Environmental

American Public Media “Marketplace” Shows on Crow and Lummi Coal News

Matthew L.M. Fletcher1 Comment

Thanks to D.L.:

The American Public Media show “Marketplace” is doing a series on coal, and two of their stories have focused on Indian tribes.  The first, about coal mining on the Crow Reservation, is more about the tribal economy; but the second, about a proposed coal shipping terminal in Washington state, has some legal issues (whether treaty fishing rights might be used to defeat the proposed coal terminal).

Both stories can be found at http://www.marketplace.org/topics/sustainability/coal-play

Wisconsin Law Review Publishes Jason Sanders’ “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt”

Matthew L.M. Fletcher1 Comment

Jason Sanders has published “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt” in the Wisconsin Law Review.

Here is the abstract:

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

Nick Reo and myself have a short response to the paper coming out in the online version of the Wisconsin Law Review soon.

New Scholarship on Fracking Near Indian Country

Matthew L.M. Fletcher

Heather Williams and Hillary M. Hoffman have posted “Fracking Near Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Right to Clean Water,” forthcoming in the Wyoming Law Review, on SSRN.

Here is the abstract:

The tortured history of the federal and state governments’ relationships with Native American tribes has created a legal structure in which Native American people are, quite frequently, the recipients of non-native waste generated off of native lands. Traditionally, this has taken the form of solid waste, but in recent years, it has grown to include nuclear waste and wastewater generated by hydraulic fracturing, otherwise known as “flowback fluids”, or “produced water.”

Over the last two years, produced water from four different hydraulic fracturing operations was found being discharged onto dry land and into “streambeds covered in white crystals,” on the Wind River Reservation in central Wyoming. In addition to the open dumping of these fluids, there was also visible oil and foam sheen. Pollution events like these are the result of a regulatory exemption under the Resource Conservation and Recovery Act (“RCRA”), commonly referred to as the “livestock loophole.” The livestock loophole, created in 1979, allows oil and gas operations to discharge hazardous waste fluids generated from fracking operations onto reservation land if they are consumed by livestock and wildlife, or used for agricultural purposes. The EPA, which regulates RCRA and has a fiduciary responsibility toward Indian Tribes, has not set maximum levels for many compounds used in the drilling process, and uses antiquated data to regulate toxics that have been capped. Further, industrial “trade secrets” prohibit the disclosure of additional toxics in drilling fluids under intellectual property laws, making it impossible to regulate pollution limits for surface waters under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).

The policy behind the livestock loophole is complex. Reports of gushing streams of toxic fracking fluids on reservation land reek of environmental injustice, yet tribes, as sovereign governments, are willing, able, and informed participants in the solicitation, installation, and placement of non-native waste on their own tribal lands.

Several questions arise out of the issues faced by the Wind River tribes: Is the federal policy to dump fracking fluids in Indian country consistent with its federal trust obligation, and its requirement under RCRA to protect human health and safety from toxic compounds? Is the livestock loophole’s policy to feed fracking fluids to livestock, wildlife, and agriculture a legitimate beneficial use under the Prior Appropriation doctrine? Should the EPA be forced to conduct up-to-date studies on the compounds in produced water, and their effects on living organisms, including humans? This Article will answer those questions and explore the bounds of tribal sovereignty and the federal trust responsibility in the context of produced water from fracking operations.

“Tribes Win Big on Major Water Dispute in Nevada”

Matthew L.M. Fletcher

Here.

An excerpt:

Indian Tribes in eastern Nevada received a great victory in a long-standing fight to protect their sacred lands and water from being drained and converted into a barren dust bowl by Las Vegas and the Southern Nevada Water Authority (SNWA).

Since the late 1980s, Las Vegas water officials have pushed plans to import groundwater from across eastern Nevada to supply future growth and provide a backup supply to the Las Vegas Valley, which gets 90 percent of its drinking water from an overtaxed and drought-stricken Colorado River. Water authority officials hope to deliver water to the valley from as far north as Great Basin National Park through a network of pumps and pipelines stretching more than 300 miles and costing as much as $15 billion. The attorney for SNWA has aptly called this the “largest water case in Nevada’s history”.

On December 10, 2013 the Seventh Judicial Court of Nevada in Ely reversed the Nevada State Engineer’s decision to grant SNWA virtually all of the groundwater in eastern Nevada water basins (about 84,000 acre feet annually). The Court ruled that the amount of water awarded had to be reduced and recalculated. Importantly, the Court also agreed with the Tribes that the monitoring and mitigation approved by the State Engineer had to be revised to include more participants and have more detailed standards to protect against environmental damage from draining groundwater from the basins.

WaPo Article on Wyoming’s Fight against the EPA and Tribal Sovereignty

Matthew L.M. Fletcher

Here.

Briefs in Mining Company Challenge to Interior Withdrawal of Lands at Grand Canyon related to Indian Sacred Sites

Matthew L.M. Fletcher4 Comments

Here are the briefs (so far) in Yount v. Jewell (D. Ariz.):

Northwest Mining Yount Summ Jment Memo Statement of Facts (Dec 6 2013)

Quaterra Counties Summ Jment Memo Statement of Facts (Dec 6 2013)

Our prior post is here.

Documents in Penn West v. Ominayak, et al

Kate Fort

The ex parte application for injunction here. Hearing on the application is this afternoon.

Affidavit of a general manager of Penn West, with supporting documentation (PDF, 100+ pages).

Thanks to and via @LandOccupations

Diné CARE Loses Suit to Force EPA to Impose New Rules on Navajo Generating Station

Matthew L.M. Fletcher1 Comment

Here are the materials in Diné CARE v. EPA (N.D. Cal.):

40 Diné CARE Motion for Summary J

41 EPA Cross Motion

44 Salt River Project Cross Motion

55 DCT Order Dismissing Complaint

An excerpt:

Now before the Court are the parties’ cross motions for summary judgment. Plaintiffs Diné Care and National Parks Conservation Association (collectively “Plaintiffs”) move to have the Court issue an order requiring Defendant, the United States Environmental Protection Agency and Lisa Jackson in her official capacity as administrator (collectively “EPA”), issue a final rule within one year that establishes Best Available Retrofit Technology for the Navajo Generating Station. The EPA and the intervenor-defendant Salt River Project Agricultural Improvement and Power District (“Intervenor”) each cross-move for summary judgment on the basis that the Court lacks subject matter jurisdiction to hear Plaintiffs’ complaint under the Clean Air Act (“CAA”). Having considered the parties’ pleadings and the relevant legal authority, the Court hereby GRANTS the EPA’s and Intervenor’s motions for summary judgment. The Court finds that it lacks subject matter jurisdiction of this citizen suit and dismisses the action.

EPA Grants TAS Status to Wind River Indian Reservation Tribes under Clean Air Act

Matthew L.M. Fletcher3 Comments

Here:

EPA Approval

Some materials:

Wyoming Comments

2008 Tribal Comments

News coverage here.

MN DNR Releases 1,800 page Environmental Impact Statement for Proposed Copper-Nickel Mine Located in 1854 Treaty Ceded Territory

Victoria Sweet

The Bois Forte, Grand Portgage, and Fond du Lac tribes, along with GLIFWC and the 1854 Treaty Authority have raised concerns about the impact of this project. The proposed mine exists within territory ceded by the tribes in the 1854 Treaty. The tribes reserved usufructuary rights in the area.

The public comments period began with the release of the document. At least 3 public hearings will be held.

Link to the Environmental Impact Statement here.

Press coverage here.

Excerpt from article:

In September, staff from all three Chippewa bands, the Great Lakes Indian Fish and Wildlife Commission and the 1854 Treaty Authority submitted a 100-page “cumulative effects analysis” outlining their objections to the revised environmental-impact statement.

The tribes were included in the process both times as “cooperating agencies,” which meant an advisory role with no direct control over the data collection, writing or editing for the statement. Still, their influence on the latest draft is easy to spot.

This level of tribal engagement is not limited to the PolyMet project or the Minnesota tribes, says Nancy Schuldt, the Fond du Lac water-projects coordinator: “Today, tribes are exercising environmental authorities to a greater extent. There has been a tremendous amount of capacity building in terms of tribal staff and expertise to actually follow up on our request for a seat at the table when decisions like this are being made.” . . .

The mining of iron ore, meanwhile, has been altering northern Minnesota ecosystems for more than a century, and Schuldt wants that to be the starting point for any conversation about the impact of mining what is sometimes called nonferrous, or noniron, metals.

In northern Minnesota, copper, nickel and other nonferrous metals are embedded in rock that also contains sulfide. (That’s why this kind of mining is often called sulfide mining.) When you expose the rock to air and water, sulfuric acid is created. It’s the acid runoff from the exposed rock that somebody will have to be watching and treating for hundreds of years.

In their response to a recent draft, the tribal cooperating agencies write that current and historic mining activities have “profoundly and, in many cases, permanently degraded vast areas of forests, wetlands, air and water resources, wildlife habitat, cultural sites and other critical treaty-protected resources within the 1854 Ceded Territory.”

If the PolyMet proposal promises pollution control, the position of the tribes is, we don’t buy it.

“The State of Minnesota has existed for 155 years,” they write. “The United States of America has existed for 237 years. The notion that a mining company and financial assurance instruments will be available to work on a mine site 500 years from now is not believable.”