Environmental

Spring Fishing Season Brings Consent Decree Attention

Nick Reo

As folks start dusting off thier spring fishing gear, the 2007 Consent Decree is getting some press again. It is good to keep balanced information in front of Michigan citizens as we come upon walleye spawning and subsequent inland spearing. These activities will present a culture shock for some citizens, so some balanced coverage by local media outlets will be useful.

By the way, the Michigan DNR is hiring 2 fisheries biologists to work on their tribal coordination unit and whose duties will relate directly to implementing the 2007 Consent Decree. The postings close on 4/22/08.

Nez Perce Tribe v. NOAA – Water Diversion Injures Snake River Steelhead

Matthew L.M. Fletcher

The district court in the District of Idaho granted summary judgment to the Nez Perce Tribe on the question of whether a planned water diversion from the Snake River would harm the Snake River Steelhead, an endangered species.

Here are the materials:

dct-opinion-nez-perce

nez perce motion for summary judgment

noaa-motion for summary judgment

Two Makah Whalers Convicted in Federal Court

Matthew L.M. Fletcher

From Indianz:

A federal magistrate convicted two members of the Makah Nation of Washington for hunting a gray whale without federal approval.

Wayne Johnson and Andy Noel were convicted of conspiracy to violate the Marine Mammal Protection Act and unlawfully taking a marine mammal. They waived the right to a jury trial but plan to take their case to the >9th Circuit Court of Appeals. Johnson and Noel face up to one year in prison Three other tribal members who participated in the hunt pleaded guilty in exchange for no prison time.

Continue reading →

Federal Court Makah Whaling Trial Set for Next Week

Matthew L.M. Fletcher

From the AP:

Trial is scheduled to begin Tuesday in federal court in Tacoma for two Makah tribal members accused of killing a gray whale without a federal permit.

Andy Noel and Wayne Johnson face up to a year in prison and a $100,000 fine if convicted of violating the Marine Mammal Protection Act. The two turned down a plea deal accepted last month by three other whalers. All five still face prosecution in tribal court in Neah Bay. They harpooned and shot a whale Sept. 8 in the Strait of Juan de Fuca.

On a pretrial motion, Magistrate J. Kelley Arnold ruled that the defendants could not argue the whaling was a religious or cultural exercise. Defense lawyer Jack Fiander says that may be appealed.

Dispute over Access to Straits of Mackinac

Matthew L.M. Fletcher

From the Petoskey News-Review:

In a pending lawsuit, the owners of a Wawatam Township lot are seeking ownership of an adjacent strip of property that the public often uses to access the Straits of Mackinac.

The legal efforts have raised concerns from county and township officials about the potential loss of public water access.

“What we don’t want to do is, we don’t want it to fall into the hands of a private owner,” said Wawatam supervisor Roger Moore. “We want to keep it so it would be accessible to the public like it always has.”

Adjoining landowner Ralph Reisinger said he’s looking for a way to control illegal activities by visitors rather than putting the spot off limits. He noted that some of the people who’ve visited the area at the end of the road have engaged in activities such as littering and building unauthorized campfires on his lot and setting off illegal fireworks.

Continue reading →

Gold Mining in the UP?

Matthew L.M. Fletcher

From the Lansing State Journal:

STEPHENSON – Deb Skubal looks out her window and sees a pristine forest and the Menominee River meandering through the woods.

Geologist Tom Quigley looks at the same scene and envisions the riches beneath the ground: gold, silver and zinc, trapped in rock nearly 2 billion years old.

Their viewpoints appear to be on a collision course that illustrates a conflict between the needs of an increasingly global economy and the environmental disruption that may result from meeting those needs.

Quigley is president of Aquila Resources Inc., a Canadian mining exploration company that’s searching for precious metals in Michigan’s Upper Peninsula a stone’s throw from the Menominee River and the Wisconsin state line. Skubal, on the Wisconsin side, is among a group of residents – on both banks – opposed to sulfide mining, in which metals are removed from sulfide rock dug from huge open pits.

Continue reading →

Legal Analysis of the Kivalina v. Exxon Case

Matthew L.M. Fletcher1 Comment

From Marten Law Group:

Threatened by Rising Seas, Native Village Seeks Lifeline in Federal District Court

By Dustin Till

Several lawsuits have been filed in federal district court asserting that large emitters of greenhouse gases are responsible for rising sea levels and other harms attributable to global warming. In one of the latest attempts to hold greenhouse gas producers responsible for alleged climate change impacts, a coastal Native village in Alaska recently filed a federal lawsuit alleging that twenty oil, coal, and electric utility companies are responsible for thinning sea ice and increased storm surges that are forcing the village to relocate.[1] In Native Village of Kivalina v. ExxonMobil Corp., et al., the village of Kivalina alleges that the defendants’ greenhouse gas emissions constitute a nuisance under both federal and state law, and seeks to recover monetary damages up to $400 million for the costs of relocating the entire village. Kivalina also alleges that certain defendants conspired to create a misinformation campaign designed “to deceive the public about the science of global warming,” and that the defendants’ civil conspiracy contributed to the town’s injuries. [2]

Previous nuisance lawsuits seeking relief for climate change impacts under federal common law have, so far, been unsuccessful. At least three federal district courts, including the same California federal court where the Kivalina case is pending, have dismissed similar lawsuits on grounds that they presented political questions over which the courts had no jurisdiction.[3] As a result, federal courts have yet to address the merits of climate change nuisance claims – including the potentially vexing issue of causation. The defendants will undoubtedly raise similar jurisdictional challenges, and if prior litigation is any guide, the Kivalina plaintiffs face an uphill battle to recover the costs of relocating their sinking village.

Salmon Spawning & Recovery Alliance v. Lohn — Puget Sound Salmon Management Plan

Matthew L.M. Fletcher

The Western District of Washington upheld this government/tribal resource management plan. From the opinion:

This case concerns a challenge to two decisions by National Marine Fisheries Service (“NMFS”) involving Puget Sound Chinook salmon: the approval of a resource management plan prepared by the Puget Sound Indian Tribes and the Washington Department of Fish and Wildlife (“WDFW”), and the biological opinion issued by NMFS regarding the effects of its decision to approve the plan.

Slip op. at 1-2. Here are the materials:

Continue reading →

Federal Plea Deal with Makah Whalers Falls Apart

Matthew L.M. Fletcher

From the Seattle Times:

TACOMA — A plea agreement expected from five Makah whalers this afternoon fell apart when the whalers realized that the U.S. government planned to restrict their future whale hunts.

Federal authorities expected the five tribal members who killed a gray whale during an unlicensed hunt last September to sign off on the plea — which would have kept the whalers from serving jail time.

Because they declined to take the plea deal, the whalers still face up to one year in custody, a $100,000 fine, up to five years of probation and possible community service. The five men will return to court Thursday with either a new plea agreement worked out or to make plans for the case to go to trial.

Continue reading →

Coaster Brook Trout and U.P. Sulfide Mining

Nick Reo1 Comment
The proposed sulfide mining operation named the “Eagle Project” by the Kennecott Mining Corporation is staunchly apposed by the Keweenaw Bay Indian Community as well as several U.P. community and conservation groups. Critics contend that the proposed project represents a significant threat to natural and cultural resources, stands to provide a meager amount of tax revenue to the state and a huge profit to Kennecott. It is now recognized that there may be significant deleterious effects on the Coaster Brook Trout. Coaster Brook Trout 90 Day Finding

 

Above link is an advance copy of the FWS positive 90 day finding relating to the coaster brook trout.

The US Fish and Wildlife Service determined that the petition as supplemented provided sufficient information to conclude that listing the US population as endangered may be warranted. FWS will now begin a status review, with a public comment period that runs through May 19: requests for public hearings must be received by May 5.