Laguna and Jemez Pueblos Sue EPA over Clean Water Act Rules

Matthew L.M. Fletcher

Here is the complaint in Pueblo of Laguna v. Regan (D.N.M.):

1 Complaint

An excerpt:

13. The Agencies repealed the 2015 Clean Water Rule and then reversed their longstanding policy by promulgating a new, much narrower interpretation of the “waters of the United States.” Definition of “Waters of the United States” — Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) [hereinafter the 2019 Repeal Rule]; The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) [hereinafter the 2020 Navigable Waters Rule]. The 2020 Navigable Waters Rule follows the directive of Executive Order 13,778, but without due regard for established law.
14. The 2019 Repeal Rule and 2020 Navigable Waters Rule are inconsistent with both the CWA’s objective of “maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” and the Rapanos significant nexus test.
15. The 2019 Repeal Rule and the 2020 Navigable Waters Rule harm the Pueblos by removing federal CWA water pollution protections from many of the ephemeral streams and other waterbodies that sustain the Pueblos. These rules remove CWA protections from 79% to 97% of stream miles in the Pueblo of Laguna. These rules remove CWA protections from 94% of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands.
16. Where a waterbody is not determined to be a “water of the United States,” the Pueblos alone are left to establish and administer water pollution control programs at their own expense.

17. However, the Pueblos rely on the Agencies to implement nearly all of the CWA’s pollution programs on their behalf and do not have the financial or administrative resources or capacity to administer these programs themselves.

18. Further, both Pueblos rely on the federal jurisdiction of the CWA to protect themselves from upstream pollution.
19. For the Pueblos, high water quality is essential to day-to-day life, as well as
cultural and religious practices.

20. The removal of federal jurisdiction creates the imminent risk of the degradation and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as cultural and religious practices.

D.C. Circuit Briefs in Mdewakanton Sioux Indians of Minnesota v. Haaland

Matthew L.M. Fletcher

Here:

Appellant Brief

Federal Answer Brief

Reply

Lower court materials here.

United States Capitol Historical Society Event — “Toward a More Perfect Union: Tribal Sovereignty” — April 1, 2021, 12 Noon Eastern

Matthew L.M. Fletcher

Register here.

Featuring Fletcher and Patty Ferguson-Bohnee.

2021 FBA [Virtual] Indian Law Conference — April 8-9, 2021

Matthew L.M. Fletcher

Details here.

Agenda

Thursday, April 8

11:30 am – 1:00 pm ET | Opening Session

  • Opening Prayer & Invocation
    • Whitney Gravelle, Bay Mills Indian Community Chairwoman
  • Welcome Remarks
    • W. West Allen, Federal Bar Association President
    • Ann Tweedy, Indian Law Section Chair
  • Keynote Presentation
    • Rep. Sharice Davids, U.S. Congress – 3rd District of Kansas
  • Lawrence R. Baca Lifetime Achievement Awards Presentation

1:30 – 3:00 pm ET | Concurrent Panels

Sports Betting: Exploring a New Landscape in Tribal Gaming
This panel will discuss recent developments in tribal sports betting, highlighting key regulatory and business considerations. Attendees will learn about sports betting across different jurisdictions, including what tribes have done to work with state legislatures to legalize and implement sports betting, and what is and isn’t permitted in different jurisdictions. Attendees will also learn about the financial outlook for sports betting.

  • Brie Coyle Jones, Partner, Miller Nash Graham & Dunn LLP
  • Kathryn Isom-Clause, Vice Chair, National Indian Gaming Commission*
  • Jeremy Patterson, Partner, Patterson Earnhart Real Bird & Wilson LLP
  • Aaron Payment, Chairperson, Sault Ste. Marie Tribe of Chippewa Indians

The Path to the Bench
In the history of the United States, only four Native Americans have been appointed to the federal bench which includes only one Native American woman. As a new administration seeks out candidates to fill vacancies in the federal courts, Native American practitioners must seek out these opportunities to increase the Native American perspective and presence in the judiciary. This panel will explore the importance of racial diversity on the federal bench, the path to appointment, and the measures and resources available to candidates.

  • Lawrence Baca, Former Deputy Director, Office of Tribal Justice, U.S. Department of Justice
  • Hon. Diane Humetewa, United States District Court for the District of Arizona
  • Rion Ramirez, CEO, Port Madison Enterprises
  • Forrest Tahdooahnippah, Partner, Dorsey & Whitney LLP

3:30 – 5:00 pm ET | Concurrent Panels

Tribes, Public Lands, and Environmental Issues
This panel will discuss current and future challenges for tribes relating to public lands and environmental issues, including regulatory changes under the prior administration and outlook for the future.

  • Amy Cordalis, Principal, Ridges to Riffles Conservation Fund
  • Nada Culver, Deputy Director, Policy and Programs, Bureau of Land Management, U.S. Department of the Interior*
  • Michael-Corey F. Hinton, Attorney, Drummond Woodsum
  • Gussie Lord, Managing Attorney of Tribal Partnerships, Earth Justice

McGirt: The Aftermath
This panel will discuss developments in Oklahoma and in Washington, D.C., following the Supreme Court’s historic decision in McGirt v. Oklahoma. Attendees will learn about what the Muscogee (Creek) Nation has experienced since the decision, including hearing from Muscogee (Creek) Nation Principal Chief David Hill himself (a “Time 100” most influential person for 2020!). This panel will discuss topics of great import to all Indian law attorneys – self-governance, VAWA, MMIP, and inter-sovereign relations.

  • Jonodev Chaudhuri, Partner & Practice Chair, Quarels & Brady LLP; Ambassador, Muscogee (Creek) Nation
  • David Hill, Principal Chief, Muscogee (Creek) Nation
  • Mary Katherine Nagle, Partner, Pipestem & Nagle, P.C.
  • Trent Shores, Former U.S. Attorney, Northern District of Oklahoma*

Friday, April 9

11:30 am – 1:00 pm ET | Ethics Session
Attendees will learn about the ethical rules guiding who is their client and obligations, if any, to other, related parties.  Attendees will also receive guidance on what the no contact rule is and its implications for the practice of Indian law.  Finally, following competition of this panel, attendees will be familiar with the professional rules guiding legal advice given under time pressure.  While the panel is targeted toward lawyers working for tribal governments or with tribal clients, all lawyers will receive helpful ethical guidance on the general practice of law.

  • Bree R. Black Horse, Attorney, Kilpatrick Townsend
  • Dean Elizabeth Kronk Warner, S.J. Quinney School of Law, University of Utah
  • Alex Pearl, Professor, University of Oklahoma College of Law
  • Rachel B. Saimons, Attorney, Kilpatrick Townsend

1:30 – 3:00 pm ET | Concurrent Panels

Civil Rights – Protections for Our LGBTQ2S Communities
The civil rights of LGBTQ2S Native Americans are in need of recognition and protection. This panel examines the development of legislation and policy for these communities at the tribal, state, and federal level.

  • Delegate Nathaniel Brown, Navajo Nation
  • Kori Cordero, Associate General Counsel, Yurok Tribe
  • Felipa De Leon & Monique “Muffie” Mousseau, Spirit Community Members, Oglala Sioux Tribe
  • Red Dawn Foster, 27th District, South Dakota State Senate

COVID Lessons Learned
This panel will discuss lessons learned from COVID from the tribal court perspective and general tribal governance perspective.

  • Ethel Branch, Member, Kanji & Katzen PLLC
  • Martina Gast, Attorney, Pipestone Law
  • Hon. Allie Maldonado, Chief Judge, Little Traverse Bay Bands of Odawa Tribal Court
  • Daniel Press, Senior Counsel, Van Ness Feldman LLP
  • Kaighn Smith, Attorney, Drummond Woodsum

3:30 – 5:00 pm ET | Concurrent Panels

Developments in Criminal Law
This panel will discuss recent developments in criminal jurisdiction in Indian Country, including the United States v. Cooley and Nobles v. State, and will also discuss implications for MMIP.

  • Troy A. Eid, Shareholder, Greenberg Traurig
  • Krystalyn Kinsel, Associate, Jenner & Block
  • Colette Routel, Professor of Law, Mitchell Hamline School of Law
  • April Youpee-Roll, Associate, Munger Tolles & Olson LLP

Toward a Brighter Future?
The Biden/Harris Administration: Priorities, Opportunities, and Challenges. What does the historic election of President Joseph R. Biden and Vice-President Kamala Harris mean for the next four years and beyond?

  • Ann Marie Bledsoe Downes, Deputy Solicitor, Indian Affairs, U.S. Department of the Interior*
  • Brian Newland, Principal Deputy Assistant Secretary, Indian Affairs, U.S. Department of the Interior*
  • Raina Thiele, Founder & CEO, Thiele Strategies

*Pending Office Approval

Univ. So. Dakota NALSA Indian Law Symposium

Matthew L.M. Fletcher

Here’s the zoom link– http://link.usd.edu/NALSALawSymposium

Ninth Circuit Resuscitates Federal Tort Claims Act Brought by Tribal Police Officer Fired by Reno-Sparks Indian Colony

Matthew L.M. Fletcher

Here is the opinion in Miller v. United States.

Briefs:

Appellant Brief

Federal Answer Brief

Reply

Elizabeth Reese on the Cooley Argument [SCOTUSBlog]

Matthew L.M. Fletcher

Here.

Indigenous Law Conference Call for Art due April 1

Monica Williamson

Since 2007, the Indigenous Law Conference commissions one American Indian, Alaska Native, Native Hawaiian, or Canadian First Nations artist each year and features their art on conference materials and the website. For more information and to submit, visit www.indigenouslawconference.com/call-for-art. Deadline to submit is April 1, 2021. Spread the word!

Friday Job Announcements

Monica Williamson

To post an open Indian law or leadership job to Turtle Talk, send the following information to indigenous@law.msu.edu:

  1. In the email body, a typed brief description of the position which includes
    1. position title,
    2. location (city, state),
    3. main duties,
    4. closing date,
    5. and any other pertinent details such as links to application;
  2. An attached PDF job announcement.

Solicitor’s Office, Division of Indian Affairs, Branch of Environment and Lands

Attorney-Advisor, Washington, D.C. Incumbent reviews and prepares litigation reports, oversees discovery, drafts pleadings, and reviews all Department of Justice filings in judicial litigation on matters within assigned areas of responsibility arising out of the various programs and activities for Interior’s agencies. In addition, the incumbent advises top officials and program managers within the Office of the Assistant Secretary-Indian Affairs and the Bureau of Indian Affairs, Division of Trust Services. Closing date: 04/06/2021. Please see the position description for more information.

Swinomish Indian Tribal Community

Staff Attorney, La Conner, WA. Qualified applicants must have demonstrated a commitment to working with Native or other minority communities and have experience or demonstrated expertise in one or more of the following: contract drafting and negotiation; drafting statutes, policies and procedures; and representing public or private entities; as well as expertise in at least one of the following substantive fields of law:  Human Resources/Employment Law, Health Care, Real Estate, Tribal economic development or private sector commercial transactions, Social Services/Education, or Indian law. More information here and in the job description. Position open until filled.

The Association of Village Council Presidents (AVCP)

RFP. Soliciting proposals from qualified companies to provide accounting services. 04/30/2021: Submission deadline.  RFP closes, no proposal accepted after this time. must be received by 4:00 P.M., A.S.T., 4/30/21. Please see the attached request for proposal.  

Omaha Tribe of Nebraska

Chief Tribal Judge, Omaha Tribal Court, Macy, NE. The duties of the position are demanding and wide-ranging: (1) Conduct preliminary proceedings in criminal and civil matters; (2) Trial and disposition of all criminal and civil matters; and more. Application opens March 24, 2021 and is open until filled. Please see the position description for more information.

California Indian Legal Services

Staff Attorney, Escondido, CA. This position provides complex legal advice and guidance, conducts legal research, and drafts legal documents in all areas of Federal Indian law to provide assistance to Tribes, Tribal Organizations and individuals. For more information, please see the position description or to apply, visit https://www.calindian.org/about-us/#employment. This position is open until filled.

Nevada Legal Services

Indian Law Staff Attorney, Reno, NV. The Indian Law Program (ILP) provides a wide range of services to both tribal members and tribal governments. In that capacity, the ILP acts as public defender in a number of tribal jurisdictions and also serves as counsel to the Inter-Tribal Council of Nevada. The ILP also conducts clinical programs for a variety of tribal courts. Frequent travel throughout Nevada, including overnight stays, is required. Applications accepted through 4/15/21. More information here.

Grand Canyon Trust

Water Director, Colorado Plateau. With the conservation director and other staff, envisions, prioritizes, and implements strategies for the Grand Canyon Trust’s work on water. The position requires leadership, strategic and analytical thinking, strong relationship building skills, advocacy, and interpersonal skills. This position interfaces heavily with Tribal partners, federal agencies, state agencies, and non-governmental organization advocates in the region. Anticipated start date: May 1, 2021.Applications will be accepted on a rolling basis. Application review will begin on April 2, 2021 and will continue until the position has been filled. Apply here and see the position description for more information.

Law Student Opportunities

The Northern Arapaho Tribe of the Wind River Reservation

Legal Intern,summer 2021, Ethete, Wyoming. This position answers directly to the Northern Arapaho in-house counsel. All applicants must have completed their second year of law school with preference given to those that have completed a course in federal Indian law, Tribal law, or have completed a law school clinic program. The student intern will assist the in-house counsel with research, drafting, and other basic legal tasks. The intern will on occasion accompany the in-house counsel to meetings with Tribal Departments, attend Tribal Court cases and hearings, assist in drafting Tribal policies and procedures, and work with the in-house counsel on ICWA cases throughout the United States. The position will remain open until filled. See the position description for more information.

UCLA School of Law Native Nations Law and Policy Center

Law Student Summer 2021 Research Assistant, Tribal Legal Development Clinic.The Center works to enhance Indian nations’ laws and governmental institutions while advancing cultural resource protection. Summer RAs work on issues relating to tribal legal infrastructure research projects. Anticipated subject matters will include family law, alternative dispute resolutions, international and human rights law, and cultural resource protection. Students will be asked to conduct legal research, draft white papers, draft proposed tribal, state, and national legislation, and develop legal models. Candidates should be 1Ls or 2Ls with a demonstrated interest in Indian Law. Please submit applications by email to Heather Morphew (morphew@law.ucla.edu) and include: (1) a cover letter discussing qualifications and interests, (2) a resume, and (3) a transcript of studies in law school. Applications should be received by 5pm PT on Friday, April 2, and will be considered on a rolling basis and thereafter until the positions are filled. Please see the website for more information.  

Rothstein Donatelli LLP

Summer Law Clerk, Tempe, AZ.  Rothstein Donatelli Tempe office is seeking a 1L or 2L summer 2021 law clerk for its Indian law practice.  The law clerk will be given a variety of real work assignments for tribal clients and will learn what a career in a boutique Indian law firm entails. Interested candidates should send a cover letter, resume, two references, law school transcript and writing sample (a sample relevant to our practice area is preferred, but not necessary) to Manya Snyder at msnyder@rothsteinlaw.com.  The Application deadline is March 31, 2001. Please see the position description for more information.

See posts from March 19, 2021.