News & Updates from WAGLAC
August 30, 2021
UPCOMING WAGLAC MEETINGS
The WAGLAC Fall meeting will be held on October 10 - 12 at the Westin in Seattle, WA. An in person/online attendance format will be used for this meeting. There will be an Endangered Species Act seminar in addition to the traditional roundtable.

To register, please fill out the attached registration form at the bottom of the below meeting announcement and email directly to Joy Orr at Joy.Orr@cwagweb.org if you plan to attend the meeting in person or via Zoom. 
The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day, 2022. Meeting details to follow.
ENVIRONMENT
EPA to Overhaul Pollution Standards for Passenger Vehicles and Heavy-Duty Trucks, Paving Way for Zero-Emission Future
U.S. Environmental Protection Agency
August 5, 2021

"The Environmental Protection Agency (EPA) is proposing to set robust federal greenhouse gas (GHG) emissions standards for passenger cars and light trucks to secure pollution reductions through Model Year (MY) 2026. The proposal, which revises standards set by the previous administration, also outlines the Agency’s plans to initiate a subsequent rulemaking to set standards for MY 2027 and beyond, to speed the transition of the light-duty vehicle fleet toward a zero emissions future. In addition, EPA is announcing plans to update air pollution standards for heavy-duty vehicles."
EPA Determines Three Agricultural Insecticides Could Threaten Endangered Species
The Hill
August 27, 2021

"The Environmental Protection Agency (EPA) released draft evaluations identifying three common agricultural insecticides as likely harmful to the majority of endangered plants and animals, including all 38 endangered amphibians.

In the studies, the EPA identified three insecticides, all part of a group known as neonicotinoids: clothianidin, imidacloprid and thiamethoxam. The three are used for ornamental vegetation as well as crops and turf. According to the draft evaluations, each of the three meet the criteria for “likely to adversely affect" (LAA) at least one endangered or protected species.

The neonicotinoids in question affect endangered and protected species at varying levels, according to the EPA. Imidacloprid will likely adversely affect 1,445 plant and animal species, nearly 80 percent of all species, and affect 658 species’ designated critical habitats, according to the agency."
Association of Irritated Residents v. USEPA
Courthouse News Service

“The U.S. Environmental Protection Agency must require states to have meaningful contingency plans in place for when efforts to reduce air pollution to safe levels fail, a Ninth Circuit panel ruled Thursday. The three-judge panel found the EPA improperly approved a deficient contingency plan proposed by the state of California to reduce emissions in the San Joaquin Valley, one of the most air-polluted areas in the United States.”
BNSF Railway Co. v. Clark County
Justia US Law

“BNSF Railway sought a declaration that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts Clark County, Washington’s permitting process. Clark County asserted that BNSF needed to obtain a permit for a project to upgrade an existing track and construct a second track in the Columbia River Gorge.

The Ninth Circuit affirmed summary judgment in favor of BNSF. Under the ICCTA, the Surface Transportation Board has exclusive jurisdiction over rail carriers and track construction. If an apparent conflict exists between the ICCTA and a federal statute, then the courts must strive to harmonize the two laws, giving effect to both if possible. The court rejected an argument that the Columbia River Gorge National Scenic Area Act is such a federal statute. The Gorge Act does not establish national environmental standards but provides a framework for a commission of state-appointed officials to adopt a management plan and implement it through county land use ordinances. The Columbia River Gorge Commission retains final say over the approval and enforcement of the management plan and local county ordinances; enforcement actions may be brought in state court. The Gorge Act is not comparable to federal environmental laws and nothing in the Gorge Act indicates that the local ordinances otherwise have the force and effect of federal law.”
Native Village of Nuiqsut v. BLM
Justia US Law

“The Bureau of Land Management (BLM) published the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS) for the Petroleum Reserve-Alaska. In 2014, BLM granted ConocoPhillips permission to construct a drill pad in the Greater Moose Tooth (GMT) Unit within the Reserve and issued a GMT supplemental EIS, relying on the 2012 IAP/EIS. In 2018, BLM granted ConocoPhillips permission to construct another GMT drill pad, issuing a second GMT supplemental EIS. In 2018, ConocoPhillips applied to drill in another Unit. BLM published an environmental assessment that purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM did not issue an EIS but found no new significant impact. ConocoPhillips completed the program in April 2019. In March 2019, objectors sued, citing the National Environmental Policy Act.

The Ninth Circuit concluded that the case was moot because neither court could grant any relief. The only lasting physical features of the drilling were capped wells; there was no indication that ConocoPhillips could undo the drilling of those wells. The “capable of repetition, yet evading review” exception to mootness did not apply. Although a case generally will not be moot when the environmental report at issue will be used by the agency in approving a future project, the legal landscape has changed. The Council of Environmental Quality has issued new NEPA regulations. BLM issued a 2020 IAP/EIS for the Reserve, Plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again.”
SUPREME COURT
When the Supreme Court Cites Your Amicus Brief
ABA Journal
August 26, 2021

"When the U.S. Supreme Court releases a decision, the parties and their lawyers scan the opinions to determine whether they won or lost. Meanwhile, those who filed amicus curiae, or friend of the court, briefs in the case also want to know the outcome. But first, they are eager to find the answer to a different question: Did one of the justices cite my brief?

Scholars in recent years have documented a marked increase in the number of amicus briefs filed in Supreme Court cases. Only a handful of fully briefed and argued cases each term have no amicus filings, and the biggest cases attract dozens if not scores of briefs by outside groups."
STATE INITIATIVES
Reclaim Idaho/Gilmore v. Denney
Justia US Law

"Two petitions reached the Idaho Supreme Court, both seeking to declare two statutes unconstitutional and to issue extraordinary writs: a writ of mandamus and a writ of prohibition. First, Michael Gilmore sought a declaration that Idaho Code section 34-1805(2), as amended by SB 1110, violated the people’s constitutional initiative and referendum rights. SB 1110 requires that, for an initiative or referendum to appear on the ballot, organizers must obtain a threshold number of signatures from “each of the thirty-five (35) legislative districts” in the state. Gilmore argued this violated the equal protection clause of the Idaho Constitution and unconstitutionally divides the people’s legislative power. Gilmore also petitioned for a writ of mandamus ordering the Idaho Secretary of State “not to implement” the statute as amended. In the second petition, Reclaim Idaho (“Reclaim”) and the Committee to Protect and Preserve the Idaho Constitution, Inc. (“the Committee”), sought a declaration that the new signature threshold mandated by SB 1110, requiring signatures from every legislative district, was unconstitutional. They also challenged the constitutionality of another statute, Idaho Code section 34-1813(2)(a), amended in 2020, stating that an initiative may not become effective earlier than July 1 of the year following the vote in which it was passed. Reclaim and the Committee contended both amended statutes nullify the people’s fundamental constitutional right to legislate directly. They also sought a writ of prohibition to prevent the Secretary of State from enforcing these statutory provisions. After review, the Supreme Court: (1) dismissed Gilmore's petition because he lacked standing; (2) granted Reclaim and the Committee's petition in part by declaring that section 34-1805(2) violated Article III, Section 1 of the Idaho Constitution, and the SOS and Legislature failed to present a compelling state interest for limiting that right. Furthermore, the Court declared section 34-1813(2)(a), violated Article III, Section 1 of the Idaho Constitution because it infringed on the people’s reserved power to enact legislation independent of the legislature. Accordingly, the Court granted Reclaim and the Committee’s petition for a writ of prohibition preventing the Secretary of State from enforcing this provision."
FISH & WILDLIFE
Greens Seek Federal Oversight of Wolves in Idaho, Montana
E&E News
August 26, 2021

"Two conservation groups asked the Biden administration to reinstate a federal monitoring program to oversee the management of gray wolves in Idaho and Montana following changes in wolf hunting laws in the two states intended to drastically reduce wolf numbers.

The Idaho Conservation League and the Endangered Species Coalition also urged federal officials to do a status review that could lead to relisting wolves under the EndangeredSpecies Act

Both states' management of wolves was under federal oversight for five years after wolves were delisted about a decade ago. The groups said that oversight needs to be reinstated "because the previous five-year monitoring period has been demonstrated to be inadequate for ensuring long-term state commitments to a recovered gray wolf population."

The groups in the letter a sent to Interior Secretary Deb Haaland and Fish and Wildlife ServicePrincipal Deputy Director Martha Williams, want federal oversight of Idaho and Montana wolf management plans for at least 10 years."
INDIAN LAW DESKBOOK
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.
Cook Inlet Tribal Council, Inc. v. Dotomain, ___ F.4th ___, 2021 WL 3730016 (D.C. Cir. Aug. 24, 2021)Facility expenses attendant to operation of an alcohol recovery treatment program under an ISDEAA self-determination contract are not contract support costs entitled to reimbursement.
Rosebud Sioux Tribe v. United States, ___ F.4th ___, 2021 WL 3744427 (8th Cir. Aug. 25, 2021)1868 Fort Laramie Treaty, together with the subsequent historical record, the Snyder Act and the Indian Health Care Improvement Act, established a trust responsibility to provide competent physician-led health care to the Rosebud Sioux Tribe and its members.
AG Alliance Cannabis Newsletter

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at CWhite@AGAlliance.org.
About WAGLAC
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.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
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.