News & Updates from WAGLAC
March 21, 2023
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Sunflower sea star needs Endangered Species Act protection, U.S. says
By Dino Grandoni
March 15, 2023
"Growing a yard across and bearing two dozen limbs, the sunflower sea star prowls the deep, eating snails, abalones and urchins. Along the Pacific Coast, this multicolored monster is a top predator. Or at least it was.
The National Marine Fisheries Service, the federal agency tasked with protecting marine life, announced that it is proposing to list the sunflower sea star as threatened under the Endangered Species Act, a status that suggests this crucial ocean species is only steps away from extinction."
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The US Environmental Protection Agency proposed the first national drinking water standard for “forever chemicals” that are dangerous to human health, that are used in products ranging from cookware to carpets and firefighting foams. The move could affect drinking water for nearly everyone in the United States.
The new rule intends to set new drinking water standards and polyfluoroalkyl substances, also known as PFAS or “forever chemicals.” PFAS are a family of ubiquitous synthetic chemicals that linger in the environment and the human body, where they can cause serious health problems.
Although there are thousands of PFAS chemicals, under the rule, water systems would have to monitor for six specific chemicals, notify the public about PFAS levels and work to reduce them if levels go above the standard allowed. Several states have already imposed PFAS drinking water limits.
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EPA proposes first standards to make drinking water safer from ‘forever chemicals’
By Jen Christensen
March 14, 2023
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EPA to limit toxic ‘forever chemicals’ in drinking water
By Michael Phillis and Matthew Daly
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EPA proposes rules to limit ‘forever chemicals’ in drinking water
By Timothy Puko
Published March 14, 2023
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Ohio Attorney General Sues Norfolk Southern
By Campbell Robertson
Published March 14, 2023
Updated March 16, 2023
The Ohio attorney general filed a 58-count federal lawsuit against Norfolk Southern, charging that the derailment of a train carrying hazardous chemicals last month in the village of East Palestine was a product of the company’s negligence and recklessness, posing serious health risks to people in the area and causing “substantial damage to the regional economy.”
The suit, filed in the U.S. District Court for the Northern District of Ohio, accuses Norfolk Southern of numerous violations of state and federal environmental laws; it also raises claims of public nuisance and trespass. It seeks to force the company to pay civil penalties, costs and damages to reimburse the state for economic losses and harm to natural resources.
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Bureau of Land Management and USDA Forest Service Commit to Study Mining Impacts in Pactola Reservoir – Rapid Creek Watershed in the Black Hills
The Bureau of Land Management (BLM) and the United States Department of Agriculture (USDA) Forest Service announced a proposal to protect cultural and natural resources in the Pactola Reservoir – Rapid Creek Watershed, including drinking water for Rapid City and Ellsworth Air Force Base, from the adverse impacts of mineral exploration and development. The Pactola Reservoir is the largest and deepest reservoir in the Black Hills National Forest, with 14 miles of shoreline and 150-foot depths on 800 acres. The reservoir also provides high-quality recreation for communities and visitors.
The USDA Forest Service submitted the withdrawal application to the BLM. The BLM’s acceptance of the application and publication of a notice in the Federal Register in the coming days will initiate a two-year segregation that will prohibit the location of new mining claims and the issuance of new federal mineral leases within 20,574 acres within the Pactola Reservoir – Rapid Creek Watershed. During this time, the BLM and the Forest Service will seek public comment and conduct a science-based environmental analysis to evaluate the potential impacts of mining on the important natural and cultural resources of the watershed.
Publication of the Federal Register notice on March 21 will also initiate a 90-day public review period for the proposed withdrawal and additional analysis during the segregation period that will include Tribal consultation and further public involvement, including public meetings. This process will invite participation by the public, Tribes, state, and local government, as well as other stakeholders interested in the stewardship of these lands and waters.
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Current administration tells Supreme Court Big Oil climate cases belong in state court
By Clark Mindock
March 17, 2023
A lawsuit filed by several Colorado municipalities accusing ExxonMobil Corp and Suncor Energy Inc. of exacerbating climate change belongs in state court where it was filed, the current administration told the U.S. Supreme Court.
The administration urged the justices to reject the oil companies’ petition for review of a February 2022 appeals court's ruling that sent the case back to state court, a venue generally considered more favorable to the municipal plaintiffs.
The Denver-based 10th U.S. Circuit Court of Appeals remanded the case after concluding that none of the grounds cited by the companies to change the venue supported giving federal courts jurisdiction.
The case, if the Supreme Court elects to take it, would give the high court a second chance to clarify whether state or federal courts should hear the lawsuits filed by states and local governments, including Honolulu, Baltimore, and the states of Rhode Island and Delaware.
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Interior Secretary criticized over 'difficult' choice on Willow project
By Matthew Daly
In early March, the President met with members of Alaska's bipartisan congressional delegation as they implored him to approve a contentious oil drilling project in their state. Around the same time, Interior Secretary held a very different meeting on the same topic.
Gathering at Interior headquarters a half-mile from the White House, leaders of major environmental organizations and Indigenous groups pleaded with Haaland, the first Native American Cabinet member, to use her authority to block the Willow oil project. Environmental groups call the project a "carbon bomb" that would betray pledges made by the president — and Haaland.
The closed-door meeting, which was described by two participants who insisted on not being identified because of its confidential nature, grew emotional as participants urged the secretary to oppose a project many believed the president appeared likely to approve even as it contradicted his agenda to cut planet-warming greenhouse gas emissions in half by 2030.
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California's pause of water rules violates tribal rights
Despite reversing course last week, the February decision by Governor Gavin Newsom and state water officials to bypass environmental rules for water storage allowed greater harm to salmon populations already besieged by drought. Native American tribal members argue that such environmental harm amounts to a civil rights violation.
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Native American groups make demands of New Mexico governor
By Susan Montoya Bryan and Morgan Lee
A coalition of advocates dedicated to stemming the tide of violence and missing persons cases in Indian Country is demanding more transparency from New Mexico Governor Michelle Lujan Grisham, saying there should be greater accountability in the system for vetting state-appointed positions that serve Indigenous communities.
About 30 protesters gathered in the state Capitol rotunda to voice concerns about the Democratic governor's contested pick to head the state's Indian Affairs Department. They want the governor to withdraw her appointment of James Mountain, citing charges he once faced.
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As Plundered Items Return to Wounded Knee, Decisions Await
By Julia Jacobs and Kayla Gahagan
March 16, 2023
It has been more than three decades since Congress passed a law setting up a protocol for federally funded colleges and museums to return Native cultural heritage and, in many cases, human remains.
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FTC Issues Report to Congress on American Indian and Alaska Native Consumer Issues | Federal Trade Commission
The Federal Trade Commission sent a new report to Congress detailing the consumer issues that affect American Indian and Alaska Native (AI/AN) populations, as well as the FTC’s enforcement, outreach and education work on these issues.
The report summarizes the agency’s efforts to hear directly from tribal leaders, community members, advocates, and others about issues affecting their communities, and provides an analysis of the FTC’s data from the Consumer Sentinel Network database.
In the report, the Commission details extensive outreach to AI/AN communities and efforts to build partnerships and work with community media, as well as the launch of a new website at ftc.gov/NativeAmerican. The site aggregates consumer protection information and links on the issues identified in the report.
The report recommends continuing to expand partnerships with AI/AN organizations, tribal leaders, advocates, and other groups to inform the Commission’s law enforcement, education and outreach, and research efforts moving forward.
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Attorney General Tong Sues Vision Solar Over Unfair and Deceptive Sales
Attorney General William Tong announced the filing of a lawsuit against Vision Solar, LLC following more than a dozen consumer complaints regarding predatory high-pressure sales tactics, misrepresentations about financing and tax credits, and unpermitted work that left homeowners saddled with nonfunctioning systems and unaffordable loans.
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Judge freezes WOTUS rule in 2 states
March 20, 2023
A federal judge in Texas has put the current administration's signature water regulation on hold in two states amid a mounting push from White House critics, who want the rule stalled until a much-anticipated Supreme Court ruling lands later this year.
Judge Jeffrey Brown handed the states of Texas and Idaho a victory in their fight to head off the new “waters of the United States,” or WOTUS, rule. Two separate lawsuits in the U.S. District Court for the Southern District of Texas had argued that EPA and the Army Corps of Engineers should have to wait for the upcoming Sackett v. EPA decision before implementing the new regulation. One was brought by state officials and one by industry members.
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Gavel to Gavel: New rule redefines EPA/Army Corps jurisdiction
By Scott Butcher
March 15, 2023
For decades the EPA and the Army Corps of Engineers, the federal agencies charged with enforcing the Clean Water Act statute, where they have applied it not only to easily recognizable waterbodies but also to smaller tributaries and hydrologically connected wetlands.
Now, the current administration has issued its own rule, which is set to go into effect on March 20. The new rule is similar to the 2015 rule, but is not identical. Last fall the Supreme Court heard oral arguments in a case called Sackett v. EPA that could moot the new rule and establish a different standard when the court’s decision is issued later this year.
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Supreme Court to hear arguments on Navajo Nation water needs - Roll Call
By Michael Macagnone
Posted March 16, 2023
The Navajo Nation will argue at the Supreme Court that the United States must meet the water needs of their reservation in Arizona, amid long-standing tensions about how to apportion the dwindling flow of the Colorado River.
In the first oral arguments of a two-week sitting of the high court, the Navajo will defend a ruling from the U.S. Court of Appeals for the 9th Circuit that kept alive their long-running legal effort to force the government to come up with a plan to provide enough water.
In court filings, the tribe contends that an 1868 treaty promised both land and water sufficient for the Navajos to return to a permanent home in their ancestral territory.
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States’ Role in Water and Wastewater Spending Secure, Says EPA - Route Fifty
By Kery Murakami
March 16, 2023
The top Environmental Protection Agency official on water policy reassured senators that the agency will give states flexibility in deciding how to spend the $48 billion for water and wastewater funds that were included in the bipartisan infrastructure bill.
At issue are two state-revolving funds (SRF) under the bipartisan initiative: the Clean Water SRF and the Drinking Water SRF. The criteria laid in these initiatives include safeguarding the health, keeping water rates and fees low, and protecting the environment.
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Feds spend $2.4 million on cloud seeding for Colorado River
Brittany Peterson
The Southern Nevada Water Authority voted to accept a $2.4 million grant from the U.S. Bureau of Reclamation to fund cloud seeding in other Western states whose rivers feed the parched desert region.
The weather modification method uses planes and ground-based cannons to shoot silver iodide crystals into clouds, attracting moisture to the particles that falls as additional snow and rain.
The funding comes as key reservoirs on the Colorado River hit record lows and booming Western cities and industries fail to adjust their water use to increasingly shrinking supplies.
The federal funding will go toward upgrading manual generators to ones that can be remotely operated, and using planes to seed clouds in key parts of the Upper Colorado River Basin.
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Fines for breaking US pollution laws can vary widely among states – that may violate the Constitution
The state of Colorado's fine for companies caught violating the federal Clean Water Act is over $30,000, and violators can be charged much more. In Montana, however, most violators get barely a slap on the wrist – the median fine there is $300. Similarly, in Virginia, the typical Clean Water Act violation issued by the state is $9,000, while across the border in North Carolina, the median is around $600.
Even federal penalties vary significantly among regions. In the South (EPA Region 6) the median Clean Water Act penalty issued by the U.S. Environmental Protection Agency regional office is $10,000, while in EPA Region 9, the median is over six times as high.
The degree of disparity we found in environmental enforcement is disturbing for many reasons. Persistent lenient penalties can lead to lower compliance rates and, therefore, more pollution. Disparate enforcement can be unfair, possibly leaving some companies paying far more than others. Competitive pressure may lead companies to locate in areas with more lenient enforcement. There is a relatively simple solution, and another good reason to implement it: These disparities may violate the U.S. Constitution.
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New Mexico Game and Fish is now hiring 'professional bear huggers'
By Zoe Sottile
Published March 19, 2023
The department posted an adorable job listing on Facebook, featuring precious snaps of conservation officers cuddling baby bears.
Unfortunately, a love of bears is not the only qualification you’ll need to become a conservation officer. The job listing with the formal title of the position specifies candidates should have a bachelor’s degree in “biological sciences, police science or law enforcement, natural resources conservation, ecology, or related fields.”
The job duties include a lot more than just bear-hugging, according to the job listing. Each conservation officer is responsible for “enforcing the game and fish laws” and also “educates the public about wildlife and wildlife management, conducts wildlife surveys, captures ‘problem animals,’ investigates wildlife damage to crops and property, assists in wildlife relocations and helps to develop new regulations.”
Black bears are New Mexico’s state animal. Estimates place the population at around 6,000 bears, according to a publication from the New Mexico Department of Game and Fish.
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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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Alaska Dept. of Fish and Game v. Federal Subsistence Bd., ___ F.4th ___, 2023 WL 2487268 (9th Cir., March 14, 2023). Alaska’s assertion that the federal government had violated ANILCA by authorizing an emergency subsistence hunt for the Organized Village of Kake in response to the COVID-19 pandemic was not moot.
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Fuson v. Office of Navajo and Hopi Relocation, 2023 WL 2540241 (D. Ariz., March 16, 2023). Office of Navajo and Hopi Relocation decision to deny relocation benefits to plaintiff was supported by substantial evidence and not arbitrary and capricious.
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U.S. v. Polk, ___ F.4th ___, 2023 WL 2467710 (10th Cir., March 13, 2023). Tribal member convicted of violation of state DUI laws under Assimilative Crimes Act was not entitled to seek reduced sentence under state’s “safety-valve” law because federal statute limits departures from mandatory minimum sentences.
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Shoshone-Bannock Tribes of the Fort Hall Reservation v. U.S., 2023 WL 2456403 (D. Idaho, March 10, 2023). On motion for reconsideration, the court held that it had properly dismissed the Tribes’ claims against the U.S. seeking reversion of former railroad right-of-way because the claims were not brought within the 12-year statute of limitations in the Quiet Title Act, but allowed ejectment and restitution claims against City of Pocatello to proceed.
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American Indian Law Deskbook |
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Notice: 2022 Edition of the American Indian Law Deskbook is now available on Westlaw and in hard-copy and electronic formats.
Editions of the Deskbook are published annually by Thomson Reuters, and the 2022 Edition was issued during the week of May 23, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category, in hard copy, and in electronic format.
Please click the link below to order or reach out to Steven Strack at sstrack@agalliance.org with questions regarding obtaining a copy of the American Indian Law Deskbook.
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Western Attorneys General Litigation Action Committee |
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CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands, and Indian law. WAGLAC was formed over 40 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain essential contacts throughout the country in these important areas of the law.
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Contributions For WAGLAC Newsletter |
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We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute, or article relating to natural resources, environment, Indian law, or federalism that you would like us to consider for inclusion in the Newsletter, please do not hesitate to send it to Clive Strong at clive.strong@cwagweb.org.
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For a complete database of all previously published WAGLAC newsletters, please click the Archive Button. |
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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