cooperative agreement process, a tribe retains the flexibility to craft its regulations to meet its individual circumstances, so long as they are functionally equivalent to the statels. The oversight provisions require appropriate deference. In the absence of an emergency, the state cannot step in until it has given the tribe notice of the suspected problem and a reasonable opportunity to address it. Most importantly, the process provides mutual incentives to focus on real environmental concerns, rather than "jurisdictional posturing." Miller's bottom line: "So far, so good."

    Joel Mack, the lawyer for Mid-American, picks up on Miller's last point. From a developer's point of view, one of the principal benefits of a cooperative agreement is that it removes some of the uncertainty surrounding a project. Uncertainty kills projects. A client contemplating an investment of millions of dollars developing a reservation waste project wants to know whether the state will prevail in court if it asserts jurisdiction over the facility. The only honest answer, Mack avows, is that it will depend on what the nine people then on the Supreme Court want the law to be. The high court's cases on tribal sovereignty, Mack asserts, "don't make any sense at all. As a universe. Particular cases do, in particular circumstances. But on the whole there is no unifying theme." And the Campo case, says Mack, "had Supreme Court written all over it." A cooperative agreement deals with the jurisdictional question by "putting it in the freezer," until a concrete dispute arises under the agreement.

    This raises a question deferred until now. What precisely does it mean to say that the parties to a cooperative agreement have "agreed to disagree" over the issue of state jurisdiction? The following hypothetical case may help us think this question through. Suppose that a serious violation of a Campo EPA regulation, one that poses a substantial risk of environmental damage, comes to the attention of California authorities. Suppose that the state properly notifies CEPA and Mid-American of the violation. Suppose that CEPA fails to take action to address the problem-within a reasonable period. Finally, suppose that the state properly exhausts the possibilities of alternative dispute resolution and then goes to a court of competent jurisdiction to enforce the terms of the cooperative agreement as a contract. Would it be inconsistent with the terms of the cooperative agreement for CEPA to argue to the court that the state has no jurisdiction to take an enforcement action to abate the environmental problem?

    Taylor Miller, the lawyer for CEPA, believes that CEPA would be free under the cooperative agreement to raise the jurisdictional issue. "The state at that point, in order to do anything about (the alleged violation of a CEPA regulation), would have to win the jurisdictional issue."  Perhaps surprisingly, when asked the same hypothetical question, representatives of the state confirmed that the cooperative agreement would not bar CEPA from contesting the state's jurisdiction. Jurisdiction, says Karen O'Haire, a lawyer for the state water board, "is one argument (a tribe) can bring. We would hope they wouldn't and that they would believe in the process and the agreement."   Paul Helliker of Cal/EPA believes that a cooperative agreement under AB 240 does not in itself give the state any additional enforcement authority over a reservation waste facility.

    If it is not enforceable as a contract, isn't a cooperative agreement illusory? Not so, say Miller, O'Haire, and Helliker. The very fact that the state and a tribe have entered into a cooperative agreement means that the state has been satisfied that.the tribe has adopted waste regulations that are at least as protective as the statels. That is not chopped liver. Moreover, the state and the tribe may be able to resolve any disputes regarding enforcement without resorting to court. If state and tribal regulatory officials are equally committed to protecting the environment, and if the experience of working together under the cooperative agreement promotes mutual trust and confidence, such a dispute may never arise. However, if it does, Helliker points out, the facts stated in the hypothetical case would give the state a compelling record on which to litigate the question of jurisdiction.

    Joel Mack, the lawyer for Mid-American, makes a related point. If the Supreme Court were to review the question of state jurisdiction over a reservation waste project in the absence of a cooperative agreement, Mack predicts, it would use a balancing test: Are the federal and tribal interests in tribal self-government, self-sufficiency, and economic development outweighed by the state's interest in protecting the off-reservation environment? However, a balancing test assumes that the competing interests have a sort of materiality, a concreteness, a "heft." Weighing abstract interests in a vacuum, Mack points out, leads to unpredictable results.

    On the other hand, under a cooperative agreement the parties articulate their interests with particularity and their rights and responsibilities with specificity. Therefore, if the question of jurisdiction arose under a cooperative agreement, the court might inquire, along the lines of our hypothetical case, into the following questions: Was there a violation or threatened violation of a specific regulation set forth in the agreement? Did the state notify the tribal regulatory authority and the facility operator in writing of the problem? Did the tribal agency fail to address the problem within a reasonable time? If the parties are to spend their limited resources in litigation, says Mack, then let them litigate such questions of genuine environmental concern, concrete questions appropriate to judicial review, rather than the abstract and ultimately political question of tribal sovereignty. The cooperative agreement process under AB 240, concludes Mack, is a "terrific process." 

    The most significant holdout from the chorus of approval is BAD. BAD did support AB 240 in its final form, while making it clear that the organization was not dropping its opposition to the Campo project. n37 However, BAD has since filed suit in state court against the state water and waste boards, contending that the agencies abused their discretion in approving the construction permit issued by Campo EPA to Mid-American. The gist of BAD's complaint is that CEPA, inconsistently with the cooperative agreement, split the permitting process into two parts - authority to construct and authority to operate - and that the defendant state boards approved the construction permit while deferring the critical issues until they review the operating permit.

    The state legislative process resulting in the cooperative agreement was one of the two major fronts in the Campo landfill war. The other was a federal administrative process - the study of the likely environmental effects of the project, to which we now turn.
 
 
 
- - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - -

Stephen Green, ed., California Political Almanac, 1991-1992, 303.

Richard zeiger and A.G. Block, "The Decline and Fall of Speaker Willie Brown, Jr.?" California Journal, April 1988, 154.

Zeiger and Block, "Decl ine and Fall," 154.

Green, "Almanac," 303.

    From The Campo Indian Landfill war: The Fight for Gold in Californials

Garbage, by Dan McGovern. Copyright 1 1995 by Dan McGovern. Reprinted with

permission of the University of Oklahoma Press.

Richard Zeiger, "Rating the Legislators," California Journal, March 1990, 133; Richard Zeiger, "The Capitolls Best," California Journal, April 1992, 173; Richard Zeiger, "California Journalls Third Biennial Survey Spotlights the Legislature's Best," California Journal, March 1994, 9.

Zeiger and Block, "Decline and Fall," 154.

Steve Peace, Letter to Donna Tisdale, January 12, 1990.

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

Rudy Corona, Interview by author, October 20, 1993.

David Takashima, Interview by author, October 20, 1993.

San Diego Union, "Bill Aims at Tribels Dump Plans," March 6, 199

United States v. Wheeler, 435 U.S. 313, 323 (1978).

Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 156 (1980).

Charles Warren, The Supreme Court in United States History, vol. 2, 1923, 189.

Felix S. Cohen, Handbook of Federal Indian Law, 1982, 81.

Cohen, Handbook, 82.

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832).

Rice v. Rehner, 463 U.S. 773, 718 (1983), quoting organized Village of Kake v. Egan, 369 U.S. 60, 74 (1962).

Rice v. Rehner, 463 U.S. 713, 722-23.

Rice v. Rehner, 463 U.S. 713, 724.

Rice v. Rehner, 463 U.S. 713, 726.

Carole E. Goldberg, "Public Law 280: The Limits of State Jurisdiction over Reservation Indians," U.C.L.A. Law Review 22 (1975): 535, 541.

Bryan v. Itasca County, 426 U.S. 373 (1976).

California v. Cabazon, 480 U.S. 202, 207-12.

California v. Cabazon, 480 U.S. 202, 214-15.

California v. Cabazon, 480 U.S. 202, 216.

California v. Cabazon, 480 U.S. 202, 216.

California v. Cabazon, 480 U.S. 202, 218-19.

Washington v. Colville, 447 U.S. 134, 155.

California v. Cabazon, 480 U.S. 202, 219.

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 341 (1983).

California v. Cabazon, 480 U.S. 202, 220.

California v. Cabazon, 480 U.S. 202, 220.

California v. Cabazon, 480 U.S. 202, 220-22.

State of Washington, Dept. of Ecology v. United States Environmental Protection Agency, 752 F.2d 1465, 1472 (9th Cir. 1985), citation omitted.

U.S. Environmental Protection Agency, "EPA Policy for the Administration of Environmental Programs on Indian Reservations," William D. Ruckelshaus, November 8, 1984.

Blue Legs v. U.S. EPA, 668 F. Supp. 1329 (D.S.D. 1987), affld, Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094 (Bth Cir. 1989).

California v. Cabazon, 480 U.S. 202, 216.

California v. Cabazon, 480 U.S. 202, 219.

California v. Cabazon, 480 U.S. 202, 216, quoting New Mexico v. Mescale.ro Apache Tribe, 462 U.S. 324, 333-34 (1983).

Ralph Frammolino, "Lawmakers and Indians Wage War over Dump," Los Angeles Times, July 5, 1990.

Ralph Frammolino, "Indian Environmental Bill Clears Hurdle," Los Ange imes, July 6, 1990.

Corey Brown, Letter to California State Senator Robert Presley, Chairman of the California Senate Appropriations Committee, August 16, 1990.

Darryl Wilson, "Five Hundred Years from Now," News from Native California, February-April 1991.

Corey Brown, Interview by author, October 19, 1993.

Frammolino, "Indian Environmental Bill Clears Hurdle."

Ron Roach, "Garbage-Dump Limit for Indian Lands Advances in Senate," San Diego Tribune, July 6, 1990.

Frammolino, "Indian Environmental Bill Clears Hurdle."

Ralph Frammolino, "Campo Indians Accuse Peace of Cheap Shots at Landfi Hearing," Los Angeles Times, August 14, 1990.

Donna Tisdale, Interview by author, October 9, 1993.

Corey Brown, Letter to California Senator Robert Presley, emphasis in the original.

Kevin Gover, Letter to California State Senator Alfred Alquist, August 15, 1990.

Gover, Letter to California State Senator Alfred Alquist.

Michael Connolly, Interview by author, October 12, 1993.

Arthur L. Coe, Letter to California Assemblywoman Sally Tanner, Chairwoman of the California Assembly Environmental and Toxic materials Committee, February 21, 1991.

Arthur L. Coe, Interview by author, October 19, 1993.

John Grattan, Interview by author, October 13, 1993.

Ralph Frammolino, "Bill Curbing Use of Indian Land Revived," Los Angele Times, August 21, 1990.

Michael Smolens, "Senate Panel Switches, OKs Scuttling Campo Dump," San Diego Union, August 21, 1990.

Daniel C. Carson, "East County Indians Hire Ohio Firm to Build Landfill," San Diego Union, September 20, 1990.

Michael Smolens, "Governor Vetoes Bill Jeopardizing Reservation Trash Plan," San Diego Union, October 1, 1990.
 
Corey Brown, Interview by author, October 19, 1993.

John Grattan, Interview by author, October 12, 1993.

Daniel C. Carson, "East County Indians Hire Ohio Firm to Build Landfill."

From The Campo Indian Landfill War: The Fight for Gold in Californials Garbage, by Dan McGovern. Copyright M 1995 by Dan McGovern. Reprinted with permission of the University of Oklahoma Press.

Donna Tisdale, Interview by author, October 9, 1993.

Corey Brown, Interview by author, October 19, 1993.

David Takashima, Interview by author, October 20, 1993.

Ralph Goff, Letter to California Assemblywoman Marguarite Archie-Hudson, February 12, 1991.

Steve Peace, "Battle Commences to Close Loopholes on Indian Reservations for Garbage and Toxic Wastes," press release, n.d.

Jonathan Ross, Letter to Patrick Kenady, Assistant Attorney General for Legislative Affairs, California Attorney Generalls Office, August 5, 1991.

LaDonna Harris, Letter to California Assemblyman Byron Sher, Chairman of the Assembly Committee on Natural Resources, April 25, 1991.

Eddie Brown, Letter to California Governor Pete Wilson, May 24, 1991.

Bradley Angel, Letter to California Assemblyman Steve Peace, June 12, 1991.

Ringe Media, Inc., "Campo: Sharing the Future," Videotape, 1991.

John Grattan, Interview by author, October 13, 1993.

Daniel C. Carson, "Panel OKs Bill on Waste Sites at Reservations," San Diego Union, May 23, 1991.

Carson, "Panel OKs Bill on Waste Sites at Reservations"; Ron Roach, "Garbage Dump Limit for-Indian Lands Advances in Senate," San Diego Tribune, July 6, 1990.

Ralph Goff, Letter to California Assemblywoman Doris Allen, June 10, 1991.

S. 1687, 102d Congress, lst Session.

Ray Huard, "Indian Dump Dispute's Spillover," San Diego Tribune, August 21, 1991; Ralph Frammolino, "U.S. Senator Says Peace Bill on Indian Lands is Doomed," Los Angeles Times, August 21, 1991.

Corey Brown, Interview by author, October 19, 1993.

Daniel C. Carson, "Deal Said Near for Dump Site," San Diego Union, August 16, 1991.

Frammolino, "U.S. Senator Says Peace Bill on Indian Lands Is Doomed."

Daniel C. Carson, "Talks to Resume on Indian Lands Bill," San Diego Union, August 22, 1991.

Ralph Frammolino, "Compromise Reached over Indian Landfills," Los Ange Times, September 11, 1991.

Corey Brown, Interview by author, October 19, 1993; State Bar of California, Environmental Law.Section, "The Campo Landfill," Panel discussion, Environmental Law Institute, October 21-24, Audiocassette, remarks of Joel Mack.

Corey Brown, Interview by author, October 19, 1993; John Grattan, Interview by author, October 13, 1993; Paul Helliker, Interview by author, December 8, 1993.

California Statutes, Chapter 805 (1991).

Taylor Miller, Interview by author, December 7, 1993.

Paul Helliker, Interview by author, December 8, 1993.

California Environmental Protection Agency, "California Environmental Protection Agency Approves Cooperative Agreement with Campo Environmental Protection Agency," press release, December 10, 1992.

Corey Brown, Interview by author, October 19, 1993.

State Bar of California, "The Campo Landfill" Panel discussion, remarks of Karen O'Haire.

State Bar of California, "The Campo Landfill," Panel discussion, remarks of Taylor Miller.

State Bar of California, "The Campo Landfill," Panel discussion, remarks of Joel Mack.

Taylor Miller, Interview by author, December 7, 1993.

Karen O'Haire, Interview by author, Decemeber 8, 1993.

Paul Helliker, Interview by author, December 8, 1993.

State Bar of California, "The Campo Landfill," Panel discussion, remarks of Joel Mack.

Daniel C. Carson, ."Governor Signs Tribal Landfill Bill," San Diego Union, October 12, 1991.

- - - - - - - - - - - - - - - - -End Footnotes - - - - - - - - - - - - - - - - -
 
Copyright (c) 1995 Board of Trustees of the Leland Stanford
Junior University
Stanford Environmental Law Journal
May 1995
14 Stan. Envtl. L.,T. 375
Dan McGovern