The lesson learned, once again, is to request a permit to take eagles. Here are the materials in U.S. v. Bertucci (D. Neb.):
Environmental
Filings in Michigan Asian Carp Suit
From SCOTUSBlog:
In a new phase of the decades-long feud over the environmental health of the Great Lakes, Michigan has sued Illinois directly in the Supreme Court, this time over Michigan’s worries about the invasion of a fish species threatening to local fish populations. As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to let Michigan file its complaint. (News articles describing the lawsuit are linked in the blog’s Tuesday Roundup, see below.)
Here is the question presented in the lawsuit: “Whether, because of changed circumstances, the Court should reopen Nos. 1, 2, and 3, Original, to consider Michigan’s request for a Sujpplemental Decree to address a new and substantial infringement of Michigan’s rights — the threatened invasion of the Gr;eat Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Recalamation District of Greater Chicago] District, and the {U.S. Army} Corps {of Engineers] that is the subject of this case.”
A fact sheet describing the background of the new fish controversy ishere. A news release from the Michigan attorney general’s office is here. The text of a motion for a preliminary injunction is here The lawsuit itself — technically, a motion to reopen a 1980 Supreme Court decree and to issue a new ruling on the fish mgiration question – can be found here. A 142-page appendix is here.
Possible Michigan Suit against Illinois re: Asian Carp
From the Freep via How Appealing:
Michigan Attorney General Mike Cox plans to file a federal lawsuit, possibly in the U.S. Supreme Court, as soon as the paperwork is done to try to shut down canal locks leading to Lake Michigan, through which Asian carp could escape into the Great Lakes.
“Our attorneys are working on it as we speak” and will continue through the weekend, Cox spokesman John Sellek said Saturday.
The legal action is to be filed in federal court, but Sellek couldn’t give a precise timetable. It also could be filed directly in the U.S. Supreme Court or under a decades-old federal case concerning the diversion of water from the Great Lakes through the Chicago Sanitary and Ship Canal. In 1925, the federal government challenged Chicago’s right to divert water from the Great Lakes, through the canal, without consulting its neighbors, including Canada. Several Great Lakes states, including Michigan, also filed lawsuits arguing that the water diversion through the canal could lead to economic losses.
LTBB to Assist in Bay Harbor Cleanup
From the T.C. Record-Eagle:
PETOSKEY — A local tribe could become involved in plans to treat large-scale pollution at Bay Harbor Resort on Lake Michigan’s Little Traverse Bay.
CMS Energy is responsible for treating contaminated groundwater at Bay Harbor Resort and may turn to the Little Traverse Bay Bands of Odawa Indians for help.
CMS currently trucks wastewater to Grand Traverse County’s septage treatment plant in Traverse City, but wants to treat the pollution closer to the contamination site in Emmet County.
Tribal officials aren’t specifying what role they could play.
“This is our bay as well as it is the community’s. I want to be proactive about this. I see possibilities and responsibility,” said Ken Harrington, tribal chairman.
Nulankeyutmonen Nkihtahkomikumon v. BIA Dismissed
From Indianz:
The 1st Circuit Court of Appeals on Wednesday dismissed a lawsuit that challenged federal approval of a liquefied natural gas terminal on the Passamaquoddy Reservation in Maine.
Tribal leaders at Pleasant Point signed a contract with Quoddy Bay LNG to host the project. The Bureau of Indian Affairs approved the lease but a group of tribal members filed a lawsuit, raising environmental concerns.
A federal judge dismissed the case, saying the tribal members lacked standing. The 1st Circuit, in September 2007, revived the lawsuit and ordered another look.
Since then, the tribe cut ties with Quoddy Bay and the LNG terminal has faced delays with licensing the project. Meanwhile, the BIA said its approval of the lease never became “effective.”
The judge dismissed the case again and said the tribal members failed to exhaust their administrative appeals within the BIA. The 1st Circuit agreed but also noted the shift in the BIA’s position.
1st Circuit Decision:
Nulankeyutmonen Nkihtahkomikumon v. BIA (October 28, 2009)
Charles Carvell on North Dakota Indian Water Rights
Charles Carvell, Director of the Division of Natural Resources & Indian Affairs in the North Dakota Attorney General’s Office, has published “Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, in the North Dakota Law Review.
Here is an excerpt:
This article summarizes the foundation of North Dakota water law, that is, the prior appropriation doctrine. It then reviews the path by which non-Indians took homesteads on North Dakota Indian reservations, which in turn explains, first, the significant modern-day presence of non-Indian residents and non-Indian-owned land on reservations; second, the state’s effort to control some on-reservation water and its use; and third, it explains a fundamental source of tension between tribes and the state. The article recounts tribal assertions of jurisdiction over on-reservation water resources and their adamant rejection of North Dakota water law. It then reviews the 1908 Winters decision and its development during the past few decades, with an emphasis on the standard by which Indian reserved water rights are often measured, that is, practicably irrigable acres. How this standard might apply on North Dakota reservations, and if it should apply, are also addressed. The article concludes with an overview of the relationship between the tribes and the state regarding water.
Oil Companies’ Motion to Dismiss Kivalina Climate Change Granted
Here — Kivalina Order
Materials are here.
Federal Court Dismisses Portion of Challenge to Highway Expansion in Sacred Sites Case
Here is the opinion from the District of Oregon — Slokish v US Federal Highway Administration
An excerpt:
This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project (“Wildwood-Wemme project” or “the project”) near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration (“FHWA”), United States Bureau of Land Management (“BLM”), Advisory Council on Historic Preservation (“ACHP”), and Matthew Garrett, the Director of the Oregon Department of Transportation (“ODOT”), violated the National Historic Preservation Act (“NHPA”), 16 USC §§ 470-470x-6, National Environmental Policy Act (“NEPA”), 42 USC §§ 4321-4347, § 4(f) of the Department of Transportation Act (“DTA”), 49 USC § 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.
Ninth Circuit Decides Federal Common Law Indian Lands Case
Here is the opinion in U.S. v. Milner, which involves non-Indian shore defense structures interfering with the treaty rights of the Lummi Tribe. The U.S. charged the landowners with trespass.
ICT: Indians v. Enviros at Hopi/Navajo
From ICT:
KYKOTSMOVI, Ariz. – The battle waged against a major coal company by Hopi and Navajo activists and against large environmental groups by tribal officials has, at least temporarily, intensified the conflict playing out in northern Arizona over the control, preservation and use of cultural and natural resources.
“I never thought I would see the day when being ‘Hopi’ meant being anti-environment, pro-big corporate energy, and actually promoting pollution and global warming in favor of ‘the almighty dollar,’” Alph Secakuku said.
In addition to being Sipaulovi Village representative on the tribal council, he is president of Hopi Organizational Political Initiative, a grassroots group believed to be among those ousted from Hopi tribal land for being perceived allies of the Sierra Club and other large groups that have opposed Peabody Western Coal Company’s role in expanded strip mining.
On Sept. 28 the Hopi tribal council – its legitimacy challenged in political infighting – said the Sierra Club,National Resources Defense Council, National Parks Conservation Association, Grand Canyon Trust, and “on-reservation organizations sponsored by or affiliated with the groups, are no longer welcome on the reservation.” Continue reading
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