WAGLAC News & Updates
August 12, 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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Changing Climate Imperils Global Food and Water Supplies, New U.N. Study Finds
The Washington Post
August 8, 2019
"The sprawling report from the U.N. Intergovernmental Panel on Climate Change (IPCC) examines how land use around the world contributes to the warming of Earth’s atmosphere. But the report also details how climate change is already threatening food and water supplies for humans: turning arable land to desert; degrading soil; and increasing the threat of droughts, floods and other extreme weather that can wreak havoc on crops."
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Administrator Wheeler Issues Proposed Rule on Clean Water Act Quality Certification In Charleston, South Carolina
Public comment period begins following publication in the Federal Register; public meeting and hearing scheduled for Sept. 5-6, 2019
Environmental Protection Agency
August 9, 2019
"The U.S. Environmental Protection Agency (EPA) issued a proposed rule to implement Section 401 of the Clean Water Act (CWA). EPA Administrator Andrew Wheeler made the announcement at the Council of Manufacturing Associations Summer Leadership Conference in Charleston. The proposed rule seeks to increase the transparency and efficiency of the 401 certification process and to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation."
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Corps of Engineers Issues Section 401 Guidance Letter
Western States Water Council (WSWC)
August 7, 2019
"On August 7, the U.S. Army Corps of Engineers (Corps) released its guidance on “Timeframes for Clean Water Act (CWA) Section 401 Water Quality Certifications and Clarification of Waiver Responsibility.” The guidance applies to general and individual permits under CWA §404, Rivers and Harbors Act §9 and §10,
and the Marine Protect, Research, and Sanctuaries Act §103. The guidance notes that, although the CWA provides a maximum time of one year for a state agency to make a §401 certification, the default period of time under the Corps’ regulations is 60 days, unless a shorter or longer time is deemed appropriate on a case by case
basis. Any additional time granted for a §401 certification “should be the minimum amount of time necessary for the certifying agency to act…. If the certifying agency’s request for additional time to act is not received before the 60-day period (or other reasonable time period established for the action) ends…” the §401 certification is waived."
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Mapping the Strain On Our Water
The Washington Post
August 6, 2019
"The United States has enough water to satisfy the demand, but newly released data from the World Resources Institute shows some areas are out of balance.
The WRI’s Aqueduct Water Risk Atlas researchers used hydrological models and more than 50 years of data to estimate the typical water supply of 189 countries compared to their demand. The result was a scale of “water stress” — how close a country comes to draining its annual water stores in a typical year.
Of course, many years are not typical, and unpredictable weather patterns of a changing climate can have drastic consequences. In areas of high or extremely high water stress, said Betsy Otto, director of WRI’s Global Water Program, "if you then hit a drought ... you’re really in trouble, because you’re already using most of what you have.”
The United States ranked 71st of 189 countries, and low-medium on the stress scale, meaning we are pulling out just under 20 percent of our available water."
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California Department of Justice Releases New Medicinal Cannabis Guidelines
August 6, 2019
"The California Department of Justice released the “Guidelines for the Security and Non-Diversion of Cannabis Grown for Medicinal Use” to clarify the state’s laws governing medicinal cannabis, specifically those related to the enforcement, transportation, and use of medicinal cannabis. The Guidelines come after significant changes in state law on recreational cannabis use."
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Trump Administration Improves the Implementing Regulations of the Endangered Species Act
U.S. Fish and Wildlife Services
August 12, 2019
"In its more than 45-year history, the Endangered Species Act (ESA) has catalyzed countless conservation partnerships that have helped recover some of America’s most treasured animals and plants from the bald eagle to the American alligator. U.S. Secretary of the Interior David Bernhardt unveiled improvements to the implementing regulations of the ESA designed to increase transparency and effectiveness and bring the administration of the Act into the 21st century."
The final regulations submitted to the Federal Register can be found below:
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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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Kodiak Oil & Gas (USA) Inc. v. Burr
, ___ F.3d ___, 2019 WL 3540423 (8th Cir. Aug. 5, 2019): Tribal court lacked jurisdiction over a dispute concerning royalty payments under leases entered into pursuant to 25 U.S.C. § 396 for extraction of oil and gas from allotted reservation lands.
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Matyascik v. Marctic Slope Native Ass’n
, ___ F. Supp. 3d. ___, 2019 WL 3554687 (D. Alaska Aug. 5, 2019): Non-profit corporation established by eight Arctic Slope tribes to provide health services and other services to their members pursuant to the Indian Self-Determination and Education Assistance Act, the Indian Health Care Improvement Act, and the Alaska Tribal Health Compact constituted an arm of the tribes and immune from suit by a former employee for breach of contract and other state-law based claims.
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Agua Caliente Tribe of Cupeño Indians of Pala Reservation v. Sweeney
, ___ F.3d ___, 2019 WL 3676342 (9th Cir. Aug. 7, 2019): Tribe seeking federal acknowledgment was required to exhaust the administrative process under 25 C.F.R. Part 83 and failed to establish an equal protection violation based upon the recognition of three other tribes without such exhaustion.
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Coeur d’Alene Tribe v. Hawks
, ___ F.3d ___, 2019 WL 37568686 (9th Cir. Aug. 9, 2019): Federal question jurisdiction exists over an action by tribe to enforce a tribal court judgment against nonmembers for encroachment of tribal waters.
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United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC
, ___ F.3d ___, 2019 WL 3756373 (D.C. Cir. Aug. 9, 2019): Federal Communications Commission order modifying tribal involvement in the section 106 consultation process under the National Historic Preservation Act in connection with the construction of 5G small wireless facilities on tribal lands was not arbitrary, capricious or in violation of law.
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Brackeen v. Bernhardt
, ___ F.3d ___, 2019 WL 3759491 (5th Cir. Aug. 9, 2019): (1) Individual plaintiffs possessed standing to challenge 25 U.S.C. § 1915(a)-(b) and 25 C.F.R. §§ 23.129 through 23.132, but not 25 U.S.C. §§ 1913 and 1914, under the equal protection component of the Fifth Amendment; (2) State plaintiffs possessed standing to challenge various provisions of the Indian Child Welfare Act under the Administrative Procedure Act, the Tenth Amendment and the nondelegation doctrine; (3) the equal protection claim fails under the rational basis standard because ICWA furthers Congress’s unique obligation toward Indian children; (4) ICWA does not violate the anticommandeering prohibition in the Tenth Amendment because it represents a valid use of Congress’s Indian Commerce Clause power; (5) § 1915(c) recognizes the inherent authority of tribes to prescribe the preference order for placement of Indian children and does not delegate Congressional authority; and (6)
Chevron
deference is due to (a) the Bureau of Indian Affairs’ determination that it has authority to issue regulations concerning ICWA’s implementation and (b) its construction of the burden-of-proof standard with respect to deviation from the statutory preferences in § 1915.
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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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