Environmental

Arizona Snowbowl Cert Petition on Deck This Week

Matthew L.M. Fletcher1 Comment

Navajo Nation v. United States Forest Service is set for this week’s conference. From SCOTUSblog:

Docket: 08-846
Title: Navajo Nation, et al. v. United States Forest Service, et al.
Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

[Akin Gump and Howe and Russell represent the petitioners]

EPA Asserts that Proposed Greenhouse Gases Regulations Do Not Require Tribal Consultation

Matthew L.M. Fletcher1 Comment

Amazingly, the EPA in its recent notice that it will begin regulating greenhouse gases made the assertion that it will not consult with Indian tribes under Executive Order 13175: Consultation and Coordination with Indian Tribal Governments. Here is the notice — EPA-HQ-OAR-2009-0171-00012. The relevant language is on page 18909, or page 25 of the pdf.

Guess no one at EPA is aware that a bunch of Indian tribes (most notably the Crow, Navajo, and Southern Ute) hold the keys to very large greenhouse-gas producing natural resource reserves, or that Alaskan Native communities (like Kivalina) are falling into the ocean as a result of greenhouse gases. Baffling.

Thanks to Jim for this one.

Commentary on the Status of the Arizona Snowbowl Cert Petition

Matthew L.M. Fletcher1 Comment

OK, so now the United States has come out in opposition to the Navajo Nation’s cert petition in the Snowbowl case. A few comments:

1. Too bad any effort to persuade the Obama Administration to change course in this case failed. We understand that with very, very new SG Kagan on board there was likely little chance to make that happen, but it’s still disappointing. What would be really disappointing is if the government is unwilling to consider settlement and dismissal under Rule 56 if the Court does grant cert, where the government has time to consider its position.

2. We think it’s fairly well established that the government was more likely wrong than not that there is no split in authority under the “substantial burden” test. The en banc opinion in the Ninth Circuit was a big stretch, and went way beyond the other circuits that have confronted the question. The question now is whether the Supreme Court thinks this is the right vehicle to decide the question. There may be one decent reason to think it is not — these tribes have already litigated the Snowbowl to the Supreme Court once before in Wilson v. Block, 708 F.2d 735, and the Court denied cert back then.

But of course, that doesn’t really matter if the Court wants this one. And there’s no reason to think it doesn’t. How many times has the Court used Indian law and Indian religions as a battleground for its religious freedom doctrines? Bowen, Lyng, Smith I, Smith II….

Obama Administration Sides with Arizona Snowbowl

Matthew L.M. Fletcher1 Comment

Here are the two cert opposition briefs filed in Navajo Nation v. USFS:

Federal Cert Opposition

Arizona Snowbowl Cert Opposition

Miccosukee Tribe (Mostly) Drops ESA Suit in the Eleventh Circuit

Matthew L.M. Fletcher

Here is the opinion in this installment of Miccosukee Tribe v. United States.

An excerpt:

For centuries, a broad, shallow sheet of fresh water that covered most of South Florida flowed south from Lake Okeechobee to the Florida Bay. This phenomenon was the “river of grass” or Everglades, which supported unique and fragile flora and fauna. As so often happens with natural treasures, people sought to control and manipulate the Everglades for their own ends. After the State of Florida’s efforts to tame the Everglades failed, in 1948 the Army Corps of Engineers got involved.
The Corps undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F.Supp. 448, 454 (S.D.Fla.1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams. This massive plumbing project drained the northern portion of the original Everglades for agricultural use and diverted water into distinct, deeper Water Conservation Areas for controlled release into the southern part of the original area, which became Everglades National Park. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits a sparrow against a hawk.

Northern Cheyenne Tribal Challenge to Montana DEQ over Tongue River Fails

Matthew L.M. Fletcher

Here is the opinion in Northern Cheyenne Tribe v. Montana Dept. of Environmental Quality, out of state trial court in Montana — northern-cheyenne-v-montana-deq

An excerpt:

Before the Court are motions for summary judgment filed by Plaintiff Northern Cheyenne Tribe and Plaintiffs-Intervenor Tongue River Water Users’ Association and Northern Plains Resource Council and cross-motions for summary judgment filed by Defendants Montana Department of Environmental Quality and Richard Opper and Defendant-Intervenor Fidelity Exploration & Production Company. A hearing on the motions was held on February 28, 2007 at the Stillwater County Courthouse, Columbus, Montana. John B. Arum and Brian C. Gruber of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington and James L. Vogel of Hardin, Montana were present representing the Northern Cheyenne Tribe (Tribe). Brenda Lindlief-Hall of Reynolds, Motl & Sherwood, Helena, Montana appeared on behalf of Tongue River Water Users’ Association (TRWUA). Jack R. Tuholske of Missoula, Montana appeared on behalf of Northern Plains Resource Council (NPRC). Special Assistant Attorney General Claudia L. Massman appeared on behalf of the Montana Department of Environmental Quality and Mr. Opper (collectively, DEQ). Jon Metropoulos and Alan L. Joscelyn of Gough, Shanahan, Johnson and Waterman, Helena, Montana appeared on behalf of Fidelity Exploration & Production Company (Fidelity). Upon due consideration of the briefs and argument of counsel, the available record, together with the applicable law, the Court determines that there are no issues of material fact and judgment as a matter of law in favor of Defendant and Defendant-Intervenor is warranted. Accordingly, for the reasons stated below, the motions for summary judgment of the Tribe, TRWUA and NPRC should be denied and the cross-motions for summary judgment of the DEQ and Fidelity should be granted.

Supreme Court Takes No Action on Border Fence Case

Matthew L.M. Fletcher

Here is today’s order list, and commentary on El Paso v. Napolitano from SCOTUSblog:

The Court took no action on a new attempt to challenge the constitutionality of the sweeping powers Congress gave to the federal government in 2005 to set aside federal, state and local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S.-Mexico border.  The Court turned down the first test, last June. The new case is El Paso County, et al., v. Napolitano (08-751).  The dispute could present the Court with an opportunity to make use of the rare power to strike down a federal law on the theory that Congress had given away too much of its legislative power to the Executive Branch.  That power has not been used for 74 years.

The cert petition is here. Ysleta del Sur Pueblo is a petitioner.

HRI, Inc. v. EPA — Dependent Indian Community Determination

Matthew L.M. Fletcher1 Comment

A split panel of the Tenth Circuit concluded that the EPA was within its authority to find that a checkerboarded area of northwestern New Mexico was Indian Country for Safe Drinking Water Act purposes. Here is the opinion.

Here are just some of the many briefs filed in this case (I think I got all the important ones):

hri-appellant-brief

national-mining-assoc-amicus-brief

new-mexico-amicus-brief

navajo-nation-intervenor-brief

epa-brief

hri-reply-brief

interior-land-status-determination

D.C. Circuit Halts Plans for Off-Shore Oil Drilling in Alaska

Matthew L.M. Fletcher

Here is the opinion in Center for Biological Diversity v. Dept. of Interior. Here is the brief for the Native Village of Point Hope — native-village-of-point-hope-reply-brief

An excerpt:

In August 2005, the United States Department of Interior (Interior) began the formal administrative process to expand leasing areas within the Outer Continental Shelf (OCS) for offshore oil and gas development between 2007 and 2012. This new five-year Leasing Program included an expansion of previous lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. Petitioners filed independent petitions for review challenging the approval by the Secretary of the Interior (Secretary) of this Leasing Program on various grounds. Specifically, Petitioners argue that: (1) the Leasing Program violates both the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a, and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f, because Interior failed to take into consideration both the effects of climate change on OCS areas and the Leasing Program’s effects on climate change (the climate change claims); (2) the Leasing Program also violates both OCSLA and NEPA because Interior approved the Program without conducting sufficient biological baseline research for the three Alaskan seas, and further failed to provide a research plan detailing how it would obtain this baseline data before the next stage of the Program; (3) Interior violated the Endangered Species Act of 1973(ESA), 16 U.S.C. §§ 1531-1544, by failing to consult with either the U.S. Fish and Wildlife Service (Fish and Wildlife) or the National Marine Fisheries Service (NMFS) about potential harm to endangered species in the OCS planning areas before it adopted the Leasing Program; and (4) the Leasing Program violates OCSLA because it irrationally relied on an insufficient study by the National Oceanographic and Atmospheric Administration (the NOAA study) in assessing the environmental sensitivity of the OCS planning areas in the Leasing Program. We hold that Petitioners’ NEPA-based climate change claim, Petitioners’ NEPA baseline data claim, and Petitioners’ ESA claim are not yet ripe for review. We therefore dismiss the petition with respect to these claims.

Continue reading →

GTB Seeks to Remove Dams from the Boardman River

Matthew L.M. Fletcher1 Comment

From Indianz:

The Grand Traverse Band of Ottawa and Chippewa Indians is seeking $7.5 million in federal stimulus funds to remove dams on the Boardman River in Michigan.

The tribe wants to remove three dams and modify a fourth. The money for the project would come from the American Recovery and Reinvestment Act. The dams are in city and county hands but local officials have already been discussing ways to remove them. The tribe decided to take action to meet a deadline to apply for stimulus funds.

Get the Story:
GT Band seeks grant to help remove dams (The Traverse City Record-Eagle 4/17)