UPCOMING MEETINGS

WAGLAC Fall Meeting

October 21 - 22, 2019

Marriott Scottsdale at McDowell Mountains

Scottsdale, Arizona

In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues. 

WAGLAC Winter Meeting

February 17 - 18, 2020

Westin San Diego

San Diego, California

In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.

Attorney General Urges Congress to Pass Strong Legislation to Address Contamination from Dangerous PFAS Chemicals

July 30, 2019

"California Attorney General Xavier Becerra, as part of a coalition of 22 attorneys general, filed a letter in support of Congress’ efforts to pass legislation addressing the dangers of per- and polyfluoroalkyl substances (PFAS). In the letter, the attorneys general provide recommendations to address PFAS contamination and urge that any new law not impair states’ protection of their own communities. PFAS are a group of thousands of chemicals, including perfluorooctnoic acid (PFOA) and perfluorooctane sulfonate (PFOS), widely used on consumer products including nonstick cookware, water- and wrinkle-resistant clothing, and food packaging, as well as in firefighting foam. PFAS chemicals do not break down in the environment and as a result, these “forever chemicals” accumulate in human bodies. PFAS chemicals have been shown to cause adverse health effects including developmental defects, kidney cancer, liver damage, and impacts on the thyroid and immune system. It is estimated that 99% of Americans have detectable levels of PFAS in their bloodstream.

Joining Attorney General Becerra in the letter are the Attorneys General of Connecticut, Delaware, District of Columbia, Guam, Hawai’i, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, New Mexico, New York, Oregon, Rhode Island, Virginia, Washington, and Wisconsin."

Attorneys General Becerra, James Sue Trump Administration for Unlawfully Cutting Penalties for Industry Violations of Fuel Efficiency Standards

August 2, 2019

"California Attorney General Xavier Becerra and New York Attorney General Letitia James, leading a coalition of 13 states, filed a lawsuit in the Second Circuit of Appeals challenging a final rule issued by the National Highway Traffic Safety Administration (NHTSA) that reduces necessary penalties for automakers that fail to meet corporate average fuel economy standards (CAFE). The rule repeals and replaces a rule adopted under the Obama Administration which imposed an inflation-adjusted penalty of $14 for every tenth of a mile-per-gallon (mpg) that an automaker falls below the CAFE standards, as required by the 2015 Federal Civil Penalties Inflation Adjustment Act. NHTSA’s replacement rule would reduce the penalty for automakers violating standards to $5.50 per tenth of an mpg, an amount far below the inflation-adjusted penalty required by law.

Joining California and New York in filing this lawsuit are the Attorneys General of Connecticut, Delaware, District of Columbia, Illinois, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington."

WATER

Judge Rejects Water Pipeline Application

Albuquerque Journal

July 27, 2019

"A proposal to pump billions of gallons of water from a closed aquifer in Catron County to municipalities along the Rio Grande appears dead – for now.

Seventh Judicial District Judge Matthew Reynolds on Thursday approved motions for summary judgment dismissing Augustin Plains Ranch’s application for a permit to provide cities and businesses with water from the remnants of a lake under the San Augustin Plains.

It is the latest chapter in a 12-year legal battle that has seen the ranch have two permits dismissed by the State Engineer’s Office. Those dismissals have been upheld through the courts."

OIL AND GAS

Landowners Say CO2 Oil Recovery Law Violates Constitution

E&E News

August 2, 2019

A group of North Dakota landowners is asking a judge to overturn a state law aimed at promoting the use of carbon dioxide-enhanced oil recovery, saying it unconstitutionally took away their property rights.

The measure, S.B. 2344, allows oil producers to use underground pore spaces for enhanced oil recovery or other oil field operations such as wastewater disposal, without compensating the surface owner. It overturns previous case law that gave the surface owners control over those cavities, violating the state and federal constitutions,

according to the lawsuit.

EPA Withdraws Outdated, Preemptive Proposed Determination to Restrict Use of the Pebble Deposit Area as a Disposal Site

U.S. Environmental Protection Agency

July 30, 2019

"U.S. Environmental Protection Agency (EPA) Region 10 Administrator Chris Hladick withdrew the 2014 Proposed Determination issued under section 404(c) of the Clean Water Act (CWA) for the use of the Pebble Deposit Area in Southwest Alaska as a disposal site associated with mining of the deposit."

Cabinet Mountains: Judge Pulls Permit for Montanore Mine, Citing Environmental Risks

Missoula Current

July 29, 2019

"There’s another legal setback to report in Hecla Mining Company’s efforts to develop the Montanore Mine in the Cabinet Mountains.

Hecla has been attempting to expand the Montanore Mine since purchasing the property two years ago.

The latest permit being challenged was by the Montana Department of Environmental Quality, which would have allowed Hecla to proceed with plans for the mine southeast of Libby.

The mine was initially opened more than 30 years ago, but the company had hoped to extend the shaft, with the DEQ permit allowing for the treatment and discharge of water in what has been characterized as a “state-of-the-art” system."

USDA Releases Proposed Amendments to Greater Sage Grouse Land Management Plans

U.S. Department of Agriculture

August 1, 2019

"U.S. Secretary of Agriculture Sonny Perdue announced the U.S. Department of Agriculture’s (USDA) Forest Service proposed changes to how the agency manages greater sage grouse in Colorado, Idaho, Nevada, Wyoming, and Utah after hearing concerns from states and land users. The changes strive to improve the clarity, efficiency, and implementation of the current sage grouse plans."

Environment Concerns Add New Species to US Overfished List

Associated Press

August 2, 2019

"Changes in the environment, including warming waters, are prompting the U.S. government to add eight populations of fish to its federal overfished list, scientists with the National Oceanic and Atmospheric Administration said Friday.

The annual Report to Congress on the Status of U.S. Fisheries said two populations of Chinook salmon and three populations of coho salmon will be added to the list. The agency is also adding Atlantic big eye tuna, Atlantic mackerel of the Gulf of Maine and Cape Hatteras and blue king crab of Saint Matthew Island, Alaska, to the list."

Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month

Recent Indian Law Case Summaries

Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs , ___ F.3d ___, 2019 WL 3404210 (9th Cir. July 29, 2019): Challenge to agency actions under the National Environmental Policy Act and Endangered Species Act was properly dismissed because a tribal corporation was a required party that could not be joined given its immunity from suit and because the judicial review proceeding could not be continued in good conscience absent its presence.

Allegre v. United States , ___ F. Supp. 3d ___, 2019 WL 3322382 (S.D. Cal. July 24, 2019): Federal officers possessed qualified immunity with respect to a claim for damages predicated on a failure to notify tribal enrollment applicants that they were not eligible for membership.

In Matter of Connor , ___ N.Y.S.3d ___, 2019 WL 3436659 (App. Div. July 31, 2019): Mother lacked standing under 25 U.S.C. § 1914 to vacate an order granting adoption of her Indian child to a former husband .

State in Interest of L.L. , 2019 UT App 134, ___ P.3d ___ (Utah Ct. App. Aug. 1, 2019): Although entitled to  Chevron deference, the Bureau of Indian Affairs regulation defining “qualified expert witness” (25 C.F.R. § 23.122(a)) requires such witness to possess the qualifications necessary to testify concerning whether a parent’s continued custody likely will result in serious emotional physical injury to an Indian child but grants discretion to determine whether the witness’s ability to testify concerning tribal social and cultural standards is necessary in the particular case.

All summaries are posted in CWAG's google docs acc ount, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.

Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

Topics include:

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 30 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 [email protected]. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.