economic development – Page 64

There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

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Update on NLRB v. Tribal Casino Cases (from Kaighn Smith at DWM)

May 31, 2012Matthew L.M. Fletcher1 Comment

Normally, we don’t post these kinds of updates from law firms, but this is so well done and has links to primary documents we crave (see bolded text under the fold), so here goes:

Three recent unfair labor practice cases leveled against Indian nation casinos by the National Labor Relations Board (NLRB) have gone in three different directions. There may be ominous implications.

First, there was the complaint against the WinStar World Casino, owned and operated by the Chickasaw Nation, filed before the NLRB’s Regional Office in Oklahoma. The NLRB charged casino managers with violating the National Labor Relations Act (NLRA) by disciplining employees who engaged in union organizing activities. The Chickasaw Nation sued the NLRB in federal court and secured an injunction to stop the case on the ground that the NLRB has no jurisdiction over labor relations within the Chickasaw Nation’s territory. The NLRB has appealed that decision to the U.S. Court of Appeals for the Tenth Circuit. It argues that federal courts have no authority to stop an NLRB unfair labor practice case until after the case has proceeded to final decision by the full Board. (Under a provision of the NLRA, parties can appeal final Board decisions to the federal courts of appeals.)

Second, there was the complaint against the Soaring Eagle Casino, owned and operated by the Saginaw Chippewa Tribe, filed before the NLRB’s Regional Office in Michigan. In that case, the NLRB charged the casino with violating the NLRA when it fired an employee for soliciting union support in violation of the casino’s non-solicitation policy. The Tribe sued the NLRB in federal court just like the Chickasaw Nation. This time, however, the federal court declined to hear the case. It said the Tribe needed to make all of its arguments to the Board before proceeding to federal court. The unfair labor practice case then went to hearing before an Administrative Law Judge (ALJ), and the casino lost. The ALJ ordered the casino to reinstate the employee and pay her back wages. The ALJ also ordered the casino to post notices to employees announcing their rights under the NLRA, stating that it had violated the NLRA, and announcing that it would revoke its non-solicitation policy. The casino has now appealed the ALJ’s decision to the full Board in Washington, D.C. It argues that the NLRB has no jurisdiction over employment relations at its casino.

Third, there was the complaint against the Fort McDowell Casino, owned and operated by the Fort McDowell Yavapai Nation. In that case, filed before the NLRB’s Regional Office in Arizona last February, the NLRB claimed that the casino maintained work rules that infringed on the ability of employees to engage in concerted activity in violation of the NLRA. Before the case proceeded to hearing before the ALJ, the casino settled with the NLRB. Under the settlement agreement on file with the NLRB’s Regional Office, the casino must post the following notice:

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Native America Calling Program on Bob Miller’s New Book “Reservation Capitalism: Economic Development in Indian Country”

May 31, 2012Matthew L.M. Fletcher

Here.

(You have to enter the date of Wed May 30 and the start time of 11 am to hear the show.)

Bob Hershey on Globalization’s Impacts on Indigenous Peoples

May 30, 2012Matthew L.M. Fletcher

Robert Hershey has posted his paper, “Globalization and its Special and Significant Impacts on Indigenous Communities,” on SSRN.

Here is the abstract:

Globalization is really a painting of the earth whose rendering can never be truly fixed. Yet, it is emblematic of the social dimensions of human interactions. Globalization has particular urgency for the world’s Indigenous Peoples. Many Indigenous systems of collective economic production and distribution do not conform to capitalism’s cultural emphasis on individual accumulation. This manuscript explores the challenges to Indigenous societies from economic hegemonic regimes, bioprospecting, nature conservation, and extended continuing and derivative impacts. Crucially, Indigenous Peoples do not passively accede to domination by global market forces. Resistance, negotiation, and consultation are common features of Indigenous communities’ interactions with transnational corporations and international economic policy bodies, but the definition and content of these terms play out very differently for distinct societies. The article suggests appropriate protocols for engaging Indigenous societies and recognizes alternatives to domination. It concludes with an examination of how Indigenous Peoples may be embracing internet technologies to further their claims to self-determination.

California Court of Appeals Decides Tribal Corporate Immunity Case

May 30, 2012Matthew L.M. Fletcher1 Comment

Here is the opinion in American Property Management Corp. v. Superior Court (with concurrence):

Cal. App. Opinion

An excerpt:

In 2003, Sycuan Tribal Development Corporation (STDC), a corporation chartered under Sycuan’s tribal laws, invested in the purchase of the U.S. Grant Hotel in downtown San Diego (the hotel) but created several layers of California limited liability companies to stand between it and the entity that took ownership of the hotel.

Specifically, U.S. Grant, LLC — a California limited liability company — purchased the hotel in 2003. U.S. Grant, LLC is wholly owned by its sole member Sycuan Investors – U.S. Grant, LLC (Sycuan Investors, LLC), a California limited liability company. Sycuan Investors, LLC, in turn, is wholly owned by its sole member American Property Investors – U.S. Grant, LLC (American Property Investors, LLC), a California limited liability company. American Property Investors, LLC is wholly owned by its sole member STDC. All three limited liability companies were organized in late 2003 in connection with the transaction to purchase the hotel.