Environmental – Page 134

Indian Country Today – d’Errico: Navajo Nation, known as an ‘Indian tribe’

April 16, 2009April 16, 2009Kirsten Matoy Carlson

Originally printed at http://www.indiancountrytoday.com/opinion/columnists/43030782.html

On April 6, the U.S. Supreme Court denied the Navajo Nation any compensation for government actions that allowed Peabody Coal to extract millions of tons of Navajo coal at low rates for 45 years. The decision raises deep issues about the meaning and continuing viability of what is known as the “trust doctrine” in federal Indian law.

The original 1964 lease established a maximum royalty rate of 37.5 cents per ton of coal. U.S. Department of Energy historical data show the average market price of coal of all kinds in 1963 was $4.55. Thus, the original royalty rate was 8.24 percent. The rate was “subject to reasonable adjustment” by the secretary of the interior on the 20th anniversary of the lease and every 10 years thereafter. DOE data show that by 1984 the 37.5 cents per ton rate yielded one to two percent of gross proceeds, far less than the original 8.24 percent.

In 1984, the area director of the BIA, pursuant to the presumed federal “trust” authority, raised the lease rate to 20 percent of gross proceeds, as requested by the Navajo Nation. Peabody filed an administrative appeal and requested the secretary of the interior to postpone decision or to rule in Peabody’s favor. Thereafter, the secretary and Peabody representatives met privately and the secretary postponed his decision. The Navajo resumed negotiations with Peabody and a rate of 12.5 percent was agreed to. The secretary approved the amended rate.

In 1993, the Navajo filed suit against the United States, alleging the secretary’s actions constituted a breach of trust. The Court of Federal Claims found the secretary had “violated the most basic common law fiduciary duties owed the Navajo Nation” by acting in Peabody’s best interests rather than those of the Navajo. That court nevertheless concluded the breach of trust did not require any compensation, because “the trust relationship necessary for our jurisdiction does not exist.”

The record of the case shows the entire leasing arrangement was premised on federal supervisory authority, the core of the so-called “trust doctrine.” Under this doctrine, the federal government asserts paramount ownership of and power over Indian lands. The Peabody lease and rates were negotiated in this framework and only became valid after the secretary’s approval.

Leaving aside, for the moment, the corruption of administrative process by the secretary’s private meeting with Peabody, the question that arises from this case is, “What does the federal trust relationship mean if it provides a presumption of authority over Indian nations but carries no responsibility to them?”

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Results of Third Turtle Talk Poll — 67% See Supreme Court Denying Cert in the Snowbowl Case

April 16, 2009April 16, 2009Matthew L.M. Fletcher

Most voters do not see the Supreme Court granting cert in Navajo Nation v. USFS — 67 percent. About 26 percent think the Court will grant cert. Seven percent see a settlement before the Court reaches an outcome.

CA10 Decides Clean Air Act Case re: Navajo Nation

April 15, 2009Matthew L.M. Fletcher

The case is Arizona Public Service Company v. EPA (opinion). An excerpt:

Arizona Public Service Company (“APS”), operator and majority owner of the Four Corners Power Plant (“Plant”), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively “Environmentalists”) challenge a regulation promulgated by the U.S. Environmental Protection Agency (“EPA”). The regulation at issue is known as a source-specific, federal implementation plan (“federal plan”) and was enacted pursuant to sections 301(a)and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The federal plan limits particular air emissions from the Plant. We have jurisdiction pursuant to section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1). Because all parties agreethat the federal plan provision pertaining to fugitive dust should be remanded, see infra Part II, we do not address this emissions limit in our discussion of the facts. We grant the EPA’s motion for voluntary remand and grant in part and deny in part the petitions for review.

Here are the materials:

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Supreme Court Cert Petition in Border Fence Case

April 12, 2009April 13, 2009Matthew L.M. Fletcher2 Comments

The case is captioned County of El Paso v. Napolitano (No. 08-751). Ysleta del Sur Pueblo is one of the petitioners. SCOTUSblog has it as one of the “petitions to watch” for the April 17 conference.

From SCOTUSblog:

Docket: 08-751
Title: El Paso, Texas, et al., v. Janet Napolitano, Secretary of Homeland Security, et al.
Issue: Whether the grant of authority to the Secretary of Homeland Security to “waive all legal requirements” necessary to ensure rapid construction of a border fence is an unconstitutional delegation of legislative power or sufficient to preempt state and local law.

Opinion below (United States District Court for the Western District of Texas)
Petition for certiorari
Brief in opposition
Petitioner’s reply brief
Brief amicus curiae of the City of Eagle Pass and other cities and other affected persons ( in support of petitioners)
Brief amicus curiae of William D. Araiza and other law professors (in support of petitioners)

Third Turtle Talk Poll — Whether the Supreme Court Will Grant Cert in the San Francisco Peaks Case

April 8, 2009Matthew L.M. Fletcher2 Comments

Will the Supreme Court grant cert in Navajo Nation v. United States Forest Service?

The new Solicitor General — Elena Kagan — has until May 8 to file an opposition to the Navajo Nation cert petition. From there, the petitioners can file a reply brief, and the case will head to the Conference, likely in June. Assuming the government opposes the petition, the Court historically is extremely likely to deny cert, especially in a non-criminal case. However, the petitioners have made a credible case that the Ninth Circuit’s en banc opinion — defining “substantial burden” under the Religious Freedom Restoration Act to be far more narrow than any other federal circuit — has created a viable circuit split.

What do you think?

“Unusual Fishing Activities”

April 6, 2009April 6, 2009Kate Fort

By Christina Rohn News-Review Staff Writer

Thursday, April 2, 2009 8:38 AM EDT

The Department of Natural Resources wants to remind Michigan residents that this spring, they may observe unusual fishing activities by tribal members. As part of the 1836 Treaty of Washington — established by the federal government, the state of Michigan and five Michigan tribes — fishing opportunities, as well as hunting and gathering activities, for tribal members are different than those allowed for state-licensed recreational anglers under Michigan law. As established by the 2007 Inland Consent Decree, tribal members from the Sault Ste. Marie Tribe of Chippewa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians and Little Traverse Bay Bands of Odawa Indians, are allowed to use spears or conventional tackle to take walleye and steelhead in state waters covered by the 1836 Treaty of Washington which are, at the time, closed to state-licensed anglers. “We haven’t been receiving any complaints, we’re just trying to be proactive to let anglers know … they might see it happening,” said Mary Dettloff, press spokesperson for the Michigan Department of Natural Resources. “If you see spearing of walleye and steelhead, do not be alarmed and think it’s illegal … it’s a fairly new thing.” The area tribal members can use under the 1836 Treaty of Washington includes the eastern half of the Upper Peninsula and a majority of northern lower Michigan, which accounts for 13,837,207 acres of land and inland waters.

Under the 2007 Inland Consent Decree, tribal members will have seasons, as well as bag limits that differ slightly from state regulations.

Tribal fishing and hunting will be for personal subsistence use only, so according to the federal and state government, it should have limited effect on the state’s natural resources.

For more information about the 1836 Treaty of Washington, or the 2007 Inland Consent Decree, visit www.michigan.gov/dnr.

To report a suspected violation of state law, call the Department of Natural Resources’ Report All Poaching line (800) 292-7800.

Court Approves EIS in Southern Ute Natural Resources Development Project

April 3, 2009Matthew L.M. Fletcher

Here is the opinion in San Juan Citizens Alliance v. Salazar, a NEPA case out of the District of Colorado — san-juan-citizens-alliance-v-salazar-dct-order

And an earlier opinion in the same case.

Arizona Snowbowl Case — Will US Recommend Cert Grant, Too?

March 23, 2009March 24, 2009Matthew L.M. Fletcher

As Indianz reports, the Navajo Nation v. United States Forest Service cert petition is brewing. A bunch of amici have filed supporting the cert petition, which definitely gets the attention of the Supreme Court (or at least the cert pool).

There are times when the respondent to a cert petition agrees with the petitioner that the Court should grant cert and hear the case. It happened in Negonsott v. Samuels (link to cert pool memo) and it could happen again … maybe.

There isn’t a classic or clear circuit split, but the CA9 in the Snowbowl case has come up with the most restrictive way to interpret RFRA’s “substantial burden test,” and I bet the United States would like to see the CA9’s rule expanded nationwide. And since American Indian religious freedom rights don’t do very well in the SCT, the United States might think this is the right vehicle and take a gamble. I’m being pretty cynical, and it is pretty unlikely, but you never know.

Op-Ed Supporting Michigan DNR

March 17, 2009Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The State Department of Natural Resources is used to taking its lumps. It gets its share and more in the media, in deer hunting and fishing publications, from bloggers and even on this page in the form of editorials and letters to the editor.

It comes with the territory. The DNR, after all, is a taxpayer-supported agency and deals with some pretty volatile issues and individuals.

The agency oversees fishing, hunting, trapping and outdoor activities of all sorts, all of which have passionate adherents not shy about their opinions.

Too often, however, the agency and individual DNR officers don’t get the credit they deserve. Many spend untold hours in the heat and cold watching for poachers or monitoring fishermen. They’ve been shot at, punched and worse in the line of duty. They don’t often hear someone say “thanks.”

But without their efforts there’d be a lot fewer deer and fish for those who pay for the privilege of hunting and fishing.

Recently the DNR, with help from officers from the Sault Ste. Marie Tribe of Chippewa Indians, said they would charge six men with running an illegal commercial fishing operation on Lake Michigan’s Little Bay de Noc. The poachers may have claimed more than 20,000 pounds of walleye in just the last two months and thousands more over several previous winters.

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