News & Updates from CWAG
May 2, 2023
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Two rare riparian plants receive Endangered Species Act protections
4/7/23 | Joe Bushyhead
The U.S. Fish and Wildlife Service granted Endangered Species Act (ESA) protections to two rare Southwestern riparian plant species–the Wright’s marsh thistle (Cirsium wrightii) and South Llano springs moss (Donrichardsia macroneuron). WildEarth Guardians petitioned the Service to list the species in 2008 and 2007, respectively.
The Wright’s marsh thistle, a member of the sunflower family, grows a single stalk up to eight feet tall and produces white or pink flowers in the late summer and fall. It typically grows in alkaline soils near seeps, springs, stream edges, and other marshy areas. Once found in Arizona, New Mexico, and Texas, as well as the Mexican states of Chihuahua and Sonora, most of these plants are now present in only eight locations in New Mexico, covering a total area of just 106 acres.
The South Llano springs moss is an even rarer species, growing in just one known location: Seven Hundred Springs on the South Llano River, in central Texas. An aquatic moss, it grows in deep interwoven mats on submerged and partially submerged rocks in the travertine spring’s outflow. This sole location measures just 33 feet by 328 feet in size.
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Taking or Importing of Marine Mammals: Port of Nome Modification Project in Nome, AK
National Marine Fisheries Service (NMFS) has received a request from the U.S. Army Corps of Engineers (USACE) for authorization to take marine mammals incidental to the Port of Nome. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
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Oregon utility lands battery site big enough to power Portland
By: Jason Plautz | 5/1/23 | ENERGYWIRE
Oregon’s largest electric utility announced a pair of new projects that collectively represent the second-biggest battery storage facility by a utility in the country.
Portland General Electric Co. (PGE) will add a total of 400 megawatts of new storage across the two sites, enough to power 260,000 homes for four hours under normal grid conditions. Battery storage is widely seen as a necessary component of the transition to a clean energy grid because it can save and dispatch energy at times when the sun is not shining and the wind is not blowing. National deployment of battery projects has ramped up as the technology has become more readily available and cost efficient, especially with the passage of a tax credit for storage as part of the federal Inflation Reduction Act signed last year.
Both of PGE’s new projects came out of an all-source request for proposals in 2021. One 200-MW facility known as Seaside was developed by energy storage and renewable energy firm Eolian LP and will be owned and operated by PGE. It is expected to be in service in 2025. The other, the 200-MW Troutdale project, was also developed by Eolian. NextEra Energy Resources LLC owns the facility and will operate it. PGE will purchase the output of the project through a 20-year storage capacity agreement. That facility is expected to go online by the end of 2024.
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Will a new national park mend tribal ties?
By: Rob Hotakainen | 4/27/23 | GREENWIRE
With Macon marking its bicentennial this year, even The New York Times put the small Georgia city of roughly 100,0000 on its list of the top 52 places to visit in 2023. Amid all the buzz, only one thing seemed to be missing: a new national park, something that has eluded the city for years.
If city officials get their way, the National Park Service could soon team up to co-manage a new park on the outskirts of town with citizens of the Muscogee (Creek) Nation of Oklahoma, more than 200 years after their ancestors were forced to relinquish their land and head west. They're selling it as a potentially significant step for the current administration's efforts to work with Native American tribes in management of public lands. As a sign of their willingness to work together, tribal and city officials in January decided to fly the tribe’s flag high above Macon City Hall.
Georgia already has 11 sites that are managed by NPS, including the picturesque Cumberland Island National Seashore, the Fort Pulaski National Monument, and historical parks that honor the birthplaces of two of the state’s most famous sons: the Rev. Martin Luther King Jr. in Atlanta and former President Jimmy Carter in the small town of Plains.
The existing historical park features a collection of Native American mounds, including the 55-foot Great Temple Mound, which was built in four stages, with clay steps going up the northern slope. According to NPS, it took an estimated 10 million baskets of dirt, each weighing 60 pounds, to build the mound.
The historical park, which includes a large patch of both forest and swamps, contains more than 800 archeological sites. In 1874, the construction of a railroad disrupted a funeral mound at the site. The remains of more than 100 people were found, with some of the bodies buried in shell or copper ornaments. The park was also the site of the largest archaeological dig in U.S. history in the 1930s, when hundreds of thousands of artifacts were discovered, including pottery, metals, arrowheads, spear points, stone tools, pipes, bells, jewelry, seeds and bones.
After decades of waiting, the Muscogee (Creek) Nation participated in one of the largest repatriation ceremonies in history with NPS in 2017, when the remains of 113 people and more than 42,000 funerary objects were returned to the tribe by the park service and the Smithsonian Institution.
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NPS to reopen boat launches as Lake Powell water levels rise
By: Jennifer Yachnin | 5/1/23 | GREENWIRE
The National Park Service is preparing to reopen a host of boat launches around Lake Powell, as water levels in the nation's second-largest reservoir begin to rebound from record lows with the aid of this winter's enormous snowpacks. According to the Bureau of Reclamation, water levels in Lake Powell could rise to 3,576.50 feet by late September. That would amount to a nearly 57-foot rise from the lake's record low of just under 3,520 feet last month.
As the record snow from a series of winter storms in the West begin to melt, Reclamation predicts as much as 11.3 million acre-feet of water could flow into Lake Powell. NPS announced that those increases will allow it to reopen as many as eight boat launches or access points, split between sites in Page, Arizona, and both Bullfrog and Halls Crossing, Utah. Some of the sites are currently open, but rising water levels will allow larger watercraft to be launched from those ramps.
Reclamation seized on spring snowmelt to conduct a 72-hour "high flow release" from the Glen Canyon Dam last month, increasing water from the dam to a peak of 39,600 cubic-feet per second to help flush sediment from the river channel and address invasive species.
Despite the increasing water levels, however, Reclamation warned that the snowmelt will not erase the loss of flows from the years of persistent drought in the Colorado River Basin. In mid-April, Reclamation reported that both Lakes Powell and Mead contained 26 percent of their combined capacities.
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The Environment and Natural Resources Division is hosting upcoming training sessions for state government environmental law practitioners beginning on May 9.
Each training is virtual and free to attend!
If you have any questions contact:
Counsel for State and Local Affairs | Law and Policy Section | Environment and Natural Resources Division | U.S. Department of Justice
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Session 1: Common Interest Agreements
Zoom Webinar
May 9, 2023, 2:00pm - 3:30pm Eastern Time
This session will begin with opening remarks by ENRD's Principal Deputy Assistant Attorney General Kate Konschnik highlighting the importance of joint state and federal environmental enforcement efforts. These remarks will be followed by a presentation by the Senior Litigation Counsel for E-Discovery, Sarah Himmelhoch, regarding the common interest doctrine (also known as the joint prosecution privilege) as it is interpreted and applied in U.S. District Courts. The presentation will address the scope of the doctrine, the benefits and risks of sharing information pursuant to such agreements, and best practices in the drafting and implementation of the agreements.
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Session 2: Effective Expert Reports in Federal Cases - Zoom Webinar
June 13, 2023, 2:00pm - 3:00pm Eastern Time
Most environmental enforcement actions require testimony by expert witnesses. This interactive presentation will discuss working with expert witnesses when reviewing and finalizing expert disclosures. After reviewing the federal requirements for expert disclosures, participants will be asked to review excerpts of actual draft expert reports and spot issues related to compliance with the legal requirements and effective strategy. In a guided discussion of these issues, participants will discuss how to remedy the identified issues and how to effectively work with various types of experts and personalities to ensure an accurate but persuasive presentation of the facts.
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Session 3: Bringing Civil Cases to Protect Animal Welfare - Zoom Webinar
July 13, 2023, 2:00-3:00 PM Eastern Time
This presentation, provided by Trial Attorney Mary Hollingsworth, who has handled many of ENRD's animal welfare protection civil cases, she will review the civil authorities available and discuss the types and nature of evidence required to establish an effective claim.
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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 by several of ENRD's Environmental Justice Coordinators. 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, particularly with respect to decisions regarding the appropriate relief for environmental violations.
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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 any questions.
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Gilliland v. Barteaux, 2023 WL 3066122 (N.D. Okla., April 24, 2023). Federal district court lacked jurisdiction to adjudicate habeas corpus petition when petitioner was not in the custody of the tribal court due to her having relocated to Poland.
Chicken Ranch Rancheria of Me-Wuk Indians v. California, ___ F.4th ___, 2023 WL 3066240 (9th Cir., April 25, 2023). Given the lack of any state-law claims, the court could not apply state laws governing attorney-fee awards to award plaintiff tribes attorney fees in an IGRA lawsuit.
In the Matter of S.J.W., Minor Child, 2023 OK 49, 2023 WL 3070621 (Okla. S. Ct., April 25, 2023). A child custody proceeding involving a Creek Indian child domiciled in Chickasaw Nation reservation is subject to the concurrent territorial jurisdiction of the State of Oklahoma and the Creek Nation, but not the Chickasaw Nation.
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Blossom Old Bull v. U.S., 2023 WL 3098327 (D. Mont., April 26, 2023). Tribal police officer sued in her official capacity by estate of person killed during high speed chase was entitled to tribal sovereign immunity.
HCI Distribution, Inc. v. Hilgers, 2023 WL 3122201 (D. Neb., April 27, 2023). Applying Bracker, the court concludes that the state could not impose escrow and bond requirements on the Winnebago Tribe’s on-reservation manufacture, distribution, and sale of cigarettes, but could impose such requirements on sales made within another tribe’s reservation.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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