global warming

Nisqually Tribe Addresses Climate Change Impacts on Nisqually River

Singel

From the NYTimes (link to article here).

Here’s an excerpt:

For 10,000 years the Nisqually Indians have relied on chinook salmon for their very existence, but soon those roles are expected to reverse.

Based on current warming trends, climate scientists anticipate that in the next 100 years the Nisqually River will become shallower and much warmer. Annual snowpack will decline on average by half. The glacier that feeds the river, already shrunken considerably, will continue to recede.

Play the scene forward and picture a natural system run amok as retreating ice loosens rock that will clog the river, worsening flooding in winter, and a decline in snow and ice drastically diminishes the summer runoff that helps keep the river under a salmon-friendly 60 degrees.

To prepare for these and other potentially devastating changes, an unusual coalition of tribal government leaders, private partners and federal and local agencies is working to help the watershed and its inhabitants adapt. The coalition is reserving land farther in from wetlands so that when the sea rises, the marsh will have room to move as well; it is promoting hundreds of rain gardens to absorb artificially warmed runoff from paved spaces and keep it away from the river; and it is installing logjams intended to cause the river to hollow out its own bottom and create cooler pools for fish.

Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”

Matthew L.M. Fletcher

Here. The transcript:

In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.

When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.

Arthur Duhamel Marina sound fade up

Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.

JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.

Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.

JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.

Ed’s wife fishes, and so does her cousin, Bill.

FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.

His nickname is Bear.

FOWLER: Because I’m as big as a bear and I work like a bear.

Fade up engine

Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is  Bill’s dauschund puppy, Beauford.

SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.

It takes about an hour to reach the first fishing net.

FOWLER: Here fishy, fishy. Come here fishies.

Lake trout flop around on the dock, bleeding from the gills.

Fish flopping

Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.

FOWLER: I named it that because the treaty is important to us to reserve our rights.

You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.

John Bailey was a tribal leader at the time and says the regulations hurt the tribes.

BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.

Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.

According to John Bailey, a lot of whites didn’t react well.

BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on us. We had women verbally and physically assaulted.

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Native Village of Kivalina Opening Appellate Brief in Climate Change Case

Matthew L.M. Fletcher2 Comments

Here:

Kivalina Opening Brief

And:

Law Professors Amicus Brief

Second Update on Native Village of Kivalina v. Exxon

Matthew L.M. Fletcher1 Comment

Here is the response brief to the motion to dismiss (here): opposition-to-motion-to-dismiss

And here is the main oil company reply brief: oil-company-reply-brief

And one from Shell Oil: shell-reply-brief

And, of course, here is the complaint that started it all.

Jackie Hand on Climate Change Threat to American Indians

Matthew L.M. Fletcher

Jacqueline Hand has published “Global Climate Change: A Serious Threat to Native American Lands and Culture” in the Environmental Law Reporter. Here is the abstract:

During the past decade, public perception of global climate change has transformed from a gloom and doom scenario not to be taken seriously to a nearly universally recognized peril to the planet. Native Americans, especially those in the Arctic region, experience changes in climate with greater immediacy than the general population, and this disproportionate result is expected to become more severe as the effects of climate change escalate. This Article will explore the nature of the impact of climate change on Native Americans, the importance of including traditional tribal knowledge and expertise in understanding the crisis and developing adaptive mechanisms, and the responses by individual tribes as well as by indigenous people as a whole.

Northwest Tribes Climate Change Conference

Matthew L.M. Fletcher

Climate Change in the Northwest

“Tribal Perspectives”

Date and Location:

May 29-30, 2008 (Thursday and Friday)

Public Library Downtown

Microsoft Conference Room

Call the directly to confirm your lodging no later than April 24, 2008, at 1-800-945-2240, and mention the Tribal Climate Change Conference.

For more information, please contact Pat Gonzales-Rogers at (503) 231-6123 or Pat_Gonzales-Rogers@fws.gov. (Pat is the Tribal Liaison for the U.S. Fish and Wildlife Service, Region 1).

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Legal Analysis of the Kivalina v. Exxon Case

Matthew L.M. Fletcher1 Comment

From Marten Law Group:

Threatened by Rising Seas, Native Village Seeks Lifeline in Federal District Court

By Dustin Till

Several lawsuits have been filed in federal district court asserting that large emitters of greenhouse gases are responsible for rising sea levels and other harms attributable to global warming. In one of the latest attempts to hold greenhouse gas producers responsible for alleged climate change impacts, a coastal Native village in Alaska recently filed a federal lawsuit alleging that twenty oil, coal, and electric utility companies are responsible for thinning sea ice and increased storm surges that are forcing the village to relocate.[1] In Native Village of Kivalina v. ExxonMobil Corp., et al., the village of Kivalina alleges that the defendants’ greenhouse gas emissions constitute a nuisance under both federal and state law, and seeks to recover monetary damages up to $400 million for the costs of relocating the entire village. Kivalina also alleges that certain defendants conspired to create a misinformation campaign designed “to deceive the public about the science of global warming,” and that the defendants’ civil conspiracy contributed to the town’s injuries. [2]

Previous nuisance lawsuits seeking relief for climate change impacts under federal common law have, so far, been unsuccessful. At least three federal district courts, including the same California federal court where the Kivalina case is pending, have dismissed similar lawsuits on grounds that they presented political questions over which the courts had no jurisdiction.[3] As a result, federal courts have yet to address the merits of climate change nuisance claims – including the potentially vexing issue of causation. The defendants will undoubtedly raise similar jurisdictional challenges, and if prior litigation is any guide, the Kivalina plaintiffs face an uphill battle to recover the costs of relocating their sinking village.

Rebecca Tsosie on Environmental Justice

Matthew L.M. Fletcher

Rebecca Tsosie has published “Indigenous People and Environmental Justice: The Impact of Climate Change” with the University of Colorado Law Review. Here is the abstract:

The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental self-determination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate change policy, such a right would impose affirmative requirements on nation-states to engage in a mitigation strategy in order to avoid catastrophic harm to indigenous peoples. This article argues for a new conception of rights to address the unique harms of climate change. An indigenous right to environmental self-determination would be based on human rights norms in recognition that ‘sovereignty claims‘ by indigenous groups are not a sufficient basis to protect traditional ways of life and the rich and unique cultural norms of such groups. Similarly, tort-based theories of compensation for the harms of climate change have only limited capacity to address the concerns of indigenous peoples.

Salon: Exxon Should Be Target for Liability in Kivalina Case

Matthew L.M. Fletcher

From Salon:

Conspiracy theory in the frozen North

In Finland, the warmest winter on record is leading to predictions for a record grain harvest. Yay for global warming! See, adaptation can be fun. There’s never been a better time to invest in beach front property in Siberia.

However, Agriculture Ministry researcher Anneli Partala warns: “It is not certain whether the warm winter is good or bad … there may be mold problems or diseases.”

Or, as in the case of the Alaskan town of Kivalina, rising sea levels could force your complete relocation, to the tune of $400,000,000. Adaptation — extremely costly and painful!

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NYTs Article on Native Village of Kevalina vs. Exxon Suit

Matthew L.M. Fletcher

From the NYTs:

SAN FRANCISCO — Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by the changing Arctic climate, filed suit in federal court here Tuesday arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company were responsible for the village’s woes.

The suit is the latest effort to hold companies like BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company responsible for the impact of global warming because they emit millions of tons of greenhouse gases, or, in the case of Peabody, mine and market carbon-laden coal that is burned by others. It accused the companies of creating a public nuisance.

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