News & Updates
Conference of Western Attorneys General
August 23, 2023
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ENDANGERED SPECIES ACT (ESA) |
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The Fish and Wildlife Service proposed protecting the Texas kangaroo rat under the Endangered Species Act (ESA) accompanied by the designation of more than half a million acres of private land as critical habitat. The agency contends that another federal conservation program may contribute to the habitat loss that has prompted the need to list the species as endangered. The long-awaited listing proposal includes the critical habitat designation of 597,069 acres in Childress, Cottle, Hardeman, Wichita, and Wilbarger counties. The Texas kangaroo rat is one of 20 extended kangaroo rat family members. It could once be found hopping about some 3.4 million acres of north-central Texas and southern Oklahoma. In contrast, the species is now limited to about 1.4 million acres of Texas grassland and rangeland. As with many ESA actions, the new listing proposal took some time and effort. One environmental group filed a petition to list the species in 2010, and another group followed up with a 2020 lawsuit that included the Texas kangaroo rat among others. |
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A federal appeals court is backing the Interior Department's review of a natural gas project in northwest Wyoming, affecting efforts that had warned of the risks the project posed to the greater sage grouse and pronghorn.
The 10th U.S. Circuit Court of Appeals rejected the claims that the Interior's Bureau of Land Management failed to do its due diligence under the National Environmental Policy Act to study how a 140,000-acre project could affect the habitat and migratory patterns of the two iconic Western species. The ruling affirmed a decision by a lower court, finding that the Interior had "adequately collected and considered information" on the species and chose a development plan that "meets the statutory requirements."
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The Department of Energy (DOE) unveiled how money from the Inflation Reduction Act will be divvied up for home rebates among hundreds of federally recognized U.S. tribes. DOE is planning to disburse roughly $220 million in total for tribal rebates aimed at reducing energy bills, improving indoor air quality, and boosting energy efficiency. The funds, which will be administered by the tribes and are part of nearly $9 billion in electrification rebates enacted under the Inflation Reduction Act.
Tribal rebates are geared towards electrification and appliance upgrades. The Inflation Reduction Act caps the rebates at $14,000 per recipient and does not require that the upgrades reduce actual energy use or greenhouse gas emissions. They can be used on heat pumps, heat pump water heaters, electric stoves, electric wiring, and other upgrades. The allocations were determined using data from the Indian Housing Block Grant program run by the Department of Housing and Urban Development. DOE is accepting comments on the allocations until Sept. 15 and plans to publish tribal application guidelines by the end of the year.
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The National Park Service (NPS) will renew its efforts to rid an area of the Colorado River in northern Arizona of invasive and non-native smallmouth bass and green sunfish by killing them with a chemical treatment. They will use a substance lethal to fish but approved by federal environmental regulators called rotenone. The NPS will disseminate the lethal substance as the latest tactic in an ongoing struggle to keep the invasive species at bay and to protect the threatened and native fish, the humpback chub. The treatment will require a weekend closure of the Colorado River slough, a cobble bar area surrounding the backwater where the smallmouth bass was found, and a short stretch up and downstream. Chemical substances were also utilized last year. |
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The Environmental Protection Agency’s (EPA) recommendation to relax criteria for levels of cadmium in freshwater constituted an action under the Clean Water Act, a federal judge ruled, and therefore required consultation with other agencies. The center sued the agency in 2022 over recommendations issued to individual states and tribal nations in 2016, increasing the levels of cadmium allowed in freshwater streams before the waterway is no longer considered safe under the Clean Water Act. Cadmium is a highly toxic, cancer-causing metal found in mineral deposits and released into the environment through the burning of fossil fuels.
The center claims the EPA violated the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service before issuing the recommendations. The 2016 update “substantially weakened” the cadmium criteria for chronic concentrations in freshwater, the center claims, increasing the allowable cadmium concentration to 0.72 micrograms per liter, nearly triple the 2001 criteria of 0.25 micrograms per liter.
The recommendations made were nonbinding. States, tribes, and territories are allowed to either accept, modify or reject recommendations based on individual needs. If the recommendation is modified or rejected, the state or tribe must explain why. But if the recommendation is accepted, no further action is necessary. The agency argues it makes more sense to make a sweeping recommendation, allow states to create their own plans, then authorize those plans after the fact.
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Participants at a recent agriculture and economic summit were told that it’s likely that a state law governing the transfer of groundwater out of Nebraska would block such transfers to water-challenged states such as Arizona or Colorado, as Nebraska has ample groundwater resources, unlike the drought-plagued western states. Applicants would have to qualify for seven conditions set out in state law — including whether it’s in the public interest of Nebraska — to have the approval of such a transfer. State officials who would decide whether such a transfer could happen would doubt ably happen.
A bill was introduced in the Nebraska Legislature this spring, Legislative Bill 241, to ban such transfers, unless they were within 10 miles of the state border or to satisfy a water compact with another state. The bill included a 10-mile limit, for the benefit of farmers working land on both sides of the state border and could, if they needed to, transfer water across the border to fields close by in other states. The bill didn’t advance out of the Legislature’s Natural Resources Committee amid some concerns about restrictions and possible violation the federal commerce clause.
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The Bureau of Reclamation released its Colorado River Basin plan
The plan reduces the cuts states reliant on the river will have to endure. The guidelines determine the tiers for the coordinated operation in 2024 of Lake Powell and Lake Mead. The current water capacity of both reservoirs combined is 36%, according to Reclamation. The 24-Month Study basically projects water levels for January 1 in 2024 and then determines how much water will be cut from Nevada and Arizona.
The operating conditions consider agreements under the 2007 guidelines and the lower basin Drought Contingency Plans and will be followed until the supplemental environmental impact statement is finalized. The 23 years of drought in the region have taken a serious toll on the basin. The Colorado River is approximately 1,450 miles long, originating along the Continental Divide in Colorado and flowing to the Sea of Cortez in Mexico. The states involved are Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California. Also involved are 30 Native tribes and Mexico. Around 40 million Americans depend on the Colorado River.
While Reclamation has given the states leeway and the opportunity to come up with water-saving plans together, it has said it will not hesitate to act with cuts on its own. In addition to supplying water, the lakes’ dams, Glen Canyon at Lake Powell and Hoover at Lake Mead, generate hydroelectric power.
Based on projections in the 24-Month Study, Lake Powell will release nearly 7.5 million acre-feet of water in 2024, which is called Mid-Elevation Release Tier. One acre-foot equals 326,000 gallons, or enough to cover an acre of land about the size of a football field in a foot of water. Lake Mead will operate on a Level 1 Shortage Condition, an improvement over last year’s Level 2 Shortage Condition. Lake Mead’s overall release below Hoover Dam in 2023 is projected to be 1.5 million acre-feet less than an average normal year, due to conservation efforts in the Lower Basin funded in part by the Biden administration, above-average inflows below Hoover Dam, and conservation in Mexico. Lake Mead has come up about 20 feet in the past year, but the water issue can’t be fixed by one year of above-average precipitation.
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Farmington High School graduate and 1963 class president, John Echohawk earned a prestigious award from the American Bar Association. He graduated from the University of New Mexico School of Law in 1973. He has spent his career leading the Native American Rights Fund (NARF), a Colorado-based Native Rights non-profit organization that has helped tribes across the country earn numerous court victories.
In the spring of 1967, John Echohawk, who had just earned his bachelor’s degree from the University of New Mexico, visited the UNM School of Law to make sure his application for admittance had been received and to check on scholarship information. When he got there, he was surprised to be told the dean of the school wished to speak with him. As it turns out the dean alerted him to the existence of a new scholarship program run by the federal Office of Economic Opportunity that was designed to encourage young Native American students to go to law school in preparation for practicing tribal law. There was a lack of Indigenous lawyers in the United States, where it was estimated there were approximately 25 and an estimated 1,000 were needed simply to handle the amount of litigation that Native tribes and individuals were facing. Echohawk was among a group of seven Native students who enrolled in the UNM School of Law that fall, and three years later, he walked out with his degree, ready to embark on a career, landing him at the forefront of many of the nation’s more significant legal battles involving tribal rights over the next half-century.
Echohawk, a member of the Pawnee Nation, has spent the last 50 years as the executive director and co-founder of the Native American Rights Fund, a Boulder, Colorado-based organization that works to ensure that the U.S. and state governments live up to their obligations to Native people guaranteed under laws and treaties, was recognized for his work, awarded the prestigious Thurgood Marshall Award by the American Bar Association.The award was established to honor the legacy of the late civil rights advocate and activist who became the first African American Supreme Court justice in 1967. It is designed to recognize those who have served as lifelong champions of civil and human rights.
Upon graduating from law school, Echohawk first accepted a job with California Indian Legal Services. But only months later, an invitation to help launch a Ford Foundation-funded initiative designed to offer legal services to federally recognized tribes across the country was offered to him. Echohawk jumped at the opportunity and helped fund the organization that would come to be known as NARF, and he has been leading the group ever since.
Echohawk and NARF became involved in a lawsuit filed by a handful of tribes in western Washington who were being denied the salmon fishing rights they had been guaranteed under an 1855 treaty. Echohawk and other NARF lawyers successfully argued the tribes’ case, winning a judgment in district court in late 1973. An appeals court later upheld that verdict, and the tribes eventually prevailed when the case reached the U.S. Supreme Court.
Other wins for indigenous plaintiffs would follow over the next 20 years, and Echohawk was there for many of them. He recalled that NARF became deeply involved in the effort to reverse a U.S. government policy that prevailed throughout the 1950s and 1960s that effectively disbanded many tribes, with indigenous people who still lived on reservations being relocated to cities to assimilate them into mainstream American culture. A Wisconsin tribe, the Menominee Nation, that had been disbanded approached NARF officials and asked the organization to take up its cause, NARF again was successful in court, demonstrating that the federal policy had been devastating to the tribe and reinstating its status as a federally recognized nation.
NARF also was instrumental in helping the unrecognized Penobscot Nation earn another pivotal Native rights victory later in the 1970s. The Maine tribe, which had been disbanded, prevailed in district court and at the appeals court level in its attempts to regain federally recognized status and reclaim much of its ancestral lands.
With a possible date in the U.S. Supreme Court looming, NARF and the tribe, along with state officials, were brought to the White House at the invitation of President Jimmy Carter and encouraged to hammer out a settlement, which they did. In the 1990s, the makeup of the Supreme Court changed dramatically, with many of the justices who had been sympathetic to Native arguments over the years retiring and being replaced by those who took a different view. In 2001 alone, he said, Native plaintiffs lost four cases they believed they should have won. These days, things have become somewhat more balanced, although his organization largely has adopted a strategy of trying to resolve tribal legal issues before they get to the Supreme Court.
The last year has seen the court rule on two significant cases involving Native rights, referring to Arizona vs. Navajo Nation and Haaland v. Brackeen. The former served as a test of the Navajo Nation’s water rights, and the court ruled in favor of the Arizona government, a defeat for Native rights advocates. The latter served as a challenge to the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. By a count of 7-2, the court ruled the law constitutional. NARF filed amicus briefs in support of the Native position in both cases.
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The current White House administration released stopgap measures to protect an imperiled whale in the Gulf of Mexico from oil & gas development. The voluntary restrictions, released by the Bureau of Ocean Energy Management (BOEM), are intended to slow down or limit vessel traffic in the habitat of the Rice’s whale. The recently designated species are especially vulnerable to human activities like oil and gas extraction, according to some scientists.
BOEM and other agencies are in the middle of reassessing the endangered whale’s vulnerabilities and habitat, a process that could lead to more permanent and binding rules about vessel speeds and other activities in the whale’s primary habitat. A sleek, 40-foot mammal known only to exist in the Gulf of Mexico, the Rice’s whale has only named its own species in 2021. Previously, it was considered a subspecies of the Bryde's whale.
Its new status has prompted a push to expand protections for the whale, so its numbers don’t continue to fall. BOEM’s voluntary new protections include using trained observers to spot whales in the water, avoiding transit through the area between dusk and dawn, always maintaining a speed of 10 knots or less, and staying more than 1,600 feet from the endangered whales.
A proposed settlement, filed last month in the U.S. District Court for the District of Maryland, would also place stipulations to limit vessel speed and other oil and gas activity on leases sold in the Gulf of Mexico oil auction. NOAA Fisheries has proposed a critical habitat designation for the whale in an extended band of the Gulf of Mexico that stretches from Texas to Florida, totaling more than 28,000 square miles. The agency is also taking comments on a petition for a year-round 10-knot speed limit in the whale’s core habitat, roughly from Pensacola, Florida, to Tampa, Florida.
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Nygaard v. Taylor, --- F.4th ---, 2023 WL 5211646 (8th Cir., August 15, 2023).Under the terms of the Parental Kidnapping Prevention Act, Indian Tribes are not included in the definition of “State” and therefore are not subject to the statutory requirement that “the appropriate authorities of every State shall enforce” valid custody determinations made “by the court of another State.” 28 U.S.C.A. § 1738A(a).
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lacks subject matter jurisdiction due to tribal sovereign immunity of defendants, a federal court cannot dismiss the claims with prejudice, and must grant any pending motion to remand the matter if removed from state court.
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claims, and given that the Tribe had a substantial connection to the agreements in question, even though the non-tribal entity was alleged to have exclusively underwritten, financed, and approved the loans.
Pollard v. Johnson, 2023 WL 5221533 (W.D. Wisc., August 15, 2023). The federal court lacked subject matter jurisdiction to hear case brought by non-Indian homeowners arising from Tribal Council’s decision to bar four roads used to access plaintiffs’ homes within the Lac de Flambeau Reservation after expiration of 50-year easements.
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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 any questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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