News & Updates
Conference of Western Attorneys General
November 29, 2023
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The U.S. Fish and Wildlife Service Reopens Comment Period and Will Host Public Hearing for Sacramento Mountains Checkerspot Butterfly Proposed Critical Habitat
The U.S. Fish and Wildlife Service will reopen the public comment period and host a public hearing for the proposal to designate approximately 1,636.9 acres of critical habitat in Otero County, New Mexico, for the endangered Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti). This action is in response to a request received during the comment period following the Aug. 10 proposed rule. The Sacramento Mountains Checkerspot Butterfly is endemic to its namesake mountain range in southern New Mexico, and is critically endangered. U.S. Fish and Wildlife Service biologists propose designating 1,636.9 acres of critical habitat in Otero County, New Mexico, for this butterfly. The Sacramento Mountains checkerspot butterfly is imperiled by a variety of threats including incompatible grazing, recreation, invasive and nonnative plants, climate change , and an altered fire regime.
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Fifty Years Ago Congress Passed the Endangered Species Act
The Act was a comprehensive legislation aimed at saving animal and plant species at risk of going extinct. The bill, signed by President Nixon in 1973, declared that the fish, wildlife, and plants that made up the US were of "esthetic, ecological, educational, recreational, and scientific value to our nation and its people." The ESA recognized that without action, many of these species would go extinct. More than a thousand species have been listed as threatened or endangered and received protection under the act. Though the ESA has become controversial, a study published in 2019 credited it with saving 99% of listed species from extinction. Some species have even recovered beyond needing protection, and have been delisted under the act. Other protected species remain at risk but have recovered significantly from their record low numbers that preceded their ESA listing.
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Three State Attorneys General Protest FERC in the Approval of Western Gas Project
Washington, Oregon, and California are asking the Federal Energy Regulatory Commission to reconsider its approval of a major natural gas project in the West, setting the stage for a likely legal battle. FERC failed to justify why the project was needed when approving it in October. The commission also erred in dismissing states’ concerns that expanding natural gas infrastructure would clash with their clean energy policies. FERC typically has 60 days to respond to rehearing requests. If the commission does not respond, the request is considered denied, at which point those asking for reconsideration can file a lawsuit. Officials in Idaho, however, have written FERC letters in support of the gas project.
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BLM Bans the Use of 'Cyanide Bombs' to Kill Predators
The Bureau of Land Management banned the use of spring-loaded devices that eject sodium cyanide to kill coyotes and other predators on its lands. BLM announced the signing of an updated memorandum of understanding (MOU) with the Agriculture Department’s Wildlife Services program prohibiting use of the M-44 devices — referred to by critics as “cyanide bombs” — on the 245 million acres the bureau oversees.
USDA’s Wildlife Services program, which is tasked with destroying animals that are deemed a threat to crops and livestock, has for years used the devices that are meant to kill coyotes and other animals. BLM was the only Interior Department agency that used the devices, according to a coalition of environmental groups that filed a petition asking the bureau to ban them. They argued the M-44s are dangerous, as they can be accidentally triggered by children or pets. There were existing bans and limits on their use already in place on bureau lands in four states: Idaho, Oregon, California, and Washington state.
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EPA's New Maui Functional Equivalence Guidance is Guidance in Name Only as Confusion Continues to Reign Over the Reach of the Clean Water Act
The EPA issued draft guidance regarding when a discharge of a “pollutant” to groundwater is the “functional equivalent” of a discharge to a Water of the United States requiring a NPDES permit under the Clean Water Act. It was only three years ago that a six Justice majority of a much different United States Supreme Court held that a discharge to groundwater of a pollutant, as broadly defined in the Act, that was the “functional equivalent” of a discharge of that pollutant to a Water of the United States was prohibited by the Clean Water Act unless it had the benefit of a difficult to obtain NPDES permit.
As a result, the County of Maui was required to obtain a NPDES permit for its injection of treated effluent from its wastewater treatment facility into wells that were sufficiently close to the Pacific Ocean that the injection was deemed to be the functional equivalent of a discharge to the ocean. The Supreme Court left it to District Court Judges, and perhaps EPA and the States, to sort out what this would all mean.
EPA on Nov. 21 quietly released its draft guidance for applying the Supreme Court’s 2020 ruling in County of Maui v. Hawaii Wildlife Fund, specifically as it pertains to applying the court’s “functional equivalence” standard for determining which discharges through groundwater may require coverage under a national pollutant discharge elimination system (NPDES) permit.
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California Valley Miwok Tribe v. Haaland, 2023 WL 8005033 (D.D.C. Nov. 17, 2023). Plaintiffs, previously determined to be members of the California Valley Miwok Tribe and eligible to participate in initial organization of the Tribe under the terms of the Indian Reorganization Act, sought, and were denied, a preliminary injunction to stop participation of additional persons determined by the Assistant Secretary for Indian Affairs to also be eligible to participate in the organizational process.
Peterson v Harrah’s NC Casino Co., 2023 WL 8103163 (W.D.N.C. Nov. 21, 2023). Casino dealer’s discrimination claims against company that managed tribal casino were dismissed because the tribal gaming entity, not the management company, was the dealer’s employer, and the tribal gaming company was a necessary and indispensable party that could not be joined due to tribal sovereign immunity.
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petitioner in a detention facility pursuant to agreement with the Tribe—“[i]t is up to the tribal prosecutor to decide whether she wants to assist the Sheriff in this matter, but if the Sheriff is unable to respond to Cantrell's petition, he will be directed to release Cantrell from custody.”
United States v. Hemingway, 2023 WL 8004817 (E.D. Okla. Nov. 17, 2013). Justice Gorsuch’s concurrence in Haaland v. Brackeen, calling into question the holding in U.S. v. Kagama, the 1886 case that upheld the constitutionality of the Major Crimes Act (MCA) as an exercise of Congress’ plenary power over tribal affairs, was not a basis for dismissing charges filed against defendant pursuant to the MCA.
United States v. Gordon, 2023 WL 8014358 (9th Cir Nov. 20, 2023)(unpublished). Concurring opinions in Haaland v. Brackeen, calling into question the holding in U.S. v. Kagama, the 1886 case that upheld the constitutionality of the Major Crimes Act (MCA) as an exercise of Congress’ plenary power over tribal affairs, have no binding precedential value and are not a basis for dismissing charges filed against defendant pursuant to the MCA.
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CWAG ANNUAL INDIAN LAW SEMINAR |
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LAST CHANCE!
CWAG’s annual 90 minute webinar on Indian law issues of concern will be held December 7. This year’s webinar focuses on techniques for resolving jurisdictional impediments when negotiating agreements with Tribes, and includes presentations by former CWAG Director Tom Gede, currently Counsel at Morgan, Lewis & Bockius LLP., and Adam Crepelle, Assistant Professor, Loyola University Chicago School of Law. CLE credits are available for most states. You can register for the webinar at the West LegalEdCenter, using the following link below!
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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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