Modrall Sperling Law Firm

Annual Environmental Law Update

This paper was originally published by the Rocky Mountain Mineral Law Foundation in the Proceedings of the 64th Annual Rocky Mountain Mineral Law Institute (2018) This chapter highlights…

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Supreme Court Declines Review of Tenth Circuit Case Holding Tribal Acquisition of an Interest in an Allotment Defeats Eminent Domain Authority

The Supreme Court recently denied a petition to review the Tenth Circuit’s opinion in Public Service Company of New Mexico v. Barboan1. The Tenth Circuit affirmed the district’s court ruling that tribal ownership of a fractional interest in an “allotment,” land the…

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Update on Dakota Access Pipeline Litigation

The Dakota Access Pipeline litigation was originally brought by the Standing Rock Sioux Tribe in 2016, quickly joined by the Cheyenne River Sioux Tribe, to challenge construction of the Dakota Access pipeline (“DAPL”), and specifically DAPL’s crossing of the Missouri River at…

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Potential Hurdle to Right-of-Way Acquisition and Renewals: The Tenth Circuit Holds Tribal Acquisition of an Undivided Interest in an Allotment Defeats Congressional Eminent Domain Authority

On May 26, 2017, the Tenth Circuit issued its decision in Public Service Company of New Mexico v. Barboan,1 upholding a New Mexico federal district court’s ruling2 that tribal ownership of even a very small fractional interest in an allotment bars condemnation…

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Dakota Access Pipeline Project Update—Corps’ NEPA Analysis Flawed-In Part

Introduction: On June 14, 2017, U.S. District Court Judge Boasberg issued a lengthy Memorandum Opinion granting in part the Standing Rock Sioux Tribe’s (Standing Rock) and Cheyenne River Sioux Tribe’s (Cheyenne River) Motions for Summary Judgment.1 The Dakota Access Pipeline (DAPL) project…

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Wind River Reservation Held Diminished: EPA’s Contrary Determination Set Aside Despite EPA Reliance on Solicitor Opinion

On February 22, 2017, the Tenth Circuit Court of Appeals issued a decision finding that the Wind River Reservation in Wyoming, established by, as relevant here, an 1896 treaty, was diminished by a 1905 Act of Congress in which the Eastern Shoshone…

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Tule Wind Farm Passes NEPA Test, Again

On March 6, 2017, the United States District Court for the Southern District of California rejected a challenge to a wind project in southeastern San Diego County, with known potential impacts to golden eagles.1 The project consisted of two phases, Phase I which…

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Native American Trust Asset Reform Act Becomes Law: New Tribal Options, Questions Unanswered

On June 10 2016, Congress passed the Native American Trust Asset Reform Act  and on June 22, 2016, President Obama signed it into law.[1. 25 U.S.C. § 5601.] According to the Senate Committee on Indian Affairs, the purpose of the Act “is…

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The Silver Lining: Efficiencies in BIA’s Newly Effective Right-of-Way Regulations

As we have previously reported, the Bureau of Indian Affair’s (BIA) recently revised the regulations governing grants of right-of-way (ROW) on Indian lands compiled at 25 C.F.R. Part 169 (Final Rule).[1. The BIA’s website has additional information on the Final Rule and…

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Update on Challenge to U.S. EPA’s Waters of the United States Rule

As we previously reported in our Fall 2015 ERN,[1. See Joan Drake and Deana Bennett, The Clean Water Rule: Troubled Waters Ahead for the EPA and Corps, Energy Resources Notes, Fall 2015, at 2-6.] several industry and environmental groups have challenged the Environmental Protection Agency’s Final…

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