Environmental

Miccosukee Tribe Loses Non-Intercourse Act Claim in State Eminent Domain Case

Matthew L.M. Fletcher

Here is the opinion in Miccosukee Tribe of Florida v. Dept. of Environmental Protection (Fla. App.).

Here is an excerpt:

The Miccosukee Tribe of Indians of Florida petitions for a writ of certiorari to quash the trial court’s order that denied its motion for final summary judgment in an eminent domain proceeding based on the Tribe’s alleged sovereign immunity and/or the provisions of the Federal Nonintercourse Act, 25 U.S.C. § 177. In response, the Department of Environmental Protection contends that the three parcels of land at issue, which the Tribe purchased on the open market, are not protected by either the Tribe’s sovereignty or the Nonintercourse Act. Because the Tribe has not shown that the trial court’s ruling departs from the essential requirements of the law, we deny the petition.

Washington SCT Decides Five Corners Family Farmers v. State — Groundwater Allocation Case

Matthew L.M. Fletcher

Here is the majority and here is the dissent.

Here is the tribal amicus brief.

Federal Court Dismisses Contract/Lease Action against Seminole Tribe

Matthew L.M. Fletcher1 Comment

Here are the materials in Everglades Ecolodge at Big Cypress v. Seminole Tribe of Florida (S.D. Fla.):

Seminole Tribe Motion to Dismiss

Ecolodge Remand Motion

DCT Order Granting Seminole Tribe Motion

Federal Court in Bench Trial Rules against Osage Challenge to Wind Farm

Matthew L.M. Fletcher1 Comment

Here is the opinion in Osage Nation v. Wind Capital Group LLC (N.D. Okla.):

DCT Judgment against Osage

Here is the complaint.

Special Issue of Environmental Justice (“Environmental Justice in Native America”) Now Available

Matthew L.M. Fletcher

Edited by MSU prof Kyle Whyte.

Table of contents here.

Articles by Jim Grijalva, Sarah Krakoff, and several others.

Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)

Matthew L.M. Fletcher

Here is the opinion. And the briefs:

Tribal Motion for Atty Fees

EPA Opposition

Tribal Reply

The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.

Here are the intervening tribes and organizations:

Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community

Bad River Band Opposition to Wisconsin Legislation Supporting Mining Operation at the Bad River Headwaters

Matthew L.M. Fletcher1 Comment

The Bad River Band of the Lake Superior Tribe of Chippewa Indians is working to defeat a plan to develop a mine at the headwaters of the Bad River.  Members of the Wisconsin State Assembly unveiled a bill earlier this week that would drastically reduce the environmental protection that keeps communities safe. The bill and the plan to mine the Penokee Hills threatens the Band’s entire way of life.  Chairman Mike Wiggins, Jr. plans to present the letter to the Governor today at an economic summit in Minocqua, Wisconsin.  Tomorrow, the Chairman plans to testify at the public hearing on the bill set for 10 AM in Milwaukee (348 miles away from the proposed mine site).

Here are the relevant materials:

12 07 11 press release (clean)

Bad River Press Release 12.13.2011

Mining Bill 11-28-11

Profile on Coquille Sustainable Forestry Practices

Matthew L.M. Fletcher

Here.

Water Contamination and Fracking in Wyoming

Adrea Korthase

Tonight’s CBS Evening News included a story on fracking in Pavillion, Wyoming that can be found here.

The NPR story on the subject can be found here. An excerpt:

People in Pavillion, located on the Wind River Indian Reservation, contacted the EPA three years ago, complaining that their water smelled and tasted bad.

The agency started sampling drinking water wells in 2009 and found low levels of methane and other hydrocarbons in most of those wells. Although the levels did not exceed drinking water standards in most cases, the agency recommended that people get other sources of water for drinking and cooking, Encana, the company which drilled the wells, started providing water. The company says it provides drinking water to 21 households at a cost of about $1,500 per month.

The agency was concerned that higher concentrations of some of the chemicals might be lurking elsewhere in the aquifer.

So EPA researchers drilled two wells and found lots of chemicals, which could be tied to drilling. For example, they found levels of benzene, which is known to cause cancer and other health effects, far higher than safe drinking water standards. The presence of other chemicals — like synthetic glycols and alcohols — persuaded them that the contamination was likely coming from fracking.

Finally, a recent post about fracking can be found here.

Fracking, Tribal Sovereignty, the Montana Test, and the Turtle Mountain Band

Matthew L.M. Fletcher4 Comments

The Turtle Mountain Band of Chippewa Indians recently passed a resolution banning fracking on reservation lands. Fracking is incredibly dangerous to the environment (and if Elizabeth Kolbert is writing about it, you can be sure it’s worse than that).

So imagine a scenario where a tribe (like Turtle Mountain) bans fracking, but an oil extraction company purchases fee land within the reservation boundaries and begins fracking. Is this going to pass the Montana test, assuming no written consent under Montana 1? So does it meet the political integrity, economic security, and health/welfare subjectivity of Montana 2? It seems like it must, if this news coverage is to be believed:

Exploration companies are injecting large volumes of water, sand and chemicals into rock formations up to a mile beneath the Blackfeet Indian Reservation in attempts to loosen embedded oil — sometimes using more than a million gallons of fluid per well.

State, tribal and federal regulators of oil development say there has never been an instance of the practice — called hydraulic fracturing — contaminating groundwater in Montana.

Yet Jack Gladstone, an enrolled member of the Blackfeet Tribe and a well-known singer and songwriter, is worried that “fracking” could taint the tribe’s “clean, fresh, cold water.”

He supports more disclosure of the chemicals used in the frack jobs, which he described as an “uncontrolled experiment.”

“And we will live with the consequences of our actions,” Gladstone said.

Potential impacts to drinking water associated with hydraulic fracturing are coming under increased scrutiny nationwide as the federal Environmental Protection Agency begins a study at 350 oil and gas wells in Louisiana, Pennsylvania, North Dakota, Texas and Colorado.

So back to Montana 2. Assuming the above conditions, and a court concludes that Montana 2 is met, and tribal jurisdiction over these hypothetical nonmembers is present, what are the limitations on tribal jurisdiction? Could a tribe simply enjoin the operation (a regulatory/judicial taking)? Could a tribe exercise the power of eminent domain? Seems like these are questions tribes should be asking.