Environmental

Seventh Circuit Holds that Michigan Lacks Standing to Challenge Wisconsin Tribal Environmental Regs

Matthew L.M. Fletcher1 Comment

Here is the opinion in Michigan v. EPA (Michigan v. EPA Opinion). Judge Wood’s opinion begins:

The cultural and religious traditions
of the Forest County Potawatomi Community (“the
Community”) often require the use of pure natural re

The cultural and religious traditions of the Forest County Potawatomi Community (“the Community”) often require the use of pure natural resources derived from a clean environment. Many years ago, the Community became alarmed by increasing pollution levels in its lakes, wetlands, and forests. To remedy this problem, it submitted a request to the Environmental Protection Agency (“EPA”) to redesignate certain tribal lands from Class II to Class I status under the Prevention of Significant Deterioration (“PSD”) program of the Clean Air Act (“the Act”). This would have the effect of imposing stricter air quality controls on emitting sources in and around the Community’s redesignated lands.

After nearly fifteen years of administrative proceedings and dispute resolution efforts between the Community and neighboring Wisconsin (which were successful) and Michigan (which were not), the EPA promulgated a final ruling redesignating the Community’s lands to Class I status. It also issued two companion announcements concluding dispute resolution proceedings with Wisconsin and Michigan. Michigan seeks review of these three final administrative rulings. It asserts that the EPA pursued the redesignation in an improper manner and, as a result, needlessly complicated Michigan’s air quality control programs. Because Michigan lacks standing to pursue these claims, we dismiss its petition for review.

Briefs are here.

Ninth Circuit Affirms Injunction against Waste Disposal Facility on Indian Allotment

Matthew L.M. Fletcher

Not sure what tribe is involved, but this case (United States v. Tarlow Realty, Inc.)  involves the government’s efforts to shut down a waste disposal unit on an Indian trust allotment. It succeeded. Of note, the unpublished opinion offers this commentary about the potential conflict of interest demonstrated by the government:

Finally, we note that the Government instigated this suit at the behest of two different federal agencies — the EPA and the BIA — and that it thus represents both the general public and the allottees, whose interests may diverge in some respects. Congress permits the Government to serve dual advocacy roles as environmental steward and allotment trustee, see Nevada, 463 U.S. at 128, 135 n.14, but the Government’s focus in this case on the former, with little evident regard for the latter, raises some concern. The statutory scheme governing third-party commercial use of allotted land places the Government, in its capacity as landowner and trustee, in the paternalistic position of sanctioning only those land uses which strike an appropriate balance between economic development for the allottees and the impact of that development on the environmental health and safety of the allotment property and surrounding community. See 25 U.S.C. §§ 348, 415(a); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987); Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1074-75 (9th Cir. 1983); United States v. S. Pac. Transp. Co., 543 F.2d 676, 698, 699 (9th Cir. 1976). In litigating this case, the Government has vigorously pursued its role as advocate for the environment and the general public, and admirably so, but it may have given shorter shrift to its role as representative of the economic interests of the allottees. In fact, nowhere in the record or the Government’s brief is there a discussion of how and whether this litigation serves the allottees’ welfare. We suspect that enjoining further operation of the waste disposal facility and redeveloping the property probably does serve their long-term economic interests, but the Government’s failure to so much as mention its obligation in this regard leaves the impression, right or wrong, that it may have eschewed this duty altogether. Nevertheless, while in different circumstances that might have affected the outcome, in this case we are satisfied that the Government did not act in excess of its authority.

Documentary about Native Village of Kivalina Global Warming Suit

Matthew L.M. Fletcher

From the Public Nuisance Wire:

TORONTO – A Canadian-based film company has begun filming a documentary aimed at exposing the controversial case of Kivalina v Exxon Mobil.

Filming began last month in the tiny Alaskan village of Kivalina, a 3.9 square-mile town with a population of around 399 people. The village is in the middle of a lawsuit with Exxon Mobil over allegations the big oil company’s excess gas emissions have caused erosion and damages to the town.

More here.

Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

Matthew L.M. Fletcher1 Comment

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

LTBB to Present Data on Lake O’Neal

Matthew L.M. Fletcher

From the Petoskey News-Review (miigwetch to A.K.):

BLISS TOWNSHIP — Spurred by last year’s public outcry not to drain Lake O’Neal, the Little Traverse Bay Bands of Odawa Indians set out to collect fishery, wildlife and water quality data.

Now that the compilation is complete, the tribe will present its findings to the public beginning at 7 p.m. on Thursday at the Bliss Township Hall.

Doug Craven, the natural resources director for the tribe, said Lake O’Neal is unique to the tribe and the data was collected to help inform better decisions for it in the future.

“It’s one of the few lakes that’s completely within the tribal reservation area,” he said. “We recognized the gap regarding fisheries data and there was substantial public interest. We conducted the data to see if it matched the public’s perception and it appears that it does.”

Bill Parsons, an inland fisheries biologist with the tribe, said the data helps provide a baseline inventory on the lake cataloguing both the types of fish and birds that populate it. Parsons said he found smallmouth bass, largemouth bass, blue gill, yellow perch, rock bass, pumpkinseed and northern pike making up the fishing, and a large population of water fowl, including osprey and loons, as well as bald eagles nesting around the lake.

“We’ve determined that it’s an important fishery for the wildlife,” he said.

Continue reading →

Tenth Circuit to Hear HRI v. EPA En Banc

Matthew L.M. Fletcher

Here is the order (CA10 Order Granting En Banc Review), the earlier materials (here), the news report from Indianz, and here are the en banc petition stage materials:

HRI En Banc Petition

EPA Opposition to En Banc Petition

Navajo Opposition to En Banc Petition

New Mexico Brief in Support of En Banc Petition

Student Note on the Arizona Snowbowl Case

Matthew L.M. Fletcher

Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to
reconcile the statutory provisions of RFRA with the Supreme Court’s
ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,
RFRA was not intended to remedy the disparate treatment of sacred site claims
in free exercise doctrine and thus, it does not provide any more protection for
these claims than the Free Exercise Clause. Both of the Ninth Circuit’s
decisions, however, may ultimately lead to a more equitable framework for
analyzing free exercise challenges.

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.

Sixth Circuit Affirms Dismissal of Oklahoma Ottawa Treaty Claims — Declines to Apply Laches

Matthew L.M. Fletcher

Here is the Sixth Circuit’s opinion in Ottawa Tribe of Oklahoma v. Logan — Ottawa Tribe of Oklahoma v Ohio DNR.

The lower court had made its primary holding that the Ottawa Tribe’s treaty claims were barred by laches, as in Sherrill and Cayuga. But consistent with an amicus brief filed by NCAI and Michigan tribes, the Court declined to apply laches, instead relying upon an interpretation of the relevant treaties.

Lower court materials here and here and here and here.

Ninth Circuit Affirms Puget Sound Chinook Plan that Does Not Allow for “Recovery” of Fish Population

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in Salmon Spawning & Recovery Alliance v. NOAA, and a partial dissent. Here is the tribal amicus brief (SSRA v NOAA — Tribal Amicus Brief). Judge Berzon writes in dissent:

I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.

Moreover,

Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.

Tribal Business and Biofuel

Matthew L.M. Fletcher

From the NYTs:

IGNACIO, Colo. — An unusual experiment featuring equal parts science, environmental optimism and Native American capitalist ambition is unfolding here on the Southern Ute Indian Reservation in southwest Colorado.

With the twin goals of making fuel from algae and reducing emissions of heat-trapping gases, a start-up company co-founded by a Colorado State University professor recently introduced a strain of algae that loves carbon dioxide into a water tank next to a natural gas processing plant. The water is already green-tinged with life.

The Southern Utes, one of the nation’s wealthiest American Indian communities thanks to its energy and real-estate investments, is a major investor in the professor’s company. It hopes to gain a toehold in what tribal leaders believe could be the next billion-dollar energy boom.

But from the tribe’s perspective, the business model here is about more than business. “It’s a marriage of an older way of thinking into a modern time,” said the tribe’s chairman, Matthew J. Box, referring to the interplay of environmental consciousness and investment opportunity around algae.

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