Federal Court Rejects Effort to Block Lummi Crab Fishery as Unripe

Here are the materials in United States v. Washington subproceeding 18-02 (W.D. Wash.), aka Swinomish Indian Tribe v. Lummi Indian Tribe:

3 swinomish & tulalip motion for tro

16 upper skagit motion

19 lummi response

27 dct order

American Public Media “Marketplace” Shows on Crow and Lummi Coal News

Thanks to D.L.:

The American Public Media show “Marketplace” is doing a series on coal, and two of their stories have focused on Indian tribes.  The first, about coal mining on the Crow Reservation, is more about the tribal economy; but the second, about a proposed coal shipping terminal in Washington state, has some legal issues (whether treaty fishing rights might be used to defeat the proposed coal terminal).

Both stories can be found at http://www.marketplace.org/topics/sustainability/coal-play

Washington and Oregon Governors Ask for Review of Coal Export Consequences

This week, the governors of Washington and Oregon asked the Obama Administration to review proposed coal export terminals. The Seattle Times article is here and the Huffington Post article is here. The letter linked in the Seattle Times article is here.

An excerpt from the Seattle Times

Western coal producers, saddled with low prices and weak demand in U.S. markets, are eager to send more coal from the Powder River Basin in Montana and Wyoming to Asia. Much of that coal is on federal lands, but some is on tribal, private or state lands.

The proposals include two export terminals in Washington to be in Cherry Point, which is near Bellingham, and in Longview. There are also proposals for terminals in Oregon.

The prospect of using the Pacific Northwest as a launch point for coal exports has triggered intense controversy in both Oregon and Washington.

Seattle Human Rights Commission’s official comments are here. The Commission’s resolution on coal and the impact on Indian tribes is here. (Thanks to C.S.)

Finally, here is a Northwest Public Radio story about the potential effects of the proposed export plans on the Lummi Tribe.

Previous posts are here and here.

Washington SCT Decides Five Corners Family Farmers v. State — Groundwater Allocation Case

Here is the majority and here is the dissent.

Here is the tribal amicus brief.

Washington Tribes’ Challenge to Wash. Water Statute Fails

Here is the opinion in Lummi Indian Tribe v. State of Washington (Wash. S. Ct.).

An excerpt:

In 1998, this court held that under then-existing law, new private water rights did not fully vest until the water was put to a beneficial use, and not merely when the “pumps and pipes” capacity to use the water was built. Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 586, 957 P.2d 1241 (1998). We cautioned then that we were not considering municipal water rights, which often receive separate treatment in water law. Id. at 594. In response to our opinion, the legislature amended the municipal water law, Second Engrossed Second Substitute H.B. 1338, 58th Leg., Reg. Sess. (Wash. 2003) (SESSHB 1338), to, among other things, explicitly define certain nongovernmental water suppliers as municipal and to make that definition retroactive. We are now asked whether these amendments violate separation of powers or facially violate due process. We conclude they do not. We reverse in part and affirm in part.

Ninth Circuit Dismisses Appeal of U.S. v. Washington Subproceeding (Lower Elwah v. Lummi)

Here is the unpublished opinion. The underlying dispute apparently is the usual and accustomed fishing area of the Lummi Indian Tribe.

Here are the materials:

Lummi Motion to Dismiss Appeal

Klallam Tribes Opposition

Lummi Reply

Klallam Tribes Opening Brief

Tulalip Answering Brief

Lummi Answering Brief

Klallam Tribes Reply Brief

SCOTUSBlog Picks Sharp v. United States as a Petition to Watch

Well, here we go again. This is one of those “gut reaction” cases where it seems like an innocent non-Indian property owner is being subjected to liability or some other taking because of “ancient” Indian tribal property right. In virtually all other areas of law, this would be a no-brainer “deny.” There’s no split, and there never will be — unless the United States starts bringing more and more trespass actions against non-Indians on behalf of tribes (and how likely is that to happen, exactly?). It may still be denied, as it should, but the “gut reaction” of  several of the Justices, coupled with a distaste toward Indian rights, might be enough to make this certworthy. Also, maybe (who knows?) it matters that the opinion comes from Judge Fletcher (Betty this time). We’ll find out Monday.

Here are the materials (from SCOTUSblog):

Title: Sharp v. United States
Docket: 09-820
Issues: (1) Whether, as a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, the shore defense structure constitutes a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure; (2) whether an owner of upland property is strictly liable under Section 10 of the Rivers and Harbors Appropriation Act of 1899 for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States; and (3) whether the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” is sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington.

Sharp Reply to OSG Cert Opposition

Here: Sharp Reply. Other briefs here.

We’ll see later if this is a petition to watch on SCOTUSblog. It is exceptionally rare that the Court grants cert in a civil case where the government is in opposition, except in Indian and race cases….