News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
July 13, 2020
WAGLAC Summer Meeting
August 10-12, 2020
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow
COVID-19 Policies

We all recognize the challenges of coordinating and attending a gathering while COVID-19 is circulating throughout the world. As a reminder, health officials recommend that people minimize contact to the maximum extent possible until there is a vaccine or cure. For those considering, and those comfortable attending the WAGLAC Summer meeting, the attachments detail the preventative practices implemented by Springhill Suites and the Karst Stage Company.  
CWAG/AGA Presents:
Supreme Court of the U.S. Virtual Term Review
Monday, July 20th at 3pm EDT

  • The Honorable Mark Bennett, U.S. Court of Appeals for the Ninth Circuit
  • Jeffrey F. Fisher, Stanford Professor of Constitutional Law
  • Ed Kneedler, Deputy Solicitor General, US Department of Justice
  • Clive Strong, CWAG Legal Director of Natural Resources and Environment

For more details, contact Andrea Friedman at
Nat'l Parks Conservation Assn., et al. v. ND Dept. of Env. Quality, et al.
Justia US Law

"National Parks Conservation Association (“NPCA”) appealed a judgment affirming a final permit decision by the North Dakota Department of Environmental Quality, formerly the Department of Health Environmental Health Section, to issue Meridian Energy Group, Inc. an air quality permit to construct a refinery. In October 2016, Meridian submitted its initial application and supporting documentation to the Department for a permit to construct the Davis Refinery, as required under North Dakota’s air pollution control rules implementing the federal Clean Air Act. The Department received over 10,000 comments, with most of the substantive comments coming from NPCA, the National Park Service, and the Environmental Protection Agency. NPCA filed comments with the Department supported by its two experts’ opinions, asserting that Meridian’s oil refinery would be a 'major source,' rather than a “minor source,” of air pollution and that the permit does not contain “practically enforceable” emissions limits under the federal Clean Air Act and North Dakota’s air pollution control rules implementing the Clean Air Act. After considering public comments and Meridian’s responses, the Department’s Air Quality Division recommended to the State Health Officer that the Department issue a final permit because the Davis Refinery’s emissions are expected to comply with the applicable North Dakota air pollution control rules. The North Dakota Supreme Court concluded the Department did not act arbitrarily, capriciously, or unreasonably in issuing the permit."
Crow Indian Tribe v. Wyoming
Ninth Circuit affirms remand of FWS’s 2017 rule delisting the Greater Yellowstone Ecosystem Grizzly Bear distinct population segment

The US Ninth Circuit Court of Appeals affirms the US Federal District Court of Montana’s decision reinstating Endangered Species Act (ESA) protections for the grizzly bear population in the Greater Yellowstone Ecosystem. In 2007, the U.S. Fish and Wildlife Service (FWS) declared grizzly bears a “distinct population segment” and proposed to remove ESA protection for the species. The FWS decision was subsequently challenged, and the district court held that further agency review was required to delist the species. The district court subsequently rejected a second delisting attempt in 2017.
The FWS appealed “those aspects of the remand that require the study of the effect of the delisting on the remaining, still listed, grizzly population in the coterminous 48 states, as well as further consideration of the threat of delisting to long term genetic diversity of the Yellowstone grizzly.” The Ninth Circuit Court of Appeals affirmed “the district court in all respects, with the exception of the order requiring the FWS to conduct a ‘comprehensive review’ of the remnant grizzly population.”
Decision to kill Atlantic Coast project upends natural gas
E&E News
July 6, 2020

"Six years after the massive Atlantic Coast pipeline was announced, its developers are calling it quits. Energy companies Dominion Energy Inc. and Duke Energy Corp. said yesterday they are canceling the multistate natural gas pipeline after a series of legal challenges that brought the project all the way to the Supreme Court.

Dominion and Duke said "ongoing delays and increasing cost uncertainty" contributed to their killing the $8 billion project, which would have traveled from West Virginia across Virginia and into North Carolina (Energywire, July 5).

The pipeline — which developers said would create more than 17,000 jobs during construction — also would've traveled under the iconic Appalachian Trail on its 600-mile route. The companies said they remained committed to the project just last month, though it has less than 10% of its pipe in the ground."
Is This the End of New Pipelines?
The New York Times
July 8, 2020

"Pipeline projects are being challenged as never before as protests spread, economics shift, environmentalists mount increasingly sophisticated legal attacks and more states seek to reduce their use of fossil fuels to address climate change.

Recently, a federal judge ruled that the Dakota Access Pipeline, an oil route from North Dakota to Illinois that has triggered intense protests from Native American groups, must shut down pending a new environmental review. That same day, the Supreme Court rejected a request by the Trump administration to allow construction of the long-delayed Keystone XL oil pipeline, which would carry crude from Canada to Nebraska and has faced challenges by environmentalists for nearly a decade.

The day before, two of the nation’s largest utilities announced they had canceled the Atlantic Coast Pipeline, which would have transported natural gas across the Appalachian Trail and into Virginia and North Carolina, after environmental lawsuits and delays had increased the estimated price tag of the project to $8 billion from $5 billion. And earlier this year, New York State, which is aiming to drastically reduce its greenhouse gas emissions, blocked two different proposed natural gas lines into the state by withholding water permits."
Northern Alaska Environmental Center v. U.S. Dep’t of Interior
Ninth Circuit rejects challenge under NEPA and the Naval Petroleum Reserves Production Act to sale of an oil and gas lease in the National Petroleum Reserve-Alaska

The Bureau of Land Management administers 22.6 million acres of land in the National Petroleum Reserve-Alaska that contains recoverable resources of 8.7 billion barrels of oil and 25 trillion feet of natural gas. The Naval Petroleum Reserves Production Act, 42 U.S.C. §§ 6501 to 6507, authorizes the agency to enter into leases for extraction of those resources. BLM prepared a combined Integrated Activity Plan and programmatic environmental impact statement in 2012 with respect to managing the Reserve’s alleasing activities. The IAP/EIS “predicted that it would fully satisfy NEPA’s requirements for the first oil and gas lease sale. With respect to anticipated subsequent lease sales, it stated that BLM would prepare an administrative determination of NEPA adequacy (DNA) in connection with each proposed lease to determine whether the then-existing NEPA documentation was adequate.” In 2013, the agency issued a record of decision committing to manage the Reserve under the EIS’s preferred alternative. It thereafter offered oil and gas leases annually through 2016 with an accompanying four-page DNA “documenting its conclusion that the 2012 EIS remained adequate to meet the requirements of NEPA, so no further NEPA documentation was required to support the offering or sale of the relevant leases.”
McGirt v. Oklahoma , ___ S. Ct. ____, 2020 WL 3848063 (U.S. July 9, 2020)

State court lacked jurisdiction over offenses subject to the Major Crimes Act committed within the 1866 territory of the Creek (Muscogee) Nation because the territory constituted a reservation and was not disestablished by Congress.
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
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.
Confederated Tribes of Chehalis Reservation v. Mnuchin , ___ F. Supp. 3d ___, 2020 WL 3791874 (D.D.C. July 7, 2020) District court stayed judgment authorizing the Secretary of the Treasury to distribute COVID-19 funds to Alaska Native Corporations conditioned on Plaintiff Tribes filing a notice of appeal and a motion for expedited appeal by July 14, 2020.
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:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
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 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 Clive Strong. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.