News & Updates from WAGLAC
August 2, 2021
The WAGLAC Fall meeting will be held on October 10 - 12 at the Westin in Seattle, WA.
There will be an Endangered Species Act seminar in addition to the traditional roundtable.

The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day, 2022. Meeting details to follow.
Bahr v. Regan

Ninth Circuit rejects Clean Air Act challenge to EPA determination that Arizona had achieved required reduction in ozone concentration

The Environmental Protection Agency classified the Phoenix-Mesa, Arizona area in 2015 as a marginal nonattainment area under the CAA. The agency specified a 2015 attainment date, but the State failed to meet that requirement with respect to the applicable ozone standard. EPA therefore reclassified the area to the status of moderate nonattainment and imposed a revised attainment date for July 2018. As a result of a July 2015 eastern California forest fire (the Lake Fire), the Arizona Department of Environmental Quality notified EPA in 2016 that it would seek to exclude June 20, 2015 CAA exceedances pursuant to the agency’s Exceptional Events Rule. The Rule implements CAA § 7619(b) that directs EPA to “exclude any data of a concentration of a pollutant above the [National Ambient Air Quality Standard] (‘exceedances’) if the air quality was influenced by ‘exceptional events.’” ADEQ submitted its initial request under a 2007 version of the Rule and then supplemental supporting demonstrations after the Rule was revised in 2016. The 2016 Rule is somewhat less restrictive than the 2007 Rule. Applying the revised Rule, EPA accepted ADEQ’s request and proposed in June 2019 to issue a determination under CAA § 7511(b)(2) that the Phoenix attainment area had satisfied the ozone NAAQS by the July 2018 deadline once the Fire Lake-related exceedances were omitted from consideration. The determination additionally proposed suspending the ozone attainment contingency measures then included pursuant to CAA § 7502(c)(9) in the state implementation plan.
Administration/Water Quality: Groundwater/Maui Guidance
Western States Water Council (WSWC) Newsletter
July 30, 2021

"On July 19, the National Groundwater Association (NGWA) wrote Environmental Protection Agency (EPA) Assistant Administrator for Water Radhika Fox urging EPA to rescind the January 2021 post-Maui guidance regarding National Pollutant Discharge Elimination System (NPDES) permits for discharges to groundwater. “Rescinding the guidance memorandum will eliminate the challenges and possible confusion created now for states that already have dischargers applying for permits and renewals based on the guidance memorandum.”
AG Mark Brnovich Leads Legal Fight to Ensure Safe Drinking Water After Biden Administration Setbacks
July 30, 2021

"Attorney General Mark Brnovich is leading a coalition of attorneys general to hold the Biden Administration accountable for delaying new rules that promote safe drinking water in the United States. The coalition filed a petition for review at the U.S. Court of Appeals for the D.C. Circuit challenging the U.S. Environmental Protection Agency (EPA)’s “Delay Rule” that postpones the Trump Administration’s Lead and Copper Rule Revisions (LCRR)."
Western Governors' Association (WGA) Shares Policy, Process Improvements as EPA Considers Revising Aspects of Clean Water Act
July 28, 2021

"The Western Governors’ Association shared policy resolutions about water in the West, as well as process improvements to ensure the effective administration of state authority, for the U.S. Environmental Protection Agency to use as it reconsiders the Clean Water Act Section 401 Certification Rule."
Maine Will Make Companies Pay For Recycling. Here’s How It Works
The New York Times
July 21, 2021

'Recycling, that feel-good moment when people put their paper and plastic in special bins, was a headache for municipal governments even in good times. And, only a small amount was actually getting recycled.

Then, five years ago, China stopped buying most of America’s recycling, and dozens of cities across the United States suspended or weakened their recycling programs.

Now, Maine has implemented a new law that could transform the way packaging is recycled by requiring manufacturers, rather than taxpayers, to cover the cost. Nearly a dozen states have been considering similar regulations and Oregon is about to sign its own version in coming weeks.

Maine’s law “is transformative,” said Sarah Nichols, who leads the sustainability program at the Natural Resources Council of Maine. More fundamentally, “It’s going to be the difference between having a recycling program or not.”
Biden Bid to Revamp Trump Water Rule Faces Long Slog
E&E News
July 30, 2021

"The Biden administration’s new plan for replacing a Trump-era Clean Water Act rule that pulled back federal protections for millions of streams and wetlands runs the risk of getting bogged down in its effort to make it legally bulletproof, experts say.

EPA and the Army Corps of Engineers said they plan to pursue a two-pronged approach of conducting rulemakings to both revoke the Trump administration’s Navigable Waters Protection Rule and, at the same time, begin the process of crafting a replacement

What’s more, the Biden administration has vowed to work with industry, farmers, environmental groups, tribes and states in an effort to get public comment and craft an “enduring” solution.

Experts said the approach, while praise-worthy in attempting to be comprehensive in building a strong record of defense, may move too slowly and pose a threat to wetlands and streams that may not currently qualify for federal protection as the Trump-era rule stays in place."
Enviros Ask 4th Cir to Revive Challenge to Trump-Era NEPA Reforms
July 30, 2021

"A coalition of conservation groups appealed a ruling by a federal judge in Charlottesville, Virginia, who tossed their lawsuit seeking to undo Trump-era reforms of the National Environmental Policy Act (NEPA), a bedrock environmental law.

Wild Virginia and more than a dozen other green groups had sued the White House Council on Environmental Quality (CEQ) last year to undo a rule that narrows ways to implement NEPA. Now they're asking the 4th U.S. Circuit Court of Appeals to review a June decision by U.S. District Judge James Jones that dismissed their claims.

The U.S. Department of Justice and the White House did not immediately respond to a request for comment."
Montana AG Demands Biden End 'Job-Killing' Extension on NEPA Reform
July 30, 2021

"Montana Attorney General Austin Knudsen released a letter demanding that the Biden administration reverse its recent decision to extend by two years a deadline for federal agencies to implement Trump-era reforms of a bedrock environmental law.

Knudsen in a letter addressed to the White House Council on Environmental Quality (CEQ) urged it to withdraw an interim rule it passed last month that pushed back to 2023 a September deadline for agencies to come up with procedures to implement Trump's overhaul of the National Environmental Policy Act (NEPA)."
Montana Water Court Decides Tribal Water Rights In First-Of-Its-Kind Decision
Montana Free Press
July 27, 2021

"More than 800 water rights claimed by members of the Turtle Mountain Band of Chippewa Indians have been pulled out of legal limbo following the Montana Water Court’s issuance of a first-of-its-kind order this month. 

The final decree is an 896-page order that covers 12 water basins across the state. The water rights in question are claimed by the United States on behalf of the tribe.

The order by Chief Water Judge Russell McElyea represents the first time the Montana Water Court has reached resolution on tribal reserved water rights outside of a negotiated compact like the Confederated Salish and Kootenai Tribes water compact, which took more than a decade to reach ratification by the Montana Legislature, U.S. Congress and, late last year, the tribes. "
Dunleavy Administration Maintains Silence on Plan to Change Alaska's Water Rights System
Anchorage Daily News
July 29, 2021

"Mum’s the word from Department of Natural Resources officials regarding their plan to fundamentally change the state’s water rights system.

House Fisheries Committee chair Rep. Geran Tarr, D-Anchorage, said DNR representatives declined to attend a July 27 hearing on the agency’s proposed changes to in-stream flow reservations and other water regulations because she was told they are in a “quiet period” while they respond to public comments from the extended period that closed April 2."
Ninth Circuit Kills Pork Industry Challenge to California Confinement Rules
Courthouse News
July 28, 2021

"California’s voter-approved animal confinement standards for meat sold to Golden State consumers do not violate the Commerce Clause of the Constitution by forcing out-of-state producers to change their business operations, a Ninth Circuit panel ruled.

The 24-page order penned by U.S. Circuit Judge Sandra S. Ikuta, a George W. Bush appointee, marks the latest blow to the meat industry’s attempt to kill standards enshrined in Proposition 12, a law approved by California voters in 2018 which regulates the production of veal, pork and eggs sold in the state.

The law, also known as the Farm Animal Confinement Initiative, forbids the sale of meat from hogs born of sows not housed in conformity with its “stand-up-turn-around requirements.” Pigs must be able to lie down, stand up, turn around and fully extend their limbs without touching the sides of their stalls or another animal."
Coalition Seeks Relisting of Gray Wolves in US West
Associated Press
July 29, 2021

"Wildlife advocates petitioned federal officials to restore federal protections for gray wolves throughout the U.S. West after Idaho and Montana passed laws intended to drastically cut their numbers."
Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack, No. 20-35453 (9th Cir. 2021)
Justia US Law

"The Beef Promotion and Research Act of 1985 imposes a $1 assessment, or “checkoff,” on each head of cattle sold in the U.S. to fund beef consumption promotional activities. The Secretary of Agriculture oversees the program. The Montana Beef Council and other qualified state beef councils (QSBCs), receive a portion of the checkoff assessments to fund promotional activities and may direct a portion of these funds to third parties for the production of advertisements and other promotional materials. R-CALF's members include cattle producers who object to their QSBCs’ advertising campaigns. In 2016, the Secretary entered into memoranda of understanding (MOUs) with QSBCs which granted the Secretary preapproval authority over promotions and allowed the Secretary to decertify noncompliant QSBCs, terminating their access to checkoff funds. The Secretary must preapprove all contracts to third parties and any resulting plans. QSBCs can make noncontractual transfers of checkoff funds to third parties for promotional materials which do not need to be pre-approved. Plaintiffs contend that the distribution of funds under these arrangements is an unconstitutional compelled subsidy of private speech.

The Ninth Circuit affirmed summary judgment in favor of the federal defendants after holding that R-CALF had associational standing and direct standing to sue QSBCs. The speech generated by the third parties for promotional materials was government speech, exempt from First Amendment scrutiny. Given the breadth of the Secretary's authority, third-party speech not subject to pre-approval was effectively controlled by the government.
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Editions of the Deskbook are published annually by Thomson Reuters, and the 2021 Edition was issued during the week of July 19, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category and in hard copy.

Please reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
In Interest of K.B., 2021 ND 106, 961 N.W.2d 293 (June 24, 2021)Parental-rights-termination proceeding was remanded for the district court to make detailed findings, as required by the Indian Child Welfare Act, that a mother’s continued custody of two Indian children would likely result, beyond a reasonable doubt, in their serious emotional or physical harm.
Cayuga Nation v. Tanner, ___ F.4th ___, 2021 WL 3160077 (2d Cir. Jul. 27, 2021) Tribe’s preemption challenge to a village’s gaming ordinance was not barred by issue or claim preclusion arising from earlier litigation over village regulation of the zoning of and construction on the involved parcel, and the ordinance was preempted by Indian Gaming Regulatory Act with respect to class II gaming on the parcel.
Carney v. Washington, ___ F. Supp. 3d ___, 2021 WL 3205799 (W.D. Wash. Jul. 29, 2021)Motion to remand action over alleged trespass and easement right by non-Indian landowner against a state commission and a tribe was denied because the complaint raised a substantial federal question, it contained claims subject to complete preemption, and the suit was deemed subject to federal officer removal.
AG Alliance Cannabis Newsletter

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Western Attorneys General Litigation Action Committee
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 40 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
Contributions For WAGLAC Newsletter
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.