News & Updates
Conference of Western Attorneys General
December 13, 2023
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Sea Turtles Experiencing ‘Cold Stun’ in New England Flown to Rehab in Florida
Fifty-two endangered Kemp’s ridley sea turtles suffering from “cold stun” are rehabbing at four facilities in Florida after a flight on a private plane from the New England Aquarium in Massachusetts. The turtles arrived in Tampa and 16 were sent to Clearwater Marine Aquarium. All the turtles were experiencing a condition known as cold stun from the frigid New England waters. The other turtles were taken to Mote Marine Laboratory in Sarasota, The Florida Aquarium in Tampa, and Loggerhead Marine Life Center in Jupiter.
Sea turtles are cold-blooded reptiles and adapt to the temperature of their surroundings. During prolonged exposure to icy water temperatures, their circulatory systems slow down, and the turtles are unable to swim or function properly. The turtles will continue rehabbing at the aquarium, where guests are welcome to visit and watch their journey. Eventually, the turtles will be returned to their natural habitat.
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Endangered Red Squirrel's Numbers Drop This Year in Arizona
Biologists said this year's population estimate shows that they need to continue working together to manage the endangered Mount Graham red squirrels' habitat and help the subspecies recover. A 2017 wildfire devastated much of its habitat. The endangered Mount Graham red squirrel showed a decrease in the latest population estimate in the Pinaleño Mountains of southeastern Arizona. The annual survey conducted jointly by the Arizona Game and Fish Department, Coronado National Forest, and Fish and Wildlife Service showed an estimate of 144 squirrels. The Mount Graham red squirrel population peaked at about 550 animals in the late 1990s. It typically ranged between 200 and 300 until a 2017 wildfire devastated much of the squirrel's habitat.
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Beluga Whales Vocals Documented for the First Time
Vital communications among the critically endangered population may be masked by ship noise in their core critical habitat, new research finds. Beluga whales are highly social and vocal marine mammals. They use acoustics to find prey, navigate their environment, avoid predators, and maintain group cohesion. For Alaska’s critically endangered Cook Inlet beluga population, these crucial communications may compete with a cacophony of noise from human activities.
A new study is the first to document the complex vocal repertoire of the Cook Inlet beluga whale population. It is also the first to quantify how ship noise may be masking specific beluga calls in this region. The research was a collaborative effort between NOAA Fisheries Alaska Fisheries Science Center, the University of Washington, and the Alaska Department of Fish and Game. The findings can inform decisions on management and recovery actions related to the effect of shipping noise on this endangered population.
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Minnesota, Wisconsin Wildlife Officials Capture Invasive Carp In Mississippi River
Wildlife officials captured hundreds of invasive carp from the Mississippi River near Trempealeau, Wisconsin. The Minnesota Department of Natural Resources announced that officials caught 296 silver carp, 23 grass carp, and four bighead carp in what they called the largest single capture of invasive carp in Minnesota to date. The Wisconsin Department of Natural Resources tracked six tagged invasive carp in that area of the river the week which led officials to larger schools moving upstream. Observations from commercial anglers also helped officials pinpoint the fish.
The carp were imported to the U.S. in the 1960s and 1970s to help rid southern aquaculture farms of algae, weeds, and parasites. They escaped, found their way into the Mississippi River, and have used it as a superhighway to spread north into rivers and streams in the nation’s midsection. Carp are voracious eaters and can consume up to 40% of their body weight in a day, wreaking havoc on aquatic ecosystems. There are no hard estimates of invasive carp populations in the U.S., but they are believed to number in the millions.
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Smallmouth Bass Mercury Levels Linked to Habitat Types Along the Snake River
Mercury concentrations are twice as high in smallmouth bass found in reservoirs than those in the free-flowing sections of the Snake River in Idaho and Oregon, according to a joint U.S. Geological Survey and Idaho Power Company study that looked at 1,815 specimens of this popular recreational fishing species from a variety of habitats in 31 sites along 530 miles of the Snake River. Smallmouth Bass are good indicators of methylmercury exposure to humans and wildlife because they are a common, popular sport fish and eat a variety of food during their lifetime.
The Snake River is the largest tributary of the Columbia River and a massive river system that includes 22 federal and private dams built between 1901 and 1982. These dams, and the reservoirs they create, provide hydropower, flood control, agricultural irrigation, recreation, and municipal water supplies. However, they can also influence the hydrology, biogeochemistry, and ecology of the Snake River. To understand the role of reservoir stratification on fish mercury concentrations, scientists compared concentrations in several Snake River habitats, including stratifying and non-stratifying reservoirs, and different sections of free-flowing water along the river.
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After Clean Water Act Ruling, States That Want to Protect Affected Wetlands Need Millions
Earlier in 2023, the U.S. Supreme Court stripped federal oversight from millions of acres of wetlands long protected under the Clean Water Act. Now, erecting safeguards to ensure those waters are not polluted, drained, or filled in by developers falls to the states. They're finding that it's not easy. Wetlands play a crucial role in filtering pollution and nutrient runoff. They also absorb stormwater, help to recharge aquifers, and provide essential habitat for many species. When areas are lost, communities may suffer from flooding, become more vulnerable to droughts, or require expensive treatment plants to make water safe to drink.
In some states, the loss of federal rules means that many waters are now largely unregulated. Some lawmakers are looking to craft rules to replace the lost Clean Water Act protections, but they expect a years-long process just to get regulations on the books. Other states have had strong rules in place even without federal coverage. But now they can no longer rely on federal partners such as the U.S. Environmental Protection Agency to help enforce those standards. Regulators in those states are asking lawmakers for millions of dollars to hire more staff to process permits and monitor water quality. Meanwhile, some states view the rollback as an opportunity for developers and industry. State leaders say they remain unclear on exactly which waters have lost federal oversight following the Supreme Court decision and a subsequent EPA rule based on it. Officials expect plenty of litigation as they attempt to make sense of murky legal definitions from the feds.
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Now A Federal Judge in Louisiana Will Determine the Validity of EPA's Interpretation of Section 401 of the Clean Water Act
The EPA published its most recent rule specifying the role of States and Tribes in the Federal permitting of discharges into the Waters of the United States. The rule was effective a few weeks ago and this is week 11 and industry “co-plaintiffs”, have sued to overturn the rule. By way of context, Section 401 of the Clean Water Act requires that States and Tribes can certify their acceptance of activities that may result in a "discharge" into a "Water of the United States" before the Federal government issues a permit or license authorizing those activities. That certification can specify enforceable conditions beyond those the Federal Government might impose.
And, because of the Supreme Court's decision in Sackett v. EPA earlier this year, there are fewer “Waters of the United States” than there had been for decades prior. There was already litigation with half of the states over its Waters of the United States rule in response to Sackett and now it is going to be litigating over its Section 401 rule. The EPA says States and Tribes can prevent the issuance of a federal permit for a “discharge” to the Waters of the United States if a State or Tribe concludes that the “activity” associated with the discharge will have adverse impacts on water quality whether or not the waters impacted are Waters of the United States.
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PFAS Cleanup Cost Estimates, Timelines Stressed in Defense Bill
The annual defense policy bill that the US Congress is scheduled to vote on would require more details on the costs and schedule for the Pentagon’s PFAS cleanups, following pressure from lawmakers and advocates. Both chambers are likely to vote on the compromise National Defense Authorization Act for fiscal 2024 (H.R. 2670), which guides Pentagon spending. The bill would authorize at least $1.1 billion for environmental remediation of PFAS and many other contaminants at current and former Department of Defense bases. It would also require the DoD to include a PFAS budget justification along with its annual budget request. Information lawmakers want includes details about testing, remediation, contaminant disposal, and community outreach involving per- and polyfluoroalkyl substances (PFAS) expenditures.
The legislation also would require the DoD to provide both chambers’ armed services committees a proposed schedule to complete PFAS testing and remediation at military installations, National Guard facilities, and former military sites. The schedule would describe sites that received DoD environmental restoration funds in fiscal 2022. That schedule should include estimated costs for activities to be carried out in the following year or an explanation about why costs can’t be estimated at certain sites.
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Tribes Are Cheering the Updated BIA Land Acquisition Rules, While Some Local Government Officials Objected
The New Bureau of Indian Affairs rules formally made public the streamlined ability of Native American tribes to acquire property, including off reservation land for casinos or other developments. In a move that pleases many tribes but worries some city and county officials. The BIA revised rules that will henceforth govern how land is taken into trust. Tribal land acquisition applications that now linger for an average of 985 days will have to meet a new 120-day deadline. The BIA will no longer apply heightened scrutiny based on the distance of the land from the tribe’s reservation, and the agency will now explicitly start with a presumption in favor of tribes seeking to acquire land within their reservation boundaries.
But while the land acquisition rules largely received a warm reception when cited at the White House Tribal Nations Summit, the package met some local government opposition. The Indian Reorganization Act of 1934 first authorized the federal government to take land into trust for tribes. The government holds about 56 million acres in trust, meaning the government holds legal title but the beneficial interests remain with the individual or the tribe. Currently, there are 941 land acquisition applications pending BIA approval. The hundreds of pending tribal applicants will have the choice of having their land acquisition proposals evaluated either under the prior rules or the new ones, though the new 120-day deadline for action will only apply to future applications.
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The Bureau of Indian Affairs has published a final rule in the December 12, 2023, Federal Register that revises the procedures in 25 C.F.R. Part 151 for acquiring lands into trust for the benefit of Indian tribes and individual Indians under 25 U.S.C. 5108. Among other things, the Federal Register document describes and responds to comments that State and local governments submitted on the proposed rule.
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White House Tribal Nations Summit and the Long-Standing Tribal Requests to Strengthen Food Sovereignty and Expand Indigenous Roles in Forest Management have been fulfilled
U.S. Department of Agriculture (USDA) announced the fulfillment of long-standing Tribal requests for USDA to support and better partner with Tribal Nations in empowering Tribal food sovereignty and co-stewardship of federal lands and waters. These co-stewardship agreements align with Tribal priorities, like improving watersheds and wildlife habitat, managing invasive species, and addressing the conditions that fuel destructive wildfires. They also incorporate Indigenous knowledge like traditional plant management and ethnobotany, cultural interpretation, and traditional land stewardship methodologies and techniques. Along with these programs and stewardships, a permanent committee was named and created by the 2018 Farm Bill to ensure Tribal perspectives are well represented at USDA and to ensure the Department’s policies and decisions are informed by the unique Nation-to-Nation relationship.
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Nevada Tribes Will Not Appeal Most Recent Lithium Mine Ruling
Native American tribes opposing a mine over what could be the country’s largest natural lithium deposit have decided to abandon efforts to halt its construction through the courts after a series of legal setbacks. But that doesn’t mean they are abandoning the fight. The Reno-Sparks Indian Colony announced the tribe won’t appeal U.S. District Judge’s decision to dismiss their claim that the mine’s approval violates federal preservation law and land policy. Instead, the tribe has a larger target: The General Mining Law of 1872.
Over the last two years, the Reno-Sparks Indian Colony and several other tribes have sought to overturn federal approval for the mine, a decision that was fast-tracked by the Bureau of Land Management in the last days of the prior administration. But the courts have repeatedly ruled against the tribe.
The root of the problem is centuries deep, argue tribal members. The General Mining Law of 1872 allows individuals and corporations to excavate public land and stake claims on any mineral discoveries they make. Before that, economic colonialists could simply claim land inhabited by Native peoples if they used the land productively under the “Discovery Doctrine.” Calls for reforming the General Mining Law of 1872 are likely to get a cold reception from Nevada’s congressional delegation, which for decades has successfully resisted attempts to significantly reform the 1872 law.
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Temple v. Roberts, 2023 WL 8520782 (D.S.D. Dec. 8, 2023). The BIA acted neither arbitrarily nor capriciously in (1) following recommendation of tribal allocation committee to deny tribal member a permit to graze cattle on tribal and individual trust lands due to past overgrazing and (2) impounding and selling cattle when tribal member committed trespass by continuing to graze for several years without a permit.
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The federal court had jurisdiction under the General Crimes Act and the Assimilative Crimes Act to prosecute Smith, a non-native woman convicted of abusing her child, a tribal member; additionally, the fact that the counts against Smith described her as aiding and abetting her tribal member husband in his commission of child abuse in violation of the Major Crimes Act were not a basis for dismissal because even though Smith, as a non-native, was legally incapable of violating the Major Crimes Act, it is established that under 18 U.S.C. § 2(a) (which provides that “[w]hoever commits an offense against the United States or aids, abets, counsels,
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commands, induces or procures its commission, is punishable as a principal,” ), persons can aid and abet the commission of crime that they are either factually or legally unable to commit.
The United States could not invoke federal jurisdiction under 18 U.S.C. § 2(b) (which provides that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal”) against a non-Indian defendant by alleging that he caused his Indian co-defendants to commit crimes in violation of the Major Crimes Act.
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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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