Environmental

New Scholarship on Karuk Tribe of California v. U.S. Forest Service

Matthew L.M. Fletcher

The Boston College Environmental Affairs Law Review has published “Endangered Precedent: Interpreting Agency Action and the Duty to Consult Under Section 7 of the ESA in Light of Karuk.”

Here is the abstract:

Following the designation of the West Coast coho salmon as a threatened species under the Endangered Species Act, and the ensuing designation of the Klamath River system in the Pacific Northwest as critical habitat for the species, the indigenous Karuk Tribe challenged the U.S. Forest Service’s mining permit approval practices in Karuk Tribe of California v. U.S. Forest Service. Under Section 7 of the ESA, an agency must consult with one of two outside resources in instances where the agency’s actions “may affect” an endangered population. In reversing the district court’s denial of summary judgment on the Tribe’s ESA claim, the Ninth Circuit held that the Forest Service’s approval of mining applications without consultation constituted discretionary agency action that may affect the region’s coho salmon population. This Comment argues that this broad interpretation of agency action accurately reflects Section 7’s requirements. Furthermore, because this standard is clear, courts should apply this broad interpretation in future cases to avoid inconsistency and protect the environment in accord with congressional intent.

Ninth Circuit Decides Pyramid Lake Paiute v. Nevada — Water for Wetlands Appeal

Matthew L.M. Fletcher2 Comments

Here are the materials in Pyramid Lake Paiute Tribe of Indians v. Nevada Dept. of Wildlife:

CA9 Opinion

Nevada Dept. of Wildlife Opening Brief

Nevada State Engineer Opening Brief

Nevada Water Fowl Assn Opening Brief

Federal Answer Brief

Pyramid Lake Paiute Answer Brief

The court’s syllabus:

Affirming the district court’s judgment, the panel held that the district court correctly  concluded that diversion of water for waterfowl habitat is not “irrigation” within the meaning of the federal court Alpine decree governing water rights in the Newlands Reclamation Project.

This appeal concerns applications filed by the Nevada Department of Wildlife and the Nevada Waterfowl Association to transfer water rights from agricultural  land in the Newlands Project to the Carson Lake and Pasture, a wildlife refuge located within the Lahontan Valley wetlands at the terminus of the Carson River. Because the  applicants proposed to use the transferred water to support the growth of plants used by wildlife, they argued that the intended use of water at Carson Lake and Pasture  constituted irrigation. The Pyramid Lake Paiute Tribe and the United States protested the applications.

Determining that the Tribe had standing, the panel held that both the Alpine Decree and the Nevada water code speak of irrigation solely in the context of agriculture and distinguish such use from the application of water for recreational, aesthetic, and wildlife purposes. Therefore, the panel agreed with the district court that the State Engineer’s approval of the applications to transfer the non-consumptive use portion of the applicants’ water rights violated Administrative Provision VII of the Alpine Decree because the applications sought a change in the manner of use to a non-irrigation purpose.

LCO Treaty Rights Camp Update

Matthew L.M. Fletcher

Iron County is going to postpone its prosecution of treaty rights campers, article here. An excerpt:

People at the Lac Courte Orielles harvest camp in northern Wisconsin will not face eviction any time soon as Iron County Board members decided Tuesday night to postpone any directives to its district attorney to seek civil and criminal charges.

The board referred the matter to the county forestry committee, the group that originally approved a year-long stay for the camp. It next meets Aug. 13.

The Lac Courte Orielles Band of Lake Superior Chippewa camp of two dozen wigwams sits near the area where Gogebic Taconite is exploring a proposed mine site. Clashes in the past few months with mining officials and those opposed to the practice have elevated the public knowledge of the camp. The band is using the camp to highlight the natural resources it says are at risk due to the proposed mining.

Tribal Amicus Brief in Oklahoma DEQ v. EPA (D.C. Circuit) — Updated to Include Osage Brief

Matthew L.M. Fletcher

Here:

Tribal Amicus

Osage Brief

An excerpt:

In the 1990 amendments to the Clean Air Act, 42 U.S.C. §§ 7401-7671q (“CAA”), Congress recognized that tribal governments are the appropriate authorities to implement CAA programs in Indian country. In particular, Congress added the “treatment as a state” (“TAS”) provision in CAA § 301(d), 42 U.S.C. § 7601(d), allowing tribes to administer CAA programs in Indian country the same way states fulfill this function outside of Indian country. That provision gives the Environmental Protection Agency (“EPA”) discretion to determine how best to integrate tribes into the CAA framework. It also authorizes EPA to administer CAA programs in Indian country when tribes are unable to or otherwise do not do so. As this Court explained in Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1284 (D.C. Cir. 2000), the TAS provision “constitute[s] an attempt by Congress to increase the role of native American nations in [the federal-state] partnership.”

Specifically, CAA § 301(d)(1)(A) provides that EPA “is authorized to treat Indian tribes as states under this chapter” and § 301(d)(2) asserts that EPA “shall promulgate regulations … specifying those provisions for which it is appropriate to treat Indian tribes as States,” under the conditions enumerated in § 301(d)(2)(A)-(C) (emphases added). At the same time, § 301(d)(4) provides that when “the Administrator determines that the treatment of Indian tribes as identical to States is inappropriate or administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions” (emphasis added).
EPA implemented the TAS provision through the CAA Tribal Authority Rule (“TAR”), 40 C.F.R. §§ 49.1 – 49.22, which was upheld by this Court in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Tribal participation under the rule is voluntary, in recognition of the limited resources of tribal governments, and EPA retains the ultimate responsibility to implement and enforce the CAA and to fill in the gap when tribes do not act. 63 Fed. Reg. 7254, 7263 (Feb. 12, 1998) (final TAR).

EPA already had federal regulations for some CAA programs when it promulgated the TAR.2 EPA recognized, however, that the lack of federal regulations for other CAA programs would result in a gap in CAA regulation in Indian country until tribes developed those programs for tribal lands. 63 Fed. Reg. at 7263. EPA noted in the TAR that it was revising the federal operating permit regulations, found at 40 C.F.R. Part 71, so that they would apply to Indian country as well as to states that lacked approved Title V operating permit programs. Id. EPA also stated its intent to develop the rule that Petitioner Oklahoma Department of Environmental Quality (“ODEQ”) is now challenging: “Review of New Sources and Modifications in Indian Country,” 76 Fed. Reg. 38748 (July 1, 2011) (“NSR Rule”). See 63 Fed. Reg. at 7263.

The NSR Rule applies to all areas of Indian country, as that term is defined in 18 U.S.C. § 1151. ODEQ challenges its application to “non-reservation” Indian country only. Pet. Br. at 11.

The EPA merits brief is here:

EPA Brief

Bakken Boom Satellite Maps

Matthew L.M. Fletcher1 Comment

Amazing material. Thanks to Drs. Braun and Reed at the University of North Dakota.

 

 

Since late 2011, Dr. Sebastian Braun (American Indian Studies) and Dr. Ann Reed (Anthropology) have been working on a project to investigate the social impacts of the Bakken oil boom in western North Dakota.

One of the best ways to visualize the impacts of the boom is through satellite images. Seen from the ground level, it is hard to imagine the overall impact on the landscape, the ecosystem, and the flora and fauna (including homo sapiens) that depend on it. Satellite images reveal the challenges, changes, and disruptions that are caused by access roads and well pads, as well as the booming support economy. This is especially true if viewed over time – in case of a boom, a short time.

Here are some examples of Satellite images from 2005, 2009, 2010, and 2012 of specific locations: Mandaree, New Town, and Watford City. We will add more images in the future.

These images reveal how the physical environment has been changed, and make it possible, perhaps, to imagine how the landscape might look like in the future.

Disturbing Events at Lac Courte Oreilles Treaty Rights Camp — Mining Co. Hires Paramilitary Security Firm to Push Off Anishinaabeg

Matthew L.M. Fletcher

News coverage from the Progressive and Wisconsin Public Radio.

From the Prog:

On Tuesday morning the Iron County Forest Committee voted unanimously to recommend that the Iron County Board pursue criminal and civil charges against the Lac Courte Oreilles Treaty Harvest and Education camp for violating county ordinances and provisions of state County Forest Law. The vote took place with no discussion after the committee emerged from closed session with their corporate counsel.

The decision comes two months after the same committee voted unanimously to approve a request by the Lac Courte Oreilles Band of Lake Superior Chippewa for a waiver to the county’s 14-day camping ordinance to allow the camp to remain established on Moore Park Road for one year.

From WPR:

MainGun
Credit Rob Ganson

An attorney who has been critical of mining company GTAC says the company might have committed a felony when it hired an unlicensed security firm to guard its test drills.

Hurley lawyer Anthony Stella had already asked the Iron County district attorney and state regulators to deny a license to Arizona-based Bulletproof Securities because the company’s paramilitary-style guards operated here without a license. In a new letter sent to the DA and the state, Stella cites another law that says anyone who employs armed people for the protection of persons or property, not being authorized by the laws of the state, is guilty of a felony.

Possible dysprosium mining in Haida Territory

Matthew L.M. Fletcher

Here.

Yakama Nation Celebrate Sockeye Return to Cle Elum Lake for the First Time in 100 Years

Victoria Sweet

Yakama Nation biologists released thousands of sockeye salmon into a Central Washington lake over the past four summers to restore fish runs that were decimated with the damming of area rivers and streams. Each fall, the just-released fish swam up the Cle Elum River to spawn and die. Their babies, meanwhile, spent a year in the lake before swimming to the ocean to grow into adulthood. Now, four years after the first release in 2009, those adult fish are returning to their birthplace to spawn, and tribal members are celebrating what they hope is the resurrection of a revered species to its native habitat. “You are part of a sacred ceremony to celebrate the return of an important ingredient to our body, our hearts, our life,” Yakama elder Russell Jim told the crowd gathered on the shore of Cle Elum Lake.

Some great pictures from the celebration here.

Thanks to JO for the article.

Yukon Court Orders Territory to Consult First Nation

Victoria Sweet

The Yukon Supreme Court has overturned a Yukon government decision to allow a mining exploration project on the White River First Nation lands.

Last year, Yukon’s environmental assessment board recommended that a Tarsis Resources project not be allowed to proceed because it would have negative effects.

The director of mineral resources with the Yukon Department of Energy, Mines and Resources rejected that recommendation.

The White River First Nation then turned to the courts.

On Friday Justice Ron Veale ruled the Yukon government had made “fundamental mistakes” in its approach to consultation, by disregarding the board’s recommendation.

He ordered the director of mineral resources to meet with the First Nation for “deep consultation.”

Article here.

Gas Line Spills 25,000 Gallons on Montana Tribal Land

Victoria Sweet

A Phillips 66 pipeline with a record of prior accidents spilled an estimated 25,000 gallons of gasoline in a remote area outside a small town on Montana’s Crow Indian Reservation, but no public health problems were anticipated, federal officials said Friday.

A representative of the Houston-based oil refinery and chemical company said the amount of leaked gas likely was less than initially reported, although no alternate figure was offered. The initial estimate came from a report submitted by the company to the government’s National Response Center.

Federal and tribal officials and the company worked Friday to determine what caused the break in the 8-inch underground line. It occurred about 15 miles southwest of Lodge Grass, a town of about 430 people near the Wyoming border. The same line has seen at least three spills over the past two decades.

Story here.