WAGLAC News & Updates
July 15, 2019
WAGLAC NEWS
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.
ENVIRONMENT
EPA Announces Policy to Enhance Enforcement and Compliance Assurance Partnerships with States
U.S. Environmental Protection Agency
July 11, 2019

"EPA announced a final policy to enhance effective partnerships with states in civil enforcement and compliance assurance work. Articulated in a memorandum from EPA’s Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine, the final policy describes procedures and practices for effective coordination between EPA and states when carrying out shared responsibilities under environmental laws."
Webinar on Financial Responsibility Requirements Under CERCLA Section 108(b) for Facilities in the Electric Power Generation, Transmission, and Distribution Industry Notice of Proposed Rulemaking
July 18, 2019 at 2:00 - 3:00pm ES

EPA is hosting an informational webinar for the public to present an overview of the proposed rule on financial responsibility under CERCLA 108(b) for classes of facilities in the Electric Power Generation, Transmission, and Distribution industry, the next class of facilities the Agency is evaluating for possible financial responsibility requirements. The webinar will cover EPA’s proposed rule, the analysis supporting the proposal, and where to find additional information. The Webinar will also discuss the public comment process on the proposed rule.

EPA has set up an electronic mailbox for participants to submit questions prior to the webinar, and EPA will seek to respond during the webinar Please submit any advance questions to:  108bwebinarquestions@epa.gov  with the subject line "108(b) webinar." The deadline for submitting advance questions is  July 11, 2019.  EPA will also accept questions during the webinar.

Do not submit comments on the proposed rule to this mailbox. The comment period will begin when the proposed rule is published in the Federal Register. To ensure EPA considers them, comments on the proposed rule must be submitted in accordance with the instructions provided with the published version of the proposed rule in the Federal Register.

If you have any questions, please contact  Linda Barr  by email at  Barr.Linda@epa.gov  or by phone (703) 605-0768
EPA Registers Long-Term Uses of Sulfoxaflor While Ensuring Strong Pollinator Protection Across the Midwest
U.S. Environmental Protection Agency
July 12, 2019

"The U.S. Environmental Protection Agency (EPA) is issuing a long-term approval for the insecticide sulfoxaflor – an effective tool to control challenging pests with fewer environmental impacts.

After conducting an extensive risk analysis, including the review of one of the Agency’s largest datasets on the effects of a pesticide on bees, EPA is approving the use of sulfoxaflor on alfalfa, corn, cacao, grains (millet, oats), pineapple, sorghum, teff, teosinte, tree plantations, citrus, cotton, cucurbits (squash, cucumbers, watermelons, some gourds), soybeans, and strawberries."
EPA/Fracking/Wastewater Treatment
Western States Water Newsletter
July 12, 2019

"On July 5, the Environmental Protection Agency (EPA) published its decision (84 FR 32094) on effluent limitation guidelines for unconventional oil and gas (UOG) extraction facilities. In 2016, EPA issued a final UOG rule, prohibiting extraction operations from discharging pollutants in wastewater to publicly owned treatment works (POTWs). EPA’s reasoning included: (1) POTWs are not designed to treat the atypical wastewater, leaving untreated pollutants to enter the receiving stream; (2) biological treatment operations would be inhibited, disrupting POTW operations; (3) wastewater pollutants can accumulate in biosolids, limiting their use; and (4) they can cause the formation of harmful disinfection by-products. Information available during the development of the rule indicated that all facilities subject to the rule were already meeting the zero discharge of pollutants requirement."
EPA/Coast Guard/Vessel Discharges
Western States Water Newsletter
July 12, 2019

"On July 9, EPA and the U.S. Coast Guard held a joint outreach meeting with intergovernmental associations regarding the development of national standards for discharges incidental to the normal operation of vessels under Clean Water Act (CWA) Section 312(b), recently amended by the Vessel Incidental Discharge Act (VIDA). The agencies are considering 28 types of incidental discharges, including ballast water, fish hold effluent, graywater, and many others. Some incidental discharges have invasive species implications as well as raising water quality concerns."
Trump Administration Pushes for New Look At Proposed Alaska Mine Near Sockeye Spawning Grounds
The Seattle Times
July 11, 2019

"In Alaska’s Bristol Bay, North America’s biggest wild salmon harvest is in full swing, a bonanza of gill-netted sockeye that comes amid renewed concerns about a proposed open-pit mine that fishermen fear would imperil this resource.

The Pebble Mine project would tap into a world-class deposit of gold, molybdenum, silver and copper within the remote Bristol Bay headwaters region, where salmon spawn and their offspring may linger for several years before heading out to sea. Pebble was first proposed more than a decade ago, and because of the sensitive location, has emerged as the most contested mine development in Alaska’s history."
Pebble Limited Partnership Project Draft Environmental Impact Statement (EIS No. 20190018), 84 Fed. Reg. 7049
Comments Submitted by Washington Office of the Attorney General
July 1, 2019

"The Washington Office of the Attorney General submits these comments on the Pebble Limited Partnership Project (Pebble Project) Draft Environmental Impact Statement (Draft EIS) prepared by the Army Corps of Engineers (Corps). As discussed below, the Attorney General has significant concerns about the Draft EIS’s incomplete review of the far-reaching environmental and economic impacts of the proposed Pebble Mine. Given these significant impacts, the Attorney General believes that adopting the no-action alternative and preserving the Bristol Bay watershed—and its unparalleled salmon run—is the only common-sense option."
Washington Attorney General Ferguson Sues Navy Over Impact of Expanded Growler Jet Operations
July 9, 2019
 
"Attorney General Bob Ferguson filed a lawsuit against the U.S. Navy over the Navy’s expansion of its Growler airfield operations on Whidbey Island.

The Attorney General’s Office asserts that the Navy’s environmental review process for the expansion unlawfully failed to measure the impacts to public health and wildlife in communities on and around Whidbey Island."
Attorney General Becerra Criticizes EPA for Inadequate Risk Assessment of Dangerous Herbicide
July 12, 2019

"California Attorney General Xavier Becerra, with the San Francisco Bay Regional Water Quality Control Board, filed a comment letter criticizing the U.S. Environmental Protection Agency (EPA) for its failure to properly evaluate the risk of 2,4-DP-p. This herbicide and its commonly used relatives permeate California’s water systems and present risks to humans as well as bees, birds, mammals, and plants. Despite these risks, the EPA is attempting to finalize a risk assessment suggesting the agency will not place any new restrictions on 2,4-DP-p. Attorney General Becerra calls on the EPA to reassess this harmful herbicide and account for its full environmental and health impacts."
A Group of 24 Bi-Partisan Governors Back California Over President Trump Regarding Clean Car Standards
E&E News
July 9, 2019

"Twenty-four governors signed a pledge to support California in its standoff with the Trump administration over clean car standards.

The governors — including three Republicans — vowed to uphold the more stringent Obama-era standards, which President Trump is poised to roll back imminently."
WATER
Interior Department Acts to Expedite Some Federal Facility Title Transfers
The Heartland Institute
June 27, 2019

"Interior Secretary David Bernhardt took two actions to make it easier to transfer ownership of some federal facilities and water projects to those who use them.

The Department of Interior’s (DOI) move responds to directives of President Donald Trump and Congress to update its standards for determining which activities qualify for Categorical Exclusions and to streamline the Bureau of Reclamation’s (BuRec) title transfer process to allow more actions to go forward without specific authorizing legislation from Congress."
As Fresh Water Grows Scarcer, It Could Become a Good Investment
The New York Times
July 11, 2019

"The prospect of shortages in the years ahead could make water a precious commodity. That represents an opportunity for investors.

Population growth, climate change and pollution are disrupting the world’s freshwater supplies. The United Nations Environment Program has predicted that half the globe’s population could face severe water stress by 2030. Annual expenditures of $200 billion, up from a historical average of about $40 billion to $45 billion, are needed now to keep spigots running, the U.N. said in a  2016 report ."
MINING AND ENERGY
Mineral Fight Goes Mesozoic: Who Owns Dinosaur Bones?
E&E News
July 8, 2019

"Pristine dinosaur fossils discovered in Montana have sparked a property rights dispute that has hit paleontologists like an asteroid.

The lawsuit, now at the Montana Supreme Court, concerns who owns some of the greatest fossil finds in the last century, including two dinosaurs preserved while locked in combat and a rare complete Tyrannosaurus rex skeleton.

They are worth millions, and paleontologists say a federal appeals court ruling would have "fundamental and extraordinary impacts upon the conduct of science concerning the history of life on Earth."

The case hinges on a seemingly straightforward question: Are fossils considered "minerals" under Montana state law?"
Keystone Pipeline Line Saga Continues
E&E News
July 12, 2019

"Keystone XL critics have called upon a federal judge to freeze progress on the crude oil pipeline for a second
time.

The filing from a pair of environmental and tribal groups follows a pingpong series of court actions in Montana and California that are deciding the pipeline's fate."
FISH AND WILDLIFE
Lawmakers Try Again With Big Conservation Bill
E&E News
July 12, 2019

"A bipartisan team of lawmakers reintroduced a bill that supporters call the most significant investment in wildlife and habitat conservation in a generation.

Backed by multiple conservation organizations, House members pitched the "Recovering America's Wildlife Act" as a dedicated funding stream to provide $1.3 billion annually in support of state-level wildlife protection efforts."
Frog's Protected Habitat Narrows After Supreme Court Fight
E&E News
July 8, 2019

"A long-running legal battle over a rare frog and a sliver of Louisiana land ended quietly in a court settlement.

The Fish and Wildlife Service will no longer protect 1,500 acres of private land as critical habitat for the dusky gopher frog. The land was at the center of years of litigation that reached the Supreme Court last fall. The U.S. District Court for the Eastern District of Louisiana approved a consent decree last week."
Don Young Revives Fight Over Magnuson-Stevens
E&E News
July 12, 2019

"A year ago, Rep. Don Young convinced House lawmakers to approve a bill that would have made big changes to the nation's primary fisheries law, partly by giving state and local authorities more power in managing stocks.

While the plan went nowhere in the Senate, the Alaska Republican wants to revive the fight over the future of the Magnuson-Stevens Fishery Conservation and Management Act."
SUPREME COURT
Trump’s Top SCOTUS Lawyers Post Winning Term, But Barely
Bloomberg Law
July 12, 2019

"The federal government’s top lawyers at the U.S. Supreme Court posted a better record than last term in cases in which it was a party—but it still barely passed the 50-50 mark.

It’s part of a decades-long slide, which may be explained by the emergence of a group of Supreme Court specialists to counter the government’s legal team."
FEDERALISM
Opinion: ‘Most of Government Is Unconstitutional’
The New York Times
June 21, 2019

"Did the Supreme Court just suggest that it is prepared to agree with that statement? The conservative wing of the Supreme Court recently called into question the whole project of modern American governance.

In Gundy v. United States, which concerned the constitutionality of a law requiring
the registration of sex offenders, four of the more conservative justices endorsed a
controversial legal theory according to which Congress lacks the power to delegate
broad powers to agencies like the Food and Drug Administration and the
Department of Health and Human Services."
INDIAN LAW SUMMARY UPDATES
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
Paquin v. City of St. Ignace , ___ N.W.2d ___, 2019 WL 2931288 (Mich. July 8, 2019) A tribal government is not a “local ... government” within the meaning of Article 11, Section 8, Mich. Const., so as to bar a tribal officer convicted of misusing federal funds from seeking state elective office.
Chase Alone v. C. Brunsch, Inc. , 2019 S.D. 41, ___ N.W.2d ___ (July 10, 2019) Circuit court properly dismissed for lack of subject matter jurisdiction a third-party tort claim against a tribal housing authority and its employees with respect to an on-reservation propane explosion.
Kalispel Tribe of Indians v. U.S. Dept. of Interior , ___ F. Supp. 3d ___, 2019 WL 3037048 (E.D. Wash. July 11, 2019) Department of the Interior did not violate the Indian Gaming Regulatory Act, the National Environmental Policy Act, or its trust obligation by taking land into trust for gaming purposes under 25 U.S.C. § 2719(b)(1)(A).
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.
INDIAN LAW DESKBOOK
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
WAGLAC
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.
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@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.