WAGLAC News & Updates
July 22, 2019
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WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues.
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WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.
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E.P.A. Won’t Ban Chlorpyrifos, Pesticide Tied to Children’s Health Problems
The New York Times
July 18, 2019
The Trump administration took a major step to weaken the regulation of toxic chemicals when the Environmental Protection Agency announced that it would not ban a widely used pesticide that its own experts have linked to serious health problems in children.
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D.C Circuit Yields to EPA on Hardrock Mine Bonding
E&E News
July 19, 2019
The U.S. Court of Appeals for the District of Columbia Circuit is upholding EPA's decision against imposing new financial assurance requirements on hardrock mines under the Superfund law.
In her opinion, Judge Karen Henderson, a George H.W. Bush appointee, said environmental groups, including the Idaho Conservation League, were misinterpreting the statute.
She wrote that concerns about abandoned mine sites do not "undermine the reasonableness of the EPA's decision not to promulgate additional financial responsibility requirements for the entire hardrock mining industry."
Also on the panel reviewing the case were Thomas Griffith, a George W. Bush appointee, and David Santelle,
picked by President Reagan.
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Clean Water Rule Stalled in Oregon
Courthouse News
July 17, 2019
"The Obama-era Clean Water Rule still won’t take effect in Oregon, after a federal judge ruled that its long-delayed implementation could “irreparably harm” farmers and ranchers who might have to pay for permits to harm intermittent streams if they end up winning their lawsuit challenging the rule.
Oregon Cattlemen’s Association in April sued the Environmental Protection Agency, claiming it too broadly defined the types of waters that cannot be polluted, by including not only rivers and streams that are “navigable-in-fact,” but also those upstream from waters literally navigable by boat, as well as intermittent streams and isolated wetlands."
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Attorney General Becerra to Supreme Court: The Clean Water Act Regulates Indirect Discharges of Pollutants into Our Nation’s Waters
July 19, 2019
"California Attorney General Xavier Becerra, as part of a 14-state coalition, submitted an amicus brief to the U.S. Supreme Court in Hawai’i Wildlife Fund, et al., v. County of Maui. In the brief, the coalition supports the environmental groups’ position that the indirect discharge of wastewater into the Pacific Ocean or any other waters of the United States, through groundwater or another similar conduit, is prohibited by the Clean Water Act.
Attorney General Becerra joins the Attorneys General of Maryland, Connecticut, Illinois, Massacusetts, Maine, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia in filing the amicus brief."
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'The River Disappears, but the Pollution Doesn't'
E&E News
July 16, 2019
"The Big Lost River, sandwiched between Idaho Falls and Craters of the Moon National Monument and Preserve, is home to many geological oddities. But the Big Lost River — and the four other "lost drainages" that disappear into
the desert here — have long confounded federal regulators tasked with
protecting the nation's waterways.
The confusion could soon reach a resolution under the Trump administration's Waters of the U.S., or WOTUS, rule, which would explicitly eliminate Clean Water Act protections for waters without surface connections downstream."
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Montana and North Dakota Challenge Law Targeting Bakken Oil Shipments
July 17, 2019
"Attorney General Tim Fox announced that Montana and North Dakota petitioned the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration seeking to overturn a new Washington state law that that effectively prohibits Bakken crude oil.
The petition argues that Washington’s new law is preempted by the federal Hazardous Materials Transportation Act (HMTA). The HMTA authorized the U.S. Department of Transportation to establish a uniform set of national regulations for the safe transport of hazardous materials. Congress included specific language in the HMTA to prevent a patchwork of state and local regulations regarding the transportation of hazardous materials."
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Webinar on Corps/EPA Mitigation Rule Amendment 2019 for State and Local Governments
July 23, 2019 at 1:00 - 3:00pm EDT
"The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) (hereafter, known as the Agencies) are planning to propose revisions to the jointly-promulgated regulations titled “Compensatory Mitigation for Losses of Aquatic Resources” (Mitigation Rule) (40 CFR Part 230, Subpart J and 33 CFR Part 332). Although this action does not trigger pre-proposal consultation requirements under the EPA’s policy for implementing Executive Order 13132, entitled “Federalism,” early coordination with state and local government officials is a priority for both agencies.
The Agencies have set up an electronic mailbox that offers participants an opportunity to submit questions or comments prior to the webinar. The deadline for submitting advance questions is July 19, 2019. Comments and questions can be submitted to Krystel Bell with the Corps at
MitigationRuleAmendment@usace.army.mil and Charles Kovatch with the EPA at
MitigationRuleStates@epa.gov. The Agencies also will accept general questions during the webinar. "
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Lex Machina Releases Its First Environmental Litigation Report
Lex Machina Blog
July 16, 2019
Lex Machina released its first Environmental Litigation Report.
"Lex Machina’s “Environmental” case type includes cases involving a dispute over regulation of the environment under any federal statute litigated in U.S. District Court. In addition to reviewing Lex Machina’s cumulative data across the Environmental module, the report focuses on the three-year time period from January 1, 2016 to December 31, 2018 to showcase recent trends."
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North Dakota Files Suit to Recover Costs Related to DAPL Pipeline Protests
July 18, 2019
Attorney General Wayne Stenehjem filed "a lawsuit in federal court in Bismarck, seeking to hold the federal government accountable for $38 million in costs expended by the State of North Dakota related to unlawful conduct that occurred during the protests over the construction of the Dakota Access Pipeline (DAPL)."
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DEPARTMENT OF THE INTERIOR
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Interior to Move Most of Bureau of Land Management’s D.C. Staff Out West As Part of Larger Reorganization Push
The Washington Post
July 15, 2019
The Trump administration plans to relocate most of the Bureau of Land Management’s D.C. workforce to west of the Rockies, part of its broader push to shift power away from Washington and shrink the size of the federal government.
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USDA Forest Service and State of Utah Invest in Utah’s Future
United States Department of Agriculture
July 16, 2019
"U. S. Secretary of Agriculture Sonny Perdue and Utah Governor Gary R. Herbert signed a Shared Stewardship agreement on May 22, 2019 that included a commitment to protect communities and watersheds by addressing the threat of catastrophic wildfire on National Forest System lands in Utah. Secretary Perdue and Governor Herbert have agreed to implement specific actions under Utah’s Shared Stewardship agreement that will immediately begin to improve conditions on-the-ground.
As part of Utah’s Shared Stewardship agreement, an investment of up to $20 million dollars will be made over the next four years to address wildfire, threats to communities and protecting watersheds."
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North Dakota Supreme Court Sides With State in Mineral Royalty Dispute
Grand Forks Herald
July 12, 2019
"The North Dakota Supreme Court has ruled in favor of the state in a dispute involving deductions taken from natural gas royalties.
The decision stems from a lawsuit Newfield Exploration filed against the state after the Department of Trust Lands conducted an audit in 2016 that claimed the company was underpaying royalties to the agency."
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INDIAN LAW SUMMARY UPDATES
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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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Recent Indian Law Case Summaries
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In re Adoption of K.L.J.
, ___ S.E.2d ___, 2019 WL 3121805 (N.C. Ct. App. July 16, 2019): State court possessed jurisdiction over adoption proceeding involving two Indian children and did not err in declining to give full faith and credit to a tribal court’s “Order of Jurisdiction.”
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Watso v. Lourey
, ___ F.3d ___, 2019 WL 3114047 (8th Cir. July 16, 2019)
:
Neither the Indian Child Welfare Act, Public Law 280, nor the Fifth Amendment’s Due Process Clause precluded tribal courts from assuming jurisdiction over custody of two Indian children.
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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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