Environmental

Truckee-Carson Irrigation District Cert Petition

Matthew L.M. Fletcher

Here is the petition in Board of Directors, Truckee-Carson Irrigation District v. United States: Truckee-Carson Irrigation District Cert Petition.

Lower court materials here.

Questions presented:

1. Whether the Congress violates the separation of powers doctrine under Article III of the United States Constitution by enacting retroactive legislation that requires a court to accept a past federal regulation as currently valid, enforceable and immune from judicial challenge, the underlying premise of which was previously found by an all-inclusive federal water rights adjudication proceeding as violating vested water rights confirmed under a final federal district court water decree and judgment.

2. Whether a federal court has either the legal or equitable jurisdiction to make an award of pre-judgment or postjudgment in-kind interest, that is, interest that is payable in property, in this case water as interest, and not money.

First Nations leaders in Washington to stop pipeline

Peter Scott Vicaire

The Canadian Press

Canadian First Nations leaders are in Washington to try to persuade U.S. officials to reject a pipeline project they say will pump more “dirty oil” from Alberta into the U.S.

Francois Paulette, a former Dene chief, says oilsands pollution already affects more than 30 First Nations communities and increasing production will make matters worse.

He says a recent study linked oilsands operations to high levels of lead, mercury and other heavy metals in the Athabasca River system.

Paulette wants a moratorium on the Keystone X-L pipeline expansion which has been approved in Canada and now needs approval from Washington.

The TransCanada pipeline would reach all the way to the Gulf Coast.

The aboriginal leaders have meetings with the State Department, a White House environment council, the Department of Interior, the Canadian Embassy, and congressional officials.

Gold mining opposed by aboriginals in Canada’s British Columbia

Peter Scott Vicaire3 Comments

VANCOUVER, Sep. 18, 2010 (Xinhua News Agency) — Gold mining on Mount Milligan in Canada’s westernmost province of British Columbia has hit road bump as aboriginals there took the case to the court.

Some 1,800 members of the Nakazdli First Nation band are engaged in a legal battle with the government for the rights and title interests over the mountain, and has served eviction notice to the mining company that tries to work on the mountain’s troubled copper-gold mines.

For now, court proceedings have been adjourned to allow time for disputing parties to try to conclude an agreement. However, as the issue remains unsettled, the prospect for gold-mining on Mount Milligan looks uncertain.

“The Nakazdli and the Province (of British Columbia) have been in recent discussions regarding the Mount Milligan project,” Jake Jacobs, spokesperson of the Ministry of Energy Mines and Petroleum Resources, told Xinhua. “There has been significant progress in negotiations.”

Anne Sam, spokesperson of the Nakazdli band, explained that band members are trying to protect their way of life. “If mining does go ahead, we can never hunt in this area again. All the fish, bears, beavers, birds will be scared away because mining runs 24 hours. We will have to be drinking the water and eating the animals taking in contaminants. We are being asked to give up the life we know, our way of life,” Sam told Xinhua.

The Mount Milligan mine, located 155 km northwest of Prince George in central British Columbia, covers parts of the territories of the Nakazdli First Nation. With government’s consent, it has become an asset of the Terrane Metals Corporation, the gold-mining company, since 2006.

A Terrane Metals 2009 feasibility study put the open pit mine in the second place in terms of size of gold reserves in Canada, after Red Lake in Ontario.

“It’s unfortunate,” Terrane Metals Vice President Glen Wonders commented on the legal battle. “The band is challenging the degree of consultation.”

“Are we optimistic of the outcome? Yes,” Wonders told Xinhua.

Despite the court case and eviction notice, Terrane Metals has started an initial phase of construction in preparation for future production. “We are basically focusing on improving the access road to the site,” described Wonders. “There is already an existing road of five to 10 years old, now we are upgrading and widening it.”

While production on Mount Milligan is being planned, the Nakazdli First Nation is standing firm on their pledges.

“We need to talk about sustainability,” insisted Sam. “Nobody really asked how this is going to impact the environment.”

Sam told Xinhua that Terrane Metals did consult the Nakazdli band at the beginning. “They started off with good intentions, then they saw that we have lots of questions and concerns. They did not deal with our questions and concerns upfront. I think we would have more than willing to talk.”

Terrane Metals has proposed to include band members in job creation, but Sam did not find it satisfactory.

“We are not happy with Terrane Metals who refused an impact agreement that our community put forward to them,” she said. “You can look at what’s happening now, no band people have been hired as Terrane employees. We see very little amount of opportunities.”

In a document discussing landscape management, Terrane Metals said that “the project will result in no lasting negative residual effects on wildlife, fish and aquatic habitat, water resources, vegetation and plant communities, and on visual and aesthetic resources from the facilities at Mount Milligan.”

It also said that after the mining projects, proven closure approaches and technologies will be used to restore lands affected by mining to a productive biological condition.

“They say the animals will come back in 50 years, but that is a whole generation,” Sam responded. “Ours is a family system, we only hunt and fish in certain areas, but the wildlife there will be totally wiped out. Who is speaking for the animals? We rely on the animals, and their habitats provide for them.”

“We want to keep the way we live, generation after generation. No amount of money will be able to replace a whole way of living,”

Sam said. “The land made us who we are.”

Although Terrane Metals has not reached any agreement with the Nakazdli band, it did successfully secure alliance with the neighboring McLeod Lake Indian band, another aboriginal band with territories sitting on the Mount Milligan mine, to “share benefits.”

Split Tenth Circuit Rejects Cherokee Nation Bid to Intervene in Oklahoma v. Tyson Foods

Matthew L.M. Fletcher1 Comment

Here are the materials (the opinion is here; h/t Indianz):

Cherokee Opening Brief

Farming Companies’ Brief

Oklahoma Answer Brief

Cherokee Supplemental Brief

Farming Companies’ Supplemental Brief

Oklahoma Supplemental Brief

Enviro Groups File Cert Petition in HRI/Navajo Uranium Mining Case

Matthew L.M. Fletcher

The case is captioned Morris v. United States Nuclear Regulatory Commission. Petition here. Lower court materials here [corrected link, thanks to A.T.S.].

Questions presented:

1. In determining whether public radiation doses from a proposed new uranium mine would exceed regulatory limits, could the U.S. Nuclear Regulatory Commission (“NRC”) interpret 10 C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive emissions from existing uranium mine waste on the mine site?

2. Where, in establishing a groundwater restoration surety for a proposed uranium mine, the NRC failed to follow its own criteria for protecting the drinking water on the site, did the NRC violate the Atomic Energy Act’s prohibition
against licensing operations that are inimical to public health and safety?

News coverage from Law360 (miigwetch to J.W.):

Environmental and Native American groups on Thursday launched a last-gasp effort to fight proposed in situ leach uranium mining in northwestern New Mexico that they allege will contaminate large areas of groundwater, including a primary drinking water source for 15,000 Navajos.

In a petition for a writ of certiorari, the Eastern Navajo Dine Against Uranium Mining, a Navajo community organization; the Southwest Research and Information Center, an environmental education organization; and two local ranchers, Grace Sam and Marilyn Morris, asked the U.S. Supreme Court to overturn a March 2010 ruling from the U.S. Court of Appeals for the Tenth Circuit.

The groups said that under the Tenth Circuit’s ruling, Hydro Resources Inc. would not have to clean up existing Cold War-era radioactive waste on its property, and that both the old waste and new mining would expose residents to dangerous levels of radiation.

This is the first time that the U.S. Nuclear Regulatory Commission has licensed a mining operation in a community drinking water supply, despite the fact that no aquifer in which in situ leach uranium mining has occurred has ever been restored to premining condition, according to the groups.

Moreover, the government has allegedly not required an adequate bond to clean up the mine should HRI — a subsidiary of the Texas-based Uranium Resources Inc. — walk away from the site.

“The community is letting the government know that they will not give up the fight and they will continue resisting these proposed uranium mines,” said Eric Jantz, an attorney with the New Mexico Environmental Law Center who is representing the plaintiffs.

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Eleventh Circuit Dismisses Miccosukee Challenge to Federal Government’s Alteration of the Tamiami Trail

Matthew L.M. Fletcher

Here are the two opinions from the Eleventh Circuit in Miccosukee Tribe v. U.S. Army Corps and Miccosukee Tribe v. LaHood. Both hold that Congress stripped jurisdiction from the federal courts to hear the Miccosukee’s challenges to the alteration (replacing a mile of the road with a bridge to let more water in to the Everglades).

Obama Names Asian Carp Issue Leader

Matthew L.M. Fletcher

President Barack OBAMA today announced the appointment of John GOSS as the administration’s new “Asian Carp” director.

In his role, Goss will serve as the principal advisor to Council of Environmental Quality Chair Nancy SUTLEY on Asian carp issues and oversee the coordination of federal, state, and local efforts to keep Asian carp from establishing in the Great Lakes ecosystems.

“As the new Asian Carp Director, John Goss clearly understands this mandate, and he will ensure that all federal agencies understand it as well,” said Gov. Jennifer GRANHOLM. “John Goss shares our passion for protecting the Great Lakes, and his skills and experience make him a great choice for this vital mission.”

Asian Carp Injunction Hearing Today

Matthew L.M. Fletcher

From the Toledo Blade, via How Appealing:

A federal court hearing begins in Chicago Tuesday that has huge ramifications for the Great Lakes region’s $7 billion fishery, and especially for Toledo and other parts of western Lake Erie trying to diversify their economies with more recreation tourism.

Mike Cox, Michigan’s attorney general, is asking for a preliminary injunction against the Army Corps of Engineers to block the movement of Asian carp into Lake Michigan until a suit seeking a permanent separation of the lakes from the Mississippi River is decided.

Mr. Cox, joined by Ohio Attorney General Richard Cordray’s office and other officials, demands immediate construction of more barriers and more aggressive use of poisons, metal grates, nets, and similar devices to repel the threat.

“The future of our water-based economy and environment is hanging in the balance,” Mr. Cox said.

The hearings only will decide the temporary injunction.

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Navajo President Shirley on the Importance of San Francisco Peaks to Dine People

Matthew L.M. Fletcher1 Comment

Here: President Shirley statement on Sanctity of San Francisco Peaks.

An excerpt:

After centuries of attempts to subdue and vanquish North America’s native people, as Navajo people we are trying to do everything we can to save self, to preserve our identity, and to live by the teachings our ancestors gave to us. Dook’o’osliid is one of our strengths. It is our essence. It is us. When the foreigners decide to desecrate it to make artificial snow for economic interests alone, that does not help my way of life. That does not help my people’s survival. That does not help when I talk to my children and grandchildren about the importance of the Navajo way, and the pride that is to be taken to be Navajo despite all that tells them they and their beliefs are somehow less than others’.

GTB Moves to Intervene in Asian Carp Suit

Matthew L.M. Fletcher

From Indianz:

The Grand Traverse Band of Ottawa and Chippewa Indians filed a motion to join a lawsuit over Asian carp, an invasive species.

Five states are suing the federal government and the city of Chicago over efforts to limit the impact of the carp. The tribe wants to ensure that its treaty rights are protected throughout the litigation.

“Historically, fishing played a central role in the spiritual and cultural framework of Native American life,” the tribe said in the brief, the Associated Press reported. “Not only are the Great Lakes fish culturally important to the tribes, these communities depend upon fisheries resources for their livelihoods.”

A hearing in the case is set for September 7.

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