Here is that order:
Environmental
Judith Royster on Conjunctive Management of Reservation Water Resources
Judith Royster has posted a paper forthcoming in the Idaho Law Review titled, “Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes.”
Here is the abstract:
Conjunctive management is the integrated management of all water sources as a single system. As complicated as conjunctive management of state water resources is, things become even more complicated when conjunctive management involves tribal water resources as well. On virtually all Indian reservations, two governments exercise regulatory authority over some of the water allocation and use decisions. Those allocation and use decisions are based on different laws and different legal principles. To complicate matters further, surface water decisions may be made on a different basis than groundwater decisions and, even if the same legal regime determines both, the decisions may not be integrated with one another.
Against that background, Indian tribes face substantial legal impediments to conjunctive management of reservation waters. In particular, three aspects of federal and state law frustrate effective tribal participation in conjunctive management. First, Indian tribes are, in many instances, barred by federal action from creating comprehensive, enforceable water codes. Without a water code, management of any kind, much less conjunctive management, becomes problematic. Second, the reserved rights doctrine does not include a clear, universal right to groundwater. Instead, the determination of whether tribes have rights to groundwater as well as surface water is left to individual court decisions and settlement acts, with a resulting wide variation among tribes in groundwater rights. Because conjunctive management is the integration of surface and groundwater regimes, the variability of tribal rights to groundwater hampers comprehensive approaches. And third, the lack of conjunctive management in some states can impact tribal reserved rights to water. While states have long been legally obligated to protect tribal rights to surface water in their allocation of state surface water rights, protecting tribal reserved rights to all water sources requires states to take account of tribal rights in the states’ allocation of groundwater as well.
“Trust and Trash”: New Scholarship on Dumping on Tribal Lands
Elizabeth B. Forsyth has published “Trust and Trash: Why EPA Needs a Flexible Approach to Illegal Dumping on Tribal Lands” in the Harvard Law and Policy Review.
Here is the intro:
Imagine a Native American nation situated on less than 1,000 acres in a rural area. Seventy percent of the hundred tribal members living on the land are unemployed; their primary income sources are government assistance and small amounts of revenue from tribally-owned businesses. The waste hauler for the nearby county refuses to service tribal land. With self-haul distances of eighty miles to the nearest transfer station, and many members without easy access to a car, the tribal members have little option but to dump their trash in the woods.
Recognizing the threat to health and the environment that the accumulating trash piles are causing, the tribal government approaches the United States Environmental Protection Agency (EPA) for funds to clean up the trash and to start a tribally-run trash collection program. EPA grants the tribe $100,000 to clean up the five dump sites and $100,000 for a “pilot” collection and recycling program.
A year later the dump sites are cleaned up and the collection program is used by all members of the tribe. But as the grant period draws to a close, a problem arises: although the collection program brings in modest amounts of revenue from the tribal members themselves, the program is not self-sustaining. Rising fuel costs, long haul distances, and lack of economies of scale mean that without raising collection rates beyond what members would be able to pay, the program is doomed. The EPA grant project officer apologizes to the tribe. Although EPA can continue to give the tribe grants for dump cleanup, beyond pilot projects EPA cannot fund ongoing waste collection for tribes. The tribe is on its own.
This article will argue that EPA’s current approach, paying for the cleanup of illegal dumps and for solid waste planning on tribal land but refusing to pay for long-term solid waste collection,[2] is misguided.[3]This article will show that, at least for some tribes, the result of paying for dump cleanup rather than trash collection is less desirable from both an environmental and an economic perspective. Part I of this article will examine the unique legal position of small tribes and why funding ongoing collection may be the most environmentally sustainable solution. Part II will evaluate the costs to EPA of cleaning up dump sites on tribal land against the costs of strategically funding ongoing solid waste collection for small tribes. Part III will evaluate the potential reasons behind EPA’s reluctance to pay for ongoing collection. Finally, Part IV will offer an alternative funding model.
Upper Nicola Indian Band v. British Columbia (Minister of Environment) – Duty To Consult and Honour of the Crown Defined
Several Canadian First Nations (Upper Nicola, Okanagan Nation Alliance, Nlaka’pamux) recently applied for judicial review of a decision made under the Environmental Assessment Act relating to the construction of a 250 km (that’s 155.3 miles for all you Imperial system dinosaurs) high voltage transmission line through lands claimed by the various Aboriginal petitioners. The judge ultimately rejected the First Nations’ arguments. The decision is here.
Injunction Denied For NunatuKavut Community Council Concerning Multi-Billion Dollar Hydroelectric Project
Last month we posted about a possible wrench in the works for a 6.2 billion hydroelectric energy project in Labrador due to an application for an ex parte injunction by the NunatuKavut Community Council. They wanted the public hearings to be halted until their “duty to consult” claims were addressed. However, that injunction was recently denied by the Newfoundland and Labrador Supreme Court. Here’s the decision.
Ninth Circuit Affirms USFS Decision to Conduct “Suction Dredge” in Klamath
… over Judge W. Fletcher’s “emphatic[]” dissent.
Here is the opinion in Karuk Tribe v. USFS.
An excerpt from the majority opinion:
The mining laws provide miners like The New 49’erswith the “right, not the mere privilege” to prospect for goldin the Klamath River and its tributaries. We therefore find itis most accurate to say that the mining laws, not the USFS,authorize the mining activities at issue here. The USFS hasadopted a simple review process to sort between those miningactivities it will regulate in order to conserve forest resources,and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with miningrights. The USFS’s limited and internal review of an NOI forthe purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely tocause any significant disturbance of the forest or river) is anagency decision not to regulate legal private conduct. In otherwords, the USFS’s decision at issue results in agency inaction, not agency action.
And from Judge Fletcher’s dissent:
The Forest Service had several available choices. It couldhave consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could haveconsulted when it set the threshold criterion for an NOI asmining that “might cause significant disturbance of surfaceresources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protectivecriteria for approving NOIs. That is, it could have consultedwhen District Ranger Vandiver formulated his criteria forapproving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for theHappy Camp District, it could have consulted under Section7 with respect to each individual NOI.
The one choice that was not available to the Forest Servicewas never to consult. Yet that is the choice the Forest Servicemade. In making that choice, the Forest Service violated Section 7 of the ESA.
I respectfully but emphatically dissent from the conclusionof the majority to the contrary.
New Scholarship on Solar Power in Indian Country
Ryan Dreveskracht has posted his paper, “Solar as an Economic Development Tool in American Indian Country,” on SSRN.
Here is the abstract:
This paper discusses the use of solar as an economic development tool in American Indian country, and offers a few suggestions on how to make these projects successful.
Manitoba Court Grants Band’s Motion to Amend Statement of Claim – No More Individual Plaintiffs
In January 1997, the Chief and Councillors of the Mathias Colomb Cree Nation sued Manitoba, Manitoba Hydro, and the Queen in Right of Canada over 10,000 liters of spilled diesel fuel that contaminated their land, soil, water and air in the vicinity, in a claim for nuisance.
Recently, in Bighetty v. Manitoba, the MC Cree Nation sought a motion to amend their Statement of Claim because the named plaintiffs in their suit were individuals – the Chief and Councillors, and not the Band itself. They were individually named because in 1997, the law was “unclear” as to whether or not an Indian Band had legal status to sue. Since then, however, the law has evolved so that an Indian Band can sue and is a proper party to be named as a plaintiff for this type of nuisance claim.
Winona LaDuke on Big Oil Megaloads through Indian Country
Here (and an article discussing Idaho’s proposed legislation is here, thanks to A.K.).
An excerpt:
When 750 Nez Perce, accompanied by 1,000 horses, fled the U.S. Cavalry on a 1,200-mile route through the mountains, valleys and rivers of Washington, Idaho and Montana in 1877, their path took them past the Heart of the Monster, from whence the Nez Perce, or Nimiipuu people, originated, and through their precious Bitterroot Mountains. Their route was treacherous but their determination to survive was unshakable.
Some 140 years later, the black heart of industrial society has come to torment the Nimiipuu, using that same route.
ExxonMobil and some other large oil-traffickers want to run massive trucks and machinery (imagine the Statue of Liberty on its side, with wheels) through Washington, Idaho and Montana, headed for the Athabasca tar sands in Alberta, Canada. Those gigantic specialized trucks will carry monstrous pieces of mining equipment imported from Korea up to the site of a massive project in Alberta, where oil is being extracted from a mammoth pit by blasting saturated sand with steam. It is already the largest and most destructive industrial project in history, and those trucks could be shuttling supplies up there for the next 50 years. No trucks have made the entire run to Alberta thus far, but ExxonMobil hopes to get the green light for the Heavy Haul soon.
Quebec: Making First Nation Law – The Listuguj Mi’gmaq Fishery
The National Centre (that’s right, “Centre”) for First Nations Governance recently released an article, video, and report on a community near and dear to my heart – Listuguj, where I grew up!
Turtle Talk 
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