Environmental

Ezra Rosser on Tribal Natural Resources and Economic Development

Matthew L.M. Fletcher

Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 Envtl. L. __ (forthcoming 2010).  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539703.  The abstract is below:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Record of Decision in Kennecott Mine Adminstrative Adjudication

Matthew L.M. Fletcher2 Comments

Here: Kennecott FDO

Of note, the last paragraph on page 8 reads:

Of the six features specifically enumerated in Rule 202(2)(p), four unquestionably occur in structures: residential dwellings, schools, hospitals and government buildings. The other two, places of business and places of worship, could be reasonably construed as not requiring a structure. However, Rule 202(2)(p) contains a catch-all provision that the PFD did not address: “or other “buildings used for human occupancy all or part of the year.” R 425.202(2)(p). This inclusion of this phrase means an EIA must identify all buildings, including those used for the six enumerated features, in the proposed mining area and affected area. Consistent with the rules of statutory construction discussed above, I conclude, as a Matter of Law, Rule 202(2)(p) applies only to buildings used for human occupancy. I further conclude, as a Matter of Law, because Eagle Rock is not a building used for human occupancy, there is no basis to require the EIA identify and describe the feature as a “place of worship.” Concomitantly, the EIA submitted by Kennecott complies in all respects with § 62505(2)(b) and Rule 202, and I so conclude, as a Matter of Law.

Emphasis added.

So DEQ seems to have concluded that an outdoor American Indian sacred site is not a “place of worship” under the relevant law because it is not inside a building (as “used for human occupancy”). In other words, no American Indian place of worship can ever be a “place of worship” unless it’s inside a building.

Kennecott Mine Permits Okayed

Matthew L.M. Fletcher

From Michigan Messenger (h/t to A.K.) [DEQ press release here]:

Two days before the DEQceases to exist and a week after its director stepped down, DEQ moved to wrap up a long standing fight over permits for a planned nickel sulfide mine by concluding that only buildings may be considered “places of worship.”

A rock that is sacred toAnishnabe people need not be considered when issuing a mining permit because state law only recognizes buildings as places of worship, the Department of Environmental Quality announced Thursday.

This decision cleared the way for DEQ to finalize permits for a mine planned for public land on the Yellow Dog Plain northwest of Marquette.

The resolution comes at a time of great tumult for the department. Director Steven Chester resigned last week, and the department is slated to come under the leadership of DNR director Rebecca Humphries when it is rolled into the new Michigan Department of Natural Resources and Environment on Jan. 17.

For seven years the Kennecott Eagle Minerals Company, a subsidiary of London-based Rio Tinto, has been trying to develop the mine project. The company promised hundreds of construction and mining jobs but has faced opposition from groups that are concerned that acid drainage from the mine will damage the nearby Salmon Trout River and Lake Superior.

The National Wildlife Federation, Keweenaw Bay Indian Community, Yellow Dog Watershed Preserve, and the Huron Mountain Club together filed an administrative appeal of DEQ’s 2007 approval of mining and groundwater discharge permits for the mine. Continue reading →

Additional News Coverage of Asian Carp Debacle

Matthew L.M. Fletcher

From How Appealing:

“Asian carp DNA found in Lake Michigan; High Court inaction angers Mich. leaders”:The Detroit News has an update that begins, “On the same day the U.S. Supreme Court announced it would not take immediate action to prevent Asian carp from reaching Lake Michigan, DNA samples indicate the fish may already be there.”

The Detroit Free Press has a news update headlined “Granholm: White House summit about carp needed.”

The Chicago Tribune has a news update headlined “Army Corps: Asian carp DNA found in Lake Michigan.”

And James Vicini of Reuters reports that “Michigan request denied in Great Lakes carp case; High court won’t order closing of two Chicago-area locks; Federal government said Michigan was unlikely to prevail; Closing locks would hurt shippers.”

AP Article on Asian Carp Case

Matthew L.M. Fletcher

From the AP via How Appealing:

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court on Tuesday refused to order immediate closure of shipping locks near Chicago to prevent Asian carp from infesting the Great Lakes.

The court rejected a request by Michigan for a preliminary injunction to close the locks temporarily while a long-term solution is sought to the threatened invasion by the ravenous fish. The one-sentence ruling didn’t explain the court’s reasoning.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton, the foundation of the Great Lakes food web.

Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Officials poisoned a section of the canal in December after discovering genetic material that suggested at least some carp might have eluded an electric barrier on the Chicago Sanitary and Ship Canal and could be within six miles of Lake Michigan. If so, the only other obstacles between them and the lake are shipping locks and gates.

Last week, the U.S. Army Corps of Engineers said additional carp DNA – but no live fish – had been found in three different spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Ohio and Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi River basin. Continue reading →

Asian Carp Plea Denied

Matthew L.M. Fletcher

From SCOTUSblog:

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.  Without comment, the Court refused to issue a permanent injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.  The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in cases 1, 2 and 3 Original, Wisconsin, Michigan and New York v. Illinois.

News Coverage Update on Asian Carp Case

Matthew L.M. Fletcher1 Comment

From How Appealing:

“Something’s Fishy at the High Court”: Tony Mauro of The National Law Journal has this report.

And last Sunday’s edition of The Chicago Tribune contained an article headlined “Asian carp: Take that carp and fry it; River invader is more tasty morsel than maligned in some quarters.”

Update on Miccosukee Tribe’s Ongoing Everglades Case

Matthew L.M. Fletcher

Here are two recent orders in Miccosukee Tribe v. United States (S.D. Fla.), the upshot being that an equal protection claim against the federal government has survived a motion to dismiss:

Miccosukee v US DCT Order on Motion to Dismiss

Miccosukee v US DCT Order on Reconsideration

News Coverage of Asian Carp Case

Matthew L.M. Fletcher

From SCOTUSblog:

Following an editorial yesterday decrying the recent suit filed against the State of Illinois by the State of Michigan, the Chicago Tribune has a news story on recent fillings questioning the science behind Michigan’s claim that carp emerging through locks from Illinois waters could endanger the local fish.  The filings, in defense of Illinois, come from the Illinois Department of Natural Resources, the Metropolitan Water Reclamation District of Greater Chicago and the U.S. Army Corps of Engineers.  UPI reports that the Obama Administration has come out in favor of Illinois as well, while the Christian Science Monitor has Michigan’s side of the story.

US Opposes Michigan’s Bid to Close Chicago Canal in SCT

Matthew L.M. Fletcher

From SCOTUSBlog:

The federal government, saying that it, too, is worried about an invasive species of fish making its way into Lake Michigan and is doing something about it, urged the Supreme Court on Tuesday to turn down the state of Michigan’s new plea for major Court-ordered steps to head off that migration.  It also implied that the Court should not allow Michigan to go ahead with its underlying lawsuit in the Court against Illinois and others, arguing that the proper place for the dispute is in a lower federal court, if anywhere.  The new federal document can be found here.

Continue reading →