Turtle Talk

Ninth Circuit Affirms Dismissal of Challenge to Tribal Leasing Regs

March 7, 2017Matthew L.M. Fletcher

Here is the opinion in Desert Water Agency v. Dept. of the Interior.

An excerpt from the court’s summary:

The panel affirmed the district court’s dismissal for lack of standing and ripeness of a complaint brought by the Desert Water Agency (“DWA”), a political subdivision of the State of California, against the United States Department of the Interior and its Bureau of Indian Affairs, challenging a federal regulation that DWA believed might preempt certain taxes and fees DWA assessed against non-Indians who leased lands within an Indian reservation.

New federal regulation 25 C.F.R. § 162.017 concerns taxes applied to leases approved on Indian lands to third parties. DWA provides water supplies and water services to businesses and residences in Riverside County, California, and charges fees and taxes to non-Indians who lease land from the Agua Caliente Band of Cahuilla Indians within the Agua Caliente Indian Reservation.

The panel held that § 162.017 did not purport to change existing law, and therefore, did not itself operate to preempt DWA’s charges, and did not command DWA to modify its behavior by doing or refraining from doing anything. The panel concluded that DWA lacked standing because it had not suffered a cognizable injury at the hands of the Department of the Interior.

Briefs:

Opening Brief

Federal Brief

Reply Brief

Lower court materials here.

NEPA Challenge to Tule Wind Project Fails

March 7, 2017Matthew L.M. Fletcher

Here are the materials in Protect Our Communities Foundation v. Black (S.D. Cal.):

59-1 POCF Motion for Summary J

61-1 Tule Wind Cross Motion

80EWI Order Granting Defendants MSJ_3-6-17

Ninth Circuit Rules in Favor of Agua Caliente Reserved Groundwater Claims

March 7, 2017Matthew L.M. Fletcher2 Comments

Here is the opinion in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District:

CA9 Opinion

An excerpt:

The Coachella Valley Water District (“CVWD”) and the Desert Water Agency (“DWA”) (collectively, the “water agencies”) bring an interlocutory appeal of the district court’s grant of partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians (the “Tribe”) and the United States. The judgment declares that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe’s reservation in California’s arid Coachella Valley. We agree. In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater. However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.

Briefs here.

ATL: “Feds ‘Just Say No’ to Marijuana at High Times Cup on Tribal Lands”

March 6, 2017Matthew L.M. Fletcher

Here.

Of Course Russian Oligarchs Will Profit from Keystone XL Pipeline Construction

March 6, 2017Matthew L.M. Fletcher2 Comments

Here.

Kyle Whyte on DAPL and Environmental Injustice

March 6, 2017Matthew L.M. Fletcher

Kyle Whyte has posted “The Dakota Access Pipeline, Environmental Injustice, and U.S. Colonialism” on SSRN. It is forthcoming in Red Ink.

Here is the abstract:

Starting in April 2016, thousands of people, led by Standing Rock Sioux Tribal members, gathered at camps to stop the construction of the Dakota Access Pipeline (DAPL)—creating the #NoDAPL movement. I am concerned with how critics of #NoDAPL often focus on defending the pipeline’s safety precautions or the many attempts the Army Corps of Engineers made at consulting the Tribe. Yet critics rarely engage what LaDonna Brave Bull Allard calls “the larger story.” To me, as an Indigenous supporter of #NoDAPL, one thread of the larger story concerns how DAPL is an injustice against the Tribe. The type of injustice is one that many other Indigenous peoples can identify with—U.S. settler colonialism. I seek to show how there are many layers to the settler colonial injustice behind DAPL that will take me, by the end of this essay, from U.S. disrespect of treaty promises in the 19th century to environmental sustainability and climate change in the 21st century.

Tenth Circuit Materials in Finn v. Great Plains Lending LLC

March 6, 2017March 22, 2017Matthew L.M. Fletcher1 Comment

Here:

Finn Brief

Great Plains Lending Brief

Finn Reply

Lower court materials here.

New Student Scholarship on Tribal Criminal Jurisdiction to Crimes Against Children

March 5, 2017Matthew L.M. Fletcher

The Harvard Civil Rights-Civil Liberties Law Review has published “What about the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children” by Alison Burton.

An excerpt:

As explained in Part IV, if Congress extends tribal criminal jurisdiction to non-Indian crimes against children, challenges to this legislation are un- likely to succeed as long as Congress explicitly enacts such jurisdiction through inherent tribal sovereignty.11 Non-Indian defendants’ United States Constitutional rights will be somewhat diminished in tribal courts. How- ever, extending tribal criminal jurisdiction is still justified because criminal defendants’ rights always vary according to the sovereign state in which the crime is committed.12 Furthermore, Part IV demonstrates how tribal crimi- nal jurisdiction can be analogized to court-martial,13 another arena in which the accused is not entitled to full constitutional protections. Just as court- martial is limited to members of the military who have commited crimes, tribal jurisdiction would be limited to non-Indians who have close ties to a tribe and have commited crimes in Indian country.

Pawnee Nation sues several oil and gas companies in Tribal Court for quake damage

March 3, 2017Singel

We noted last November that the Pawnee Nation sued the Dept. of Interior in federal district court to challenge the approval of federal oil and gas leases on tribal lands here.

Today, several news agencies here, here, and here report that the Pawnee Nation has sued 27 oil and gas companies in the Pawnee Nation Tribal Court for damage caused by earthquakes. Earthquakes have been associated with wastewater injection practices used in conjunction with hydraulic fracking. Last September, the Pawnee Nation suffered damage to historic buildings due to a 5.6 magnitude earthquake.

We’ll post a copy of the complaint as soon as it becomes available.