WAGLAC News & Updates
October 28, 2019
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WAGLAC Winter Meeting
February 17-18, 2020
Westin San Diego
San Diego, California
-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Water Law Issues
-Please plan to arrive February 16th
-The contracted room rate is $209/night
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WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana
-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda cercla sites
-Announcement and agenda to follow
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WAGLAC Fall
Meeting
October, 2020
The Grove Hotel
Boise, Idaho
-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Announcement and agenda to follow.
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WOTUS LAWSUITS START LONG, MUDDY LEGAL BATTLE
October 24, 2019
“Get ready for a surge of lawsuits over the Trump administration's decision to walk back Obama-era protections for wetlands and streams.
Opponents to the administration's take on which water bodies are considered "waters of the United States" under the Clean Water Act already launched at least two challenges this week, kicking off the next round of courtroom action. The cases add a new dimension to what could soon be a complicated legal quagmire over the Obama administration's WOTUS rule and the Trump administration's efforts to both erase and replace the regulation.
Court watchers say it's not yet clear whether challenges to the Clean Water Rule repeal will wipe out an existing body of litigation over the 2015 regulation. Legal experts expect the fight to eventually make it to the Supreme Court, but they can't predict when.”
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STATE ATTORNEYS GENERAL FILE AMICUS BRIEF SUPPORTING LANDOWNERS’ RIGHT TO SUE POLLUTERS
October 22, 2019
“California Attorney General Xavier Becerra, as part of a coalition of 15 attorneys general, today filed an amicus brief with the U.S. Supreme Court in Atlantic Richfield Co. (ARCO) v. Christian, et. al., in support of a Montana Supreme Court decision allowing landowners to seek restoration damages from ARCO.
ARCO currently owns and is responsible for a hazardous waste site that contaminated the landowners’ property. In the brief, the state coalition argues that the Montana Supreme Court was correct in its ruling that private parties may require additional cleanup and restoration of property under state law, beyond what is required by federal law.”
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EXXONMOBIL CLIMATE CHANGE TRIAL BEGINS NEXT WEEK
Washington Post
October 22, 2019
“ExxonMobil is facing one of its biggest legal threats ever as the state of New York takes the oil and gas giant to court over accusations it misled investors about the costs of dealing with climate change.
The case, which is set to start Tuesday in state court in Manhattan, is the culmination of years of investigation by the New York attorney general's office, which alleges the company's public estimates of the costs to reduce global warming impact were drastically inflated compared to those used in private discussions among executives.”
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EPA RECEIVES 85,527 COMMENTS ON PROPOSED CWA 401 RULE
The comment period on EPA’s CWA Section 401 rule closed on October 21, 2019. Only 860 of the 85,527 comments have been posted to EPA’s rules docket (EPA-HQ-OW-2019-0405).
Twenty-two state attorneys submitted a joint comment letter in opposition to the proposed rule. “Every provision of the proposed rule appears designed to curtail state authority under section 401. First, the proposed rule would unlawfully limit state certification authority to point source discharges from proposed projects into navigable waters, even though the plain language of section 401, as interpreted by the Supreme Court, authorizes states to ensure that the proposed activity
as a whole
does not violate state water quality standards. Second, contrary to the clear language of section 401, which allows states to impose restrictions necessary to ensure compliance with “any other appropriate requirement” of state law, the proposed rule would restrict state conditions to those necessary to ensure compliance with a narrow set of EPA approved water quality standards. Third, the proposed rule would allow federal agencies to disregard timely-issued denials and state-imposed conditions on certification applications, even though the plain language of section 401, as interpreted by every court to consider the issue, provides that timely state denials and conditions are binding on federal agencies and subject only to judicial review. Fourth, the proposed rule would dictate the timing and scope of state review of certification applications, despite the fact that section 401 only requires that states act within a “reasonable” period of up to one year. And fifth, the proposed rule would improperly intrude into the realm of state administrative procedures by specifying the contents of a section 401 request and state determination, notwithstanding whatever contrary procedural requirements states may have enacted.”
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SOUTH DAKOTA AGREES TO NOT ENFORCE PROTEST LAWS
The Hill
October 24, 2019
"South Dakota has agreed to stop enforcing laws seen as curtailing protests over the construction of oil pipelines after a lawsuit claimed it violated First Amendment rights, according to a settlement announced Thursday.
Legislation signed by South Dakota Gov [Noem] (R) earlier this year allowed the state to sue people or groups for “riot boosting,” or encouraging protests where violence eventually occurs, even if the defendant does not participate in rioting. It was passed in anticipation of the construction of the Keystone XL Pipeline.
That led to a lawsuit from the American Civil Liberties Union (ACLU) of South Dakota on behalf of several groups, arguing that it infringed on free speech.
Noem and Attorney General Jason Ravnsborg (R) agreed agreeing not to enforce that part of the legislation, which had previously temporarily been blocked by a judge.”
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OUTDOOR GROUPS LAUNCH LEGAL CAMPAIGN AGAINST E-BIKES
Two months after
Interior Secretary David Bernhardt signed a secretarial order declaring that electronic bicycles are allowed in any area on federal land where regular bikes can ride, outdoor groups in California filed a lawsuit to block the plan.
"‘Allowing motorized bicycles on nonmotorized trails meant for hikers, backpackers and equestrians poses risks and conflicts for the many visitors who enjoy that type of quiet recreation,’ said Helen Harvey, president of the Gold Country Trails Council in Nevada County, one of the plaintiffs in the lawsuit.
The plaintiffs also say the Forest Service-which is part of the Department of Agriculture- did not follow the National Environmental Policy Act in assessing the impacts of its decision.”
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UPDATE ON INDIAN WATER RIGHTS SETTLEMENT
EXTENSION ACT
WSWC Newsletter
October 11, 2019
“On October 4, the Congressional Budget Office (CBO) issued its cost estimate for the Indian Water Rights Settlement Extension Act (S. 886), assuming that the bill is enacted near the end of 2019. The Senate Indian Affairs Committee approved an amended version of the bill on July 17. Rather than permanently extend the Reclamation Water Settlement Fund (RWSF) in 43 U.S.C. 407 as introduced, the amended version extends transfers from the Reclamation Fund to the RSFW an additional ten years, through FY2039. The bill would transfer $120M each fiscal year from 2029-2039 from the Reclamation Fund ($1.2 billion) to the RWSF for future Indian water settlements. CBO’s report noted that, “As of 2019, 36 Indian water settlements have been federally approved, with total estimated costs – mostly for construction of new distribution facilities – in excess of $5.8 billion.” The report also indicated that the increases to on-budget deficits in any of the four consecutive 10-year periods beginning in 2030 will be less than $5 billion.
Section 2 limits the amount that the Secretary of the Interior may spend on any one settlement to $90M in a single fiscal year (from FY30-44), unless the expenditure of more funds would not adversely affect the implementation of other congressionally-approved settlement agreements. The authorizing language is modified to shift away from the requirements that: (1) the settlement resolve litigation; or (2) involve Bureau of Reclamation water infrastructure projects, allowing more flexibility for settlements initiated without litigation and involving non-Reclamation water infrastructure projects. It specifies that the settlement must involve claims concerning Indian water resources.”
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ENFORCEMENT OF TRAFFIC LAWS IN INDIAN COUNTRY
Fronda Woods, Assistant Chief Editor of the American Indian Law Deskbook, prepared a Power Point summarizing the legal principles governing enforcement of traffic laws in Indian County. The Power Point will be of assistance to those unfamiliar with this area of Indian law.
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INDIAN LAW SUMMARY UPDATES
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New Indian Law Case Summaries
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Corporation of President of the Church of Jesus Christ of Latter-Day Saints v. BN
, ___ F. Supp. 3d ___, 2019 WL 5423937 (D. Utah Oct. 23, 2019)
:
Suit seeking determination that tribal court lacked jurisdiction over nonmember corporation is stayed pending exhaustion of tribal court remedies, while a claim that the tribal court proceeding was rendered moot by a settlement is dismissed.
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In Interest of A.W.
, ___ S.W.3d ___, 2019 WL 5444155 (Tex. App. Texarkana Oct. 24, 2019)
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Tribe’s determination that child was not eligible for membership conclusively resolved “Indian child” status.
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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
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All summaries are posted in CWAG's google docs acc
ount, accessible through the link below. Should you have any issues with the links, contact
Andrea Friedman
with any questions.
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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:
- Definitions of Indians and Indian tribes
- Indian lands
- Criminal, civil regulatory, and civil adjudicatory jurisdiction
- Civil rights
- Indian water rights
- Fish and wildlife
- Environmental regulation
- Taxation
- Gaming
- Indian Child Welfare Act and tribal-state cooperative agreements
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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.
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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@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.
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