In case you missed it...

• Date: 01 July 2022

52 ELR 10584 ENVIRONMENTAL LAW REPORTER 72022

IN CASE YOU MISSED IT . . .

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 https://www.elr.info/judicial.

GOVERNANCE

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.

NATURAL RESOURCES

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.

WATER

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®, http://www.eli.org, 1-800-433-5120.