Colorado River Indian Tribes Sue Interior over Modified Blythe Solar Power Project

Here is the complaint in Colorado River Indian Tribes v. Dept. of Interior (C.D. Cal.):

1 Complaint

An excerpt:

This complaint challenges the actions of Defendants U.S. Department of Interior, U.S. Bureau of Land Management, and their officials (collectively, “BLM” or “Defendants”) in approving the Modified Blythe Solar Power Project (“Blythe II” or “Project”), a  utility-scale solar energy generation facility slated for development on federal land northwest of Blythe, California. As set forth below, this Court has jurisdiction over this action because it presents questions of federal law, involves federal defendants, and involves a federally recognized Indian tribe as plaintiff in a suit against federal defendants. 28 U.S.C. §§ 1331, 1361, 1362.

The Project site is located within the ancestral homelands of the members of the Colorado River Indian Tribes (“CRIT” or “Tribes”), whose reservation begins just a few miles northeast of the site. The religion and culture of CRIT’s members are strongly connected to the physical environment of the area, including the ancient trails, petroglyphs, grindstones, hammerstones, and other cultural resources known to exist there. The removal or  destruction of these artifacts and the development of the Project as planned will cause CRIT, its government, and its members irreparable harm.

Summary Judgment Materials in Bivens Action by Estatet of Deceased Indian Graverobber

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

60-1 Motion to Dismiss

64 Opposition

69 Reply

76 DCT Order on Summary J

An excerpt:

This case arises following the tragic suicide of Dr. James D. Redd after his arrest for trafficking in stolen Native American artifacts, theft of government property, and theft of tribal property. The Estate of Dr. Redd brings this Bivens action against Bureau of Land Management (BLM) Agents Daniel Love and Dan Barnes. The Estate of Dr. Redd asserts that Agent Love and Agent Barnes violated Dr. Redd’s constitutional rights [2]  by: (1) providing false information to obtain a warrant for Dr. Redd’s arrest and authorizing a search of his home; (2) using the illegally obtained search warrant to search Dr. Redd’s home; (3) using excessive force against Dr. Redd primarily by sending approximately 140 agents, many of whom were heavily armed and clothed in flak jackets, to raid and search Dr. Redd’s home; (4) violating Dr. Redd’s equal protection rights; and (5) violating Dr. Redd’s right to due process.

Defendants move to dismiss, arguing qualified immunity shields them from Dr. Redd’s claims. After careful consideration and for the reasons stated below, the court finds that Agent Love and Agent Barnes are entitled to qualified immunity on Plaintiffs’ first, second, fourth, and fifth causes of action because Dr. Redd has failed to allege enough facts to state a claim for relief that is plausible on its face. But, the court finds that Dr. Redd has pleaded facts that, if true, are sufficient to show that officials violated Dr. Redd’s clearly established constitutional right of protection against excessive force when Defendants employed between about 80 to 140 agents to raid and search Dr. Redd’s home.

And:

In January 1996, the Redds visited and collected Native American artifacts from an area they believed to be privately owned. Unbeknownst to the Redds, the BLM map they relied on was inaccurately drawn. The Redds were, in fact, collecting Native American artifacts from Cottonwood Wash, a Hopi ancestral burial ground. The Redds were arrested and charged with desecration of a human body. The arrest ultimately resulted in Mrs. Redd entering an Alford Plea in which she admitted no criminal conduct, and agreed to pay $10,000 to settle a civil suit related to the act. The state dropped all charges against Dr. Redd.

 

IREHR on Bundy Ranch’s Longterm Potential Impact on Indian Treaty Rights

Here.

An excerpt:

A second lesson from the conflict is the double standard employed by the federal government in enforcing its grazing laws. The treatment of Bundy stands in stark contrast to the human rights violations committed against Carrie and Mary Dann (Mary Dann passed in 2005) by the U.S. government. The Dann sisters, members of the Western Shoshone tribe, grazed cattle on their ancestral lands in what is now central Nevada. In contrast to the Bundy incident, where the federal government had clear jurisdiction over the lands, the Dann sisters exercised reserved rights to use the land under the 1863 Treaty of Ruby Valley – a treaty that ceded no lands to the United States, only granting the U.S. certain access rights to lands. The Indian Claims Commission – created in 1946 to “compensate” tribes for unfairly taken lands (but not return the lands) – decided that U.S. title to Western Shoshone lands had been obtained through gradual encroachment by whites – that is, United State’s title to the land was based on simply taking it!

Goshute Tribes Join Suit against BLM over S. Nevada Water Authority’s Groundwater Mining and Pipeline Project

Here (CTGR SNWA-ROD Lawsuit Press Release 2 19 14 Final):

Confederated Tribes of the Goshute Reservation Join Coalition

Lawsuit against BLM’s Authorization of the Southern Nevada Water Authority’s Massive Groundwater Mining and Pipeline Project

Ibapah, Utah – The Confederated Tribes of the Goshute Reservation (CTGR) joined the Great Basin Water Network’s recent lawsuit against the Bureau of Land Management (BLM) and Department of Interior (DOI) last week.  The lawsuit challenges BLM’s decision to grant a right-of-way for a water pipeline that would destroy irreplaceable cultural and natural resources.

“We cannot look the other way when the future of our people and homelands are in the hands of those who have their priorities mixed up,” stated CTGR Tribal Chairperson Madeline Greymountain.

“The federal government has failed in its trust responsibility, therefore CTGR has no recourse but to file suit against BLM for failure to protect our interests, which is a legal and moral obligation of the highest fiduciary standard.”

Continue reading

Update in Ruby Pipeline Case

Guess the big win wasn’t all that big. Here are two unpublished opinions from the Ninth Circuit in related cases that are not so excellent for the tribes.

CENTER FOR BIOLOGICAL DIVERS. V. BLM

SUMMIT LAKE PAIUTE TRIBE V. BLM

Ninth Circuit Hands Summit Lake Paiute Tribe & Fort Bidwell Indian Community Big Win in Challenge to BLM Approval of Ruby Pipeline

Here is the opinion in Center for Biological Diversity v. BLM.

An excerpt:

Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and  streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The propriety of the FWS’s “no jeopardy” conclusion, and the BLM’s reliance on that conclusion in issuing its Record of Decision, are at the heart of this case. This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Specifically, we resolve petitioners’ claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat
trout to be taken during construction. We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion.

Briefs here.

Congrats to Colette Routel and the tribes.

Department of Interior Approves Wind Project Despite Objection of Tribes

From  U~T San Diego here:

Native American tribal officials remain concerned about artifacts as well as the basic visual intrusion on a landscape tied to the creation stories of several nearby tribes.

“That’s part of these people’s spiritual identity, and yet they want to put up turbines and destroy and interfere with that reverence and the serenity of what the creator gave them,” said John Bathke, a historic preservation officer for the Quechan Indian Tribe.

And

“We understand that they have those concerns with regard to consultation,” said Erin Curtis, a spokeswoman for the BLM in Sacramento. Federal policy on tribal consultation, she said, “doesn’t necessarily require agreement all of the time.”

The Bureau of Land Management Press Release is here.

The Record of Decision, Final EIS, and other information from the BLM can be found here.

New Scholarship by Tom Fredericks and Andrea Aseff Arguing BLM Should Not Have Jurisdiction over Indian Lands

Tom Fredericks and Andrea Aseff have published “When Did Congress Deem Indian Lands Public Lands?: The Problem of BLM Exercising Oil ad Gas Regulatory Jurisdiction in Indian Country” in the Energy Law Journal.

From the synopsis:

While the BLM has been asserting regulatory jurisdiction over oil and gas development on Indian lands for approximately twenty years, it should not be. Congress charged the BLM with regulating oil and gas and other activities on public lands, specifically for multiple use and sustained yield in accordance with land use plans the agency develops. Indian lands are not public lands. This article seeks to address whether Congress charged the BLM with regulating oil and gas development on Indian lands. After an exhaustive legal analysis, the authors found that the BLM likely lacks statutory authority to regulate oil and gas on Indian lands. This is significant because the BLM’s congressional mandate and implementing regulations to manage public lands contain restrictive management standards and requirements that Congress did not intend to apply to Indian lands, while adding another layer of regulatory requirements to an already complicated and extensive regime.