News & Updates from CWAG
May 16, 2023
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Supreme Court Pork Ruling Boosts States' Rights: Justices Blocked Legal Claims Against a California Animal Welfare Law, Potentially Chilling Similar Challenges Against State Climate Rules
By: Pamela King | 05/11/2023 | Greenwire
The Supreme Court said pork producers may not proceed with their claims against a California animal welfare law in a ruling that may bolster states’ authority to set their own climate regulations.
In a decision known as the National Pork Producers Council v. Ross, the high court affirmed a ruling by a lower bench blocking farmers from raising a dormant commerce clause argument against the Golden State’s spacing requirements for pork-producing sows. Litigants have used the dormant commerce clause — the implicit prohibition in the Constitution against state actions that impede interstate economic dealings — to fight state energy and climate rules.
California’s Proposition 12, the law at issue in the National Pork Producers case, requires that pork sold in the state come from facilities where sows have at least enough room to stand up and turn around. California consumes about 13 percent of the nation’s pork and imports nearly all of that meat, and producers said the state law affects operations far outside state borders. In recent years, dormant commerce clause challenges have also been raised against a coal export ban in Washington and fuel economy standards in California and Oregon.
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Feds Ditch Ambitious Endangered Species Mitigation Goal
By: Michael Doyle | 05/12/2023 | Greenwire
The Fish and Wildlife Service announced revised mitigation policies that will guide what farmers, miners, energy developers and others may have to provide if permitted to harm protected species and habitat.
The Endangered Species Act-related policy is more of an opeators’ manual, providing guidance to FWS personnel as they seek to mitigate losses to endangered and threatened species through compensatory mitigation mechanisms such as conservation banking and in-lieu fee programs.
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Some States Hope to Move Climate-Threatened Species, But Others Say No Way
Alex Brown Stateline | May 13, 2023
North Carolina might need to move a snail. A tiny mollusk known as the magnificent ramshorn has long made its home in the state’s freshwater coastal ponds. But sea level rise and storm surges are making those ponds saltier, and the snail can’t tolerate salt. The coastal plain that was once the species’ habitat has no snails left — the only surviving members are bred in captivity.
At least a dozen states weighed in through comment letters sent to the federal agency. Wildlife officials in Oregon, Florida and Missouri all said species may need to be moved to new areas to save them from climate change, but urged the feds to craft strong safeguards that acknowledge the ecological risks of such maneuvers. Leaders in New Mexico and Montana opposed it altogether.
Many states — both supporters and opponents of the rule — also expressed concern about social and economic consequences. Areas with endangered animals and plants can face severe limitations on development, ranching, mining and other land-use activities that could disrupt the species. While states weigh the ecological and economic repercussions of the proposal, many environmental advocates say it would be more costly not to act.
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EPA Must Regulate Perchlorate Levels in Water, Court Says
Samantha Hawkins, Legal Reporter | May 9, 2023
The US Environmental Protection Agency must regulate perchlorate levels in drinking water, after the D.C. Circuit ruled that the agency can’t withdraw its “regulatory determination” saying it would do so.
The EPA concluded in 2020 that perchlorate doesn’t appear in enough public water systems, or at high enough levels, to cause concern, and it withdrew its regulatory determination under the Safe Drinking Water Act that required it to regulate the chemical, which is found in rocket fuel, fertilizers, and fireworks. The EPA wrote the determination in 2011.
Perchlorate can cause thyroid problems and developmental impairments in fetuses. Several other lawsuits have been brought over water contamination from the chemical in recent years. In 2021, a jury found SQM, a subsidiary of a Chilean mining conglomerate, liable for perchlorate contamination from imported fertilizer. The $48 million award was later vacated, as evidence only supported $30.2 million in damages. The Environmental Working Group’s tap water database estimates that perchlorate has been detected by 379 water utilities serving an estimated 12 million people.
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'Clinging To Survival': Missouri Crayfish Get Endangered Species Act Protection
Ryan Collingwood | Springfield News-Leader | May 13, 2023
A pair of Missouri crayfish species were recently granted Endangered Species Act protection, according to the U.S. Fish and Wildlife Service. The Big Creek crayfish and the St. Francis River crayfish have been declining in population due to competition with an invasive woodland crawfish species, as well as pollution from southeast Missouri mining.
The U.S. Fish and Wildlife Service filed for endangered species protection in 2020 for the two types of Missouri crawfish, fearing that the native species may have their streams completely invaded within 50 years. As part of the endangered species protections, areas essential to the conservation of the crayfish species have been designated as critical habitat.
For the two-inch, olive-tan Big Creek crayfish, that includes 1,069 river miles of critical habitat along Big Creek and Twelve-mile Creek. The dark-brown St. Francis River crayfish received 1,043 miles of critical habitat across Iron, Madison, St. Francois, Washington and Wayne counties above the Wappapello Dam.
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Senate Votes To Limit Critical Habitat Designation for Imperiled Species and Drop Bat’s Protections
By John Flesher | May 11, 2023
The U.S. Senate voted narrowly to overturn two policies intended to protect endangered species. Senators called for reinstating a rule adopted but rescinded that limited which lands and waters could be designated as places for imperiled animals and plants to receive federal protection. They also proposed dropping a 2022 federal designation of the northern long-eared bat as endangered. Earlier this month, the Senate voted to undo federal protections for the lesser prairie chicken, a rare grouse found in parts of the Midwest and Southwest.
Under the 1973 law, federal agencies cannot fund, permit or take actions that would destroy or severely damage critical habitats. It doesn’t restrict activities on private land unless government approval or financial support is involved.
The Fish and Wildlife Service declared the northern long-eared bat endangered last November, raising its status from threatened. It is among 12 bat types hammered by white-nose syndrome, a fungal disease that has reduced its numbers by 97% or more in some areas. The bat is found in 37 eastern and north-central states, plus Washington, D.C., and much of Canada.
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The Bureau of Land Management Finalized a Plan This Week to Significantly Reduce the Number of Horses on Public Lands in Southern Wyoming
By: Scott Streater | 05/11/2023 | Greenwire
A decade-long battle over the management of federally protected wild horses covering millions of acres of public-private lands in southern Wyoming is headed to federal court. A coalition of wild horse and conservation advocates filed a lawsuit challenging the Bureau of Land Management's recent decision to reduce wild horse populations in the region to comply with an April 2013 legal settlement with ranchers who demanded the bureau remove stray animals encroaching on their private property.
BLM's plan was outlined in a final environmental impact statement released in May 2022. Though the Wyoming plan is tied to a decade-old legal settlement, BLM has been working the past few years to reduce the numbers of wild horses and burros on federal rangelands, citing concerns that the drought conditions and warming temperatures across the West could reduce forage and water to levels that no longer support the animals.
The bureau has been preparing to implement some version of the settlement plan for years, and in late 2021 and early 2022 completed one of the largest wild horse roundups in the bureau's history in the Rock Springs planning area that resulted in the permanent removal of about 3,500 animals.
The BLM agreed to the settlement at issue in 2013, resolving a lawsuit filed two years earlier by the Rock Springs Grazing Association. The Rock Springs Grazing Association lawsuit demanded BLM remove hundreds of wild horses that were grazing on its property within a roughly 2-million-acre federal grazing allotment in southern Wyoming.
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North Dakota Governor Signs Law Protecting Tribal Adoptions That Protects Tribal Cultures by Codifying the Federal Indian Child Welfare Act into State Law
By Trisha Ahmed | Associated Press | May 8, 2023
North Dakota's Governor Doug Burgum has signed a bill into law to protect tribal cultures by codifying the federal Indian Child Welfare Act into state law. The federal Indian Child Welfare Act, enacted in 1978, gives preference to Native American families in foster care and adoption proceedings of Native children. Also known by the acronym ICWA, it was created in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies. Several other states — including Montana, Wyoming and Utah — have considered codifying the act this year, as the U.S. Supreme Court considers a challenge to the federal law.
The outcome could undercut federal law. Supporters of the law include Native American leaders who have long championed it as a way to preserve Native families and culture. Opponents include non-Native families who have tried to adopt American Indian children in emotional legal cases.
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The U.S. Board on Geographic Names approved the name change from Indian Garden to Havasupai Gardens, the tribe's traditional farming area, in November after the tribe lobbied for years to reclaim a part of its heritage
By: Associated Press | 05/15/2023 |Greenwire
The U.S. Board on Geographic Names approved the name change for Havasupai Gardens, the tribe's traditional farming area, in November after the tribe lobbied for years to reclaim a part of its heritage and force a historical reckoning over the treatment of Havasupai people.
The Havasupai Tribe was landless for a time after the removal until the federal government set aside a plot in the depths of the Grand Canyon for tribal members. It was slashed to less than a square mile and, nearly a century later, enlarged substantially in 1975 in what was one of the biggest land transfers to a tribe.
Today, about 500 of the nearly 770 tribal members live in Supai Village on the reservation adjacent to the national park, so remote it can be reached only by foot, mule or helicopter. It's known for the towering waterfalls that give the Havasupai, or Havasu 'Baaja, their name — "people of the blue-green waters." Thousands of tourists from around the world visit annually, providing the tribe's largest source of income.
It parallels a broader trend in which the park has been working with nearly a dozen Native American tribes with ties to the Grand Canyon on exhibits, cultural demonstrations, and first-person audio and video. The work has gained the attention of other national park units such as the Golden Gate National Recreation Area and the Point Reyes National Seashore in California, plus the American Indian Alaska Native Tourism Association.
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The Environment and Natural Resources Division is hosting upcoming training sessions for state government environmental law practitioners. Each training is virtual and free to attend!
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 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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In re E.W ., ___ Cal.Rptr.3d ___, 2023 WL 3296698 (Ct. App. 1st. Dist., May 8, 2923). Agency met its duty of initial inquiry into Indian child status when the mother denied Indian ancestry and asserted a genetic test as proof, the father denied Indian ancestry, and the maternal aunt and paternal grandfather denied Indian ancestry.
U.S. v. Phillips, 2023 WL 3346096 (E.D. Okla., May 10, 2023). An act by the tribal defendant in an Indian country punishable as “animal crushing” under federal law could not also be prosecuted under state animal cruelty laws pursuant to provisions of the Assimilative Crimes Act.
Oklahoma v. Brester, 2023 OK CR 10, ___ P.3d ___, 2023 WL 3408608 (Ct. Crim. App., May 11, 2023). The district court erred in its dismissal of Oklahoma’s pending cases against an Indian defendant on the basis that the crimes occurred within Indian reservations—while the district court correctly rejected the State’s assertion that the reservations had been disestablished, the Supreme Court’s holding in Castro-Huerta left unresolved whether the State’s authority to prosecute Indians for crimes against non-Indians had been preempted.
Jimmy E. v Alaska, Dept. of Health & Social Services, ___ P.3d ___, 2023 WL 3401864 (Alaska, May 12, 2023). Father’s assertion that his mother was a shareholder in one of 12 regional corporations established by the Alaska Native Claims Settlement Act was sufficient to establish a due diligence inquiry into the Indian status of the children.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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