Justia Native American Law Opinion Summaries

Articles Posted in Environmental Law
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The case involves the San Carlos Apache Tribe's challenge to the Arizona Department of Environmental Quality's (ADEQ) issuance of a 2017 Permit Renewal to Resolution Copper Mining, LLC (Resolution) for the discharge of water from a copper mine. The Tribe argued that the construction of a new mine shaft (Shaft 10) and other new features at the mine constituted a "new source" under the Clean Water Act (CWA), which would subject the mine to more stringent regulations.Previously, an administrative law judge (ALJ) had determined that ADEQ should have analyzed whether Shaft 10 and the other new features were a "new source" under the CWA before issuing the permit. The Arizona Water Quality Appeals Board remanded the matter to ADEQ, which concluded that Shaft 10 and the new features were "existing sources" under the CWA. The Board affirmed ADEQ's issuance of the 2017 Permit Renewal. The Tribe appealed to the superior court, which affirmed the Board's decision. The court of appeals reversed, concluding that Shaft 10 was a "new source" under the CWA.The Supreme Court of the State of Arizona disagreed with the court of appeals. The court applied a three-step test to determine whether a construction is a "new source" under the CWA. The court found that Shaft 10 was not a "new source" under the CWA because it was integrated with existing infrastructure at the mine and engaged in the same general type of activity as the existing source. The court also found that Shaft 10 did not have a new source performance standard "independently applicable" to it. Therefore, the court concluded that ADEQ acted within its discretion by issuing the 2017 Permit Renewal to Resolution. The court vacated the court of appeals' decision and affirmed the superior court's decision. View "SAN CARLOS APACHE TRIBE v STATE" on Justia Law

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The Mandan, Hidatsa and Arikara Nation (MHA), an Indian nation of three affiliated tribes, appealed the U.S. Department of the Interior's Bureau of Land Management (BLM) approval of eight applications for oil drilling by the Slawson Exploration Company, Inc. next to Lake Sakakawea, MHA's sole source of drinking water. MHA challenged the approvals under the Administrative Procedure Act, arguing that BLM's approval of the project was arbitrary and capricious due to an insufficient record and by precluding MHA from further developing the record about the threat the project posed to MHA's health and welfare.The United States Court of Appeals for the Eighth Circuit affirmed the district court's grant of summary judgment to BLM and Slawson, dismissing the case with prejudice. The court found that BLM had engaged in reasoned decision-making and had evaluated all relevant factors. It noted that the agency placed the responsibility on Slawson to comply with tribal law without impeding MHA's ability as a sovereign to enforce its laws. The court also found that BLM's decision not to evaluate tribal law did not impact tribal sovereignty. The court concluded that MHA's jurisdiction over Slawson's project was not a relevant factor to the approvals and therefore further development of the record was not required.Furthermore, the court found that MHA was not entitled to an evidentiary hearing as there was no dispute of material fact and MHA had adequate opportunities to submit evidence. Therefore, the court ruled that MHA had received all process required by the Constitution, laws, and agency regulation. View "Mandan, Hidatsa & Arikara Nation v. U.S. Dept. of the Interior" on Justia Law

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Three Indian tribes sought a ruling that the recognized fishing rights of the Lummi Nation (“the Lummi”) under the 1974 decree do not extend to certain areas. At issue here is a single line in the decree recognizing that “the usual and accustomed fishing places” in which the Lummi have fishing rights “include the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.” The question is whether the specific waters in dispute here fall within the Lummi’s historical fishing territory. The district court ruled against the Lummi, holding that the disputed waters are not part of their historical fishing waters under the 1974 decree.   The Ninth Circuit affirmed. Applying the two-step inquiry, the panel concluded that the district court correctly held that the Swinomish, Tulalip, and Upper Skagit carried their burden to warrant a ruling, under Paragraph 25(a)(1) of the 1974 Decree, that Judge Boldt’s “determination of Lummi’s usual and accustomed fishing grounds and stations” did not extend to the disputed waters at issue here. The panel held that it was fundamentally ambiguous whether Judge Boldt and the parties in 1974 would have understood the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Bellingham Bay, to include any waters east of Whidbey Island. At step two, the panel held that the Swinomish, Tulalip, and Upper Skagit met their burden to show that there was no evidence in the record before Judge Boldt of historical Lummi fishing in the disputed waters beyond what would be merely incidental or occasional. View "SWINOMISH INDIAN TRIBAL CMTY., ET AL V. LUMMI NATION" on Justia Law

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Disputes over the allocation of water within the Klamath Basin in southern Oregon and northern California, particularly during the recent period of severe and prolonged drought, have prompted many lawsuits in this and other courts. In this episode, Klamath Irrigation District (“KID”) petitions for a writ of mandamus to compel the district court to remand KID’s motion for preliminary injunction to the Klamath County Circuit Court in Oregon. The motion had originally been filed by KID in that Oregon court but was removed to federal district court by the U.S. Bureau of Reclamation (“Reclamation”), a federal agency within the U.S. Department of Interior. Reclamation was identified by KID as the respondent for KID’s motion.   The Ninth Circuit denied KID’s petition for writ of mandamus. The panel considered the five factors in Bauman v. U.S. District Court, 557 F.3d 813, 817 (9th Cir. 2004), in determining whether mandamus was warranted. The panel began with the third factor—clear error as a matter of law— because it was a necessary condition for granting the writ of mandamus. The panel rejected KID’s attempt to circumvent KID II, the Tribes’ rights, and the effect of the ESA by characterizing the relief it sought as an application of the ACFFOD. The panel expressed no views on the merits of KID’s underlying motion for preliminary injunction and concluded only that the district court did not err in declining to remand the motion for preliminary injunction to the state court. The panel held that it need not consider the remaining Bauman factors because the third factor was dispositive. View "IN RE: KLAMATH IRRIGATION DISTRICT V. USDC-ORM" on Justia Law

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After extensive litigation, the United States, Michigan, and five federally recognized tribes entered the Great Lakes Consent Decree of 1985, governing the regulation of Great Lakes fisheries. The subsequent Consent Decree of 2000 had a 20-year term. The district court extended that Decree indefinitely “until all objections to a proposed successor decree have been adjudicated” and granted amicus status to the Coalition, which represents numerous private “sport fishing, boating, and conservancy groups” interested in protecting the Great Lakes. The Coalition has represented its own interests during negotiation sessions.As the parties were concluding their negotiations on a new decree the Coalition moved to intervene, stating that Michigan is no longer “willing or able to adequately represent the Coalition’s interests” and intends to abandon key provisions of the 2000 Decree that promote biological conservation and diversity, allocate fishery resources between sovereigns, and establish commercial and recreational fishing zones. The district court denied the Coalition’s most recent motion to intervene. The Sixth Circuit affirmed. In finding the motion untimely, the district court properly considered “all relevant circumstances” including the stage of the proceedings; the purpose for the intervention; the length of time that the movant knew or should have known of its interest in the case; the prejudice to the original parties; and any unusual circumstances militating for or against intervention. View "United States v. State of Michigan" on Justia Law

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Members of the Metlakatlan Indian Community (“the Community”) and their Tsimshian ancestors have inhabited the coast of the Pacific Northwest and fished in its waters. In 1891, Congress passed a statute (the “1891 Act”) recognizing the Community and establishing the Annette Islands Reserve as its reservation. In 2020, in response to Alaska’s attempt to subject the Metlakatlans to its limited entry program, the Community sued Alaskan officials in federal district court. The Community contended that the 1891 Act grants to the Community and its members the right to fish in the off-reservation waters where Community members have traditionally fished. The district court disagreed, holding that the Act provides no such right.   The Ninth Circuit filed (1) an order amending its opinion, denying a petition for panel rehearing, and denying a petition for rehearing en banc; and (2) an amended opinion reversing the district court’s dismissal of the Metlakatlan Indian Community’s suit against Alaskan officials. The panel applied the Indian canon of construction, which required it to construe the 1891 Act liberally in favor of the Community and to infer rights that supported the purpose of the reservation. At issue was the scope of that right. The panel concluded that a central purpose of the reservation, understood in light of the history of the Community, was that the Metlakatlans would continue to support themselves by fishing. The panel, therefore, held that the 1891 Act preserved for the Community and its members an implied right to non-exclusive off-reservation fishing for personal consumption and ceremonial purposes, as well as for commercial purposes. View "METLAKATLA INDIAN COMMUNITY V. MICHAEL DUNLEAVY, ET AL" on Justia Law

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A member of the Metlakatla Indian Community was convicted of several commercial fishing violations in State waters and fined $20,000. He appealed his conviction and sentence to the court of appeals, which asked the Alaska Supreme Court to take jurisdiction of the appeal because of the importance of the primary issue involved: whether the defendant’s aboriginal and treaty-based fishing rights exempted him from State commercial fishing regulations. The defendant also challenged several evidentiary rulings and the fairness of his sentence. Because the Supreme Court held the State had authority to regulate fishing in State waters in the interests of conservation regardless of the defendant’s claimed fishing rights, and because the Court concluded the trial court did not abuse its discretion in its procedural rulings, the Supreme Court affirmed the conviction. The Court also affirmed the sentence as not clearly mistaken, except for one detail on which the parties agreed: the district court was mistaken to include a probationary term in the sentence. The case was remanded for modification of the judgments to correct that mistake. View "Scudero Jr. v. Alaska" on Justia Law

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Wilton Rancheria, a Sacramento area Indian tribe, was federally recognized in 1927. The 1958 Rancheria Act disestablished Wilton and 40 other reservations. In 1979, several California rancherias, including Wilton, sued. The government agreed to restore Indian status. Wilton was erroneously excluded from the settlement. In 2009, the Department of the Interior restored Wilton’s federal recognition and agreed to “accept in trust certain lands formerly belonging to” Wilton. Wilton petitioned to acquire 282 acres near Galt for a casino. A draft environmental impact statement (EIS), under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–4347, identified alternatives, including a 30-acre Elk Grove parcel. Wilton changed its preference and requested that the Department acquire the Elk Grove location. Objectors responded that acquiring the Elk Grove location would moot pending state-court suits.The Department’s final EIS identified the Elk Grove location as the preferred alternative. The Principal Deputy Assistant Secretary– Indian Affairs, Roberts, signed the Record of Decision (ROD) pursuant to delegated authority. Roberts had served as Acting Assistant Secretary– Indian Affairs (AS–IA), but after his acting status lapsed under the Federal Vacancies Reform Act, Roberts continued to exercise the non-exclusive AS–IA functions. Black, who became Acting AS–IA in the new administration, signed off on the acquisition.Objectors filed suit before the issuance of the Department’s ROD and unsuccessfully sought a temporary restraining order. The D.C. Circuit affirmed summary judgment for the Department, rejecting claims that the Department impermissibly delegated the authority to make a final agency action to acquire the land to an official who could not wield this authority, was barred from acquiring land in trust on behalf of Wilton’s members, and failed to comply with NEPA. View "Stand Up For California! v. United States Department of the Interior" on Justia Law

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Nanouk uses her 160-acre Alaska Native allotment for traditional subsistence activities. In the 1980s, Nanouk built a small cabin, which she and her family reached by using a trail that runs from the main road through the U.S. Air Force North River Radio Relay Station, which closed in 1978. In 1981, the General Accounting Office criticized the Air Force’s failure to maintain shuttered sites, including North River, which contained hazardous chemicals. The Air Force and the Army Corps of Engineers began remediation, removing 500 gallons of transformer oil containing PCBs and PCB-contaminated soil. Surveys taken in 1987 and 1989 revealed that 6,700 cubic yards of contaminated soil remained. The Air Force and the Corps released a new plan in 2001; clean-up resumed. The trail that Nanouk used ran through a “hot spot” where PCB-contaminated soil was picked up by her vehicles. Nanouk did not learn about the PCBs on her property until 2003 when she reported a strong chemical odor. The Air Force then undertook extensive environmental remediation at the Station and Nanouk’s allotment. Nanouk sued, alleging trespass and nuisance. She and several family members have experienced serious health problems.The Ninth Circuit vacated the dismissal of her suit. The Federal Tort Claims Act's discretionary exception barred claims predicated on two of the acts she challenged as negligent--the government’s alleged failure to supervise contractors during the Station’s operation, and its abandonment of the property between the 1978 closure and 1990. The government did not establish that the exception barred the claims relating to the failure to identify and remediate the hot spot in a timely manner after 1990. View "Nanouk v. United States" on Justia Law

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Granite Northwest sought to expand its mining operations in Yakima County, Washington. The Confederated Tribes and Bands of the Yakama Nation (Yakama) opposed the expansion, arguing it would disturb ancient burial grounds and a dedicated historical cemetery. Despite these objections, Yakima County issued a conditional use permit and a State Environmental Policy Act (SEPA), ch. 43.21C RCW, mitigated determination of nonsignificance to Granite Northwest. Yakama challenged both in superior court. The court later stayed the SEPA challenge while Yakama exhausted its administrative appeal of the conditional use permit as required by the Yakima county code. In Yakama’s administrative appeal, the hearing officer modified the conditional use permit to require a separate permit from the Washington State Department of Archaeology and Historic Preservation but affirmed Yakima County’s issuance of the permit. Yakama appealed the hearing examiner’s decision to the county board of commissioners. On April 10, 2018, at a public meeting where Yakama representatives were present, the board passed a resolution affirming the hearing officer’s decision and denying Yakama’s appeal. Three days later, a county planner sent an e-mail and letter to Yakama with the resolution attached. The letter noted the county code required written notification of the decision and stated that the administrative appeal had been exhausted. On May 2, 2018, 22 days after the resolution was adopted and 19 days after the county planner’s letter, Yakama filed a new petition in superior court. Yakima County and Granite Northwest (collectively, Granite NW) moved to dismiss the second petition as untimely under RCW 36.70C.040(4)(b) because the 21-day filing period began on the date the board of commissioners passed its resolution and Yakama’s petition was 1 day late. Granite NW also moved to dismiss the previously stayed petition, arguing the stay was conditional on Yakama timely filing its administrative appeal. Yakama responded that RCW 36.70C.040(4)(b) was inapplicable and instead RCW 36.70C.040(4)(a) governed the filing period, which began when the county planner transmitted the written resolution to Yakama. The superior court agreed with Yakama, finding Yakama’s land use petition was timely filed, and accordingly, did not dismiss Yakama’s earlier petition. The Court of Appeals reversed in an unpublished decision, concluding the later petition was not timely and did not address the previously stayed petition. After review, the Washington Supreme Court concluded Yakama's petition was timely filed. The Court of Appeals was reversed. View "Confederated Tribes & Bands of the Yakama Nation v. Yakima County" on Justia Law