The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Additional Details to follow.

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at [email protected].

Leaked Draft: EPA Aims to Clarify Supreme Court Maui Ruling

December 3, 2020

"In a draft memo reviewed by E&E News, EPA Assistant Administrator for the Office of Water David Ross aimed to provide some clarity to industry following

County of Maui v. Hawaii Wildlife Fund, a case in which the SupremeCourt offered a test to probe whether federal permits are required for pollution that moves through ground water before spewing into the Pacific Ocean.

In a 6-3 opinion led by Justice Stephen Breyer, the court found the question to be answered is whether pollution is"the functional equivalent of a direct discharge from the point source into navigable waters" — an outcome that industry attorneys said would create a new era of regulatory uncertainty.

The interpretation of that court ruling could have sweeping implications for whether — and how — federal regulators oversee and curb pollution from facilities like coal ash ponds, waste lagoons and livestock operations.”

"Plaintiffs filed suit against CCMC, alleging that CCMC failed to obtain the proper construction permit under the Clean Air Act (CAA), and failed to implement the requisite dust control plan for the Coyote Creek Mine, which is adjacent to plaintiffs' ranch.

The Eighth Circuit affirmed the district court's grant of summary judgment for CCMC, because the federal regulations imposing permitting and dust control requirements do not apply to CCMC's operations. The court agreed with the district court in determining that the regulations are ambiguous or in ultimately concluding that the regulations, combined with the guidance, do not resolve the relevant inquiry. The court agreed with the district court that the best interpretative aid to determine whether Subpart Y - Standards of Performance for Coal Preparation and Processing Plants, 40 C.F.R. pt. 60, applies to the coal pile is the NDDOH permitting decision, which concluded that the coal pile is not part of the coal processing plant and thus is not subject to Subpart Y. Furthermore, that decision is entitled to deference."

The Sierra Club intervened, as a private attorney general, in a Clean Air Act enforcement action brought by the United States against DTE Energy Company in the United States District Court of the Eastern District of Michigan Southern Division. On May 14, 2020, the parties entered into a Consent Decree. Under the Consent Decree, DTE was required to reduce emissions from its coal-fired electric units, pay a civil penalty and perform an environmental mitigation project. The Consent Decree also recognized DTE and the Sierra Club intended to submit a Separate Agreement to resolve the Sierra Club’s actual and potential claims against the DTE, and that the United States reserved the right to oppose the Separate Agreement.

 

On May 22, 2020, the Sierra Club submitted the Separate Agreement that among other things required DTE to fund environmental projects and to retire some of its power plants. Sierra Club’s motion asserted the Separate Agreement “plainly advance the Clean Air Act’s goal of ‘protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.’”

 

“The United States oppose[d] the motion on the grounds that the Separate Agreement is, in effect, a second consent decree or judgment and thus erodes ‘government enforcement primacy,’ and potentially interferes with constitutionally mandated separation of powers.”

 

The Court rejected the government’s suggestion DTE’s “separately negotiated agreement with Sierra Club ‘conflict[s] with the statutory scheme,’ is ‘contrary to sound environmental enforcement policy,’ and potentially interferes with constitutionally mandated separation of powers. The agreement . . . does none of these things, but accomplishes an enormous environmental benefit that is fully consistent with the goals of the CAA.”

The Court found the Separate Agreement is a private agreement not a consent decree. “A consent decree is essentially a settlement agreement subject to continued judicial policing. Consent decrees typically have two key attributes that make them different from private settlements. First, when a court enters a consent decree, it retains jurisdiction to enforce the decree. In contrast, the parties to a private settlement typically must bring another suit (for breach of contract) to enforce it. Second, a consent decree puts the power and prestige of the court behind the compromise struck by the parties. The same is not true of a dismissal order that does not incorporate the parties’ terms.”

December 3, 2020

"The Trump administration said that it would sell oil and gas leases in the Arctic National Wildlife Refuge in Alaska in early January, further accelerating its last-ditch effort to allow drilling there.

The Bureau of Land Management said the sale would take place on Jan. 6, following the publication of a notice of sale in the Federal Register. That notice requires a 30-day comment period before a sale can occur.

The announcement of a sale date came just 16 days after the bureau released a “call for nominations,” which allowed oil companies and others to detail which tracts of land in the refuge were of interest for drilling."

The Supreme Court granted certiorari in United States v. Cooley, No. 19-1414, on November 20, 2020. The underlying decision appears at 919 F.3d 1135 (9th Cir. 2019), rehearing denied, 947 F.3d 1215 (2020). A summary of the Ninth Circuit panel decision and the opinions issued in connection with the rehearing denial appear at https://docs.google.com/document/d/ 1NOtXAv7Hfec8P4Nr014GOQ1IILWIk--S/edit#heading=h.gjdgxs. The panel held that evidence seized from a non-Indian by tribal officer during a roadside stop on the Crow Reservation was subject to exclusion in a federal court criminal proceeding because (1) the officer lacked jurisdiction to make the seizure under federal common law standards, (2) the seizure violated the Fourth Amendment counterpart in the Indian Civil Rights Act, and (3) the exclusionary rule applies to such violations. 

The question presented in the United States’ certiorari petition is limited to “[w]hether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.” The petition contends that “the Ninth Circuit identified no sound basis for concluding that the Crow Tribe has been divested of its inherent authority to investigate and detain non-Indian suspects like respondent for prosecution by the state or federal government” and that “[t[he decision below ... denies Indian tribes the inherent authority necessary to effectively investigate many crimes by non-Indians, including many crimes with Indian victims, within the boundaries of their own reservations. It thereby disrupts law enforcement in large portions of Indian country, and threatens tribes’ ability to protect ‘the health or welfare of the tribe[.]’” Pet. Writ Cert. at 16, 29 (available at https://www.supremecourt.gov/DocketPDF/19/19-1414/145923/20200619135447743_OSG% 20Cert%20Draft%20-%20Cooley.pdf. Amicus briefs in support of the petition were filed by the Crow Tribe, the National Congress of American Indians and other tribal organizations and by the National Indigenous Women’s Resource Center.

December 4, 2020

"Family ranching operations have been disappearing from the Colorado landscape for decades, victims of the compounding trends of high land prices, low cattle prices and fierce international competition. 

The whole Western water system is built on a roughly 150-year-old legal regime that gives priority access to whoever put the water to use first. Farmers and ranchers led the settlement of the West, giving them the most “senior” rights and ensuring that they get their water before newer users like sprawling suburbs. Some 70 percent of the Colorado River’s flow is consumed by agriculture.

But as climate change keeps squeezing the water supply, the ranchers’ position is growing more precarious. They are far less powerful and wealthy than the cities that need water, which have often swooped in and bought out farms for their water rights. It is inevitable, now, that large amounts of water will have to leave agriculture in order to sustain cities and suburbs in the far-drier future; the question is simply whether it can be done in a way that keeps agriculture on the landscape."

The article describes the effort of irrigators to find a solution that benefits farmers as well as the fishery. They conducted a study that found the creation of “artificial riffles, along with nature-mimicking bank stabilization efforts, could help both irrigators and habitat.” The riffles created pools that allowed the irrigators to pump, while providing river habitat.

 

On December 3rd, the Department of Army, U.S. Corps of Engineers rescinded Real Estate Policy Guidance Letter No. 26. This policy required any person seeking an easement to appropriate water flowing through a Corps reservoir to first enter into a water supply contract with the Corps. Policy 26, like a proposed Corps’ Water Supply Rule, sought to vest in the Corps authority to allocate water contrary to Congress’ express policy “to recognize the interests and rights of the States in determining the development of the watersheds within their borders and likewise their interests and rights in water utilization and control.”

 

Last year, CWAG, the Western Governors’ Association and North Dakota Senator Kevin Cramer led a successful bipartisan effort to have the USACE’s Water Supply Rule withdrawn. The group also advocated for recission of Policy 26.

 

North Dakota Attorney General Wayne Stenehjem said that “his office and bi-partisan colleagues in the Conference of Western Attorneys General, which Stenehjem chairs, [] worked vigorously with the Corps to make headway on these issues.” . . . I am cautiously optimistic that remaining issues with reservoir management and water supply access can be similarly resolved without the need for litigation, and I thank Senator Cramer for all his efforts on this issue.”

 

“Western Governors applaud the U.S. Army Corps of Engineers’ decision to rescind its Policy Guidance Letter No. 26, which contained policies that conflicted with state laws and threatened states’ well-established legal authority over their water resources,” said Jim Ogsbury, Western Governors' Association Executive Director. “Western Governors commend members of the Congressional delegations of the States of North Dakota and South Dakota for their longstanding efforts on Missouri River issues and thank Senator Cramer for his leadership in resolving this vital western water issue. We look forward to working with the Corps to ensure that all Corps reservoirs are operated in compliance with state law.”

 

“Earlier this year, Senator Cramer met with Maj. Gen. Scott A. Spellmon ahead of his confirmation as the Army's 55th Chief of Engineers and commanding general of the USACE. Following the meeting, Senator Cramer sent Gen. Spellmon a letter requesting he clarify USACE policy on western state water rights. [In a response letter,] Gen. Spellmon correctly acknowledged state water allocation rights and committed to making the improvements announced.”

December 1, 2020

"Several former Obama EPA and Interior Department officials on President-elect Joe Biden's transition team bring with them deep expertise in water policy that could come in handy as the incoming administration plots policy goals and actions to undo Trump administration rollbacks.

With expertise including crafting WOTUS; tackling the Flint, Mich., water crisis; restoring the Everglades; and curbing coal plant pollution, the experts may be appointed to high-level positions after the new administration ramps up and may shape policy going forward."

December 4, 2020

"With partisan fever boiling in the 2010 midterms, just two years into the Obama presidency, a new brand of state attorneys general (AGs) came to power on the promise to check an ever-expanding federal leviathan. That year, a whopping six new Republican attorneys general won — and with their victories came a wave of political lawsuits, posturing and a deepening partisan divide.

No longer content to just serve as their state’s chief legal officer, investigative powerhouse, consumer protection arbiter and enforcer, prosecutor and policy advocate, state AGs filed an onslaught of lawsuits against the new president’s administration on everything from hot button issues like health care and the environment to consumer protection. These lawsuits raised the profile of the attorneys general and gave new meaning to AG: aspiring governor, or even future senator and president."

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month

Updated American Indian Law Deskbook Is Now Available

The American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

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 send it to Clive Strong. For a complete database of all previously published WAGLAC newsletters, please follow the link below.