National Historic Preservation Act

Sisseton-Wahpeton Oyate Effort to Stop Road (Mostly) Fails

Matthew L.M. Fletcher

Here are the materials in Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. United States Corps of Engineers (D.S.D.):

90-sisseton-brief

us-army-corps-brief

92-sisseton-reply

93-dct-order

An excerpt:

For the reasons explained above, the Court denies Plaintiffs’ request for an injunction against the Corps, remands to the Corps for reconsideration whether the 2009 gully crossings were the type of undertaking that could affect historic properties under 36 C.F.R. § 800.3(a) and to complete the Section 106 process if so necessary, and denies all other requests for relief requested by Plaintiffs. Judgement will enter accordingly.

Narragansett Tribe Sues Electric Co. over Historic Preservation

Matthew L.M. Fletcher

Here are the materials in Narragansett Indian Tribe v. Narragansett Electric Company (D. R.I.):

1 Complaint

2 Motion for TRO

 

Ninth Circuit Decides Pit River Tribe v. Bureau of Land Management re: Medicine Lake Highlands

Matthew L.M. Fletcher

Here is the opinion. An excerpt from the court’s syllabus:

The panel reversed the district court’s order granting judgment on the pleadings in an action brought by environmental organizations challenging the Bureau of Land Management’s continuation of 26 geothermal leases in northeastern California’s Medicine Lake Highlands.

The panel held that the district court incorrectly treated the environmental organizations’ claims as arising under only § 1005(a) of the Geothermal Steam Act. BLM’s 1998 decision to continue the 26 unproven leases in the Glass Mountain Unit under § 1005(a) was issued simultaneously with its decision to reverse and vacate its earlier decision to extend those leases on a lease-by-lease basis under § 1005(g). The panel held, thus, that the environmental organizations’ challenge to BLM’s decisions issued on May 18, 1998 implicated both § 1005(a) and § 1005(g).

Because BLM must conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act before granting lease extensions under § 1005(g), the panel held that the environmental organizations’ claim fell within § 1005(g)’s zone-of-interests, and the organizations had
stated a claim under § 1005(g).

The panel declined the environmental organizations’ invitation to rule on the merits of its Geothermal Steam Act claims, and remanded for further proceedings.

Briefs:

Pit River Opening Brief

BLM Answer Brief

Pit River Reply

Federal Court Declines to Block Solar Project affecting CRIT Sacred Sites

Matthew L.M. Fletcher

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

37-1 CRIT Motion for PI

59 Nextera Opposition

68 Interior Opposition

74 Reply

150 DCT Order

We posted the complaint here.

White Earth Nation Moves for Summary Judgment in Challenge to Two Oil Pipelines

Matthew L.M. Fletcher1 Comment

Here is the motion in White Earth Nation v. Kerry (D. Minn.):

71 Motion for Summary J

We posted the complaint here.

US and Industry Defeat Challenge to Uranium Mining at Grand Canyon Mine

Matthew L.M. Fletcher

Here are the materials in Grand Canyon Trust v. Williams (D. Ariz.):

140-1 Plaintiffs Motion for Summary J

146-1 US Motion for Summary J

147-1 Intervenors Motion for Summary J

151 Plaintiffs Reply

155 US Reply

156 Intervenors Reply

166 DCT Order

An excerpt:

This case arises out of the proposed renewal of operations at the Canyon Mine in Northern Arizona. The Canyon Mine is a breccia pipe uranium mine located six miles south of Grand Canyon National Park, in the Kaibab National Forest, and four miles north of Red Butte, a culturally and religiously significant site for the Havasupai and other tribes.

Two New Indian Law Articles in Alaska Law Review

Matthew L.M. Fletcher

Here:

Fate Control and Human Rights: The Policies and Practices of Local Governance in America’s Arctic
Mara Kimmel
PDF

The loss of territoriality over lands conveyed under the Alaska Native Claims Settlement Act had adverse impacts for Alaskan tribal governance. Despite policy frameworks that emphasize the value of local governance at an international, regional, and statewide level, Alaskan tribes face unique obstacles to exercising their authority, with consequences for both human development and human rights. This Article examines how territoriality was lost and analyzes the four major effects of this loss on tribal governance. It then describes two distinct but complimentary strategies to rebuilding tribal governance authority that rely on both territorial and non-territorial authority.

Traditional Cultural Districts: An Opportunity for Alaska Tribes to Protect Subsistence Rights and Traditional Lands
Elizaveta Barrett Ristroph
PDF

Alaska tribes have limited control over their traditional lands and waters. Tribes may increase their influence through a Traditional Cultural District designation under Section 106 of the National Historic Preservation Act. This designation does not stop development, but requires federal agencies to consult with tribes regarding potential development that may impact the district. The consultation right applies regardless of whether a tribe owns or has formally designated the district. In Alaska, where no Traditional Cultural Districts exist as of 2014, there is potential for designating large areas of land or water that correspond to the range of traditionally important species.

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

Matthew L.M. Fletcher2 Comments

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.

Yakama Nation Sues US Fish & Wildlife Service over Rattlesnake Mountain Bus Tours that Implicate Sacred Sites

Matthew L.M. Fletcher1 Comment

Here is the complaint in Confederated Tribes and Bands of Yakama Nation v. USFWS (E.D. Wash.):

Yakama v USFWS – wildflower tours

An excerpt:

This action relates to agency decisions and actions by the U.S. Fish and Wildlife Service and named officials thereof to conduct guided bus tours for members of the general public on Rattlesnake Mountain within the Hanford Reach National Monument (HRNM). The mountain is considered by the plaintiff to be of great religious and cultural importance, and for that reason the site has been federally designated as a Traditional Cultural Property (TCP) under the NHPA. The defendants concluded in April 2012 that the guided wildflower tours will have no adverse effect on the TCP, and plaintiff seeks judicial review of this finding. In addition, the defendants are seeking judicial review of a final agency action proceeding with scheduled public wildflower tours in 2014 despite a lack of concurrence by both the plaintiff and the State Historic Preservation Officer (SHPO), and subsequent violations of consultation procedures required by the NHPA.

Documents Reveal Pacific International Terminal’s Disturbance of Native Archaeological Site in Washington

Victoria Sweet

Excerpts from the article:

Three summers ago the company that wants to build the largest coal export terminal in North America failed to obtain the environmental permits it needed before bulldozing more than four miles of roads and clearing more than nine acres of land, including some wetlands.

Pacific International Terminals also failed to meet a requirement to consult first with local Native American tribes, the Lummi and Nooksack tribes, about the potential archaeological impacts of the work. Sidestepping tribal consultation meant avoiding potential delays and roadblocks for the project’s development.

Despite the ongoing review of the non-permitted disturbance at the site, the larger review of potential archaeological impacts of the Gateway Pacific Terminal under the National Historic Preservation Act got underway in late July.

It also led to the disturbance of a site from which 3,000-year-old human remains had previously been removed — and where archeologists suspect more are buried.

Pacific International Terminals and its parent corporation, SSA Marine, subsequently settled for $1.6 million for violations under the Clean Water Act.

According to company documents that were released during the lawsuit and subsequently shared with EarthFix, Pacific International Terminals drilled 37 boreholes throughout the site, ranging from 15 feet to 130 feet in depth, without following procedures required by the Army Corps of Engineers under the National Historic Preservation Act. . . .

King said Pacific International Terminals’ unpermitted drilling and disturbance at Cherry Point could put approval of the Gateway Pacific Terminal at risk because the company skirted the requirements of the so-called “106 process” under the National Historic Preservation Act.

“I think the Lummi have a very strong case,” he said. “The site, the area, the landscape – they can show that it’s a very important cultural area and permitting the terminal to go in will have a devastating effect on the cultural value of that landscape.”

The Army Corps of Engineers is now working on finalizing what’s called a “memorandum of agreement” between Pacific International Terminals and the Washington State Department of Archaeology and Historic Preservation. The Army Corps says the document, which was obtained by EarthFix under the Freedom of Information Act, will serve as a retroactive permit “resolving adverse effects associated with the damage caused to 45WH1 associated with non-permitted geotechnical work at Cherry Point.”

The Lummi Nation refused to sign the memorandum or accept the $94,500 that was offered to the tribe as mitigation for the damage through the memorandum.

The archaeological review will follow a separate but parallel track to the environmental review of the project. The first step in the process is to determine the Area of Potential Effect (APE), and that’s already causing a dispute among state and federal agencies.

The State Historical Preservation Office, along with the Lummi and the Federal Advisory Council For Historic Preservation, have written formal letters disagreeing with the Army Corps’ plans to limit the APE to the area immediately surrounding the terminal itself.