Archive | Uncategorized RSS feed for this section

Motion for Default Judgment Filed in Graymont Suit

22 Apr

On April 21st, 2105, we filed a Motion for Default Judgment.  The Court Rules require the defendant to file a response to our original Complaint within 21 days of being served with that Complaint;  the 21-day clock stopped ticking on the 16th of April.  

According to the Rules, at least as I read them, the judge has no discretion in this matter –the language that appears on the Summons is unequivocal:  “If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.”  The “relief demanded,” of course, is the issuance of a preliminary injunction barred the transfer of land to Graymont (the transfer of any “1836 Ceded Territory” to any entity will also be enjoined).

Click on the Graymont Injunction link, above, for the details.

Advertisements

Graymont Injunction Hearing Set for April 29

17 Apr

LATEST NEWS –Judge sets hearing date on Graymont Injunction

Despite media reports, this case is far from over.  The judge did dismiss our 2nd request for a Temporary Restraining Order, but he did order a Hearing, now set for Wednesday, April 29, 2015, at 3:00 p.m., 174 Federal Building, 410 W. Michigan Ave., Kalamazoo, MI 49007.

The Order contains this language: “Also, there is no indication that the mine will irreversibly alter the land before the lawsuit progresses; the transfer of title alone is not irreparable harm because the Court could reverse the sale.”

Graymont-Hearing Order

Refiled Motion for Temporary Restraining Order, April 13, 2015

13 Apr

As you can see in the documents linked on the “Graymont Injunction” page (above), our original TRO was denied due to procedural deficiencies. Those were corrected, and we re-filed the Motion today.  The two TRO Motions are nearly identical, so the second is not posted here –we added a “Verification” page.  When we get the ruling from the Judge, we’ll post everything here (maybe as soon as tomorrow).

Second Appeal filed in Fracking-Water suit

10 Apr

Go to the “Fracking-Water Injunction” page, scroll down, and read about our second Appeal in this increasingly complex and bizarre case.  The Appeal is of a Tribal Court Order that granted the State’s Motion to Dismiss.  We were never given the opportunity to Answer that Motion, despite the Appellate Court assuring us that we would have an opportunity to challenge the State’s Motion, and, oddly, the Tribal Court conducted no Hearing on the Motion, despite the State’s “Oral Argument Requested” “Notice of Motion.”

Batchewana Case Has Lessons for our Graymont Suit

29 Mar

An Editorial from the Sault Star –Gargantua Harbor Decision was Right– the judge ruled that the passage of time does not erode Treaty Rights.

http://www.saultstar.com/2015/03/28/harbour-decision-was-right-millroy

TRIBAL OPPOSITION TO GRAYMONT

23 Mar

In addition to the Resolution from CORA opposing the Graymont land-transfer, I think this document is important for what it says about the state’s “consultations” with Tribes that the DNR continually alludes to.  

The Natural Resources Commission memo, dated March 9 and linked below, says this (under “Engagement”): “Sovereign tribal governments have submitted letters of opposition to the sale or exchange of land proposed in earlier versions of this LTA [Land Transfer Agreements].”  Later in the memo, under the same heading, the NRC says this: “Consultation with sovereign governments of federally recognized tribes concerning the third version of the LTA occurred on January 28, 2015. Discussion topics ranged from technical aspects of the proposal to, most importantly, the impact of the LTA on the exercise of treaty rights in the 1836 Treaty area.”

For more details, click on the “Graymont Injunction” link.

http://www.michigan.gov/documents/dnr/LTC20130281_Graymont_Sale_482208_7.pdf

FRACKING-WATER APPELLATE RULING

13 Dec

Well, we had our “scheduling hearing” on our “fracking-water” Appeal in the LTBB Court, today.  Here’s the short version –the Appellate Court sent the case back to the Lower Court, essentially (as I understand it), because the Lower Court issued its ruling without holding any sort of a hearing, depriving the state of its opportunity to present it’s case (that the LTBB Courts lack “personal jurisdiction” over the defendants), and, consequently, depriving the Appellate Court of sufficient “evidence” to make a ruling on the Appeal.  So, the case has been sent back to the Lower Court.  So, what we have is the Lower Court saying –we don’t want to hear this case– and the Appeal Court saying –we don’t want to hear this Appeal (at least, not yet),  Stay tuned (this phase will take months, most likely).

Once we have some documents to post, we’ll do so on the “Injunction” page …. stay tuned.

Water Withdrawals, Consumptive Use, Removals, and Diversions –“Fracking Water” Lawsuit

9 Dec

 

 Given that the success of our “Fracking Water” lawsuit hinges on the definition of “diversion” versus “consumptive use,” I thought it would be useful to explore the legal/policy use of these, and related, terms. Here’s what I came up with: 

WATER WITHDRAWALS, CONSUMPTIVE USE, REMOVALS, AND DIVERSIONS

Excerpts from the


PROTECTION OF THE WATERS OF THE GREAT LAKES

Final Report to the Governments of Canada and the United States,
Submitted to governments by the International Joint Commission on February 22nd, 2000.
Emphasis added throughout. To be used as an Exhibit in Article32.org’s “Fracking Water” lawsuit.

Section 10 – ConclusionsThe Great Lakes Basin Ecosystem

4. System Stress. Removals of water from the Great Lakes Basin reduce the resilience of the system and its capacity to cope with future, unpredictable stresses. On an average annual basis, less than 1 percent of the water in the Great Lakes system—approximately 613 billion liters per day (162 billion gallons per day)—is renewable. Any water taken from the system has to be replaced in order to restore the system’s lost resilience. It is not possible at this time to identify with any confidence all the adverse consequences of water removals so that these consequences could be mitigated. The precautionary approach dictates that removals should not be authorized unless it can be shown, with confidence, that they will not adversely affect the integrity of the Great Lakes Basin ecosystem.

14. Groundwater. There is uncertainty and a lack of adequate data about groundwater and use of groundwater in the Basin. Data on withdrawals vary in quality, while data on consumption are extremely limited. It is estimated that about 5 percent of all withdrawals in the Basin are from groundwater. Current estimates of consumption of groundwater do not indicate that this consumption is a major factor with respect to Great Lakes levels. Nevertheless, it is a matter of considerable importance to more than 20 percent of the Basin’s human population and to the large biological community that rely on groundwater and that can be significantly affected by local withdrawals. There is a serious lack of information on groundwater in the Basin, and governments should undertake the necessary research to meet this need. There is clear need for state, provincial, and local government attention to the monitoring and regulation of groundwater withdrawals and protection of groundwater recharge areas.

Great Lakes Basin Laws and Policies 

16. Cooperative Efforts. The Great Lakes Basin extends across the boundary between Canada and the United States and the borders of eight states and of the provinces of Ontario and Quebec. None of these governments alone can regulate water in the entire Basin. The Great Lakes are an integrated hydrologic system. When water is removed from the Basin on one side of the international boundary by either consumptive use or removals, the amount of water that is available on both sides is reduced. Measures to protect and conserve the waters of the Great Lakes ecosystem must therefore be directed at the Basin as a whole in order to be effective. This requires cooperation and coordination among the governments with responsibilities in the Basin.

Principles (this section is quoted in its entirety)

24. To ensure the protection and conservation of the waters of the Great Lakes, the Commission concludes that the following principles should guide their management:

Integrity of the Ecosystem: The Great Lakes Basin is an integrated and fragile ecosystem. Its surface and groundwater resources are part of a single hydrologic system and should be dealt with as a unified whole in ways that take into account water quantity, water quality, and ecosystem integrity.

The Precautionary Approach: Because there is uncertainty about the availability of Great Lakes water in the future—in the light of previous variations in climatic conditions as well as potential climate change, uncertainty about the demands that may be placed on that water, uncertainty about the reliability of existing data, and uncertainty about the extent to which removals and consumptive use harm, perhaps irreparably, the integrity of the Basin ecosystem—caution should be used in managing water to protect the resource for the future. There should be a bias in favor of retaining water in the system and using it more efficiently and effectively.

Sustainability: Water and related resources of the Basin should be used and managed to meet present needs, while not foreclosing options for future generations to meet their cultural, economic, environmental, and social needs.

Water Conservation: There should be an obligation to apply the best conservation and demand-management practices to reduce water use and consumptive losses and thus retain water in the Basin.

Cooperation: Decisions regarding management of water resources must involve cooperation among the two federal governments, the Great Lakes states and provinces, the tribes and Aboriginal Peoples, the municipalities and regions, and the citizenry on both sides of the boundary. The processes must be open to involvement and meaningful participation by these governments, the stakeholders, and the public. 

Existing Institutions: Existing institutions, processes, and legal instruments—including the Boundary Waters Treaty, the International Joint Commission, the Great Lakes Charter, the U.S. Water Resources Development Act, the Ontario Water Taking and Transfer Regulation, and the Great Lakes Commission—have provided vehicles to deal with water use issues. It is important to retain these strengths in any new process. Moreover, it is important to continue to respect existing international agreements and arrangements and the rights of tribes and Aboriginal Peoples.

Measurable Objectives, Sound Science, and Adaptive Management: Water resource goals should, whenever possible, be established as measurable objectives that can be assessed through open, objective, scientific studies that are subject to peer review. Where information is incomplete, particularly with respect to emerging issues of concern, decisions should be based on the precautionary approach and should take into account the best available data, information, and knowledge, including cultural, economic, environmental, and social values.

Fairness: The Great Lakes Basin community is broad, diverse, and interdependent. Culturally and economically, it extends beyond the physical confines of the hydrologic basin. It is important that programs designed to protect the ecological foundation of the Basin community be, and be seen to be, fair to all those who use and contribute to the Basin and are part of the community.

Recommendation I.  Removals.

Without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for removal of water from the Great Lakes Basin to proceed unless the proponent can demonstrate that the removal would not endanger the integrity of the ecosystem of the Great Lakes Basin and that:

  1. there are no practical alternatives for obtaining the water,
  2. full consideration has been given to the potential cumulative impacts of the proposed removal, taking into account the possibility of similar proposals in the foreseeable future,
  3. effective conservation practices will be implemented in the place to which the water would be sent,
  4. sound planning practices will be applied with respect to the proposed removal, and,
  5. there is no net loss to the area from which the water is taken and, in any event, there is no greater than a 5 percent loss (the average loss of all consumptive uses within the Great Lakes Basin); and the water is returned in a condition that, using the best available technology, protects the quality of [the water] and prevents the introduction of alien invasive species into the waters of the Great Lakes. 

… In implementing this recommendation, states and provinces shall ensure that the quality of all water returned meets the objectives of the Great Lakes Water Quality Agreement.

Recommendation II. Major New or Increased Consumptive Uses

To avoid endangering the integrity of the ecosystem of the Great Lakes Basin, and without prejudice to the authority of the federal governments of the United States and Canada, the governments of the Great Lakes states and Ontario and Quebec should not permit any proposal for major new or increased consumptive use of water from the Great Lakes Basin to proceed unless:

  1. full consideration has been given to the potential cumulative impacts of the proposed new or increased major consumptive use, taking into account the possibility of similar proposals in the foreseeable future,
  2. effective conservation practices will be implemented in the requesting area, and,
  3. sound planning practices will be applied with respect to the proposed consumptive use.

In implementing this recommendation, states and provinces shall ensure that the quality of all water returned [to the Basin] meets the objectives of the Great Lakes Water Quality Agreement.

 

 

Taken from –http://www.ijc.org/php/publications/html/finalreport.html#1

Lawsuit Targets Secretive Plan to Ramp up Tar Sands Oil Shipments in Alberta Clipper Pipeline

12 Nov

MINNEAPOLIS, MN. – Conservation and tribal groups filed a lawsuit today against the U.S. State Department’s secretive approval of a plan to allow Canadian oil giant Enbridge to nearly double the amount of tar sands oil in the Alberta Clipper pipeline. The approval this summer happened without public notice and without a legally required review that’s meant to protect air, water, wildlife, and public health, in spite of a previous State Department decision that any expansion of Alberta Clipper would require a federal permit.

The pipeline transports tar sands oil from Alberta through Minnesota, with a terminus in Superior, Wisconsin. From the Canadian border, the pipeline runs 327 miles through North Dakota and Minnesota to Wisconsin, passing through three Native American reservations, as well as the Northern Divide, the Mississippi river, the Chippewa National Forest, and Leech Lake.

The scheme to nearly double Alberta Clipper’s capacity would put the pipeline on par with the controversial Keystone XL pipeline and significantly increase the amount of toxic, highly polluting tar sands crude being moved into the U.S. without any public oversight or accountability. It also represents a violation of U.S. environmental laws designed to protect the public from pollution of our air and water.

“This lawsuit challenges the State Department’s illegal approval of Enbridge’s tar sands expansion plans,” Sierra Club Staff Attorney Doug Hayes told reporters on a press call this afternoon. “Rather than stick to its ongoing review process that the National Environmental Policy Act requires, the State Department green-lighted the expansion before the process is complete.”

Today’s suit was filed in federal court in Minneapolis by a diverse coalition of groups including the White Earth Nation, Sierra Club, Center for Biological Diversity, Honor the Earth, the National Wildlife Federation, the Minnesota Conservation Federation, the Indigenous Environmental Network, and MN350, being represented by the Vermont Law School Environmental and Natural Resources Law Clinic. The suit aims to force Secretary of State John Kerry and the State Department to reverse its approval and ensure that a full environmental review takes place before any expansion of Alberta Clipper occurs.

“To establish the U.S. as a real international leader in tackling the climate crisis, the State Department must stop turning a blind eye to Big Oil schemes to bypass U.S. laws and nearly double the amount of corrosive, carbon-intensive tar sands crude it brings into our country,” said Sierra Club Deputy National Program Director Michael Bosse. “Enbridge has been allowed to play by their own rules for too long at the expense of our water, air, and climate, and the Sierra Club is taking legal action to stop this abuse.”

“The only thing worse than dirty oil is dirty oil backed by dirty tricks. This is the fossil fuel equivalent of money laundering,” said Kieran Suckling, executive director of the Center for Biological Diversity. “The Obama administration should be ashamed of itself for letting Enbridge illegally pump more dirty tar sands oil into the United States.”

“Honor the Earth represents Anishinaabeg people and the earth. We believe that nations should abide by their agreements, treaties, and laws. The Anishinaabeg continue to harvest and live the life the Creator gave us, within the north country, and within the treaty areas, protected and recognized under federal law, including the 1837, 1854, 1855 and 1867 treaties,” said Winona LaDuke, Program Director for Honor the Earth and a member of the White Earth Nation. “We know that new oil pipelines will not bode well for the fish, the wild rice, and the medicines of this Akiing, this land.   We also know that the US, through the State Department, should uphold its own laws and regulations, and not issue permits under the pressure of oil interests, over the interests of our country, people, and land.  Federal law requires environmental impact assessments, and the US must uphold its own laws.  New pipelines by the Enbridge Company and this illegal switching of lines do not serve our state or our country. We ask the US State Department to uphold the law.”

The lawsuit can be found here: http://tinyurl.com/ptoqgzg

Great Lakes’ Mayors Call For Double-Wall Pipelines

4 Nov

In a letter to Gov. Snyder:

“….BE IT FURTHER RESOLVED, that the Great Lakes and St. Lawrence Cities Initiative recommends additional safety measures, notably, all modes of transportation of fossil energies be equipped with double walled containment, including pipelines, ships, barges, tank cars, and tank trucks…”

Read the entire Resolution here — Gov Snyder re. Enbridge