UPCOMING MEETINGS

Administration Eyes Changes to Environmental Enforcement

E&E News

January 30, 2020

"The White House issued a notice seeking input on efforts to "reform enforcement" — a potential boon for the energy industry.

The Office of Management and Budget notice follows the "transparency and fairness" executive order last fall that Trump administration officials described as a way to protect Americans from "secretive" bureaucratic interpretation or unjust penalties, particularly in environmental cases (E&E News PM, Oct. 9).

They stressed extreme examples of landowners building on federally protected wetlands and being hit with steep fines.

This memo, which appears in the Federal Register, states that federal enforcement has ballooned in recent decades but protections for defendants has not."

Menominee Indian Tribe of Wisconsin v. EPA

The EPA’s Refusal to Revisit Delegation of Permitting Authority under the Clean Water Act Did Not Constitute Final Agency Action Subject to APA Review

Two States, Michigan and New Jersey, have been delegated dredge-and-fill permitting authority under the Clean Water Act pursuant to 33 U.S.C.A. § 1344(g)-(h) as to waterways that cannot be used for commercial activity. See 40 C.F.R. §§ 233.70, 233.71. The Environmental Protection Agency retains veto power over issuance state permits. The Menominee Indian Tribe of Wisconsin became aware of a mining project (the “Back Forty”) for which Aquila Resources, Inc., had received the requisite permit from the Michigan—as to which the EPA had initially objected but later let stand after amendments. Because the project will affect various tribal historical, cultural and religious interests, the Tribe sent letters to EPA and the U.S. Army Corps of Engineers in 2017 arguing, in part, “that circumstances had changed since the 1984 delegation [to Michigan]. In the past 35 years, the Tribe explained, the Menominee River had experienced a growth of commercial activity, including riverboat tourism.” It requested under their trust responsibility for “the EPA and Corps to revisit whether they—as opposed to the state of Michigan—should exercise authority over Aquila’s Back Forty permit application” or, at least, for consultation “with the EPA and Corps before Michigan made any decision about the Back Forty project.” However, “[t]he agencies responded [in letters] by reinforcing—but not revisiting—the 1984 delegation.” The Tribe then “turned to the courts and filed this lawsuit in the Eastern District of Wisconsin, naming the EPA, Army Corps, and the agencies’ secretaries as defendants” and subsequently “challenged the permit in Michigan’s administrative system.” The federal district court dismissed the case for lack of subject matter jurisdiction because the letters were not final agency actions under the Administrative Procedure Act; it also denied on futility grounds leave to file an amended complaint. On appeal, the Seventh Circuit affirmed the district court judgment. Menominee Indian Tribe of Wisconsin v. EPA, ___ F.3d ___, 2020 WL 416079 (7th Cir. Jan. 27, 2020). The state proceeding remains pending.

Victory for Puget Sound: Navy Signs Legally Enforceable Agreement to Stop Polluting Puget Sound With Ship Scrapings, Take Steps to Prevent Additional environmental Damage

January 29, 2020

 

"Attorney General Bob Ferguson announced a court order requiring the U.S. Navy to stop scraping the hulls of decommissioned ships in a way that releases metals and other contaminants into Sinclair Inlet near Bremerton. The Navy must also begin a multi-million dollar project to reverse the environmental damage caused by scraping decades of marine buildup off the hull of a ship."

WOTUS Mapping Tool

 

St. Mary's University developed a GIS mapping database to examine how the different WOTUS definitions increase or decrease CWA jurisdiction over wetlands. The databased examines a watershed in Minnesota, Colorado and New Mexico. The databased considered three different WOTUS definitions: the "less restrictive" definition approximates the 2015 rule and "very restrictive" definition approximates the new rule. This is a useful tool to compare the impacts of the different policy choices to wetland protection. 

Battle Looms Over Authority To Condemn State Lands Under NGA

 

Last week, the Federal Energy Regulatory Commission (FERC) issued a declaratory order contradicting, in part, the United States Third Circuit Court of Appeals opinion In re: PennEast Pipline Company, LLC, 938 F3d 96 (2019). The question before the Commission was whether Section 7(h) of the Natural Gas Act (NGA) granted authority to PennEast Pipeline Company (“PennEast”) to condemn lands owned by the State of New Jersey to construct a natural gas pipeline stretching from Pennsylvania to New Jersey. 

PennEast “obtained federal approval for the project and promptly sued pursuant to the NGA to condemn and gain immediate access to properties along the pipeline route. Forty-two of those properties are owned, at least in part, by the State of New Jersey or various arms of the State. New Jersey sought dismissal of PennEast’s condemnation suits for lack of jurisdiction, citing the Eleventh Amendment to the United States Constitution . . ..”  The District Court held PennEast was not barred and granted PennEast orders of condemnation and preliminary injunctive relief for immediate access to the state lands. New Jersey appealed.

Last fall, the U.S. Court of Appeals for the Third overturned the federal district court’s decision. After an extensive discussion questioning whether Congress could constitutionally delegate its power to override New Jersey’s Eleventh Amendment immunity, it held on statutory grounds “that the NGA does not constitute a delegation to private parties of the federal government’s exemption from Eleventh Amendment immunity.” 

 

PennEast petitioned FERC for a declaratory order following Third Circuit opinion asking the Commission to interpret the scope of the eminent domain authority under Section 7(h) of NGA. A divided commission (2-1), relying on Chevron deference, found the Commission had jurisdiction to address the interpretation of Section 7(h) “[b]ecause the Third Circuit did not ‘hold[]that its construction follows from the unambiguous terms of the statute.’” The FERC majority then concluded: “We think it is evident that NGA section 7(h) was enacted by Congress to enable certificate holders to overcome attempts by states to block the construction of natural gas facilities the Commission determined to be in the public convenience and necessity. In our view, the broad language of NGA section 7(h) was intended to provide certificate holders with expansive eminent domain authority to acquire land owned by private parties or by states.” The majority declined to address whether Section 7(h) satisfied the constitutional standard for waiving a state’s Eleventh Amendment immunity.

In a sharply worded dissent, Commissioner Richard Glick stated: “There is no need for the Commission to insert itself into what is primarily a constitutional question that is being litigated where those questions belong: The federal courts. The congressional intent behind a statutory provision that governs a judicial scheme [for exercising eminent domain authority], which the Commission has no role in administering, is not a subject on which we are especially well-qualified to opine.” "If the Supreme Court wants our opinion, they'll ask for it," Glick said in an open meeting on the order.

 

The FERC order will figure prominently in PennEast’s petition for certiorari to the Supreme Court asking that the Third Circuit opinion be overturned. The certiorari petition must be filed by March 4th.

Gorsuch and Thomas Decry 'Chaos' of National Injunctions, as Judges Check Trump

Law.com

January 27, 2020

"Justice Neil Gorsuch, joined by Justice Clarence Thomas, sharply criticized the use of nationwide injunctions and urged the U.S. Supreme Court “at the appropriate juncture” to review what they contend are constitutional questions raised by their use."

Utah RS 2477 Trial begins This Week

 

A bellweather trial focused on establishing public rights-of-way under Revised Statute 2477 (commonly known as R.S. 2477) across public lands in southern Utah began today in Utah Federal District Court. Revised Statute 2477, is an 1866 law that allowed for the construction of public roads across unreserved public lands.  Although Congress repealed Revised S. 2477 through the Federal Land Policy and Management Act in 1976, valid rights- of-way created under the old system were permitted to continue. In 2012, Utah and public land lands counties filed claims to over 12,000 R.S. 2477 roads and commenced twenty-two quiet title actions in federal court.

 

The federal court, recognizing the sheer magnitude of the claims, on May 22, 2015, issued a “Proposal for Managing the Resolution of the Roads Cases” designed to “manage the resolution of the Road Cases within a reasonable time frame and within available court resources.” As explained in Utah’s pretrial brief, “This proposal envisioned the selection by the parties of a limited number of “Bellwether Roads” in one of the two active counties which could be tried on an expedited basis and which would raise the questions of law that yet need judicial resolution. The theory and objective behind this “Bellwether” Proposal is that once these remaining issues of law are resolved, a more efficient process (perhaps using Special Masters) can be constructed by the Court to process the thousands of R.S. 2477 right-of-way claims throughout the State.”

 

Utah asserts that the R.S. 2477 routes "provide indispensable access to towns, mines, ranches, resources, grazing allotments, water systems, lands held in trust for the benefit of Utah's schoolchildren, family camping and picnic areas, and unbelievable vistas." In its pretrial brief, the Justice Department counters that “[w]ith respect to the claimed routes in this first bellwether trial, the evidence will show that Plaintiffs’ claims generally fall into two broad categories: claims for routes that are presently used or open to use by the public, with which the United States has not interfered, and claims for routes that are not generally used beyond ranching or off-highway vehicle recreation. For the first category of routes, there is no jurisdiction because the United States has not disputed title under the Quiet Title Act. For the second category, if the United States has disputed title, the dispute arose long enough ago that Plaintiffs’ claims are barred by the applicable statute of limitations.”

A Controversial Trump Legal Opinion Weakened a Law to Protect Birds. Now it Might Be Made Permanent

The Washington Post

January 30, 2020

"The Trump administration is working to cement new standards weakening enforcement of the century-old Migratory Bird Treaty Act.

Interior Department officials said Thursday that they will propose regulations clarifying that individuals and industrial operators, such as oil, gas and wind companies, will not be penalized if they accidentally kill birds — even on a massive scale."

Sovereign Immunity Complicates Coal Mine Takeovers

E&E News

January 31, 2020

"Last year, a federal bankruptcy court allowed a Navajo Nation firm to take over what was left of a major company in America's dominant coal region.

On the ground, the deal is done. The Navajo Transitional Energy Co. (NTEC) not only runs Cloud Peak Energy Inc.'s three mines in Wyoming and Montana but also uses the bankrupt company's equipment, workforce and even office space.

The transition subdued fears about more mine closures, work stoppages and tax disputes wracking the Powder River Basin as coal collapses.

But the threat remains as state agencies refuse to change the name on mining permits or transfer hundreds of millions of dollars in mine cleanup until NTEC answers one question.

Can it be sued?"

Farmers Lawyer Up As 'Massive' Aquifer Cuts Loom

E&E News

January 28, 2020

"California's first attempt at regulating a precious resource — groundwater — is expected to have a rocky start.

Groundwater aquifers across the state have been plundered mainly by farmers and pumped with no limits, causing large swaths of California to sink at least 28 feet, or nearly three stories, since the 1920s.

In 2014, state legislators stepped in, passing the Sustainable Groundwater Management Act, or SGMA. The law requires critically overdrafted basins to balance their pumping and get on a "sustainable" path by 2040.

SGMA could fundamentally reshape water use and agriculture in California. Hundreds of thousands of acres of farmland are expected to be forced out of production."

Governor: New Mexico Needs Realistic, Sustainable Water Plan

KOB 4

January 28, 2020

"New Mexico Gov. Michelle Lujan Grisham has long talked about the importance of water to the arid state, even campaigning on the idea of creating a 50-year plan to guide management of the finite resource.

Her administration is now asking lawmakers for more money and manpower to start what some experts say will be a multiyear endeavor.

Legislative budget analysts have recommended less money than requested be spent on the effort, but the governor and other supporters say its critical the state starts charting a course that will allow for more flexibility in managing water supplies and infrastructure in the face of weather extremes brought on by a changing climate.

A matter of “absolute importance” is how Lujan Grisham describes her call for a long-term plan to safeguard New Mexico’s water resources."

Agua Caliente Groundwater Reserved Water Right Litigation– What Does it Mean For Groundwater Management?

 

In 2015, the Federal District Court for the Central District of California declared that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Agua Caliente Band of Cahuilla Indians’ reservation in California’s arid Coachella Valley. The United States Ninth Circuit Court of Appeals affirmed the District Court’s decision in 2017 and remanded the case back to the District Court for further proceedings.

 

On January 24, 2020, the Agua Caliente Band filed a new complaint for declaratory and injunctive relief against the Coachella Valley Water District’s and the Desert Water Agency’s attempt to impose a “replenishment assessment charge” (RAC) on production of groundwater by the Agua Caliente Band.

 

In an effort to address longstanding and ongoing overdraft of the groundwater of the Coachella Valley Basin, the Water Districts import Colorado River water to recharge the aquifer. The Water Districts impose a RAC on all groundwater production within the designated “areas of benefit” to cover the cost of the artificial recharge. The Band asserts “[a]pplication of the RAC to groundwater that the United States holds in trust for the Tribe and its members is an unlawful taxation, restriction, and encumbrance of the Tribe’s federal reserved water in violation of federal statutory, regulatory, and common law.”

 

The complaint adds a new wrinkle to the age old question of how to bring all water users enjoying the benefit of the common groundwater supply to the table to avoid a race to the bottom of the aquifer.

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month

Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook  is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook  addresses the areas of Indian law most relevant to the practitioner.

Topics include:

Western Attorneys General Litigation Action Committee

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.

Contributions For WAGLAC Newsletter

We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to Clive Strong. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.