The Yurok Tribe, represented by Scot Williams, and 25 other Klamath Basin stakeholders recently announced a wide-ranging agreement which, when implemented, will accomplish the most comprehensive river restoration project in American history. The Tribe, two other Basin Indian tribes, farmers, environmental groups, commercial and recreational fishers, the states of California and Oregon, and an array of federal agencies (the Bureau of Reclamation, National Marine Fisheries Service, Fish and Wildlife Service, BLM, Forest Service) have concluded a deal which unites these parties despite their long history of disputes over water in the Basin.

The Agreement calls for removal of four hydropower dams on the Klamath River. The utility company which owns the dams faces a judicial determination (arising from a trial in which Scott represented the Tribe) that volitional fish passage around its dams is scientifically appropriate and achievable. Various studies demonstrate that removing the aging dams is economically more beneficial to the utility and its rate payers, than constructing fish passage. Negotiations with the utility which owns and operates the dams continue in earnest.

For a copy of the Klamath Basin Restoration Agreement, see: here.

For a view of the media's assessment of the Agreement, see: Deal on Dams on Klamath Advances, New York Times - United States.

Curtis Berkey and Rovianne Leigh recently gave a presentation on drafting Tribal Environmental Codes at the 20th Annual Sovereignty Symposium in Oklahoma City, Oklahoma with Hopland Band of Pomo Indians Environmental Protection Agency staff members Phyllis Tobin and Lisa Vasquez. The presentation was titled Why Draft Environmental Codes: The Do's and Don'ts of a Successful Process and emphasized the necessity of collaboration, community input, and the creation of tribally specific Environmental Codes in order to effectively protect tribal resources. A copy of the presentation is available by contacting Rovianne at Rleigh@abwwlaw.com.

Scott Williams was an invited speaker at the American Fisheries Society annual convention held in San Francisco on September 5th. He was a panelist in a session discussing Dam Decommissioning in the context of FERC Relicensing proceedings. He was invited specifically to give an Indian tribal perspective on the topic of dam removal and the impact of decommissioning on tribal fisheries and economies.

Scott Williams is an invited speaker at the 2007 Environmental Law Conference at Yosemite, which describes itself as the “largest and most prestigious gathering of leaders in environmental, land use and natural resources law.” He will be appearing in October, as part of a panel discussing “What’s Next for the Klamath Basin?” Scott represented the Yurok Tribe in the first trial in the United States under the 2005 Energy Policy Act; the trial judge ruled in favor of the Tribe, the United States, the State of California and conservation groups in finding that construction of fish passageways was a valid condition of relicensing hydropower dams on the Klamath River. Scott and Curtis Berkey represent the Yurok Tribe in ongoing FERC Relicensing proceedings and related settlement talks.

Scott was also an invited speaker at UC Berkeley’s Boalt Hall School of Law, Environmental Roundtable in September. Boalt Hall’s Center for Environmental Law and Policy, under the direction of Prof. Richard Frank, is examining FERC hydropower relicensing from the perspective of natural resource protection. Scott joined Richard Roos-Collins, the senior attorney at the Natural Heritage Institute, for the discussion of the law, and economic and social impacts of relicensing proceedings.

Rivera v. Hopland Band of Pomo Indians Economic Development Corporation

Thomas Weathers and Rovianne Leigh successfully defended the Hopland Band of Pomo Indians’ Economic Development Corporation (“EDC”) from a claim by a former employee for breach of contract. In a resounding victory for the Hopland Band, the California Court of Appeal ruled that the plaintiff’s failure to exhaust her tribal administrative remedies pursuant to the Tribe’s Administrative Code and Tribal Claims Ordinance required the dismissal of her lawsuit. The court dismissed the plaintiff’s arguments that the Tribe’s Claims Ordinance violated due process, holding that the Indian Civil Rights Act does not create a private cause of action and that the Tribe must have the first opportunity to interpret its own Tribal Claims Ordinance. The ruling that plaintiffs are required to comply with tribal administrative remedies prior to filing suit sets an important precedent that tribal exhaustion is required.

If you would like assistance in drafting a Tribal Administrative Code or Tribal Claims Ordinance to better protect your Tribe or tribal organization, please contact Tom Weathers at tweathers@abwwlaw.com. The opinion can be found at: 2007 WL 2310773 (Cal. Ct. App. 2007). A PDF of the opinion can be found here.

Partner Thomas Weathers has been named a “Super Lawyer” for 2007 by a national magazine for lawyers. This honor is bestowed each year on the top 5% of lawyers in Northern California based on a selection process of balloting, peer evaluation, and internal research. Tom is the only attorney honored who specializes in Native American law. He is recognized in the August 2007 issues of San Francisco magazine and Northern California Super Lawyers magazine. To see more information, go to www.superlawyers.com, click on “Northern California 2007,” and click on “Native American Law” in the practice section, or click here.

ABW&W HELPS WITH TRIBAL LOAN

Partner Thomas Weathers recently helped a tribal client close a $27.4 million loan. Tom worked with the tribal client and several banks, including BankFirst and National City Bank, for almost 18 months to put the deal together. The process involved thousands of pages of documents, multiple agreements, and countless meetings and negotiation sessions. The tribal client used the loan to refinance a prior loan on which the tribal client had defaulted some years earlier. The tribal client also used part of the loan for improvements at its existing casino.

DYER MOUNTAIN DEVELOPERS WITHDRAW TIMBER HARVEST PROPOSAL

In a significant victory for our client the Honey Lake Maidu Tribe, including its partners and Sierra conservationists the Mountain Meadows Conservancy and Sierra Watch, developers withdrew their plan to log Dyer Mountain as the first step in a major development scheme. Alexander, Berkey, Williams and Weathers represents the Honey Lake Maidu Tribe in its efforts to stop the proposed Dyer Mountain Resort Development, which would adversely impact and destroy numerous and significant tribal cultural resources.

The Timber Harvest Plan would have clear cut and heavily cut over 3,000 acres of Dyer Mountain. We argued on behalf of the Tribe that the Timber Harvest Plan was an unlawful attempt to circumvent the California Environmental Quality Act's requirements and the environmental review process currently underway for the same land. Those lands contain cultural and historical resources of great value to the Tribe.

As the aboriginal owners of the land, the Tribe argued that the impacts of timber harvesting in this region would harm the Tribe's cultural and sacred sites, including ancestral burial sites and ceremonial practices. In addition, the Tribe argued that the archeological survey of the lands was inadequate and that in order to protect significant tribal cultural resources, subsurface testing and exploration was required.

The timber cut would have cleared land for the biggest development threat in the Sierra's -- Dyer Mountain Associates proposes more than 4,000 resort units on 7,000 acres in southern Lassen County.

Partner Thomas Weathers represented the Sac and Fox Nation of Missouri in a tax win before the Kansas Supreme Court. In the matter of Winnebago Tribe of Nebraska et al v. Kline, the Kansas Supreme Court ruled in favor of the Sac and Fox Nation of Missouri, the Iowa Tribe, and the Winnebago Tribe of Nebraska on a motor fuel tax question certified by the U.S. District Court to the Kansas Supreme Court. The U.S. District Court in Kansas asked the Kansas Supreme Court to answer the following question:

Does the Kansas motor-fuel tax, K.S.A. 79-3401 et seq., impose fuel tax collection or payment responsibility upon non-resident Indian tribes who import fuel from outside Kansas and deliver the fuel to outlets in Indian reservations within the State of Kansas?

The Kansas Supreme Court answered in the negative. According to the Kansas Supreme Court, the Kansas motor fuel tax does not impose fuel tax collection or payment responsibility upon a non-resident Indian tribe that imports fuel from outside of Kansas and delivers the fuel to outlets on Indian reservations within Kansas. At issue in the case was the Kansas statute concerning the party that bears the legal incidence or responsibility for paying the Kansas motor fuel tax. The Kansas Department of Revenue asserted that the Winnebago Tribe of Nebraska, as an out-of-state importer of motor fuel, was liable for the tax as the “distributor of first receipt” even though the fuel was delivered to Indian gas stations on Indian Reservations in Kansas. The Kansas Supreme Court disagreed and ruled for the Indian tribes by finding that the Winnebago Tribe of Nebraska was not subject to fuel taxation under the tax law at issue. The matter now returns to the federal court for it to decide if the Sac and Fox Nation and the Iowa Tribe constitute the “distributors of first receipt” and should be liable for the fuel tax under Kansas law. But, because the motor fuel is received on trust land, well-established federal law should preclude Kansas from taxing the transaction.

Click here to see the opinion.

Partner Thomas Weathers was named a Northern California Super Lawyer for 2006. This honor is awarded to the top 5% of the practicing attorneys in Northern California. The Northern California Super Lawyers for 2006 were selected by their peers in an extensive nomination and polling process conducted by Law & Politics and published in the August 2006 issues of San Francisco magazine and Northern California Super Lawyers magazine. To see more information, go to superlawyers.com, click on "Northern California 2006," and type "Weathers" in the last name search section.

Partner Scott Williams represented the Yurok Tribe in the U.S. Ninth Circuit Court of Appeals in a case in which the Court affirmed the imposition of ocean fishing restrictions to protect the fragile Klamath River fishery on the Yurok Reservation. The Oregon Trollers Associations and other commercial ocean fishing interests filed suit in a federal court in Oregon. They challenged restrictions on ocean harvests recommended by the Pacific Fishery Management Council and imposed by the National Marine Fisheries Service. The restrictions were imposed following the 2002 massive fall Chinook salmon kill on the Klamath River caused by low water flows on the Reservation resulting from irrigation diversions upstream from the Reservation. Approximately 60,000 fish, primarily fall Chinook but some coho salmon, died in that kill. The legacy of that kill was an extraordinarily small population of fall Chinook available for ocean harvest this season. NMFS acted to protect those ocean fish so they could return to the Klamath River and spawn.

The ocean fishers claimed that the economic harm they would suffer in the short term, outweighed the value of protecting the species for the long term. They also argued that hatcheries could simply produce fish to replace those lost in the kill. The district court in Oregon and the Court of Appeals both rejected those claims. The courts both found that restrictions on ocean fishing that would allow fish to escape the ocean and spawn, were legitimate, lawful measures to protect the species for the future.

The Yurok fishery has been an essential aspect of cultural, spiritual and economic life for Yurok people since time immemorial. The Yurok Tribe is alert to challenges to measures aimed at protecting that fishery, and consistently acts on the River and in political and legal arenas to protect and restore its fishery.

The full decision may be read here.

Partner Thomas Weathers helped the Hopland Band of Pomo Indians negotiate and secure NIGC approval of its Management Agreement with Ellis Gaming Hopland Management, LLC. The June 6, 2006 Letter from Chairman Hogen of the NIGC approving the Management Agreement can be found here..

Partner Curtis Berkey has published an article in the Denver University Law Review which analyzes the use of the federal trust responsibility in protecting the natural resources of Indian tribes. The article concludes that efforts to invoke the trust responsibility as a source of genuine legal protection for Indian rights have rarely succeeded because the courts have applied the wrong legal standard for assessing such claims. The article was presented at a symposium on federal Indian law at the University of Denver Sturm College of Law on February 17, 2006. The article can be found here.