Environmental

Marren Sanders on TAS Status for Indian Tribes and the Clean Water Act

Matthew L.M. Fletcher

Marren Sanders has posted “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State” on SSRN. Here is the abstract:

This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.

NYTs Article on Uranium Contamination at Navajo

Matthew L.M. Fletcher1 Comment

Here’s a link to the article. An excerpt:

The legacy wrought from decades of uranium mining is long and painful here on the expansive reservation. Over the years, Navajo miners extracted some four million tons of uranium ore from the ground, much of it used by the United States government to make weapons.

Many miners died from radiation-related illnesses; some, unaware of harmful health effects, hauled contaminated rocks and tailings from local mines and mills to build homes for their families.

Now, those homes are being demolished and rebuilt under a new government program that seeks to identify what are very likely dozens of uranium-contaminated structures still standing on Navajo land and to temporarily relocate people living in them until the homes can be torn down and rebuilt.

Stephen B. Etsitty, executive director of the Navajo Nation Environmental Protection Agency, and other tribal officials have been grappling for years with the environmental fallout from uranium mining.

Tyson Chicken Successfully Asserts Cherokee Treaty Rights in Environmental Defense

Matthew L.M. Fletcher

As we reported last fall here, poultry producers including Tyson Chicken asserted that many of the State of Oklahoma’s efforts to enforce state environmental laws against them must fail because the waterways at issue are owned at least in part by the Cherokee Nation. The Northern District of Oklahoma substantially agreed.

Here is the opinion (thanks to M.M.) — Tyson Opinion and Order

Legal Scholarship on the Makah Treaty Right to Whaling

Matthew L.M. Fletcher1 Comment

Emily Brand, a recent law grad, published “The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale,” in Environs, a law journal from UC Davis. An excerpt from the intro:

At the heart of this conflict are the actors who are all trying to do what they think is right. The animal rights activists want to participate in the administrative system to ensure marine mammal protection, the Makah Tribe wants to exercise its treaty right to continue focal cultural and religious traditions, and NOAA wants to fulfill its administrative duty, including its fiduciary duty under the Neah Bay Treaty. Unfortunately, the combination of good intentions created a momentum that is no longer controllable by any one party and left the Makah with an indefinitely suspended treaty right.

The Tribe now faces a complex legal road, juggling the administrative action, the criminal case, and an imminent civil suit. The Tribe must act carefully in managing its actions and arguments so as not to foreclose any way to exercise its treaty right. The Makah have three main avenues of action: 1) follow the administrative agency MMPA waiver process defined by Anderson v. Evans; 2) re-assert issues from Anderson in criminal court; or 3) re-visit Anderson’s challenges after NOAA’s waiver determination in a civil suit. Each path involves a different strategy and risk. However, all paths lead to the Ninth Circuit and ultimately the Supreme Court, the only place where this issue could finally be put the rest.

Ninth Circuit Rejects Challenge to Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the opinion, with dissent, in North County Community Alliance v. Salazar.

Briefs:

North County Community Allliance Brief

Federal Appellee Brief

An excerpt from the majority:

We hold that the Alliance’s challenge to the NIGC’s 1993
approval of the Ordinance, insofar as it relates to the licensing
and construction of the Casino, is not time-barred. We hold on
the merits that the NIGC did not have a duty under IGRA to
make an Indian lands determination in 1993 before approving
the Nooksacks’ non-site-specific proposed gaming Ordinance.
We also hold that the NIGC did not have a duty under IGRA
to make an Indian lands determination in 2006 when the
Nooksacks licensed and began construction of the Casino pursuant
to the approved Ordinance. Finally, we hold that there
was no violation of NEPA.

We hold that the Alliance’s challenge to the NIGC’s 1993 approval of the Ordinance, insofar as it relates to the licensing and construction of the Casino, is not time-barred. We hold on the merits that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before approving the Nooksacks’ non-site-specific proposed gaming Ordinance. We also hold that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksacks licensed and began construction of the Casino pursuant to the approved Ordinance. Finally, we hold that there was no violation of NEPA.

And from the dissent:

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St. Regis Mohawk Tribe Objects to General Motors Restructuring

Matthew L.M. Fletcher

From AP:

NEW YORK (AP) — A bankruptcy judge said late Sunday that General Motors Corp. can sell the bulk of its assets to a new company, clearing the way for the automaker to quickly emerge from bankruptcy protection.

Federal Judge Robert Gerber ruled that the sale is needed to avoid “immediate and irreparable harm” to GM and is in the best interests of both the automaker and its creditors.

***

Some old GM assets could prove particularly tricky to unload. One plant that will go on sale includes an aluminum casting facility in Massena, N.Y. The plant has been contaminated by PCB sludge generated from the recycling of hydraulic oil that was used in the plant’s machinery, according to the EPA. Some of the waste lies below the underground water level, and the St. Regis Mohawk Tribe, whose lands border the site, filed several objections to GM’s sale plan, arguing that it unfairly frees GM of its environmental responsibilities toward cleaning the site.

***

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Court Dismisses Teck Camino Counterclaim against Colville

Matthew L.M. Fletcher

Here is the opinion in Pakootas v. Teck Camino (E.D. Wash.) in which the court dismisses counterclaims by the polluter (Teck Camino) against one of the plaintiffs (the Colville Confederated Tribes) on grounds that tribes cannot be liable under CERCLA — DCT Order Dismissing Teck Camino Counterclaims

Here are the briefs:

Colville Motion to Dismiss Counterclaims

Teck Camino Response to Motion to Dismiss

Colville Reply re Motion to Dismiss

D.C. Circuit Rules Against Oglala Sioux Tribe in Dispute with Army Corps

Matthew L.M. Fletcher1 Comment

Here is the D.C. Circuit’s opinion, with one partial dissent (by Judge Tatel), in Oglala Sioux Tribe v. United States Army Corps of Engineers. Here are the briefs:

OST Brief

Army Corps Brief

Supreme Court Denies Cert in Border Wall Case

Matthew L.M. Fletcher

From NewsPirates (cert petition here):

border-fenceThe Supreme Court has refused to hear a challenge to the completion of the border fence between the US and Mexico, Fox News reports. Environmental groups, an Indian tribe, and the city of El Paso brought the challenge, contending that a fence will cut off access to the Rio Grande for religious, cultural, and municipal purposes. The Obama administration had encouraged the court to reject the case.
The petitioners also objected to the fence because its authorization, under then-Homeland Security chief Michael Chertoff, required Congress to waive federal, state, and local laws applying to the agency. “If allowed to stand,” the petitioners’ brief stated, the “order would constitute an unprecedented expansion of agency authority to preempt state and local law without clear congressional authority and without any oversight by any court.

Michigan Tribes and Gov. Granholm Sign Greenhouse Gas Compact

Matthew L.M. Fletcher

A press release from Clean Energy Now:

Sault Ste. Marie – Michigan Governor Jennifer Granholm and 12 Sovereign Tribes of Michigan signed an accord to fight Global Warming by reducing greenhouse gasses. Governor Granholm and Tribal Leaders have been leading their respective nations in addressing Global Warming and re-energizing what Michigan does best, manufacture a new century’s transition to a green economy that is the fastest job creator in the state.

Governor Granholm announced a 45% reduction in fossil fuels in her State of the State address, February 3, 2009.  On March 5, 2009 Governor Granholm signed an agreement with the Danish Ministry of Climate and Energy.

Chief Fred Cantu, of the Saginaw Chippewa Indian Tribe and the Tribal Council have taken leadership global warming on impacts of coal fired power plants to Michigan’s economy slowing the rapid grown of green jobs and the health and welfare of all Michigan citizens.

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