Environmental

Freep Editorial on the Kennecott Mine and Its Impact on Indian Sacred Sites

Matthew L.M. Fletcher1 Comment

From the Freep:

UP mine threatens sacred tribal rights

BY JESSICA L. KOSKI

For far too long, the voices of affected and concerned Ojibwa people have been ignored in the midst of Kennecott’s proposed Eagle Mine in Michigan’s Upper Peninsula.

I am a member of the Keweenaw Bay Indian Community, and we did not invite Kennecott, a subsidiary of multinational mining giant Rio Tinto, to come into our ceded homelands and reservation territory to explore for minerals, blast into our sacred site, and leave behind a dying legacy of colonialism.

Indigenous peoples throughout the world are on the front lines of similar pressures to develop resources within their homelands, with little regard for their aboriginal rights. There is little mainstream media attention bringing awareness to these issues, despite a global movement for indigenous rights and numerous case studies on the impacts of mining and other extractive industries on indigenous communities.

In addition to the proposed Eagle Mine, Rio Tinto’s intentions to open up six additional mine sites, and increasing mineral exploration throughout the entire Lake Superior basin, are threatening Ojibwa treaty rights. Through treaties with the federal government, Ojibwa leaders ensured permanent reservations and retained rights to hunt, fish and gather on ceded lands. If the water and land are polluted from harmful mining, how will our treaty rights and cultural values be honored and continue into the future?

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Elizabeth Barrett Ristroph on Climate Change and Alaska Tribes’ Subsistence Rights

Matthew L.M. Fletcher

Elizabeth Barrett Ristroph of the North Slope Borough Legal Department has posted “Alaska Tribes’ Melting Subsistence Rights” on BEPress.

Here is the abstract:

Climate change impacts subsistence-dependent Alaska Natives more than Lower 48 Natives and other United States populations because (1) the effects of climate change on land and wildlife are more severe in Alaska than elsewhere in the U.S.; and (2) compared to Lower 48 tribes, Alaska tribes have less control over land and wildlife needed for subsistence.

Kennecott Mine Claims It Doesn’t Need EPA Permit

Matthew L.M. Fletcher

Here:

MARQUETTE COUNTY — According to Kennecott Minerals, construction for the Eagle Mining Project might start within the next few months.

With modifictions to their water infiltration system, company officials now claim they don’t need a permit from the Environmental Protection Agency, but not everyone agrees.

One major obstacle stood in the way of constructing the controversial nickel and copper mine in Marquette county: its underground water discharge system. The system required a permit from the epa- but kennecott says moving the system above ground has changed everything.

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Supreme Court Rejects Asian Carp Injunction Again

Matthew L.M. Fletcher1 Comment

News article here via How Appealing.

State Court Challenge to Kennecott Eagle Mine in U.P.

Matthew L.M. Fletcher

Petitions are here:

Kennecott632Petition

KennecottGroundwaterPetition

State Court Challenge to Kennecott Eagle Mine Permit Filed

Matthew L.M. Fletcher

From the NYTs:

TRAVERSE CITY, Mich. (AP) — Four groups have filed a lawsuit hoping to overturn a state permit for a nickel and copper mine in Michigan’s Upper Peninsula, saying the project does not meet legal requirements for protecting the environment.

The opponents said Kennecott Eagle Minerals Co.’s application didn’t prove the project would avoid damaging rivers, groundwater and other natural resources in the Yellow Dog Plains region of Marquette County, an undeveloped area prized for its woods and streams.

They particularly fear the mine’s ceiling could collapse beneath the nearby Salmon Trout River, a Lake Superior tributary home to the rare coaster brook trout.

”The evidence is compelling, the facts are strong and the law is squarely on our side,” Michelle Halley, attorney for the National Wildlife Federation, said Monday. Also joining the suit are the Yellow Dog Watershed Preserve, the Keweenaw Bay Indian Community and the Huron Mountain Club.

The circuit court lawsuit was filed in Washtenaw County, where the wildlife federation’s Great Lakes regional office is located.

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Update on Arizona Snowbowl Wastewater Snow

Matthew L.M. Fletcher

From the Arizona Daily Sun via Pechanga:

A federal agency is pressing the city of Flagstaff to offer potable water for snowmaking at Arizona Snowbowl that does not come directly from reclaimed wastewater.

In addition, Snowbowl could get government aid to cover the $11 million in higher costs for the water over 20 winters.

Arizona’s two U.S. senators are blasting the plan as a waste of taxpayer money and a violation of court decisions in favor of making snow at Snowbowl with treated effluent.

The proposal comes in response to tribal concerns that making snow with reclaimed wastewater desecrates the San Francisco Peaks, which they hold sacred.
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Bruce Johnsen on Historic Indian Conservation of the Pacific Northwest Fishery

Matthew L.M. Fletcher

Bruce Johnsen has posted an abstract of his interesting article, “Salmon, Science, and Reciprocity on the Northwest Coast,” on SSRN. Full text article here.

The abstract:

Severe depletion of many genetically distinct Pacific salmon populations has spawned a contentious debate over causation and the efficacy of proposed solutions. No doubt the precipitating factor was overharvesting of the commons beginning along the Northwest Coast around 1860. Yet, for millenia before that, a relatively dense population of Indian tribes managed salmon stocks that have since been characterized as “superabundant.” This study investigates how they avoided a tragedy of the commons, where, in recent history, commercial ocean fishers guided by scientifically informed regulators have repeatedly failed. Unlike commercial fishers, the tribes enjoyed exclusive rights to terminal fisheries enforced through rigorous reciprocity relations. The available evidence is compelling that they actively husbanded their salmon stocks for sustained abundance.

Cert Petition in Oglala Sioux Tribe v. U.S. Army Corps

Matthew L.M. Fletcher

Here: Oglala Sioux Tribe v. US Army Corps Cert Petition

Lower court materials here and here.

Questions presented:

1. Does the 5-year statute of limitations of Section 12 of the Indian Claims Commission Act of 1946 (“ICCA”), 60 Stat. 1049, 1052 (formerly codified at 25 U.S.C. § 70k (repealed)), which applies only to claims accruing no later than August 13, 1946, bar federal court jurisdiction over an Indian tribe’s claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on federal lands within the tribe’s aboriginal territory, specifically before making the transfers of federal lands authorized by the Water Resources Development Act of August 17, 1999, Pub. L. 106-53, Title VI, §§ 601-609, 113 Stat. 269 (“WRDA”), where the tribe’s breach-of-duty-to-consult claim does not involve either an historical land claim for money damages or the revision of treaties, contracts or agreements between the tribe and the United States, and where the breach occurred no earlier than 2002 when the WRDA transfers began?

2. Does an Indian tribe have standing to pursue its claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on lands within the tribe’s aboriginal territory, where the merit of the tribe’s non-frivolous contention, that it has a legally protected interest in the tribe’s aboriginal territory based on the Government’s trust relationship with the Indian tribes, must be assumed in assessing the tribe’s standing to sue? Continue reading →

News Coverage of Kennecott Mine Permit Change

Matthew L.M. Fletcher

From Interlochen Public Radio:

Kennecott Minerals wants to change the way it releases treated wastewater at its Eagle Rock Mine near Marquette. Instead of covering filtration pipes with soil, Kennecott wants to use thick Styrofoam insulation around the pipes.

The Michigan Department of Natural Resources and Environment calls it a minor modification, but it may mean the company won’t need a federal permit. If pipes are covered with soil the EPA considers that an underground injection system.

A spokeswoman for the National Wildlife Federation says a federal review would give more attention to tribal issues. Indian tribes maintain that blasting an opening for the mine will degrade a traditional sacred place at Eagle Rock. The state dismissed that argument in granting Kennecott a permit. The Wildlife Federation plans to appeal that decision in Circuit Court.