Regulations

Federal Court Denies Injunction against Enforcement of Indian ROW Regs

Matthew L.M. Fletcher1 Comment

Here are the materials in Western Energy Alliance v. Dept. of Interior (D.N.D.):

21 Opposition to PI Motion

23 Reply

31 WEA Motion to Stay

32 Federal Response to Motion to Stay

34 DCT Order

An excerpt:

After a careful review of the entire record, and a careful consideration of all of the Dataphase factors, the Court finds that Western Energy has not met the burden of establishing the necessity of a preliminary injunction. The Dataphase factors, when viewed in their totality, weigh against the issuance of a preliminary injunction. The Court notes that both parties presented very well-reasoned legal arguments in support of their respective positions. Suffice it to say the need for this new Final Rule is unclear at best, particularly when the long-established process for obtaining BIA grants of rights-of-way across tribal lands seems to have worked relatively well for more than 60 years. The undersigned is very familiar with the process for obtaining grants of rights-of-way on reservation lands in North Dakota, as a direct result of significantly increased oil field activity in western North Dakota. Although the current regulations may arguably have been in need of some updates and “modernization,” the Final Rule will likely create far more confusion, chaos, and litigation than what the Department of the Interior ever contemplated. However, the Court finds the Dataphase factors, and the equities, weigh against the granting of the extraordinary remedy of a preliminary injunction. Accordingly, Western Energy’s motion for a preliminary injunction (Docket No. 9) is DENIED. Western Energy’s emergency motion for a stay (Docket No. 31) is DENIED as moot.

Complaint (and the main thrust of the injunction motion) here.

 

SCOTUS Denies Cert in Alaska v. Organized Village of Kake (Roadless Rule)

Matthew L.M. Fletcher

Here.

Cert petition here.

SCOTUSBlog Profile of Sturgeon v. Frost Decision

Matthew L.M. Fletcher

Here.

ABA Resolution #117 Adopted by House of Delegates

Sarah M Donnelly

Link to final resolution and report here.

Navajo Blame EPA Inaction for Suicides

Teresa Walrod

From The Daily Beast:
“For most Americans, the third week of December is about wrapping up Christmas shopping and prepping for a whirlwind of family gatherings. But for the leaders of the Navajo Nation, it’s about something much heavier: suicide prevention.”

Article is HERE.

 

 

 

Indian Law Profs Comments on EPA’s Proposed Water Quality Standards for Washington State

Matthew L.M. Fletcher

Here:

Law Professors Comments on EPA’s Proposed WQS for WA

D.C. Circuit Briefs in Alaska Natives Fee to Trust Dispute

Matthew L.M. Fletcher1 Comment

Here are the briefs in State of Alaska v. Akiachak Native Community:

2015-08-24 AK appeal brief vs Akiachak

Tribal Appellees Response Brief

USA Response Brief

Alaska Reply

2015-08-24 AK appeal brief vs Akiachak

Federal Court Grants Federal Officer Summary Judgment in Excessive Force Suit brought by Deceased Alleged Indian Graverobber

Matthew L.M. Fletcher

Here are the materials in Estate of Redd v. Love (D. Utah):

93 Love Motion for Summary J

102 Estate Opposition

115 Reply

120 DCT Order

An excerpt:

This case arises out of Dr. James D. Redd’s tragic suicide the day after federal agents arrested him and his wife for trafficking in stolen Native American artifacts, theft of government property, and theft of tribal property. Dr. Redd’s Estate brought this Bivens action against Bureau of Land Management Agent Daniel Love. The Estate claims Agent Love violated Dr. Redd’s Fourth Amendment right to be free from the use of excessive force when Agent Love sent over fifty-three federal agents, many of whom were heavily armed and wearing bulletproof vests, to raid and search Dr. Redd’s home.

Agent Love moves for summary judgment, arguing qualified immunity shields him from the Estate’s claim. After careful consideration, the court grants Agent Love’s motion.

The estate previously survived a federal summary judgment motion, and those materials are here.

 

New BIA Rights-of-Way Regulations: Webinar on Significant Opportunities for Indian Country

Sarah M Donnelly1 Comment

On November 17th the Department of the Interior published a final rule on Rights-of-Way on Indian Lands. The new regulations go into effect on December 21, 2015 and will have a substantial impact throughout Indian Country, particularly in eliminating state taxation, creating opportunity for new revenue streams for tribes, and increasing compensation for “piggybacked” uses. Virtually every reservation has multiple rights-of-way for varied purposes. These regulations contain a great deal of opportunity for tribes, but will require action and attention.

To prepare for the implementation of this final rule, NCAI is hosting a webinar to review the Rights-of-Way regulations, and will include discussion with BIA Realty on how to get started reviewing your rights of way. We will also have a discussion on negotiating. Please join us on December 11, 2015 at 2:00 pm EST. Register here.

David Mullon, former Chief Counsel of Senate Committee on Indian Affairs will offer an overview of the regulations.

Sharlene Roundface, Chief, BIA Division of Real Estate Services will share information on how to find documentation of existing Rights of Way

Stephen LeCuyer, Tribal Attorney for Swinomish Tribe, will related the Swinomish Experience with implementing tax provisions in the similar BIA Leasing regualations.

David Harrison, past Director, BIA Office of Trust Services, will discuss experiences in negotiating rights-of-way.

DOI Rights-of-Way Regulations – Final Rule

Highlights of this final rule include:

  • “Piggybacked” uses must be compensated, likely increasing values significantly;
  • State taxation of Rights of Way preempted;
  • Significant opportunity to create new sources of tribal tax revenue;
  • Simplified requirements and clarified processes for BIA review;
  • Streamlined process for obtaining a right-of-way on Indian land by eliminating the need to obtain BIA consent for surveying and establishing timelines for BIA review;
  • BIA disapproval only where there is a stated compelling reason;
  • Providing Indian landowners with notice of actions affecting their land;
  • Greater deference to individual Indian landowner decisions;
  • Promoting tribal self-determination and self-governance by providing greater deference to Tribes on decisions affecting tribal land;
  • Clarified tribal jurisdiction over lands subject to a right-of-way; and
  • Incorporating tribal land policies in processing.

NCAI Contact Information: Colby Duren, Staff Attorney & Legislative Counsel, cduren@ncai.org,  or Christina Snider, Staff Attorney, csnider@ncai.org

Summary Judgment Order in Commonwealth v. The Wampanoag Tribe of Gay Head

Sarah M Donnelly1 Comment

Briefs and orders on the motion for summary judgment in re Commonwealth of Massachusetts v. The Wampanoag Tribe of Gay Head:

Plaintiffs’ Motion

Doc. 113 – Commonwealth’s memo in support of its motion

Doc. 117 – Town of Aquinnah’s memo in support of its motion

Doc. 121 – AGHCA’s memo in support of its motion

Doc. 133 – Wampanoag Tribe’s opposition brief

Doc. 144 – Town of Aquinnah’s reply brief

Doc. 145 – AGHCA’s reply brief

Doc. 147 – Commonwealth’s reply brief

Defendant’s Motion

Doc. 119 – Wampanoag Tribe’s memo in support of its motion

Doc. 131 – Plaintiffs’ opposition brief

Doc. 150 – Wampanoag Tribe’s reply brief

Doc. 151 – Memorandum and Order

Mass. District Court has granted summary judgment to the Commonwealth against the Wampanoag Tribe (Aquinnah) for its proposed class II gaming facility on settlement lands.  The Court ruled that the Indian Gaming Regulatory Act of 1988 did not repeal the Massachusetts Settlement Act of 1987 which prohibited gaming on settlement lands.