News & Updates from CWAG
April 11, 2023
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Clive J. Strong has been the Attorney General Alliance’s Conference of Western Attorneys General (CWAG) Legal Director for Natural Resources and Environment for 33 years! He joined CWAG after retiring from the Office of the Idaho Attorney General where he served as Chief of the Natural Resources Division.
At CWAG, Clive has provided information to and coordinated discussions among member states on emerging legal developments in the areas of water, public lands, environmental, natural resource and Indian law. He focused on the same areas of law during his tenure in the Office of the Idaho Attorney General. We are all grateful Clive has devoted his career to these complex and critical areas.
CWAG has been honored to have an individual with such knowledge and vast experience in these areas. He has shared his wealth of knowledge, devoted himself to the Rule of Law, and left us with a great example of what it means to be an excellent lawyer and colleague. Words cannot express our gratitude. From everyone at CWAG and the Attorney General Alliance, we wish you the very best, Clive. It has been a pleasure.
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Feds propose ESA protection for Atlantic humpback dolphin
By: Michael Doyle | 04/07/2023 | GREENWIRE
NOAA Fisheries proposed Endangered Species Act protections Friday for the Atlantic humpback dolphin, a marine mammal that inhabits western Africa's coastal waters. Spurred by a petition filed by three allied environmental groups, the federal agency said it has determined that the dolphin requires an endangered listing.
Comprehensive reviews cited by the agency concluded that the species probably include fewer than 3,000 individuals. The Animal Welfare Institute joined with the Center for Biological Diversity and ¡Viva Vaquita! in filing the listing petition in 2021.
Atlantic humpback dolphins, notable for their humps topped by rounded dorsal fins, live in relatively shallow waters and are most common in estuarine environments close to shore. They feed on a wide variety of nearshore fish species, favoring mullet. This often puts them in direct conflict with human activities in these same areas.
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Conservation efforts free Colo. cactus from ESA list
By: Michael Doyle | 04/10/2023 | GREENWIRE
Oil shale development was once pushing the Colorado hookless cactus toward extinction, but no more. In an apparent conservation success for a plant with an identity crisis, the Fish and Wildlife Service proposed removing the cactus from the Endangered Species Act list.
The proposal marks a turnaround that’s been long in coming for the cactus species that was first pinned onto the ESA list back in 1979. When the agency listed the Colorado hookless cactus, it identified the potential development of oil shale deposits and gold mining as well as off-highway vehicle use, collecting pressures and livestock grazing as leading threats to the existence of the species.
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Judge tosses lawsuit over PFAS in plastic barrels
By: Ellie Borst | 04/07/2023 | GREENWIRE
Environmental groups will now try to intervene in a similar lawsuit from EPA in an attempt to stop Inhance Technologies from producing "forever chemicals." A federal judge has thrown out two environmental groups' lawsuit against a plastics company to stop producing "forever chemicals" because EPA filed a similar lawsuit first.
At issue in the lawsuit from the Center for Environmental Health (CEH) and Public Employees for Environmental Responsibility (PEER) was Inhance's fluorination process, which creates a coating on the inside of plastic barrels to make them more durable and resilient. But testing has indicated that the fluorination process can create per- and polyfluoroalkyl substances, or PFAS, as a byproduct. That group of thousands of persistent chemical compounds has been linked to various cancers, developmental disorders and other health implications.
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Drought, habitat loss force closure of Calif. salmon season
By: Alex Hargrave | 04/07/2023 | GREENWIRE |
With the chinook salmon population plunging to historic lows, regulators decided to close the California salmon fishing season for just the second time in state history.
The California Department of Fish and Wildlife attributed the loss of chinook, also known as king salmon, to a wide range of problems: damage done to spawning habitat by prolonged drought and wildfires, algal blooms sparked by warming water temperatures, and shifting ocean forage areas.
The Pacific Fishery Management Council, which manages fisheries on the Washington, Oregon and California coasts, first released its regulatory options for the 2023-2024 salmon season in early March. Based on California’s forecasts for chinook returning to fresh water for spawning, the council went forward with the closure in hopes of reviving the population.
NOAA Fisheries is expected to approve the closure in mid-May. The California Fish and Game Commission will also consider closure of inland salmon fisheries.
Chinook salmon hatch in freshwater streams and rivers, then migrate to salt water to feed and grow. In its counts earlier this year, the council estimated that nearly 170,000 Sacramento River salmon made it to the ocean, a 14-year low.
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Vetoed but not forgotten: What's next for WOTUS?
By: E.A. Crunden | 04/07/2023 | GREENWIRE
The fate of the current administration's signature water rule remains unclear even after the president's second-ever veto issued a stern rebuke to Congress.
Republican lawmakers pushed almost immediately for a veto override targeting the "waters of the U.S.," or WOTUS, rule on Thursday in the hours after the US President nixed a resolution that would roll it back. While Congress almost certainly lacks the votes for such an effort, enraged GOP members lashed out at the White House. That the resolution of disapproval even cleared Congress is notable.
Finalized last December, WOTUS lays out which wetlands and waterways merit federal protections, long a source of consternation for industry members in agriculture and development. Prior iterations of the rule issued under the last two former Presidents lingered in court limbo and faced major pushback from their political adversaries. But Republicans have raged over the rule and sought to nullify it via the Congressional Review Act, which allows for a simple majority vote to overturn recent regulations.
In the House, it cleared by a vote of 227-198, with nine Democrats defecting. That number was smaller in the Senate, with four Democrats backing the WOTUS overturn in an ultimate 53-43 vote. Despite that turn of events, the fate of WOTUS remains murky as ever.
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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 psalazar@agalliance.org with any questions.
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Lustre Oil Co. LLC v. Anadarko Minerals, Inc., ___ P.3d ___, 2023 WL 2802294 (Mont., April 6, 2023). A Tribal oil and gas corporation did not possess sovereign immunity when the Tribes had expressed a clear separation between the Tribal government, which retained sovereign immunity, and the separate business entity, which Tribal documents anticipated may be subject to claims against its assets.
Shoshone-Bannock Tribes of the Fort Hall Reservation v. Daniel-Davis, 2023 WL 2744123 (D. Idaho, March 31, 2023). The BLM’s exchange of federal lands ceded by the Tribes under an 1898 agreement violated the provisions of the statute approving the agreement in which Congress limited disposal of the ceded lands to “the homestead, townsite, stone and timber, and mining laws of the United States.”
Buckner v. City of Sallisaw, 2023 WL 2742735 (E.D. Okla., March 31, 2023). Inquiring whether driver of vehicle is Native American is not facially discriminatory when necessary to determine whether the appropriate venue for prosecution is state, federal, or tribal courts.
Ladeaux v. U.S., 2023 WL 2743878 (D. S.D., March 31, 2023). Plaintiffs could not pursue an FTCA claim against the U.S. for death caused by tribal police officer driving tribal patrol car while off duty.
In the Matter of R.M.S., ___ P.3d ___, 2023 WL 2778991 (Oreg. Ct. App., April 5, 2023). Change in permanency plan from reunification to guardianship was warranted after DHS made active efforts to enable safe return of Indian children to mother, and juvenile court concluded that additional efforts were unlikely to benefit mother in light of her lack of progress.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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