In case you missed it...

Date01 July 2022
In the Courts
"In the Courts" contains full summaries of court cases reported in ELR Update during the month of May 2022. They
are listed under the following categories: Governance, Natural Resources, Water, and Wildlife. The summaries are then
arranged alphabetically by case name within ea ch category. To acce ss ELR's entire collection of court cases and summa-
ries, visit
Ute Indian Tribe v. McKee, No. 20-4098, 52 ELR 20051
(10th Cir. Apr. 27, 2022). e Tenth Circuit armed dis-
missal of a lawsuit concerni ng a long-running water dispute
between an India n tribe and a private landowner in Utah.
e tribe sued the landowner in triba l court, argu ing the
landowner had been diverti ng the tribe’s water for ye ars. e
tribal court held it had subject matter juri sdiction because
the tribe had sovereign authority to manage the use of its
territory and natural resources by tribe members and non-
members, and found that the landowner misappropriated
tribal water to irrigate hi s property. e tribe then petitioned
a district court to rec ognize and enforce the tribal court’s
judgment, but the court held the judgment was unenforce-
able because the tribal c ourt lacked jurisdiction, and dis-
missed the suit. e appellate court found that the dispute
was a matter of the tribe’s external relat ions, not tribal self-
government, and that tribal sovereignty t raditionally did not
extend to external relations with non-Indians. It armed
dismissal for lack of jurisdiction.
Center for Biological Diversit y v. United States Fish and Wild-
life Service, Nos. 19-17585 and 19-17586 , 52 EL R 20056 (9th
Cir. May 12, 2022). e Ninth Circuit, 2-1, a rmed a dis-
trict court ruling that the Forest Serv ic e acted arbitrarily and
capriciously in approving a mining operations pla n for a cop-
per mine in the Santa R ita Mountains. e Service approved
the plan based on its conclusion that §612 of the Surface
Resources and Multiple Use Act gave the mining company
the right to dump its waste rock on open National Forest
System land regardless of whet her it had mining rights on
that land, and its assumption that under the Mining L aw
the company had valid mining claims on the 2,447 acres it
proposed to occupy with waste. e district court found that
neither ground supported the approval because §612 granted
no rights beyond those granted by the Mi ning Law and the
Service had no basis for assuming the cla ims were valid. e
appellate court agree d and remanded to the Service for fur-
ther proceedings.
Cottonwood Environmental Law Center v. Marten, No. 21-
35070, 52 E LR 20054 (9th Cir. May 6, 2022). In an un-
published opinion, the Ninth Circuit armed dismissal of a
lawsuit concerning the Forest Ser vice’s 1987 plan for Custer
Gallatin National Forest. An environmental group arg ued
that NEPA obligated the Service to supplement its EIS for
the plan after recog nizing in 2012 that climate cha nge ne-
cessitated updates to forest plans. e appellate court found
that the 1987 plan was not “ongoing agency action” for pur-
poses of NEPA, and thus that the Ser vice was not required to
conduct a supplemental analysis. e group also a rgued that
recent events required the Service to supplement project-le vel
NEPA analysis for three logging projects currently ongoing
in the forest, but the court found the cla ims lacked merit. It
armed dismissal of the suit.
Allen, Jr. v. Environmental Restoration, LLC, N o. 19- 2197,
52 ELR 20053 (10t h Cir. May 3, 2022). e Tenth Cir-
cuit reversed a district c ourt’s denial of a motion to dismiss
a CWA citizen suit concerning the release of conta minated
water from an inactive gold mine in Colorado. Nearby farm-
ers led suit in a New Mexico district court, al leging several
state-law claims. A ha zardous waste management company
moved to dismiss, argu ing the farmers fai led to state a claim
because they did not le within Colorado’s two-year statute
of limitations. e district court denied the motion, nding
that New Mexico’s three-year statute of lim itations applied
to the farmers’ claims. e appellate court found that both
the CWA and the U.S. Supreme Court’s interpretation of the
CWA compelled application of the point source state’s statute
of limitations to state-law claims preserved under the Act. It
reversed and remanded for further proceedings.
Blackstone Headwaters Coalition v. Gallo Builders, Inc., No.
19-2095, 52 ELR 20 052 (1st Ci r. Apr. 28, 2022). In an en
banc decision, the First Circuit armed i n part and reversed
in part summa ry judgment for an environmental group in
a CWA citizen suit against developers of a construction site
in Massachusett s. e group argued the developers violated
the CWA by failing to comply with the constr uction gen-
eral permit obtained by one of them. A dist rict court granted
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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