MEIC v. DEQ

Hecla Mining Company and its subsidiaries want to develop two industrial silver and copper mines­­––the Montanore and Rock Creek projects––beneath northwest Montana’s Cabinet Mountains Wilderness. Environmental organizations, in just one of a series of legal challenges to protect high-quality designated resource waters and unique bull trout and grizzly bear habitat, brought an action seeking a declaration that Montana Department of Environmental Quality’s issuance of a permit for the Montanore Project was unlawful. The Montana Supreme Court, in a four-member majority, affirmed the district court’s vacatur and remanded the case to the state agency for further proceedings. The decision is celebrated by environmental groups as a victory to ensure that mines are permitted under Montana’s contemporary water quality standards and nondegradation policy. However, the Court likely created an unclear test to determine a mine’s operational life

Indian Treaty-based Climate Change Claims: Legal Strategies to Advance Tribal Sovereignty & Hold Government Accountable for the Climate Crisis

Climate change is an existential threat facing all of humanity, disproportionately threatening the very existence of American Indian tribes. Around the globe, citizens, states, municipalities, and non-governmental organizations are suing to hold their governments accountable for climate-related commitments and climate change impacts. To date, however, no Indian tribe has directly used its trust relationship nor treaty rights to hold the United States government accountable for climate change harms to land, water, wildlife habitat, or cultural resources. Yet, Indian tribes are uniquely situated to do so. Unlike other plaintiffs, tribes have, since time immemorial, occupied lands and relied on natural resources that form the basis of tribal sovereignty and are now threatened by climate change. Tribes also have unique standing, rights, and injuries resulting from climate change which may form the basis of successful climate action where other plaintiffs have failed. Tribes have relied on treaties with the United States to enforce valuable rights such as access to water, fish, and hunting areas for centuries, and successfully brought breach of trust claims when the federal government mismanaged natural resources. Based on the unique legal status of tribes, the trust relationship between the federal government and tribes, and specific treaty-reserved rights, Indian tribes in the United States may be the best situated plaintiffs to successfully bring a climate change claim. Scholars such as Elizabeth Kronk Warner, Dean and Professor of Law at the S.J. Quinney College of Law at the University of Utah; Sarah Krakoff, Deputy Solicitor of the U.S. Department of Interior Office of the Solicitor and former Moses Lasky Professor of Law at the University of Colorado Law School; and Rebecca Tsosie, Regents Professor of Law at the University of Arizona James E. Rogers College of Law, have researched and written on climate change threats to American Indian communities, as well as potential legal pathways and barriers to bringing successful claims. Their research and legal theories provided the inspiration and foundations for my research. I advance their important work through incorporating strategies learned from recent climate change litigation brought by non-tribal youth plaintiffs in Juliana v. United States, as well as natural resource treaty-based litigation brought by tribal plaintiffs in the landmarking United States v. Washington decision. My proposed legal claims tie together and leverage courts’ jurisprudence related to the public trust doctrine, environmental servitudes, Indian treaty-reserved rights, and the federal Indian trust relationship. This presentation will provide an overview of the legal foundations of several distinct tribal climate change claims based on foundational principles of federal Indian law; discuss the different strengths and weakness of the different plaintiffs’ claims in Juliana v. United State, and United States v. Washington; and propose innovative legal claims based on tribal treaty rights and the federal trust responsibility to hold the United States accountable for climate change threats to Indigenous homelands and lifeways

Indigenous Environmental Network and North Coast Rivers Alliance v. President Donald J. Trump, et al. and TC Energy Corporation, et al.

A single cross-border pipeline project has been the epicenter of environmental litigation for the last decade—and it is not over yet. For years, TransCanada Keystone Pipeline, LP and TC Energy have sought to construct and maintain a segment of the Keystone pipeline between the United States and Canada to connect existing pipeline infrastructure and transport crude oil. To do so, the company must first apply and be approved for a permit. Between 2008 and 2012, President Obama twice denied TransCanada Keystone Pipeline and TC Energy’s applications. Then, in 2017 and again in 2019, President Trump unilaterally invited TC Energy’s application and approved the permit. Plaintiffs challenged the 2017 permit in a separate case. This case centers upon President Trump’s issuance of the 2019 permit. In response, Plaintiffs sought a preliminary injunction to stay all federally-issued permits that allowed TC Energy to construct the pipeline, and to prohibit its construction and preconstruction activities during litigation

Montana Environmental Information Center v. Montana Department of Environmental Quality

Hecla Mining Company and its subsidiaries want to develop two industrial silver and copper mines­­––the Montanore and Rock Creek projects––beneath northwest Montana’s Cabinet Mountains Wilderness. Environmental organizations, in just one of a series of legal challenges to protect high-quality designated resource waters and unique bull trout and grizzly bear habitat, brought an action seeking a declaration that Montana Department of Environmental Quality’s issuance of a permit for the Montanore Project was unlawful. The Montana Supreme Court, in a four-member majority, affirmed the district court’s vacatur and remanded the case to the state agency for further proceedings. The decision is celebrated by environmental groups as a victory to ensure that mines are permitted under Montana’s contemporary water quality standards and nondegradation policy. However, the Court likely created an unclear test to determine a mine’s operational life