Justia Native American Law Opinion Summaries

Articles Posted in Environmental Law
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The Klamath River Basin Reclamation Project straddles the Oregon-California border and provides water to hundreds of farms. The Project is managed by the Bureau of Reclamation. In 2001, the Bureau temporarily halted water delivery to farms and water districts in order to comply with its tribal trust obligations under the Endangered Species Act, 16 U.S.C. 1531. Plaintiffs alleged that action amounted to a taking without compensation, impaired their rights under the Klamath River Basin Compact, and caused the breach of water delivery contracts. The Claims Court rejected the suit on summary judgment. On remand, the Claims Court dismissed the breach of contract claims, determined that the takings claims should be analyzed as “physical takings,” and held a trial. The districts had been voluntarily dismissed as plaintiffs. As to the individual farmers, the Claims Court held that the Bureau’s actions did not amount to a taking and did not violate the Compact because the rights reserved for tribal fishing were superior. The Federal Circuit affirmed, finding the plaintiffs’ state water rights subordinate to the federal tribal rights, which were recognized in an 1864 treaty. The Bureau acted reasonably to preserve water levels necessary to avoid endangering fish. View "Baley v. United States" on Justia Law

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Four appeals arose from a consolidated subcase that was a part of the broader Coeur d’Alene-Spokane River Basin Adjudication (CSRBA). The United States Department of the Interior (the United States), as trustee for the Coeur d’Alene Tribe (the Tribe), filed 353 claims in Idaho state court seeking judicial recognition of federal reserved water rights to fulfill the purposes of the Coeur d’Alene Tribe’s Reservation (the Reservation). The Tribe joined the litigation. The State of Idaho (the State) and others objected to claims asserted by the United States and the Tribe. The district court bifurcated the proceedings to decide only the entitlement to water at this stage, with the quantification stage to follow. After cross-motions for summary judgment, the district court allowed certain claims to proceed and disallowed others. The district court specifically allowed reserved water rights for agriculture, fishing and hunting, and domestic purposes. The district court allowed reserved water rights for instream flows within the Reservation, but disallowed those for instream flows outside the Reservation. The district court determined priority dates for the various claims it found should proceed to quantification, holding generally the Tribe was entitled to a date-of-reservation priority date for the claims for consumptive uses, and a time immemorial priority date for nonconsumptive uses. However, in regard to lands homesteaded on the Reservation by non-Indians that had since been reacquired by the Tribe, the district court ruled the Tribe was entitled to a priority date of a perfected state water right, or if none had been perfected or it had been lost due to nonuse, the Tribe’s priority date would be the date-of-reacquisition. The Idaho Supreme Court affirmed in part and reversed in part. The Supreme Court determined the district court improperly applied the controlling case law's rule of "primary-secondary" distinction and instead should have allowed aboriginal purposes of plant gathering and cultural uses under the homeland purpose theory. Furthermore, the Court determined the priority date associated with nonconsumptive water rights was time immemorial. The Court affirmed the remainder of the district court’s decisions and remanded for further proceedings. View "United States v. Idaho" on Justia Law

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The Tribe filed suit alleging that the Corps violated the Administrative Procedure Act (APA), the Clean Water Act (CWA), and the National Historic Preservation Act (NHPA) in issuing permit and exemption determinations to a real property owner. The permits and exemptions allowed the owner to construct a road by dredging and filling portions of Enemy Swim Lake. With one exception, the Eighth Circuit affirmed the district court's dismissal of the Tribe's claims. The court held that the 2010 letter issued by the Corp did not constitute a final agency action for purposes of the permit and exemption determinations, and that the Tribe's recapture claim was a nonjusticiable enforcement action; the Tribe was not eligible for equitable tolling in this case; the Corps did not act arbitrarily and capriciously by determining that the owner's 2009 project qualified for a nationwide permit; and the court did not have appellate jurisdiction to address the lawfulness of the Corps's NHPA regulations. View "Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Engineers" on Justia Law

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The broad waiver of sovereign immunity found in section 702 of the Administrative Procedure Act (APA) waived sovereign immunity for all non-monetary claims, and section 704 of the APA's final agency action requirement constrained only actions brought under the APA, 5 U.S.C. 702, 704. The Navajo Nation filed suit challenging Interior's published guidelines clarifying how it would make surplus and shortage determinations for delivery to Western states of the waters of the Colorado River. The panel affirmed the district court's dismissal of the Nation's claims under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., based on lack of standing where the challenged guidelines did not present a reasonable probability of threat to either the Nation's adjudicated water rights or its practical water needs. The panel also held that the Nation's breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in section 702 applied squarely to the claim. Therefore, the panel reversed and remanded as to this issue. Finally, the district court acted within its discretion in refusing post-judgment leave to amend. View "Navajo Nation v. Department of the Interior" on Justia Law

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The Supreme Court rejected a challenge to the constitutionality of the Confederated Salish and Kootenai Water Compact, holding that Mont. Const. art. II, section 18 did not require the Montana Legislature to approve the Compact or its administrative provisions.The Compact, negotiated between the Confederated Salish and Kootenai Tribes, provided a unified system for the administration of water rights and the resolution of disputes on the reservation. The Compact was approved by the Montana Legislature in 2015. The Flathead Board of Joint Control brought suit against the State seeking to invalidate the Compact. The district court ruled (1) the challenged section of the Compact did not contravene Article II, Section 18 because it did not enact any new immunities from suit; but (2) the challenged section of the administrative provision provided new immunity to the State and, therefore, was covered by Article II, Section 18, and because the provision did not pass by a two-thirds majority of each house, it is unconstitutional. The Supreme Court reversed in part, holding (1) none of the Compact’s provisions grant any state governmental agency new immunities from a potential lawsuit; and (2) the Legislature’s majority vote to approve and adopt the contract was consistent with subject provisions of the Montana Constitution. View "Flathead Joint Board of Control v. State" on Justia Law

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In cases consolidated for review, the issue presented for the Tenth Circuit centered on whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it promulgated a regulation, 43 C.F.R. sec. 3162.3-3 (2015), governing hydraulic fracturing (fracking) on lands owned or held in trust by the United States. The district court invalidated this regulation as exceeding the BLM’s statutory authority. While these appeals were pending, a new President of the United States was elected, and shortly thereafter, at the President’s direction, the BLM began the process of rescinding the Fracking Regulation. Given these changed and changing circumstances, the Tenth Circuit concluded these appeals were unripe for review. As a result, the Court dismissed these appeals and remanded with directions to vacate the district court’s opinion and dismiss the action without prejudice. View "Wyoming v. Zinke" on Justia Law

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The Supreme Court reversed the water court’s denial of Scott Ranch LLC’s petition for adjudication of existing water rights appurtenant to Indian allotment lands it acquired that were previously held in trust by the United States for the benefit of a member of the Apsaalooke (Crow) Tribe. After that member died and the lands were converted to fee status, Scott Ranch filed its petition. In denying the petition, the water court ruled that the lands were part of the Tribal Water Right established by the Crow Water Rights Compact and did not require a separate adjudication. The Supreme Court disagreed, holding that the water court lacked jurisdiction to adjudicate Scott Ranch’s claims and erroneously proceeded to address the merits of the petition. View "Scott Ranch, LLC" on Justia Law

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This case presented a question of whether a large-scale excavation project constituted “mining” under the pertinent federal regulations that address mineral development on Indian land. When an entity engages in “mining” of minerals owned by the Osage Nation, a federally approved lease must be obtained from the tribe. The Osage Mineral Council (OMC), acting on behalf of the Osage Nation, appealed the award of summary judgment to Defendant Osage Wind, LLC (Osage Wind), arguing that Osage Wind engaged in “mining” without procuring a federally approved mineral lease. The Bureau of Indian Affairs (BIA) has defined “mining” as the “science, technique, and business of mineral development[.]” The Tenth Circuit held the term “mineral development” had a broad meaning, including commercial mineral extractions and offsite relocations, but also encompass action upon the extracted minerals for the purpose of exploiting the minerals themselves on site. The Court held Osage Wind’s extraction, sorting, crushing, and use of minerals as part of its excavation work constituted “mineral development,” thereby requiring a federally approved lease which Osage Wind failed to obtain. Accordingly, the Court reversed the award of summary judgment and remanded for further proceedings. View "United States v. Osage Wind" on Justia Law

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Petitioners sought review of the EPA's federal implementation plan (FIP) under the Clean Air Act (CAA), 42 U.S.C. 7401, for the Navajo Generating Station in Arizona. The FIP was promulgated under the EPA's Tribal Authority Rule (TAR) that governs CAA requirements on tribal lands. The court concluded that the federal government's partial ownership of the Station does not eliminate any deference to the EPA's interpretation of the CAA and its implementing regulations; the EPA reasonably interpreted the TAR and the Regional Haze Regulations to conclude that the emission reductions deadline in 40 C.F.R. 51.308(e)(2)(iii) does not apply to FIPs for regional haze that are promulgated in place of tribal implementation plans (TIPs); the court deferred to the EPA's determination that the FIP alternative was "better than BART" for nitrous oxide emissions; and the EPA's decision not to determine best available retrofit technology (BART) for particulate matter was a reasonable exercise of the EPA's discretion under the TAR. Accordingly, the court denied the petitions for review. View "Yazzie v. USEPA" on Justia Law

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The Tribe petitioned for review of the EPA's federal implementation plan (FIP) under the Clean Air Act (CAA), 42 U.S.C. 7401, for the Navajo Generating Station in Arizona. The FIP was promulgated under the EPA's Tribal Authority Rule that governs CAA requirements on tribal lands. The Tribe claimed that it was not adequately consulted about its interests before the plan was promulgated and objected to a proposed closure of the Station in 2044. The court concluded that no authority allowed it to treat this as a duty to consult, stemming from the general trust relationship with the Indian tribes. In this case, the record showed that the EPA did, in fact, consult with the Hopi Tribe throughout the rulemaking process. Furthermore, while the EPA did not participate in the Technical Working Group (TWG) negotiations, the DOI did. The court also concluded that the record belies the Tribe's contention that the EPA failed to analyze each of the five best available retrofit technology (BART) factors. Because the TWG proposal was an alternative to BART, the court concluded that there was no error in the EPA not analyzing the BART factors under the TWG alternative. Accordingly, the court denied the petition for review. View "The Hopi Tribe v. USEPA" on Justia Law