Clean Water Act

Ninth Circuit Affirms Dismissal of Native Village of Kivalina’s Challenge to Red Dog Mine

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

Petitioners Native Village of Kivalina IRA Council, Native Village of Point Hope IRA Council, Alaska Community Action on Toxics, and Northern Alaska Environmental Center (collectively, Kivalina) appeal the United States Environmental Protection Agency Environmental Appeals Board’s (the EAB) order denying review of their challenges to a permit authorizing Intervenor Teck Alaska, Inc. (Teck) to discharge wastewater caused by the operation of the Red Dog Mine. The EAB concluded that Kivalina had not satisfied the procedural requirements to obtain review under 40 C.F.R. § 124.19(a) because it did not demonstrate why the United States Environmental Protection Agency’s (the EPA) responses to comments were clearly erroneous or otherwise warranted review. We agree that Kivalina did not meet the requirements of § 124.19, and we deny Kivalina’s petition for review.

Here are the briefs:

Kivalina Opening Brief

EPA Brief

Intevenor Brief

Federal Court Suit Filed to Stop Mining Activities in Northern Michigan/Upper Peninsula Mine

Matthew L.M. Fletcher1 Comment

Here are the materials in Huron Mountain Club v. United States Army Corps of Engineers (W.D. Mich.):

Huron Mountain Club Complaint

Huron Mountain Club Brief in Support of PI Motion

Here is the Interlochen Public Radio coverage of the suit. An excerpt:

A private club in the Upper Peninsula has filed a federal lawsuit suit to stop the construction of a new mine in Marquette County. The nickel and copper mine, owned by Kennecott Eagle Minerals, has received permits from the state. But the Huron Mountain Club says the U.S. Army Corps needs to review the project to make sure it doesn’t violate the Clean Water Act.

The club owns nearly 20,000 acres of forest downstream from the mine on the Salmon Trout River. The lawsuit says sulfuric acid produced by sulfide mining could pollute the river. And the club is “horror-struck” by the prospect of the watershed collapsing because part of the mine will be dug directly underneath it. The lawsuit also says the federal government needs to consider the potential for damage to Eagle Rock, a site near the entrance to the mine that is sacred to American Indians.

Kennecott says the mine has been extensively reviewed and survived multiple legal challenges going back to 2006. Eagle Mine has been under construction since 2010 and the company says it is 75 percent built.

Water Pollution Regulations Ignore Native Community Fish Consumption

Adrea Korthase

Huffington Post article is here. An excerpt:

For many communities, the consequences also go beyond just health concerns.

“Traditional families are still very active in the smokehouse. They are still fishing for their primary source of living,” says Jamie Donatuto, an environmental specialist for the Swinomish Indian Tribal Community, in La Conner, Wash. “Fish are not just a source of nutrients, they have cultural and spiritual meaning for these people.”

Donatuto has been working with the Swinomish tribe for more than a decade on the issue. She recently conducted a survey and found that if tribal members had access to as much safe seafood as they wanted, they would consume more than 100 times the state’s estimate.

“In the Pacific Northwest, fish consumption is a way of life. It’s an important cultural hallmark of tribal nations that live here,” adds Elaine Faustman, a professor of environmental and occupational health studies at the University of Washington.

In fact, as she points out, it’s not uncommon to find kids “teething on salmon jerky.”

Split Ninth Circuit Panel Approves EPA’s Transfer of Pollution Approval Authority to State of Alaska

Matthew L.M. Fletcher

Here is the opinion in Akiak Native Community v. EPA. The dissent focused on EPA’s approval of Alaska’s rule that the “loser” pays attorney fees in any challenges. All three judges rejected claims based on the Alaskan National Interest Lands Conservation.

Here are the briefs:

Akiak Opening Brief

Intervenor Opening Brief

EPA Answer Brief

Alaska Brief

Akiak Reply

 

Ninth Circuit Remands Cook Inlet Pollution Permit Decision to EPA

Matthew L.M. Fletcher

Here are the materials in Cook Inletkeeper v. EPA (unpublished opinion here):

Petitioner Opening Brief

EPA Answer Brief

EPA Motion for Partial Remand

Petitioner Reply Brief

Union Oil Amicus

Montana Supreme Court Finds Montana DEQ Violated Clean Water Act in Tongue River Case

Matthew L.M. Fletcher

Here are the materials in Northern Cheyenne Tribe v. Montana Dept. of Environmental Quality:

Northern Cheyenne Brief

Environmental Groups Revised Opening Brief

Montana DEQ Answer Brief

Fidelity Exploration Appellee Brief

Northern Cheyenne Reply Brief

Environmental Groups Reply Brief

Montana Supreme Court Opinion

Supreme Court Rulings Forcing Shutdown of EPA Enforcement

Matthew L.M. Fletcher

NYTs article here.

An excerpt:

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according toEnvironmental Protection Agencyregulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

Marren Sanders on TAS Status for Indian Tribes and the Clean Water Act

Matthew L.M. Fletcher

Marren Sanders has posted “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State” on SSRN. Here is the abstract:

This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.

Eleventh Circuit Denies Stay in Miccosukee v. South Florida Management District

Matthew L.M. Fletcher

Talk about complicated. There are two independent lawsuits captioned Miccosukee Tribe v. South Florida Water Management District. They are the so-called “S-2” case and the “S-9” case. Both involve the moving of dirty water around the Everglades, just different pipes or canals or whatever.

S-9 went to the Supreme Court a few years back (opinion). S-2 went to trial in 2006. It’s on appeal before the CA11. The S-9 district court proceedings are stayed pending that appeal. The Tribe appealed that stay order and now the Eleventh Circuit rejects the appeal — opinion.

So we’ll wait to see how the CA11 decides the S-2 case.

Coeur Alaska v. Southeast Alaska Conservation — SCT Argument Today

Matthew L.M. Fletcher

Here is a brief summary on this Clean Water Act case from SCOTUSblog:

Following the release of orders, the Court will hear argument in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984) (07-990), involving the permit process for discharging mining pollutants under the Clean Water Act. Ted Olson of Washington, D.C., will argue for the petitioners, Thomas Waldo of Juneau, Alaska, will argue for the respondents, and Solicitor General Greg Garre will argue for the federal respondents in support of the petitioner.

Alaskan Natives are participating in this case as amici — and their brief is here.