Ninth Circuit Rejects Challenge to Tribal Wind Farm

Here is the unpublished opinion in Backcountry Against Dumps v. Bureau of Indian Affairs.

Briefs here.

Ninth Circuit Materials in Backcountry Against Dumps v. Bureau of Indian Affairs [Campo Band Wind Energy Project]


Lower court materials here.

Carter and Rotman on Surface Mining Regulation After McGirt

Sam Carter and Robin Rotman have posted “Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After McGirt?,” forthcoming in the Montana Law Review, on SSRN.

Here is the abstract:

Following the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), there has been a surge of litigation from the State of Oklahoma seeking to clarify the scope of the McGirt holding. While the Supreme Court of the United States was clear that the holding in McGirt was limited to criminal jurisdiction under the Major Crimes Act, it has sparked subsequent litigation regarding the scope of tribal authority. The pending case of State of Oklahoma v. United States Department of the Interior, which concerns surface mining regulation in Indian Country in Oklahoma, will test the application of McGirt outside of the criminal context. To this end, our article makes three recommendations: (1) in litigation concerning tribal lands, tribes should be a necessary party for litigation to proceed; (2) Congress should invest in pathways for tribes to build the capacity to create and manage their own programs, and (3) when tribal self-determination is encouraged and jurisdictional boundaries are clear, tribes can retain agency over their energy future and are less susceptible to the social harms that have been associated with the development of energy projects.

D.C. Federal Court Affirms Army Corps’ Approval of Enbridge Line 3 Permit

Here are the new materials in Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers (D.D.C.):

52 Friends of the Headwaters MSJ

53-1 Tribes and Tribal Orgs MSJ

61-1 US Cross Motion

64 Enbridge Cross Motion

65 Tribal Reply

67 Friends Reply

69 US Reply

70 Enbridge Reply

90 DCT Order

Prior post here.

DALL-E rendition of the Enbridge Line 3 pipeline.

Ninth Circuit Materials in Tribal Challenge to Seattle’s Dams

Here are the briefs in Sauk-Suiattle Indian Tribe v. City of Seattle:

Lower court materials here.

I Don’t Know Why Indian Country Doesn’t Demand that Congress Pass the RESPECT Act because This Bullshit’s Gonna Keep Happening Until Then [Badger Two-Medicine]

Please see the strongly worded, if misguided, commentary from Judge Leon in Solonex v. Haaland, who sees 40 years of delay on a drilling permit and calls it “Kafkaesque.” It’s hard to disagree with that sentiment — though I wish the court were more understanding that tribal and Indian efforts to stop the drilling proposal began when there were virtually no legal protections for tribes and Native citizens to utilize. It’s time to acknowledge that this drilling should never have been approved over tribal and Indian objections and the RESPECT Act takes us a long way down the road to preventing this B.S. from happening over and over again.

Here is the order in Solonex LLC v. Haaland (D.D.C.):

Prior post on the D.C. Circuit decision from which this case is on remand here.


Bad River Wins Trespass Claim against Enbridge

Here is the order in Bad River Band of Lake Superior Tribe of Chippewa Indians v. Enbridge Evil Energy Co. Inc. (W.D. Wis.):

Will post briefs tomorrow. Some of them are already here.

Not exactly Lake Superior but close enough.

207 Enbridge Opposition

231 Enbridge Memorandum in Support of 230

256 Bad River Reply

286 Bad River Opposition

295 Great Lakes Business Network Amicus Brief

323 Enbridge Reply

Cross-Motions for Summary Judgment in Oklahoma v. Interior

Here are the new pleadings in State of Oklahoma v. Dept. of the Interior (W.D. Okla.):

105 Federal Reply

Zoolander’s amicus brief is expected shortly.

Prior post here.