Environmental

Student Note on U.S. v. Washington Culverts Opinion

Matthew L.M. Fletcher

William Fisher has published “The Culverts Opinion and the Need for a Broader Property-Based Construct” in the Journal of Environmental Law and Litigation (Oregon). Here is a copy of the Culverts Opinion. Here is an excerpt:

The question becomes: Do treaties involve an affirmative duty for states to protect fish habitat and ensure quality fish runs? As discussed herein, a federal court has answered this question narrowly, yet affirmatively, failing to employ a property-based construct that encompasses all the rights reserved under the tribal treaties. Therefore, although the courts have recognized the existence of a duty, they have not yet recognized its entire scope.

Many theories have been advanced for how courts should interpret a state’s duties to protect fish habitat. Generally, treaty-invoked duties are analyzed under a contract-law paradigm. This is not erroneous, as treaties are said to be “contract[s] between sovereign nations.” However, when courts look at treaties only as contracts, they are missing one major aspect of tribal treaties: property rights. Not only are tribal treaties contracts between sovereigns, they are also deeds of property. Therefore, the bodies of law that are invoked by the formation of a tribal treaty include both contract law and property law. However, despite the promising answers property law provides for treaty interpretation, many judges have shown discomfort at the idea of applying property-based constructs to interpret states’ and tribes’ duties and rights under such treaties. Some feel that the formalistic rules of property law do not contain enough elasticity to be molded within the Indian law context. For example, when the Ninth Circuit used a property-law analogy to enforce tribes’ rights to take fish from the Columbia River, Judge Kennedy concurred in the holding but objected to the court’s use of this analogy, arguing that it was not an exact fit. What Judge Kennedy failed to recognize was that courts can and should apply the basic models of a property-based construct to analyze treaty rights, even where every jot and tittle may not line up. Refusing to do so is to turn a blind eye to the fact that treaties are deeds of property, and as such, invoke the rules of property law.

UP Copper Mine Delayed by Bad Economy

Matthew L.M. Fletcher1 Comment

From the AP:

TRAVERSE CITY, Mich. (AP) — Construction of a proposed nickel and copper mine in Michigan’s Upper Peninsula is being delayed because of poor market conditions, its parent company said Thursday.

But project manager Jon Cherry said the announcement by London-based Rio Tinto Group does not mean the Kennecott Eagle mine is off the table. Planning and preparations are continuing with the expectation that it eventually will be built, he said.

“Our offices in Michigan are remaining open and we are moving forward,” Cherry said. None of the 25 employees are being laid off, he said.

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Morongo Band Challenge to California Water Resources Control Board Fails in CA S.Ct.

Matthew L.M. Fletcher

Here is the opinion in Morongo Band of Mission Indians v. State Water Resources Control Board. Here is an exceprt:

In an administrative proceeding to revoke a water license, does it violate the license holder’s constitutional right to due process of law, as the Court of Appeal held here, for the agency attorney prosecuting the matter before the State Water Resources Control Board to simultaneously serve as an advisor to that board on an unrelated matter? We conclude that the answer is no, and we therefore reverse the Court of Appeal’s judgment.

Michigan v. EPA — Mich. AG Challenges Clean Air Act Standards Adopted by Wisconsin Tribe in CA7

Matthew L.M. Fletcher1 Comment

Here are the materials:

michigan-petition-for-review

michigan-brief

epa-brief-michigan-v-epa

forest-county-potawatomi-brief

Obama Administration Moves to Dismiss EPA Mercury Regulation Cert Petition

Matthew L.M. Fletcher

Several Michigan tribes had an interest in this case, and signed on to an amicus brief before the D.C. Circuit (here). There are still industry petitions to deal with, but with the EPA dropping one petition (the EPA’s petition is here), it’s a better litigation climate.

From SCOTUSblog:

Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.

But the first change came in an environmental case today.  The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey.  The petitionD.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.

The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories.  The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412″ and therefore does not seek review of the lower ruling.

***The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.

Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.

Cortez Hills Gold Project Materials

Matthew L.M. Fletcher1 Comment

The District of Nevada denied the motion for an injunction (news article here, via Indianz). The motion by the South Fork Band is here — south-fork-motion-for-tro

Coeur Alaska v. Southeast Alaska Conservation — SCT Argument Today

Matthew L.M. Fletcher

Here is a brief summary on this Clean Water Act case from SCOTUSblog:

Following the release of orders, the Court will hear argument in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984) (07-990), involving the permit process for discharging mining pollutants under the Clean Water Act. Ted Olson of Washington, D.C., will argue for the petitioners, Thomas Waldo of Juneau, Alaska, will argue for the respondents, and Solicitor General Greg Garre will argue for the federal respondents in support of the petitioner.

Alaskan Natives are participating in this case as amici — and their brief is here.

Navajo Nation v. US Forest Service Cert Petition

Matthew L.M. Fletcher1 Comment

from SCOTUSblog:

Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA.  Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.

Russell Busch on Lower Elwha Dam Removal

Matthew L.M. Fletcher2 Comments

Russell Busch has published “Tribal Advocacy for Elwha River Dams Removal on Washington’s Olympic Peninsula” in the Golden Gate Environmental Law Journal. Here is a taste:

“Torpedo the dams, full speed ahead!” This inversion of Farragut’s famous order seemed appropriate when offered at a celebration of the Elwha Act’s passage, but turned out to be premature. Dam removal is now scheduled to begin in 2012, twenty years after passage of the Elwha Act and a century after the first dam blocked the river.

For the Elwha Tribe, which advocated and worked so tenaciously for dam removal, the success of its efforts will be affirmed only when the United States has actually cleared the way for the salmon to begin reclaiming the spawning grounds of their ancestors. In the meantime, the Tribe, like the fish who keep faith by returning each year to the base of the lower dam, waits patiently for the day the dams finally come down.

Article on Peabody Coal, Black Mesa, and the Bush Administration

Matthew L.M. Fletcher

From CounterPunch:

Two days before Christmas, officials from the U.S. Office of Surface Mining (OSM) have granted a permit to Peabody Coal Company to expand their mining operations on Navajo and Hopi lands, despite opposition from local communities and problems with the permitting process including lack of adequate time for public comment on a significant revision to the permit, insufficient environmental review, and instability in the Hopi government preventing their legitimate participation in the process. OSM’s “Record of Decision” (ROD) is the final stage of the permitting process for the proposed “Black Mesa Project,” which would grant Peabody Coal Company a life-of-mine permit for the “Black Mesa Complex” in northern Arizona.

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