public trust doctrine

New Scholarship by Mary Wood: “Tribal Trustees in Climate Crisis”

Matthew L.M. Fletcher

Mary C. Wood has posted “Tribal Trustees in Climate Crisis” on SSRN. It is forthcoming in the American Indian Law Journal. Here is the abstract:

The legal “cornerstone” of federal Indian law is the federal trust obligation. The duty was formulated by courts long ago to protect native nations against federal actions that harm the retained tribal property and resources. Yet in recent years, courts have diminished the force of the doctrine by equating it, for all practical purposes, with statutory standards. This essay turns attention to another doctrine, the public trust doctrine, which characterizes sovereigns as trustees of their resources. The public trust framework positions tribes as co-trustees with states and the federal government. This article suggests a role for tribes in climate crisis by asserting the right of co-trustees and co-tenants to prevent waste of the common resource – the atmosphere.

Federal Court Dismisses Portion of Challenge to Highway Expansion in Sacred Sites Case

Matthew L.M. Fletcher

Here is the opinion from the District of Oregon — Slokish v US Federal Highway Administration

An excerpt:

This case involves the U.S. Highway 26 Wildwood-Wemme highway widening project (“Wildwood-Wemme project” or “the project”) near Mt. Hood, Oregon, which was substantially completed in 2008. Plaintiffs consist of individuals and organizations who seek to preserve, protect, and rehabilitate Native American sacred and cultural sites and historical and archaeological resources in the lands surrounding Mount Hood. They allege that defendants United States Federal Highway Administration (“FHWA”), United States Bureau of Land Management (“BLM”), Advisory Council on Historic Preservation (“ACHP”), and Matthew Garrett, the Director of the Oregon Department of Transportation (“ODOT”), violated the National Historic Preservation Act (“NHPA”), 16 USC §§ 470-470x-6, National Environmental Policy Act (“NEPA”), 42 USC §§ 4321-4347, § 4(f) of the Department of Transportation Act (“DTA”), 49 USC § 303, the public trust doctrine, the due process clause, and also committed a breach of fiduciary duty.