Chapter 10 Environmental Regulation in Indian Country
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81 Environmental Regulation in Indian Country 81 P.428, n.10. Add the following to the end of the footnote: Although this chapter focuses principally on regulatory schemes administered by EPA, other federal statutes designed in whole or part to address environmental concerns play an important role both as to Indian country and lands outside Indian country where a tribe claims some interest. As to the latter laws, tribes have access to, and often use, the judicial remedies available to other entities or individuals. E.g., Te-Moak Tribe v. USDOI, 608 F.3d 592, 599–601 (9th Cir. 2010) (challenge to amendment of gold mine’s operation plan under National Environmental Policy Act claiming, inter alia, that federal agency had failed, to take “hard look” at the amendment’s effect on tribal cultural resources); S. Fork Council of W. Shoshone v. USDOI, 586 F.3d 718, 723–25 (9th Cir. 2009) (rejecting claim by tribe under Federal Land Policy and Management Act over agency’s alleged failure to accommodate tribal access and ceremonial use of sacred sites as required under Executive Order No. 13007). Tribes additionally may possess state law-created rights to avoid or seek damages for environmental harm. E.g., Quapaw Tribe v. Blue Tee Corp., 653 F. Supp. 2d 1166, 1192 (N.D. Okla. 2009) (tribe had parens patriae standing to maintain natural resource damages action predicated, in part, on common law public trust and public nuisance theories although “Defendants have shown that Oklahoma law may limit the remedies available to a plaintiff for a nuisance claim, whether it is a public or private nuisance claim”). P.433, n.54. Add the following to the end of the footnote before the period: ; cf. Elliot v. White Mountain Apache Tribal Court, 566 F.3d 842, 850 (9th Cir. 2009) (exhaustion of tribal court remedies required with respect to suit by tribe against nonmember for violation of tribal regulations and damages caused by forest fire given plausible presence of inherent adjudicatory authority ; reasoning in part that “the tribe makes a compelling argument that the regulations at issue are intended to secure the tribe’s political and economic well-being, particularly in light of the result of the alleged violations of those regulations in this very case: the destruction of millions of dollars of the tribe’s natural resources”), cert. denied, 130 S. Ct. 624 (2009) Chapter 10 Environmental Regulation in Indian Country 82 2011 Supplement—American Indian Law Deskbook, Fourth Edition P.435, n.67. ERRATA: The reporter volume number should read “752”. p.435, n.68. Add the following to the end of the footnote before the period. ; Cassandra Barnum, Note: A Single Penny, an Inch of Land, or an Ounce of Sovereignty: The Problem of Tribal Sovereignty and Water Quality Regulation under the Maine Indian Claims Settlement Act, 37 Ecology L. Q. 1159 (2010) (commenting on solutions to tribal water quality concerns in response to the Maine v. Johnson decision) P.436, n.76. ERRATA: The specific page reference should read: “257–58”. P.437, n.82. In the fourth line from the top, delete “Aug. 2, 2008” and insert “June 23, 2011”. In the eighth line from the top, delete “Jul. 31, 2008” and insert “June 29, 2011”. P.437, n.84. Delete lines two and three and insert the following: The EPA also discontinued the use of the term “treated as a state,” substituting in its place, except where the relevant statute provided otherwise, the term treatment “in a manner to that in which it treats a state.” Id. at 64,343. P.439, n.97. The statutory citation in line one should read as follows: “33 U.S.C. § 1369(b)(1)” The statutory citation in line two should read as follows: “42 U.S.C. § 300j–7(a)” P.439, n.101. In the third line from the top, delete “Aug. 3, 2008” and insert “June 23, 2011”. Add the following to the end of the footnote: Most recently, the EPA has issued a memorandum, Strategy for Reviewing Tribal Eligibility Applications to Administer EPA Regulatory Programs (Jan. 23, 2008), available at http://www.epa.gov/tribal/pdf/strategy-for-reviewing-applications -for-tas-01-23-08.pdf (last visited Jul. 28, 2009), aimed at improving the process for TAS application review under the CWA, CAA and SDWA. See generally James M. Grijalva, EPA’s Indian Policy at Twenty-Five, 25-SUM Nat. Resources & Env’t 12 (2010) (discussing development and implementation of EPA...


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