News & Updates from CWAG
May 23, 2023
|
|
The Endangered Species Act at 50 |
|
The Endangered Species Act turns 50 |
|
50 years into the Endangered Species Act, how is it working? |
|
10 Reasons to Celebrate ESA on Endangered Species Day |
|
Celebrating 50 Years of the Endangered Species Act |
|
The United States Fish and Wildlife Service (“Service”) issued a prepublication notice of a policy titled:
Mitigation Policy and Endangered Species Act Compensatory Mitigation Policy (“Revised Policy”)
The Service describes the revised policy as establishing . . . fundamental mitigation principles. It provides a framework for applying a landscape-scale approach to achieve, through the application of the mitigation hierarchy, no net loss of resources and their values, services, and functions resulting from proposed actions.
The Revised Policy applies to all the authorities under which the Service can require or recommend mitigation. This includes the Service’s ESA authorities.
The Service had withdrawn a previous policy in 2018 based on its concern about inconsistencies between that policy and various federal judicial case law concepts.
|
|
|
|
Endangered W.Va. fish to benefit from federal funding for species recovery.
by Kristopher Plona | May 21, 2023
Friday marked the 50th anniversary of the enactment of the Endangered Species Act. The declaration has protected threatened and endangered species along with habitats nationwide. To mark the occasion, the Department of the Interior along with the U.S. Fish and Wildlife Service announced more than $62 million has been allocated for species recovery through Inflation Reduction Act funds.
The team has worked to establish genetic monitoring, protect about 4,000 acres of habitat and translocate more than 500 fish.
|
|
Will EPA's PFAS rule spur other water regs? Advocates and public health experts have saluted the Biden administration's "forever chemicals" crackdown, but they question whether it signals a sea change over drinking water policy.
By: E.A. Crunden | 05/19/2023 | GREENWIRE E&E News |
EPA brandished its powers to regulate new drinking water contaminants earlier this year, but many question whether the agency will apply the same approach to other chemicals. While substances linked to health risks from kidney disease to cancer have cropped up in drinking water systems for decades, the agency has not issued a drinking water standard for a new contaminant on its own initiative since 1996. Other drinking water regulations since then have been mandated by Congress.
|
|
Attorneys Brace for Aggressive EPA Enforcement Over PFAS Discharges
May 17, 2023
Industry attorneys are warning the regulated community to be prepared for EPA to take aggressive action enforcing PFAS limits in industrial wastewater discharges once limits are set, given the agency’s recent publicity of a routine enforcement action it took against Chemours for violating numeric discharge limits for releases of the chemicals.
The attorneys say EPA’s showcasing of its enforcement action at the Chemours facility likely signals that the agency plans aggressive enforcement of per- and polyfluoroalkyl substances (PFAS) controls in industrial wastewater discharge permits and will likely push states to do the same once permit limits are established.
EPA late last month announced its first-ever Clean Water Act (CWA) enforcement action to hold an industrial party accountable for PFAS discharges, saying it had ordered Chemours to take several actions to come into compliance with effluent discharge limits governing its Parkersburg, WV, plant. Their expectations come as EPA’s enforcement office has proposed to include PFAS-related actions as one of two new priorities when it updates its National Enforcement and Compliance Initiatives (NECI) for the fiscal years 2024-2027.
|
|
Interior approves Mountain Valley pipeline forest path: The department's decision came as Energy Secretary Jennifer Granholm renewed support for the project.
By: Carlos Anchondo, Niina H. Farah | 05/19/2023 | ENERGYWIRE E&E News
The Interior Department has authorized the Mountain Valley pipeline's crossing through a national forest, giving another boost to a project being fought by environmentalists even as the Energy Secretary defends it. According to a record of the decision posted, the Bureau of Land Management approved a permit and right-of-way request this week for the 42-inch pipeline's path through 3.5 miles of the Jefferson National Forest. The Interior Department’s deputy secretary backed the decision, according to BLM’s document.
The approval is a win for developers of the 303-mile natural gas pipeline who are aiming to place the project in service in late 2023. The pipeline is designed to travel from West Virginia to southern Virginia and is supported by Senate Energy and Natural Resources Chair. BLM’s announcement follows a record decision this week from the Forest Service approving the pipeline’s traversal through the same forest.
|
|
U.S. Forest Service pauses timeline for Rio Tinto Arizona copper mine
May 19, 2023 | Reuters
The U.S. Forest Service has told a federal court it is not sure when it could approve a land swap allowing Rio Tinto Plc (RIO.L)(RIO.AX) to develop the Resolution Copper mine in Arizona, a surprising reversal that boosts several Native American groups opposed to the project.
The complex case involves a long-running conflict between a mining company hoping to supply more than a quarter of U.S. copper demand for the green energy transition and Indigenous groups seeking to preserve Arizona's Oak Flat campground, a site of religious importance that would be destroyed by the mine's construction.
In 2014, the U.S. Congress approved a land swap that required an environmental report to be published, and then unpublished that report in March 2021 to give the administration time to review concerns from Native Americans, though they are not able to permanently block the mine.
Previously, officials had said they would alert the court at least 60 days before re-publishing the report. Once re-published, officials would have an additional 60 days to transfer the land to Rio Tinto. Representatives for the San Carlos Apache tribe have vowed that if they lose, they will appeal the ruling to the U.S. Supreme Court.
|
|
“That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both.” - - Ponca Chief Standing Bear
|
|
He fought for Native Americans to be recognized as people under US law. Now, he’s memorialized on a Forever stamp
By Harmeet Kaur | CNN | May 16, 2023
The US Postal Service is honoring Chief Standing Bear, the celebrated Ponca leader who successfully argued for Native Americans to be recognized as people in the eyes of the law, on a Forever stamp.
Chief Standing Bear was a leader of the Ponca people in the late 1800s. The Ponca people inhabited the area near the Niobrara River in what’s now northeastern Nebraska until 1877 when the federal government forced them to leave their homeland for “Indian Territory” (present-day Oklahoma).
In 1879, a newspaper editor interviewed Chief Standing Bear while in detention, and the story of his plight gained national attention when lawyers agreed to take up his case and petitioned a federal court to prevent Standing Bear and his fellow tribe members from being returned to “Indian Territory,” arguing that they were being unlawfully detained.
In a now landmark civil rights case known as Standing Bear v. Crook, the US government argued that Standing Bear was neither a citizen nor a person under the law, and therefore could not sue the government. Citing the 14th Amendment, Standing Bear’s lawyers argued that the Ponca people were entitled to the same constitutional rights as other US citizens.
In a speech before the court, Chief Standing Bear said through an interpreter, “That hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both.” The words are inscribed at the base of a statue that now stands in the US Capitol.
A federal judge ultimately sided with Standing Bear, ruling that Native Americans were people under US law and ordering the chief and his people to be released from detention. After they were released from federal custody, Standing Bear and some tribe members returned to their homelands in Nebraska, though others remained in Oklahoma.
|
|
The fate of the Indian Child Welfare Act: When it comes to children, should tribes govern themselves?
By Mya Jaradat | May 18, 2023
The Indian Child Welfare Act — known as ICWA — a 1978 law that endeavors to keep Native American children with their families and, if not with their families, at least with their tribes. The removal of Native American children from their communities created an existential threat to tribes’ ability to continue to grow and govern themselves.
In 2017, a lawsuit taking the federal legislation, known as Brackeen v. Haaland, made its way through the judicial system, the challenge to ICWA landed, finally, in the Supreme Court, where arguments were heard in November. Created in 1978, ICWA was a direct response to the forced removal of Native children from their homes. The law set strict rules around adoption, stipulating that a Native child must be placed either with a member of their extended family, a member of their tribal nation, or with another Native American tribe or in an institution that has been approved by the Native American tribe, in that order of preference.
Attorneys claim that ICWA uses a race-based classification that violates the equal protection clause. They also say that ICWA is harmful to Native American children. Even with ICWA in place, Native American children are still far more likely to end up in foster care than children from other groups.
But Native Americans who want to see ICWA upheld say that the “Native American” designation isn’t racial but, rather, political. And that’s one of the biggest issues at stake in this lawsuit: Is the term “Native American” a racial or political category? The answer has wide-ranging implications.
If the Supreme Court rules that ICWA is a race-based law rather than a government-to-government relationship, that destroys tribal sovereignty. So, in theory, repealing ICWA could undermine the foundation of all these other laws — large and small.
Legal experts explain that a decision might not completely overturn ICWA — a ruling could dismantle some aspects of ICWA while keeping other portions of the law intact. They also say that even if ICWA is overturned on a federal level, many states have their own ICWA-like laws. The Supreme Court heard oral arguments in November 2022; a ruling is expected by the end of June.
|
|
Ohio AG Cites Commerce Clause Ruling to Bolster Auto Waiver Challenge
Lee Logan | IWP News | May 16, 2023
Ohio Attorney General Dave Yost is touting aspects of the Supreme Court’s recent split decision concerning the “dormant” Commerce Clause to bolster several states’ pending challenge to EPA’s preemption waiver for California’s vehicle greenhouse gas standards.
In a May 16 letter to the U.S. Court of Appeals for the District of Columbia Circuit, Yost cited the fact that three Supreme Court justices favorably cited precedent concerning the “equal sovereignty” principle in the high court’s recent decision in National Pork Producers Council, et al. v. Ross, et al. to bolster the states’ pending auto waiver case, State of Ohio, et al. v. EPA, et al.
A California-led coalition of states and cities, for instance, argued in its February brief that air law section 209 “does not implicate, let alone violate, the equal sovereignty principle” as petitioners allege in citing Shelby County.
Even if the court were to conclude that the equal sovereignty doctrine is potentially relevant to the dispute, the California coalition argued that the creation of section 209 decades ago more than meets the legal test of disparate treatment of states based on the problem Congress is trying to address.
But Yost in his recent letter also argues that Gorsuch’s reference to the equal sovereignty principle in Pork Producers shows that the issue is relevant to litigation concerning Commerce Clause issues, and not only state election procedures as EPA has argued.
|
|
Colorado River states strike deal to save water, hydropower: The proposal put forward by Arizona, California, and Nevada would temporarily cut the use of Colorado River water in exchange for $1.2 billion in payments from the federal government.
By: Jennifer Yachnin | 05/22/2023 |GREENWIRE E&E News
Colorado River states announced a deal that would reduce water deliveries to California, Arizona, and Nevada to ensure enough water remains in major reservoirs to preserve hydropower generation in the drought-plagued river. State officials from the three Lower Basin states announced their agreement in a letter to the Bureau of Reclamation Commissioner, following nearly a year of negotiations about how to share the pain of reductions in water use.
The cuts would be shared by both farmers and municipalities, which tap the river for drinking water. The agreement must still be approved by the Interior Department, which announced it would put an emergency planning process on hold while it conducts a National Environmental Policy Act review of the proposal.
Interior released its own emergency plan last month to cut 2.083 million acre-feet of water through 2026.
That proposal — an update of the 2007 Colorado River Interim Guidelines had faced a May 30 deadline for public comment. But Interior announced the process will be suspended while it reviews the Lower Basin state plan, and it will finalize a supplemental environmental impact statement later this year.
Although the Upper Basin states of Colorado, New Mexico, Utah, and Wyoming did not endorse the Lower Basin plan. In recent decades, drought has decimated flows in the Colorado River, shrinking supplies in both Lake Mead and Lake Powell.
|
|
The Environment and Natural Resources Division is hosting upcoming training sessions for state government environmental law practitioners. Each training is virtual and free to attend!
Counsel for State and Local Affairs | Law and Policy Section | Environment and Natural Resources Division | U.S. Department of Justice
|
|
Session 2: Effective Expert Reports in Federal Cases - Zoom Webinar
June 13, 2023, 2:00pm - 3:00pm Eastern Time
Most environmental enforcement actions require testimony by expert witnesses. This interactive presentation will discuss working with expert witnesses when reviewing and finalizing expert disclosures. After reviewing the federal requirements for expert disclosures, participants will be asked to review excerpts of actual draft expert reports and spot issues related to compliance with the legal requirements and effective strategy. In a guided discussion of these issues, participants will discuss how to remedy the identified issues and how to effectively work with various types of experts and personalities to ensure an accurate but persuasive presentation of the facts.
|
|
Session 3: Bringing Civil Cases to Protect Animal Welfare - Zoom Webinar
July 13, 2023, 2:00-3:00 PM Eastern Time
This presentation, provided by Trial Attorney Mary Hollingsworth, who has handled many of ENRD's animal welfare protection civil cases, she will review the civil authorities available and discuss the types and nature of evidence required to establish an effective claim.
|
|
Session 4: Best Practices for Community Outreach to Further Environmental Justice - Zoom Webinar
August 8, 2023, 2:00-3:00 PM Eastern Time
This presentation will take the form of a panel discussion by several of ENRD's Environmental Justice Coordinators. The panelists will discuss ways of planning for community outreach, providing meaningful opportunities for community input and information, and effectively using the information gained through community outreach to further the goals of enhancing equity in environmental enforcement, particularly with respect to decisions regarding the appropriate relief for environmental violations.
|
|
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 any questions.
|
|
Slate v. Make Cents, Inc., 2023 WL 3504931 (N.D. Ill., May 17, 2023). When the lender claimed it was an arm of a tribe and entitled to sovereign immunity, discovery was needed to resolve mixed questions of law and fact regarding the relationship between the lender and the tribe.
In re JA O., --- Cal.Rptr.3d ---, 2023 WL 3493974 (Ct. App. 4th Dist., May 17, 2023). When children were taken into custody pursuant to detention warrant, and parents denied Indian ancestry, statute requiring inquiry to extended family members and other interested parties regarding children’s possible Indian status did not apply.
Hogshooter v. Cherokee Nation, 2023 WL 3391411 (E.D. Okla., May 11, 2023). Detainees of Cherokee Nation could not bring action against tribal officers pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Taryn M. v. Alaska, Dept. of Family & Community Servs., 2023 WL 3471993 (Alaska, May 16, 2023). Burden is on state Office of Child Services to prove by clear and convincing evidence the unsuitability of the proposed caretaker who is a preferred placement under ICWA § 1915.
Sauk-Suiattle Indian Tribe v. Ryser, 2023 WL 3435294 (W.D. Wash., May 12, 2023). Tribe’s complaint, asserting that Washington violated federal law by requiring that goods ordered online by tribal members be delivered on-reservation in order to be exempted from state sales tax, was dismissed for failure to state a claim.
|
|
Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
|
|
|
|
|
|
|
