The White Earth Reservation Groundwater and Surface Water Protection Ordinance requires all new high-capacity pumps and wells on the Reservation to be permitted by the White Earth Band of the Minnesota Chippewa Tribe. The White Earth Reservation Business Committee enacted the Ordinance to safeguard the waters, fisheries, wild rice, and other natural resources—resources that were guaranteed to the Band by treaty in 1867 and that sustain hundreds of Tribal members’ subsistence lifestyle—from the devastating effects of high-capacity water appropriations, primarily by non-Indian agricultural interests. On March 5, 2025, in Vipond v. DeGroat, 24-cv-03125 (D. Minn.), U.S. District Judge Katherine Menendez denied the plaintiff irrigator’s motion for a preliminary injunction to enjoin ongoing White Earth Tribal Court proceedings in which the Band seeks a declaration that the irrigator’s proposal to pump 65 million gallons of water each summer from the Wild Rice River is validly subject to tribal regulatory authority. Judge Menendez stayed the federal case pending the exhaustion of tribal court remedies. And on March 21, 2025, in R.D. Offutt Farms Co. v. White Earth Division of Natural Resources, 24-cv-01600 (D. Minn.), U.S. District Judge Jeffrey Bryan dismissed an industrial potato producer’s challenge to the Ordinance for lack of jurisdiction. Kanji & Katzen, P.L.L.C. represents the White Earth Division of Natural Resources and its divisional director in the cases.
Washington Tribes Obtain Dismissal of Industry Lawsuit Challenging Water Quality Standards Protective of Sustenance Fishing
On March 19, 2025, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by the Association of Washington Business (AWB) and other industry trade groups against the U.S. Environmental Protection Agency. The lawsuit challenged human health criteria that EPA promulgated for Washington waters to address pollution that has resulted in fish consumption advisories across the state. AWB argued that these federal water quality standards were too stringent because they correctly recognized that Washingtonians eat more fish than citizens in many other states (i.e., fish consumption rate of 175 g/day) and required that PCBs pose no greater risk of cancer to the population of Washington than any other toxic pollutant (i.e., cancer risk level of one in one million). The District Court dismissed the case as moot after the State of Washington adopted the federal human health criteria into state law and EPA approved the criteria under the Clean Water Act. Five Tribes and the State of Washington intervened in the lawsuit to defend the protective federal human health criteria and moved to dismiss the case as moot once they were adopted into state law.
Kanji & Katzen, P.L.L.C. represents the Lower Elwha Klallam Tribe, Port Gamble S’Klallam Tribe, and Puyallup Tribe of Indians in Association of Washington Business v. EPA, No. 23-cv-03605 (DLF).
A copy of the decision can be found here.
Port Gamble S’Klallam Tribe and NRD Trustee Council Reach Settlement with Owners of Former Mill Site to Restore Habitats in Port Gamble Bay
The Port Gamble S’Klallam Tribe and the other members of the Port Gamble Bay Natural Resource Trustee Council have reached a settlement with the owners of the site of a former sawmill at the mouth of the bay to build two habitat restoration projects that are valued at nearly $10 million.
For 142 years, starting in 1853, Pope & Talbot, Inc. operated a sawmill on the property, which released hazardous substances into Port Gamble Bay that were harmful to fish, shellfish, migratory birds, and other organisms. In 2014, the Trustee Council was formed to assess harm to natural resources in the bay and to seek compensation for that harm. The Trustee Council includes the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam Tribe, the Lower Elwha Klallam Tribe, the Skokomish Indian Tribe, the Suquamish Tribe, the U.S. Fish and Wildlife Service (representing the U.S. Department of the Interior), and the State of Washington (led by the Department of Ecology).
The settlement requires the current and former property owners, Pope Resources, OPG Properties LLC, and OPG Port Gamble LLC, to restore approximately nine acres of riparian habitat along the southern shoreline of the mill site, which will include removing hardscape, installing an intertidal cap, restoring the beach to near-natural slopes, and planting native vegetation. Additionally, the property owners will place sand cover and plant eelgrass over at least eleven acres of subtidal areas on the western side of the bay. The property owners will also provide funding for long-term maintenance and monitoring and permanent stewardship of the southern mill site to preserve the benefits of the habitat restoration in perpetuity. Approximately 30 acres in and around the bay will also be protected by easements that will prohibit activities that could harm the habitat projects.
The settlement, which takes the form of a Consent Decree, was approved by the United States District Court in the Western District of Washington on September 23, 2024. John Sledd, Jane Steadman, Reed Bienvenu, and other members of the Kanji & Katzen, P.L.L.C. team have represented the Port Gamble S’Klallam Tribe in connection with this matter for well over a decade. Kanji & Katzen congratulates the Tribe and the Trustee Council on this historic achievement, which will have tremendous benefits for Port Gamble Bay and for the people and wildlife that make the bay their home.
Further information about the Consent Decree can be found in the links below.
https://www.law360.com/articles/1881859/feds-mill-owner-reach-1-4m-deal-in-pollution-cleanup-row
Stroble v. Oklahoma Tax Commission
“The looming question of whether the state has authority to tax the income of citizens of the Five Tribes who live and work within their reservation boundaries could end up before the U.S. Supreme Court, Oklahoma Supreme Court justices and parties’ attorneys hinted during oral arguments today in Stroble v. Oklahoma Tax Commission.”
Article written by Tristan Loveless linked below:
During Stroble arguments, Oklahoma Supreme Court hints at SCOTUS appeal (nondoc.com)
Washington Tribes Obtain Dismissal of Maverick Gaming Lawsuit in the Western District of Washington
On February 21, 2023, the Western District of Washington dismissed a lawsuit brought by Maverick Gaming LLC, the owner of several cardrooms in Washington, which challenged tribal gaming in Washington and sought to invalidate the Tribal-State class III gaming compacts negotiated under the Indian Gaming Regulatory Act (IGRA). Maverick argued that the compacts violate equal protection and are invalid because Maverick is not permitted to offer the same class III games as the Tribes. The District Court ruled that the Shoalwater Bay Indian Tribe was a required party to the lawsuit that could not be joined due to its sovereign immunity, and therefore dismissal was required under Federal Rule of Civil Procedure 19 and 12(b)(7). The Shoalwater Bay Indian Tribe had intervened in the lawsuit for the limited purpose of moving to dismiss Maverick’s claims on these grounds. Seventeen other Tribes in Washington jointly filed an amicus brief in support of the Shoalwater Bay Indian Tribe’s motion to dismiss, which the District Court cited in its decision.
Kanji & Katzen, P.L.L.C. represents the Confederated Tribes of the Chehalis Reservation, which was one of the Tribes that led the filing of the tribal amicus brief.
A copy of the decision can be found at the link below:
https://turtletalk.files.wordpress.com/2023/02/98-dct-order.pdf