News & Updates
Conference of Western Attorneys General
October 4, 2023
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Lithium Mine Development on Hold Due to Pending Lawsuit Protecting Snail
The legal thicket around Nevada's proposed Thacker Pass Lithium Mine could grow denser with an environmental group's declaration that it intends to sue for protection of a tiny snail called the Kings River pyrg. In a legal notice filed with the Fish and Wildlife Service, the Western Watersheds Project informed the federal agency of plans to sue over missing deadlines to determine whether the snail warrants protection under the Endangered Species Act, which requires a response to citizen petitions within 90 days and a final decision within 12 months. The environmental group said it has yet to receive a response from FWS since the filing of a petition on the snail's behalf.
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A Tiny Kentucky Fish Makes a Partial Recovery
The relict darter will now be listed as threatened instead of endangered. The Fish and Wildlife Service (FWS) announced a brighter future for the relict darter, a tiny Kentucky fish whose full recovery is still expected to be several decades and millions of dollars away.
In a show of Endangered Species Act (ESA) progress, the federal agency said it is moving the relict darter to threatened status, an improvement from the endangered designation applied in 1993. The FWS has estimated in the species recovery plan that it could cost millions of dollars and take until 2040 before it can be removed from the ESA list altogether.
The FWS's initial endangered listing in 1993 identified threats that included water quality and habitat deterioration. Since then, populations have stabilized and risen, with the FWS crediting conservation efforts over the past three decades that have have "improved and protected habitat within the system."
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Montana Attorney General Austin Knudsen requested the U.S. Fish and Wildlife Service (USFWS) provide transparency following the administration’s recent proposal to declare nearly six million acres within Montana – an area larger than nine different states – as a conservation area. Attorney General Knudsen voiced his concerns over the “Missouri Headwaters Conservation Area” proposal that the USFWS announced. The proposed conservation area spans five counties in southwestern Montana. |
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Airport PFAS Suit Forecasts Has Attorneys Saying Michigan's Lawsuit Could Set a Precedent
Michigan Attorney General Dana Nessel sued the Gerald R. Ford International Airport Authority and is signaling a departure from the prevailing litigation landscape on the issue. Environmental attorneys say that the Michigan case marks the first instance of a state directly pursuing a lawsuit against an airport over PFAS, or per- and polyfluoroalkyl substances, and its potential to set a precedent is worth monitoring.
The attorney general’s office brought the lawsuit under Michigan’s Natural Resources and Environmental Protection Act, which it says “does not exempt ‘users’ of hazardous substances from liability,” nor does it believe the state law should. Similar regulations targeting PFAS are playing out at the federal level, with the possibility that other states could soon have statutory weapons like Michigan’s. One major target is aqueous film forming foam, or AFFF, which contains the chemicals and has been commonly used by airports, fire stations and the military to put out liquid fuel fires.
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‘Forever Chemicals’ Detected in 600+ Species In A New Analysis
A study from the nonprofit Environmental Working Group (EWG) found per- and polyfluoroalkyl substances in 625 animal species. The group found "that humans can be regarded as sentinel for PFAS effects in other species," EWG researchers wrote in the study, an analysis of more than 200 studies published in the peer-reviewed journal Science of the Total Environment. Efforts to clean up PFAS contamination could not only help humans, but they could also advance species conservation worldwide, the researchers concluded. The study comes as EPA weighs listing two of the most notorious compounds, PFOA and PFOS, as hazardous under national Superfund law, which means contaminated sites would be eligible for cleanup.
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Sixty-three Tribal Nations Press Court on Line 5 Pipeline Fight
The pipeline's path through Michigan is at the heart of a long dispute between the Governor and the project's owner and operator. Sixty-three tribal nations in the Great Lakes region are backing Michigan's bid to return a legal brawl over the aging Line 5 pipeline to state court. The coalition of tribal nations, led by the Bay Mills Indian Community, warned a federal appeals court Monday that continued operation of the pipeline in the region could harm tribal nations' subsistence fishing, along with spiritual and cultural practices in the Great Lakes. Canadian First Nations also backed the friend of the court brief.
The tribes' brief came as part of an ongoing lawsuit filed this summer over whether a federal or state court should have jurisdiction over Michigan Attorney General Dana Nessel's challenge on behalf of the state to Line 5’s continued operation in the straits. The full length of the 645-mile pipeline carries oil from Superior, Wis., to Sarnia, Ontario. Nessel first sued to block the dual pipes in 2019 in the Ingham County Circuit Court, alleging Enbridge had violated the Michigan Environmental Protection Act, state public nuisance laws and the state's public trust doctrine.
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Protecting Tribal Jurisdiction
The Leech Lake Band of Ojibwe, the Bois Forte Band of Chippewa, the Grand Portage Band of Lake Superior Chippewa, and the National Congress of American Indians, represented by the Native American Rights Fund, filed an amicus curae brief in support of their case against the County of Mille Lacs, which is being heard by the U.S. Court of Appeals for the Eighth Circuit.
The Mille Lacs Band of Ojibwe originally brought the suit against the county because of disagreements over policing. For years the county and tribal nation had a cooperative policing agreement. When the county refused to renew the agreement, crime on the reservation increased through actions taken by the county to limit the authority of tribal law enforcement.
The county argued that the Mille Lacs reservation had been disestablished and diminished so that the tribal police were exercising authority outside of their jurisdiction. However, the District Court issued a 93-page ruling that affirmed that the Mille Lacs reservation boundaries established in an 1855 treaty. The county appealed that decision to the Eighth Circuit. Recent amendments to Minnesota law have rendered moot the dispute surrounding tribal criminal jurisdiction. Minnesota statutes were recently revised to recognize tribal nations and local county sheriffs’ concurrent jurisdiction to enforce state criminal laws.
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Arizona law applied to federal court’s determination in diversity action of liability for injuries to persons domiciled within the Navajo Nation that arose from collision between sedan and tour bus on state-maintained federal highway within Nation.
When a federal statute criminalizes behavior when occurring within Indian country or when facilitated by means of interstate commerce, it violates the Double Jeopardy Clause to convict the defendant of both crimes unless Congress intended to create two separate and distinct offenses.
In determining whether non-tribal operator of tribal lending company attempted to collect unlawful debts in violation of RICO and state laws prohibiting usurious loans, neither federal preemption principles limiting state regulation to protect tribal sovereignty nor choice of law provisions in lending agreements supported application of tribal laws providing that such loans were legal.
Members of the Uintah Band may be prosecuted for violations of state and municipal laws occurring within Roosevelt City, Utah, because the City is not within the boundaries of the diminished Uintah and Ouray Reservation and is not Indian Country.
The Department of Human Services, having provided mother timely notice of jurisdictional proceedings via certified mail, thus meeting Indian Child Welfare Act and Oregon statutory notice requirements, was not required to provide additional notice when hearing date was extended twenty days upon mother’s motion for extension.
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Witness lacking any “substantial education in social work or psychology and direct experience with counseling, therapy, or conducting psychological assessments” was not qualified to offer an opinion on termination of parental rights under § 1912(f) of the Indian Child Welfare Act as to whether continued custody by the Indian child’s parent or Indian custodian was likely to result in serious emotional or physical damage to the child.
The Indian Child Welfare Act establishes two distinct testimony requirements for qualified expert witnesses in foster care placement proceedings that must not be conflated: witnesses must be separately qualified to testify regarding (1) the likelihood of serious emotional or physical damage to the child, and (2) the tribe’s prevailing social and cultural standards as they apply to familial relationships.
The court dismissed with prejudice breach of trust claims arising from a series of statutes, transactions, and agreements relating to the management of water resources and water-related infrastructure in and around the Tribe's reservation in northeastern Utah, finding that the Tribe’s claims were improperly premised on the alleged breach of a trust duty arising from the federal government’s comprehensive control of the water resources, and not from the breach of specific and particular duties assumed by treaty, statute, or regulation. APA and NEPA claims arising from a 2019 water exchange contract were allowed to move forward.
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Indian child B’s former foster parents, who potentially qualified for placement preference as the adoptive parents of B’s cousins, who were enrolled members of B’s tribe, were not entitled to intervene in proceedings to place B. with another set of foster parents (who also qualified for placement preference due to foster parents’ membership in a different tribe), following failed reunification attempt with B’s mother.
In ruling on Plaintiffs’ putative class action seeking wide-ranging reform of Alaska’s foster care system, and asserting violations of Section 1915 of the Indian Child Welfare Act due to Alaska’s alleged failure to ensure that there were sufficient Alaska Native foster homes to fulfill the placement preferences stated therein, the court rules that plaintiff’s current pleadings failed to “articulate a specific enforceable right under Section 1915,” but noting it “is entirely possible that Plaintiffs can articulate a specific enforceable right under Section 1915, prove Congress's intent to create that right, and demonstrate that Defendants have violated that right in Plaintiffs’ cases.”
The Pueblo of Santa Ana possessed aboriginal title to water rights, including a “Winans right” to prevent other appropriators from depleting streams below a protected level to support hunting, fishing, and gathering. The 1848 Treaty of Guadalupe Hidalgo, in which the United States agreed to protect the rights of Pueblo and non-Pueblo Mexican citizens, extinguished the Pueblo’s aboriginal water rights to the fraction of the flow in the Jemez River stream system used by non-Pueblos. Later federal acts, including the Acts of 1866, 1870 and 1877, the Pueblo Lands Acts of 1924 and 1933, and the Indian Claims Commission Act, did not result in further extinguishment.
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All summaries are posted in CWAG's Google Docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at [email protected] with questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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