News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
June 1, 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
EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean Water Act
Environmental Protection Agency
June 1, 2020

"After speaking with U.S. stakeholders via conference call, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation."
Administration Suffers Court Losses Over Water, Energy, Climate Policies
May 29, 2020

"The Trump administration has suffered a series of recent court losses regarding water, energy and climate change policy, including a pair of key environmental decisions from an influential appellate court that set new precedents for many Western states.

The litigation addresses permitting for major oil and gas pipelines, potential industry liability for climate-related damages and the fallout from a recent Supreme Court decision that some discharges to groundwater could be covered by the Clean Water Act (CWA).

The adverse decisions for the administration have given state attorneys general (AGs) cause to tout their record in lawsuits against EPA’s environmental rollbacks, as a coalition of nearly two dozen states just launched suit over the agency’s rule scaling back vehicle greenhouse gas limits."
EPA Opts Not to Delay Controversial Alaska Mine For Now
The Washington Post
May 29, 2020

"A top official at the Environmental Protection Agency informed the U.S. Army Corps of Engineers in Alaska late Thursday that the EPA would not formally object at this point to the proposed Pebble Mine, a massive gold and copper deposit where mining could damage the world’s largest sockeye salmon fishery."
Big Oil Suffers Pivotal Losses in 2 Climate Cases
E&E News
May 27, 2020

"The oil and gas industry lost appeals in two major climate damages cases yesterday brought by cities and counties in California.

A panel from the 9th U.S. Circuit Court of Appeals said that attorneys for oil companies failed to show why San Mateo County and Oakland could not pursue state court battles for industry compensation for climate change impacts, such as sea-level rise."
WOTUS Litigation Update

Colorado filed a complaint challenging the 2020 WOTUS rule in U.S. District Court of Colorado on May 22 nd . In addition to alleging violations of the APA, Colorado alleges the Corps of Engineers failed to comply with NEPA in promulgating the rule. “The federal government’s new definition of ‘waters of the United States’ violates the Clean Water Act, contravenes controlling U.S. Supreme Court precedent, and ignores sound science,” [Colorado Attorney General] Weiser said. “This illegal action shirks the federal government’s responsibility to implement this law and thrusts on Colorado the responsibility of protecting water quality with limited warning and with no support to do so. We are bringing this lawsuit to stop this new rule and reckless action from taking effect.”
Complaints challenging the 2020 WOTUS rule have been filed in six other federal district courts. As reported in the May 4 th  WAGLAC News:
  1. California on behalf of eighteen states, the District of Columbia and the City of New York filed a complaint in the Federal District Court for the Northern District of California;
  2. Chesapeake Bay Foundation and ShoreRivers filed a complaint in the U.S. District Court for the District of Maryland;
  3. South Carolina Coastal Conservation League filed a complaint in the United States District Court for the District of South Carolina Charleston Division; and 
  4. New Mexico Cattle Growers filed a complaint in the United States District Court for District of New Mexico. (Links to the complaints are included in the May 4th WAGLAC Newsletter).  
The Oregon Cattlemen’s Association filed a supplemental complaint challenging the 2020 WOTUS rule in the U.S. District Court for the District of Portland Division on May 1 st , and the Washington Cattlemen’s Association filed a supplemental complaint challenging the rule in U.S. District Court for the District of Washington at Seattle on May 4 th . Links to both amended complaints are included below.

Meanwhile, as reported in the May 29 th  E&E News, more than a dozen groups, including the American Farm Bureau Federation, American Petroleum Institute, U.S. Chamber of Commerce and National Mining Association, filed a motion to intervene in the South Carolina Coastal Conservation League case. “The groups argued that the environmental challengers are attempting to broaden the definition of ‘waters of the United States,’ or WOTUS, and impose upon agricultural and energy interests more ‘burdensome regulatory requirements and inhibit their productive use.’" Other motions to intervene in all of the cases are sure to follow.
CWA §404/Endangered Species Act
Western States Water Council Newsletter
May 29, 2020

"On May 21, the Environmental Protection Agency (EPA) published a Request for Information (RFI) in the Federal Register (85 FR 30953), soliciting views on whether a Clean Water Act (CWA) §404(h) transfer of the dredge and fill permitting program to an eligible state or tribe requires an Endangered Species Act (ESA) §7 consultation. EPA has historically taken the position that a CWA §404(h) transfer is not a discretionary action, and therefore is not subject to an ESA §7 consultation. Currently, only the States of Michigan and New Jersey have delegated CWA §404 authority. Recently, Florida has investigated the possibility of assuming §404 authority, and last year the Florida Department of Environmental Protection (FDEP) requested ESA §7 consultation as part of that process."
Western States Water Council Newsletter
May 29, 2020

"On May 18, EPA released a final rule to add 172 per- and polyfluoroalkyl substances (PFAS) to the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313 reportable toxic chemicals list (also known as the Toxics Release Inventory (TRI)) and
established a 100-pound reporting threshold. This action is pursuant to the National Defense Authorization Act (NDAA) signed December 20, 2019 (PL 116-92) and will be effective immediately once published in the Federal Register (see WSW #2379). Per TRI reporting requirements, a facility should use readily available data collected pursuant to other provisions of law, or reasonable estimates of the amounts when those data are not available. The PFAS additions were effective January 1, 2020, and reporting for the 2020 calendar year will be due to EPA on July 1, 2021."
Ninth Circuit Rejects DOJ Request to Lift Injunction on CWA Nationwide Permit for Pipelines
In April, the U.S. District Court for District of Montana, in a case involving Keystone XL, vacated nationwide permit 12, which provided a streamlined process for permitting electric transmission lines, cables and pipelines. The Court found that the Army Corps of Engineers failed to adequately consider the impacts of the streamlined permitting process on endangered species.  The Court subsequently narrowed its order to allow the Corps to continue using the streamlined permitting process for electric transmission lines, cables and other non-pipeline projects, but refused to reinstate the program for new oil and gas pipelines.
The Department of Justice filed an appeal with the U.S. Ninth Circuit Court Appeals, along with an emergency motion for partial stay of the District Court’s order. On May 28th, the Ninth Circuit denied the motion for stay finding the “appellants have not demonstrated a sufficient likelihood of success on merits and probability of irreparable harm to warrant a stay pending appeal.”
The vacatur of nationwide permit 12 means pipeline developers will have to go through the more complicated and costly individual permit process for water crossings.
McCormick v. Oregon Parks & Recreation Department
Justia US Law

"Plaintiff Benjamin McCormick brought this action against the State of Oregon for injuries he sustained while recreating in Lake Billy Chinook. The State moved for summary judgment, asserting that it was entitled to recreational immunity under ORS 105.682. In response, plaintiff contended that the state did not “directly or indirectly permit” the public to use the lake for recreational purposes. Specifically, he contended that, under both the public trust doctrine and the public use doctrine, the public already had a right to use the lake for recreational purposes and, therefore, the State did not “permit” that use. The trial court granted the State summary judgment, but the Court of Appeals reversed. On review, the Oregon Supreme Court reversed the Court of Appeals decision. For the purposes of the recreational immunity statute, the Supreme Court held an owner could “permit” public recreational use of its land, even if it could not completely prohibit that use. More specifically, an owner could “permit” public recreational use of its land if, among other alternatives, it made that use possible by creating access to and developing the land for that use."
Legal Reversal Gives Contested Riverbed To North Dakota
E&E News
May 29, 2020

"Reversing another Obama-era decision, the Interior Department's top lawyer has concluded that North Dakota owns the submerged lands and embedded minerals under where the Missouri River flows through the Fort Berthold Indian Reservation.

Interior Solicitor Daniel Jorjani cited, in part, a historical review commissioned by the Trump administration to explain the shift in ownership to the state from the Mandan, Hidatsa and Arikara Nation, known as the Three Affiliated Tribes of the Fort Berthold Indian Reservation."
Minnesota Issues Guidance For Meatpacking Industry
Safe + Healthy
May 26, 2020
"Recently released guidance from the state of Minnesota details steps employers in the meatpacking industry should take to reduce worker exposure to COVID-19.
Developed by the state’s departments of Labor and Industry, Health, and Agriculture, the guidance document “will ensure the meatpacking sector complies with the Minnesota Department of Health and (the) Centers for Disease Control and Prevention guidelines and Minnesota Occupational Safety and Health Administration standards related to COVID-19.”
'Something Isn't Right': U.S. Probes Soaring Beef Prices
May 25, 2020
"Supermarket customers are paying more for beef than they have in decades during the coronavirus pandemic. But at the same time, the companies that process the meat for sale are paying farmers and ranchers staggeringly low prices for cattle.
Now, the Agriculture Department and prosecutors are investigating whether the meatpacking industry is fixing or manipulating prices.The Department of Justice is looking at the four largest U.S. meatpackers — Tyson Foods, JBS, National Beef and Cargill — which collectively control about 85 percent of the U.S. market for the slaughter and packaging of beef, according to a person with knowledge of the probe. The USDA is also investigating the beef price fluctuations, Agriculture Secretary Sonny Perdue has confirmed."
As Meatpacking Plants Reopen, Data About Worker Illness Remains Elusive
The New York Times
May 25, 2020
"The Smithfield Foods plant in Tar Heel, N.C., is one of the world’s largest pork processing facilities, employing about 4,500 people and slaughtering roughly 30,000 pigs a day at its peak.
And like more than 100 other meat plants across the United States, the facility has seen a substantial number of coronavirus cases. But the exact number of workers in Tar Heel who have tested positive is anyone’s guess.
Smithfield would not provide any data when asked about the number of illnesses at the plant. Neither would state or local health officials."
Webinar to Highlight COVID-19 Impact On Invasive Species Programs
Western Governors' Association

"WGA's webinar,  COVID-19 and Invasive Species Programs , will run from 1-3 p.m. MDT this coming Wednesday (June 3). Panelists will focus on the pandemic’s impact on invasive species programs, from hiring to employee safety, and highlight how the COVID-19 “invasion curve” resembles the spread of other invasive species. There also will be a Q&A session with experts in both aquatic and terrestrial invasive species management."
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.
Club One Casino, Inc. v. Bernhardt , ___ F.3d ___, 2020 WL 2745319 (9th Cir. May 27, 2020) Secretary of the Interior did not violate the Indian Gaming Regulatory Act, the Enclave Clause of the United States Constitution or 40 U.S.C.A. § 3112 in issuing Secretarial Procedures, and Section 19 of the Indian Reorganization Act did not violate the Tenth Amendment.
Stand Up for California! v. U.S. Dept. of Interior , ___ F.3d ___, 2020 WL 2745320 (9th Cir. May 27, 2020) Class III gaming authorized under Secretarial Procedures is not subject to the Johnson Act, and the adoption of such Procedures is not categorically exempt from review under the National Environmental Policy Act and the Clean Air Act.
United States v. Unzueta , ___ F. Supp. 3d ___, 2020 WL 2733890 (E.D. Mich. May 26, 2020) Federal jurisdiction existed over alleged violation of 18 U.S.C.A. § 117, which criminalizes domestic assault by an habitual offender within the special maritime and territorial jurisdiction of the United States or Indian country, regardless of whether the defender or his victim possessed Indian status.
People in Interest of K.C. , ___ P.3d ___, 2020 WL 2759686 (Colo. Ct. App. May 28, 2020) County department failed to timely notify the juvenile court in a dependency and neglect proceeding of a tribe’s request for assistance in enrolling the father or his children, and the court failed to conduct a hearing on whether enrollment would be in the children’s best interests.
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.