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A Crucial and Timely New Seminar on

Tribal Consultations

What's new and important now; strategies for success for all participants

Presented on June 6 & 7, 2019

Seattle, WA

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Program Overview

Who Should Order

Attorneys; Tribal representatives; federal, state, and local government representatives; land use planners; environmental professionals; real estate developers; utility service providers; and others involved with economic development projects or other activities that are on, or may affect, Tribal lands, resources, or treaty rights.

Why You will Benefit from the Replay

Tribal consultation requirements are an often misunderstood and neglected requirement arising in the context of governmental actions. These requirements establish a mechanism for ensuring thate the impacts a proposed governmental action have on a Tribe are acknowledged and addressed before the proposed action occurs. The consultation process is understood by many to be applicable only to federal agencies, but it is also necessary in the private sector whenever federal funding is utilized by a project, and when federal permits, licenses, or other approvals are necessary. Further, Washington has adopted its own Tribal consultation process, which provides a framework for government-to-government relations and interactions between the Tribes and the state. Done properly, consultation can help all parties build trust and meet their objectives. Failing to acknowledge and comply with applicable requirements may cause delays and open the door to judicial challenges to the proposed action.

This conference, focusing on the tribal consultation process at the federal, state, and local levels, will allow you to learn from lawyers, policy makers, and agency staff who will share their experiences with the consultation process, provide insight into the triggers for consultation in various contexts, and discuss best practices based on their experience. The second day will focus on current issues that make Tribal consultation more important than ever, practical tips for injecting consultation into the SEPA and NEPA processes, and how to develop a memorandum of understanding arising out of the consultation process.

Participate in our discussions, interact with the faculty in the question-and-answer sessions after each presentation, at breaks, and at the reception following day one of the conference--and enjoy the truly extraordinary city that is Seattle.

~ Andrew Fuller, Esq. of Ogden Murphy Wallace and J. Nathanael Watson, Esq. of Stoel Rives, Program Co-Chairs

What You Will Learn

  • Scope of the duty of consultation
  • Development of consultation plans for administrative agencies
  • How federal consultation differs depending on the statute and agency
  • State consultation guidelines
  • Efforts to integrate Washington agencies into a blanket process
  • Boundary waters and consultation when other countries are involved
  • Climate change as a new friction point
  • Local level consultation regarding environmental impacts
  • Cultural values and Tribal service loss issues
  • Consultation case studies
  • Development of a Memorandum of Understanding (MOU) as the end game

What Attendees Said

  • "Very interesting presentations, thank you!"
  • "Great speakers and the agenda flowed well."
  • "Excellent speakers, wide range of expert level knowledge, great update on current state of issues."

Agenda Day 1

8:00 am

Registration Opens

8:30 am

Introduction & Overview

Richard A. Du Bey, Esq. , Program Co-Chair
Ogden Murphy Wallace / Seattle, WA

Andrew Fuller, Esq. , Program Co-Chair
Ogden Murphy Wallace / Seattle, WA

8:45 am

The Consultation Requirement

Where it came from; the nature and scope of the duty of consultation; differences between on reservation projects vs. adjacent projects; who should be involved and at what level; the importance of relationship-building to avoid conflicts

Andrew Fuller, Esq. , Program Co-Chair
Ogden Murphy Wallace / Seattle, WA

Development of consultation plans for administrative agencies: Case study of the EPA Region 10 Consultation Manual including provisions and how it has worked in practice

Elizabeth McKenna, Esq. , Assistant Regional Counsel
EPA Region 10 / Seattle, WA

10:15 am


10:30 am

Consultation when Federal Agencies are Involved

How the process might differ depending on the statute and agency; the most effective approaches from a best practice standpoint

Thane D. Somerville, Esq.
Morisset Schlosser Jozwiak & Somerville / Seattle, WA

11:15 am

The Washington State Attorney General's New Tribal Consent and Consultation Policy

The requirement to achieve free, prior, and informed consent before initiating a project or program that directly and tangibly affects Indian tribes, rights, tribal lands and sacred sites

Yasmin Ayesha Trudeau, Esq. , Legislative Director and Tribal Liaison
Washington State Attorney General's Office / Olympia, WA

11:45 am

Lunch (on your own)

1:00 pm

Consultation when State Agencies are Involved

State guidelines and efforts to integrate the state agencies into a blanket process

Craig A. Bill , Director
Governor's Office of Indian Affairs / Olympia, WA

Case study of the cancellation, at the request of the Lower Elwha Klallam Tribe, of the graving dock at Ediz Hook in Port Angeles

Megan Cotton , Tribal and Federal Relations Director
Washington State Department of Transportation / Olympia, WA

William S. White , Cultural Resource Archeologist
Lower Elwha Klallam Tribe / Port Angeles, WA

2:45 pm


3:00 pm

Boundary Waters and Consultation when Other Countries are Involved

Case study of Upper Columbia United Tribes (UCUT) participation in treaty negotiations between the U.S. and Canada over allocation of water under the 1909 Boundary Waters Treaty; situations in which consultations with Canada's First Peoples are required

John E. Sirois , Committee Coordinator
Upper Columbia United Tribes / Spokane, WA

3:30 pm

Needs-Based Friction Points: Climate Change Stressors on Natural Resources

Climate Change as a new driver that makes resources less available: Findings from the recent 4th National Climate Assessment; examples and case studies from Washington State

Michael Chang , Climate Adaptation Specialist
Makah Tribe / Neah Bay, WA

4:15 pm

Tribal Consultation Case Study

Cherry Point coal terminal and Lummi Nation's treaty-protected fishing rights: Consultation when the Tribe is 100% opposed and how it can best be utilized

Mary Michelle Neil, Esq. , Reservation Attorney
Lummi Nation / Bellingham, WA

5:00 pm

Continue the Exchange of Ideas: Reception for Faculty and Attendees

Sponsored by Ogden Murphy Wallace

Friday, June 07, 2019

8:30 am

Consultation Regarding Environmental Impacts at the Local Level

The interplay with Tribal Treaty Rights: Implications of the US Supreme Court's 4-4 split in the Culverts Case and the resulting environmental quality obligations arising from the 9th Circuit's decision requiring improved stream flows for fish

Mason D. Morisset, Esq.
Morisset Schlosser Jozwiak & Somerville / Seattle, WA

Tips for effectively engaging Tribes in local project permitting processes

Nicole Willis , Tribal Relations Director
City of Seattle / Seattle, WA

10:15 am


10:30 am

Socio-Economic Analyses of Impacts to Tribal Resources, Rights, and Values

The economic science and art for defining the value of a non-use experience; traditional knowledge issues and their usefulness as an adaptive management concept

David Layton , Adjunct Professor, Economics
University of Washington / Seattle, WA

Mark Buckley, Ph.D. , Partner & Senior Economist
ECONorthwest / Portland, OR

Cultural values and Tribal sociological relationships with resources: Communicating Tribal values and culture to a trier of fact for the purpose of assessing and quantifying damages

Adam Stack, Ph.D. , Project Associate
Industrial Economics, Inc. / Cambridge, MA

Use of cost-benefit analysis: Recent developments in agencies' use of tcost-benefit analysis and what they mean for Tribes in the NRDA context

Catherine O'Neill, Esq.
O'Neill Consulting / Olympia, WA

12:15 pm

Lunch (on your own)

1:30 pm

The End Game: Development of a Memorandum of Understanding (MOU)

What an MOU should contain; practical tips for injecting consultations into SEPA and NEPA processes; consultations when environmental review is not involved

Richard A. Du Bey, Esq. , Program Co-Chair
Ogden Murphy Wallace / Seattle, WA

Mason D. Morisset, Esq.
Morisset Schlosser Jozwiak & Somerville / Seattle, WA

Sean Goldsmith , NEPA/SEPA Consultant
Washington State Dept of Natural Resources / Olympia, WA

3:00 pm

Evaluations and Adjourn

Faculty Bios

Richard A. Du Bey, Richard A. Du Bey, Program Co-Chair, is a Partner at Ogden Murphy Wallace. His practice focuses on environmental and natural resources law and tribal government matters including inter-governmental negotiations.

Andrew Fuller, Andrew Fuller, Program Co-Chair, focuses his practice at Ogden Murphy Wallace on land use and environmental matters. This includes assisting Tribes with the development and implementation of their Tribal Environmental Programs.

Craig A. Bill Craig A. Bill is the Director of the Washington State Governor's Office of Indian Affairs (GOIA). Prior to his appointment at the GOIA, he was the Director of Intergovernmental Affairs and Advisor to the Tribal Chairman for the Lummi Nation.

Mark Buckley, a Par Mark Buckley, a Par tner & Senior Economist at ECONorthwest, leads the firm's natural resource practice. He focuses on the context-specific scarcities to understand the real value of goods and services, whether they be market or non- market.

Michael Chang Michael Chang is a Climate Adaptation Specialist for Makah Tribe. He is leading the Tribe's effort to create a Makah Climate Adaptation and Implementation Plan.

Megan Cotton Megan Cotton is the Tribal and Federal Relations Director for the Washington State Department of Transportation.

Sean Goldsmith is a NEPA/SEPA Consultant for the Washington State Dept of Natural Resources. He coordinates with other governmental agencies and internal agency experts to ensure quality substantive input is given for incorporation into NEPA/SEPA reviews.

David Layton David Layton is an Adjunct Professor, Economics at the University of Washington. His research lies at the interface of applied econometrics, applied microeconomics, and environmental policy.

Elizabeth McKenna Elizabeth McKenna is Assistant Regional Counsel for EPA Region 10.

Mason D. Morisset, Mason D. Morisset, Morisset Schlosser Jozwiak & Somerville, represents Tribes across the country on a wide variety of natural resource and other issues.

Mary Michelle Neil Mary Michelle Neil is a Reservation Attorney for the Lummi Nation. She has worked on a variety of tribal government matters, including on matters related to natural and cultural resources, economic development, environmental regulation, tax and other intergovernmental matters.

Catherine O'Neill, Catherine O'Neill, O'Neill Consulting, is a former Habitat Policy Analyst for the Northwest Indian Fisheries Commission and Professor of Law at Seattle University School of Law. Her current work focuses on issues of environmental justice for native peoples.

John E. Sirois John E. Sirois is Committee Coordinator for the Upper Columbia United Tribes. He focuses on developing and organizing partnerships within private/educational/non-profit/governmental organizations working toward a sustainable future.

Thane D. Somerville, Thane D. Somerville, Morisset Schlosser Jozwiak & Somerville, provides comprehensive representation of Indian tribal governments and tribal enterprises on issues including natural and cultural resource protection, tribal treaty rights, jurisdictional disputes, protection of tribal sovereignty, and the federal trust responsibility.

Adam Stack, Ph.D., is a Project Associate at Industrial Economics, Inc. He also is a Graduate Writing Fellow at the Center for Writing & Communicating Ideas at Harvard University.

Yasmin Ayesha Trudeau Yasmin Ayesha Trudeau is Legislative Director and Tribal Liaison for the Washington State Attorney General's Office. She is one of the primary contacts for matters related to the Agency's Tribal consultation policy.

William S. White William S. White is the Cultural Resource Archeologist for the Lower Elwha Klallam Tribe. He manages the restoration and reburial of 350 Klallam ancestors at the Washington State Department of Transportation "Graving Dock" site in Port Angeles.

Nicole Willis is the Tribal Relations Director for City of Seattle. Previously, she worked as the lead on tribal policy and strategy for both Bernie '16 and Obama '08, and served as a tribal relations appointee in the Secretary's Office at the US Department of Labor.

Continuing Education Credits

Live credits: This program qualifies for 11.50 WA MCLE, 11.50 AICP (Planner), and 11.50 ABCEP (Environmental Professional) credits. Upon request, we will apply for, or help you apply for, CLE credits in other states and other types of credits.