treaty rights – Page 31

New Scholarship on Indian Treaty Rights and Fossil-Fuel Exports Projects in the Pacific Northwest

September 27, 2018Matthew L.M. Fletcher

Michael C. Blumm & Jeffrey Litwak have posted “Democratizing Treaty Fishing Rights: Denying Fossil-Fuel Exports Projects in the Pacific Northwest,” forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review, on SSRN.

Here is the abstract:

Indian treaty fishing rights scored an important judicial victory recently when an equally divided U.S. Supreme Court affirmed the Ninth Circuit’s decision in the so-called “culverts case,” which decided that the Stevens Treaties of the 1850s give the tribes a right to protect salmon migration obstructed by barrier road culverts. The implications of that decision on other habitat damaging activities have yet to be ascertained, but even prior to the resolution of the culverts case there were significant indications that federal, state, and local administrative agencies were acting to protect treaty fishing rights from the adverse effects of large fossil-fuel export projects proposed throughout the Pacific Northwest. After briefly explaining the culverts decision, this article examines five recent examples of agencies denying permits for fossil-fuel developments at least in part of treaty rights grounds. We draw some lessons from these examples concerning the importance of tribal participation in administrative processes and explore some knotty evidentiary issues that tribal efforts to protect their historic fishing sites may entail. We conclude that safeguarding their treaty rights in the 21st century will require tribes to be as vigilant about the administrative process as they have been about seeking judicial protection.

ILPC/TICA 2018 Conference Nov. 15-16: First Panel

September 21, 2018Kate Fort

Unsure of whether to attend the ILPC/TICA Conference this fall? Over the next week, we’ll be giving you inside peeks into the panels we’re very proud to host. Register and come visit us on the banks of the Red Cedar this fall:

And remember: CLEs applied for (10 standard, 1.5 ethics, 1 elimination of bias)

Bay Mills Objections to Modified Consent Decree in United States v. Enbridge

September 13, 2018Matthew L.M. Fletcher

Here:

consent-decree-objections-9-13-18.pdf

Michigan Radio Articles on Line 5

September 12, 2018Matthew L.M. Fletcher

Here is “Commenters oppose new Line 5 anchor supports, accuse state of ignoring concerns.”

And “Animation: Watch Line 5 accumulate 147 anchor supports in 16 years.“

Herrera v. Wyoming SCOTUS Background Materials

September 12, 2018December 17, 2018Matthew L.M. Fletcher

Here are the merit stage briefs:

Petitioner

Petitioner’s Brief

17-532 tsac Indian Law Professors

Crow Tribe Amicus Brief

Eastern Shoshone Amicus Brief

Natural Resources Law Professors Brief

NCAI Brief

PACIFIC AND INLAND NORTHWEST TREATY TRIBES Brief

Public Health Scholars Brief

Shoshone-Bannock Tribes Brief

Southern Ute Indian Tribe and Ute Mountain Ute Tribe

US Merits Brief

Petitioner’s Reply Brief

Respondent

Respondents Brief

Brief amici curiae of Western Association of Fish and Wildlife Agencies

Amicus Brief of Association of Fish and Wildlife Agencies

States Amicus Brief Supporting Respondent

Amicus brief of Safari Club International

Amici Curiae Brief of Wyoming Stock Growers Association

Here are the cert stage briefs:

2017-10-05 Herrera Cert Petition

17-532 Amici Brief Indian Law Professors

Crow Tribe Brief

Scholars Brief

Wyoming opposition to Herrera petition

Cert Stage Reply

17-532 Herrera (ac pet) [US invitation brief]

respondent supplemental brief

petitioner supplemental brief

Gerald Torres on the Public Trust Suit Julianna v. United States

September 11, 2018September 11, 2018Matthew L.M. Fletcher

Gerald Torres has published “No Ordinary Lawsuit: The Public Trust and the Duty to Confront Climate Disruption–Commentary on Blumm and Wood” in the American University Law Review Forum.

Tribes Sue over Keystone XL Pipeline

September 11, 2018September 11, 2018Matthew L.M. Fletcher

Here:

ROSEBUD SIOUX TRIBE AND FORT BELKNAP INDIAN COMMUNITY FILE SUIT AGAINST KEYSTONE XL

The Rosebud Sioux Tribe (Sicangu Lakota Oyate) and the Fort Belknap Indian Community (Assiniboine (Nakoda) and Gros Ventre (Aaniiih) Tribes) in coordination with their counsel, the Native American Rights Fund, on September 10, 2018, sued the Trump Administration in the U.S. District Court for the District of Montana, Great Falls Division, for numerous violations of the law in the Keystone XL pipeline permitting process. The Tribes are asking the court to declare the review process in violation of the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA) and to rescind the illegal issuance of the Keystone XL pipeline presidential permit.

On March 23, 2017, the U.S. Department of State granted TransCanada’s permit application and issued it a presidential permit to construct and operate the Keystone XL Pipeline. This decision reversed two previous administrative decisions and was done without any public comment or environmental analysis. The permitting process was completed only 56 days after TransCanada submitted its application for the third time. The State Department provided no explanation in the 2017 decision for its contradictory factual finding; instead, it simply disregarded its previous factual findings and replaced them with a new one. The reversal came as no surprise. According to a 2015 personal public financial disclosure report filed with the Federal Election Commission, then-candidate Trump held between $250,000 and $500,000 worth of stock in TransCanada Pipelines,Trump permitted the Keystone XL pipeline because he wanted to. It was a political step, having nothing to do with what the law actually requires. NARF is honored to represent the Rosebud Sioux and Fort Belknap Tribes to fully enforce the laws and fight this illegal pipeline.”

Snaking its way from Alberta to Nebraska, the pipeline would cross the United States-Canada border in Philips County, Montana, directly adjacent to Blaine County and the Fort Belknap Indian Reservation. The pipeline would cross less than 100 miles from the headquarters of the Fort Belknap Indian Reservation and run directly through sacred and historic sites as well as the ancestral lands of the Gros Ventre and Assiniboine Tribes. In South Dakota, the pipeline would cross through Tripp County, just miles from the boundaries of the Rosebud Indian Reservation and within yards of Rosebud’s trust lands and tribal members’ allotments. These lands are well within the area of impact for even a small rupture and spill. There are countless historical, cultural, and religious sites in the planned path of the pipeline that are at risk of destruction, both by the pipeline’s construction and by the threat of inevitable ruptures and spills if the pipeline becomes operational. Additionally, the Rosebud Sioux Tribe operates its own water delivery system, which is part of the Mni Wiconi Rural Water Supply Project. The pipeline would cross the two sources of water for the Mni Wiconi Project.

Despite all of these facts, throughout the permitting process, there was no analysis of trust obligations, no analysis of treaty rights, no analysis of the potential impact on hunting and fishing rights, no analysis of potential impacts on the Rosebud Sioux Tribe’s unique water system, no analysis of the potential impact of spills on tribal citizens, and no analysis of the potential impact on cultural sites in the path of the pipeline, which is in violation of the NEPA and the NHPA.

William Kindle, who was president of the Rosebud Sioux Tribe in August 2018 when the Tribal Council authorized NARF to finalize and file this lawsuit, stated at that time that, “As President of the Rosebud Sioux Tribe, I want to make it perfectly clear, and give fair warning to President Trump, Secretary Zinke, The United States Army Corps of Engineers, TransCanada and their financial backers and potential investors, South Dakota Governor Daugaard, Representative Noem, and Senators Thune and Rounds that the Rosebud Sioux Tribe opposes the construction of the Keystone XL pipeline. Through our attorneys—the Native American Rights Fund—the Rosebud Sioux Tribe will use all means available to fight in the courtroom this blatant trespass into Sicangu Lakota territory.”

Find out more about the Keystone XL Pipeline and the tribes’ opposition.