News & Updates
Conference of Western Attorneys General
August 2, 2023
ENDANGERED SPECIES ACT (ESA)
The Center for Biological Diversity and the United States Fish and Wildlife Service entered into a Stipulated Settlement Agreement setting an Endangered Species Act (“ESA”) listing schedule. The species addressed include 31 Southeast and two Southwest animals and plants. One of the species’ range addressed in the Settlement includes Arkansas. The species is the Eastern spotted skunk. The Settlement specifies for the various species the schedule for the dates such listing decisions should be completed. The Eastern spotted skunk (also denominated the plains spotted skunk) must have a 12-month finding by September 14, 2023.
Grassland birds in North Dakota studied by the U.S. Geological Survey (USGS) were displaced more by biofuel crop production than oil and gas development, according to a recent study.  Authors of the study published in the journal Ecological Applications found that energy development overall has disturbed native grassland habitats favored by four species of grassland birds. But the increase in oil and natural gas development had a smaller footprint than the expanded production of corn and soybeans driving renewable fuel.

Using the North American Bird Survey and Department of Agriculture crop data from 1998 to 2021, the researchers examined four grassland bird species in North Dakota and their response to land use change. The study found that all the birds spent more time in their preferred grassland habitat than in areas modified for agriculture or energy development.

As the U.S. grapples with shifting to multiple forms of energy production from both renewable and nonrenewable sources, USGS research helps decision-makers understand how various forms of development — agriculture, and energy — impact wildlife.
Environmental groups are asking a federal court to force the Forest Service to reconsider the impact of its livestock grazing program on Arizona’s Coronado National Forest on animals. In a lawsuit filed in the U.S. District Court for the District of Arizona, the Center for Biological Diversity and Maricopa Audubon Society allege that the Forest Service and Fish and Wildlife Service violated the Endangered Species Act when the agencies approved grazing allotments in critical habitat areas of threatened fish and bird species.
PFAS
A bipartisan coalition of 22 state attorneys general is in opposition to a proposed class action settlement that fails to adequately hold companies accountable for contaminating Americans’ drinking water supply. Under the proposed settlement, water providers would withdraw the hundreds of lawsuits they have filed over its use of per- and polyfluoroalkyl substances — commonly referred to as “PFAS” or toxic “forever chemicals” — in a wide range of consumer products and firefighting foams. PFAS are stable in the environment, resistant to degradation, persistent in soil, and known to leach into groundwater. The proposed settlement is subject to court approval.

The proposed settlement would apply to nearly every public water provider in the United States, even those that have not sued and even those that have yet to test for the presence of PFAS in their water. In return for waiving their claims, the company would allegedly pay out $10.5 to $12.5 billion to water providers, an amount that is worth far less because of certain provisions that could ultimately force water providers to reimburse the companies for many costs. 

Opposing the proposed settlement are the attorneys general of Arizona, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Wisconsin, as well as the District of Columbia, the Commonwealth of the Northern Mariana Islands, and the Commonwealth of Puerto Rico. 
CLEAN WATER ACT
When the U.S. Environmental Protection Agency, (EPA), barred the U.S. Army Corps of Engineers, (Corps), from issuing any permit under Section 404 of the Clean Water Act for 309 square miles of State land in Southwest Alaska, it effectively confiscated State property and created a de facto national park. Alaska Attorney General Treg Taylor filed a brief, calling on the U.S. Supreme Court to order the EPA to correct its wrongdoing.
IN THE COURTS
The U.S. Supreme Court overturned a lower court’s hold on the construction of the Mountain Valley Pipeline. West Virginia Attorney General Morrisey filed an amicus brief urging the Supreme Court to lift the stay. The Supreme Court decision vacated the order that came down from the U.S. Court of Appeals for the Fourth Circuit—that order stopped the pipeline construction of a 3.5-mile stretch in the Jefferson National Forest in Virginia, as well as several stream crossings in West Virginia. The pipeline begins from the gas fields in northwestern West Virginia then heads into interstate connections in Virginia—the Atlantic Coast region.
UPCOMING TRAININGS
The Environment and Natural Resources Division is hosting an upcoming training session for state government environmental law practitioners.  Each training is virtual and free to attend!
If you have any questions contact: Hunter J. Kendrick
Counsel for State and Local Affairs | Law and Policy Section | Environment and Natural Resources Division | U.S. Department of Justice
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. 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. 
New Indian Law Summaries
Crow Tribe of Indians v. Repsis, --- F.4th ---, 2023 WL 4696801 (10th Cir., July 24, 2023).The district court had authority to address the Crow Tribe’s FRCP 60(b) motion for relief from the Tenth Circuit’s earlier decision that the Tribe’s treaty right “to hunt on the unoccupied lands of the United States” did not apply to national forest lands and could be restricted by Wyoming “due to its interest in conservation.”
 
Shoshone-Bannock Tribes v. Vanir Construction Mgt., Inc., 2023 WL 4706007 (D. Idaho, July 24, 2023). The federal removal statute, 28 U.S.C.A. § 1441, does not authorize removal of actions from tribal courts, and construction management company was required to exhaust its tribal court remedies before asserting in federal court that the Tribes had assigned their rights under the contract to an entity that was not an arm of the Tribes and did not share the Tribes’ sovereign immunity.
 
Blackburn v. A.C. Israel Enterprises, 2023 WL 47108884 (E.D. Va., July 24, 2023). In action against non-tribal business entities partnering with a tribe to provide payday loans at interest rates alleged to violate Virginia usury laws, the court rejected defendants’ assertion that the court was required to apply choice-of-law provisions in the payday loan agreements requiring application of tribal laws.
 
Narragansett Indian Tribe v. Pollack, 2023 WL 4824733 (D.D.C., July 27, 2023). Tribe had standing to challenge programmatic agreement adopted pursuant to § 106 of the National Historic Preservation Act that was alleged to have been adopted without required consultation with the Tribe.
 
Ray v. Office of Navajo and Hopi Indian Relocation, 2023 WL 4761789 (D. Ariz., July 26, 2023). In determining eligibility for relocation assistance, Hearing Officer was required to consider testimony of numerous witnesses of Navajo Plaintiffs’ alleged occupation of lands later partitioned to the Hopi Tribe, even if inconsistent with the BIA’s 1974-75 Enumeration of occupants in the then-Joint Use Area.
INDIAN LAW DESKBOOK
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.
Conference of Western Attorneys General 
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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