WAGLAC News & Updates
September 30, 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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WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Natural Resource Damages. Announcement and agenda to follow.
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Attorney General Becerra Files Lawsuit Against EPA Determination Excluding Redwood City Salt Ponds from Clean Water Act Protection
September 24, 2019
"California Attorney General Xavier Becerra filed a lawsuit in the U.S. District Court for the Northern District of California challenging the Environmental Protection Agency’s determination that 1,365 acres of salt ponds in Redwood City (Salt Ponds) are not “waters of the United States” under the Clean Water Act. The Salt Ponds – an area adjacent to the San Francisco Bay and containing tidal channels and impoundments of bay waters – have been identified as a key area for restoration to improve the Bay ecosystem and to provide resiliency against sea level rise. EPA's decision, made at the request of developers, would allow this area to be built upon without the protections afforded by the Clean Water Act. In the lawsuit, Attorney General Becerra declares this action as unlawful under the Administrative Procedure Act."
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Protect Our Communities Foundation v. LaCounte
, ___ F.3d ___, 2019 WL 4582841 (9th Cir. Sept. 23, 2019)
The Ninth Circuit rejected a challenge to the Bureau of Indian Affairs’ approval of an industrial-scale wind facility southeast of San Diego, California under the National Environment Policy Act and the Bald and Golden Eagle Protection Act. The project consisted to two phrases, with the first involving construction of 85 wind turbines on federal land requiring Bureau of Land Management right-of-way approval and the second involving construction of 20 turbines on the Ewiiaapaayp Band of Kumeyaay Indians Reservation requiring BIA approval. The Ninth Circuit rejected a challenge to the Phase I BLM approval in
Protect Our Communities Foundation v. Jewell, 825 F.3d 571(9th Cir. 2016), under NEPA, the BGEPA, the Migratory Bird Treaty Act, and the Administrative Procedure Act.
The panel held that the BIA properly relied upon an environmental impact statement prepared by the BLM for both phases in its record of decision, observing that “[a]lthough the project was split along a jurisdictional line, Phase I and Phase II make up one and the same project.” It further held that the BIA had no duty to prepare a supplemental environmental impact statement because, in part, the facts urged by the plaintiffs as necessitating a SEIS were “not both new and significant.” Last, the panel found no need for the BIA to condition approval on the project’s grantee obtaining a BGEPA permit from the Fish and Wildlife Service, as opposed to conditioning approval on the grantee’s making application for a permit before it commenced operation of the turbines. It deemed controlling the earlier decision’s reasoning “that ‘[w]ithout further indication of its involvement in the putative violation, we cannot hold the BLM complicit in future unlawful activity, separately committed by a grantee, through a mere failure to intervene at the permitting stage.’” Here, “because BIA, like BLM, required [the grantee] to apply for a permit, and required Tule to comply with all applicable laws, BIA’s authorization was not in any way in violation of the law.” Although the panel recognized that even though “if and when the project proceeds, some eagles may die or have their nests impaired diminishing reproduction[.]”
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The World’s Oceans Are in Danger, Major Climate Change Report Warns
The New York Times
September 25, 2019
"Climate change is heating the oceans and altering their chemistry so dramatically that it is threatening seafood supplies, fueling cyclones and floods and posing profound risks to the hundreds of millions of people living along the coasts, according to a sweeping United Nations report issued recently.
The report concludes that the world’s oceans and ice sheets are under such severe stress that the fallout could prove difficult for humans to contain without steep reductions in greenhouse gas emissions. Fish populations are already declining in many regions as warming waters throw marine ecosystems into disarray, according to the report by the Intergovernmental Panel on Climate Change, a group of scientists convened by the United Nations to guide world leaders in policymaking."
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House Panel Approves Bipartisan Yucca Mountain Bill
E&E News
September 26, 2019
"Bipartisan legislation looking to take an all-hands approach to breaking the nation's nuclear waste logjam cleared an Energy and Commerce subcommittee this morning on a voice vote.
While committee leaders from both sides expressed support for the bill, at least one member — who previously backed the measure last Congress — expressed reservations in a sign of the bill's uphill climb."
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Army Corps Delays Plan to Charge for U.S. Reservoir Supply
E&E News
September 26, 2019
"The Trump administration has delayed an Obama-era proposal that could allow the federal government to charge for water drawn from reservoirs it manages.
Army Assistant Secretary for Civil Works R.D. James said in a memo that the Army Corps of Engineers will delay the Water Supply Rule "for a minimum of six months to better integrate input from stakeholders."
Attorneys general from a dozen Western states sent a letter last month to the Trump administration asking that the proposal be withdrawn.
North Dakota Attorney General Wayne Stenehjem headed the effort backed by attorneys general from Alaska, Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, South Dakota, Utah, Washington and Wyoming."
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The Trump Administration Weakened Endangered Species Act rules — 17 State Attorneys General Have Sued Over It
The Washington Post
September 25, 2019
"Attorneys general in 17 states made good on a promise to sue the Trump administration over rule changes that substantially weakened how Endangered Species Act protections are considered and enforced.
The attorneys general vowed to challenge the administration in mid-August when the Interior and Commerce departments announced new rules that would allow officials to decrease the amount of habitat threatened and endangered animals require to survive and remove tools used by scientists to predict future harm to species as a result of climate change."
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Appeals Court to Decide Fight Over Jaguar Habitat
E&E News
September 26, 2019
"It will be up to a federal appeals court to decide whether tens of thousands of acres in New Mexico should be reserved as critical habitat for the endangered jaguar.
The 10th U.S. Circuit Court of Appeals in Denver heard arguments from lawyers representing farmers and ranchers wary of setting aside such a large expanse for the cats because few of the animals have been seen in the American Southwest over the last two decades.
Environmentalists have argued that setting aside the territory will be crucial to helping jaguars expand their range beyond their core population south of the U.S.-Mexico border."
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Ecos Expresses Alarm Over Recent EPA Actions
The Environmental Council of the States (ECOS) sent a letter to EPA Administrator Andrew Wheeler last week expressing concern “about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.” ECOS “respectfully demand[ed] that the U.S. EPA Administrator and senior leadership immediately meet with the ECOS leadership team to discuss these concerns.”
The EPA responded: "The Trump Administration’s Environmental Protection Agency has worked with individual State Departments of Environmental Quality in a manner unlike the previous Administration, and it will continue to consistently work with states on issues the previous Administration ignored, such as approval of state air and water quality plans and cleaning some of the worst contaminated sites."
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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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N.M. v. Texas Dept. of Family and Protective Services
, ___ S.W.3d ___, 2019 WL 4678420 (Tex. App.—Austin Sept. 26, 2019): District court violated the Indian Child Welfare Act by terminating a mother’s parental rights to two Indian children and appointing the state agency as their permanent conservator in the absence of testimony by a qualified expert witness.
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Fort McDermitt Paiute and Shoshone Tribe v. Azar
, ___ F. Supp. 3d ___, 2019 WL 4711401 (D.D.C. Sept. 26, 2019): Tribe is entitled to receive as part of its recurring contract amount under an Indian Self-Determination and Education Assistance Act contract for operation of an emergency medical services program and a health clinic amounts attributable to provision of services to another tribe and amounts received from third-party sources that were expended by the Indian Health Service in the year prior to the Tribe’s proposed assumption of responsibility for the EMS program and the clinic.
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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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