News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
June 15, 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.  
Another Round Looms in Marathon Brawl Over EPA Boiler Rules
E&E News
June 10, 2020

"The battle over a far-reaching set of EPA air toxics regulations could be about to reignite after a two-year lull.

At issue is unfinished business from two appellate court rulings on hazardous emission standards for thousands of industrial boilers and related systems.

After the U.S. Court of Appeals for the District of Columbia Circuit sent back some provisions to EPA for more work, the agency is now poised to issue its planned fixes. Last week, the White House regulations office completed a routine review, clearing the way for EPA to formally release the proposed rule. An agency spokeswoman declined to comment this week on when that will happen."
Attorney General Becerra Pushes EPA to Expand Review of Toxic “Forever Chemicals”

"California Attorney General Xavier Becerra, Pennsylvania Attorney General Josh Shapiro, and Wisconsin Attorney General Josh Kaul led a coalition of 22 attorneys general in filing a comment letter urging the Environmental Protection Agency (EPA) to strengthen and expand regulation of per- and polyflouroalkyl substances (collectively known as PFAS) under the Safe Water Drinking Act. PFAS chemicals, known as "forever chemicals," have been shown to cause adverse health effects including developmental defects, kidney cancer, liver damage, and impacts on the thyroid and immune system. "
Washington Urges Justices to Reject Coal Export Fight
E&E News
June 10, 2020

"The Supreme Court shouldn't "waste its valuable time" considering constitutional claims against Washington for denying a water quality permit for a coal export project, state officials told the justices.

Coal-rich Wyoming and Montana earlier this year petitioned the high court to get involved, arguing that the Evergreen State's decision to deny certification for the proposed Millennium Bulk Terminals project illegally blocked access to Asian markets and prevented the federal government from establishing a unified coal export policy. "

A link to the Wyoming and Montana petition is available in the WAGLAC January 27th Newsletter.
President Trump Signs Order to Waive Environmental Reviews for Key Projects
The Washington Post
June 4, 2020

“President Trump signed an executive order last week instructing agencies to waive long-standing environmental laws to speed up federal approval for new mines, highways, pipelines and other projects given the current economic “emergency.”

Declaring an economic emergency lets the president invoke a section of federal law allowing “action with significant environmental impact” without observing normal requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act. These laws require agencies to solicit public input on proposed projects and analyze in detail how federal decisions could harm the environment.

It is unclear how the directive will affect individual projects, especially since developers are often wary of legal challenges they could face from environmental or public interest groups. Jason Bordoff, founding director of Columbia University’s Center on Global Energy Policy, said in an email that “companies would be reluctant to rely on such an executive order,” knowing they would later have to prove that they were operating in an emergency.”
Justices Reject Clean Water Act Plea in Blow to Miners
E&E News
June 15, 2020

"Supreme Court justices declined to consider whether moving — but not adding — rocks, sand and other debris within a regulated waterway is subject to Clean Water Act restrictions.

The court's decision not to take up the Eastern Oregon Mining Association's petition came as a disappointment for operators that use suction dredge mining, an industrial process similar to panning for gold in a river.

The rejection carries big financial implications, said Pacific Legal Foundation senior attorney Damien Schiff, who represented the mining association."
Supreme Court Holds Forest Service Retained Right to Issue Pipeline Right-of-Way

The Supreme Court ruled, in US Forest Service v. Cowpasture River Preservation Association , that the Forest Service had authority to issue a right-of-way for the Atlantic Coast natural gas pipeline, which will pass 604-feet beneath the Appalachian National Scenic Trail. Atlantic Pipeline, LLC is planning to construct an approximately 600-mile pipeline from West Virginia to North Carolina. Sixteen miles of the pipeline will cross through federal lands within the George Washington National Forest, and beneath the Appalachian Trail, which also crosses through the National Forest. 

In 2018, the Forest Service issued Atlantic Pipeline special use permits and a right-of-way to construct the pipeline. Cowpasture River Preservation Association sued to set aside the right-of-way arguing it violated the Mineral Leasing Act. The Mineral Leasing Act authorizes the “appropriate agency head” to grant right-of-ways through Federal Lands for pipeline purposes except for lands in the National Park System. 30 U.S.C. § 185(a). The case turned on the interaction between the Mineral Leasing Act and the National Trails System Act. The Court framed the question as “whether [the] lands within the forest [were] removed from the Forest Service’s jurisdiction and placed under the Park Service’s control because the trail crosses them.” 

In a 7-2 decision, the Supreme Court held that “the Department of Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System . . ..“ The majority said “in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses.” The majority analogized the Trail right-of-way to private easements. “Easements are not land, they merely burden land that continues to be owned by another.” “Accordingly, as would be the case with private or state property owners, a right-of-way between two agencies grants only an easement across the land, not jurisdiction over the land itself.” The majority concluded “these cases boil down to a simple proposition: A trail is a trail, and land is land.”

The respondents and dissent argued that because the National Park Service administers the Trail the Trail is land within the National Park System. The majority countered, “The National Park Service does not administer the “land” crossed by the Trail. It administers the Trail as an easement – an easement that is separate from the underlying land.” The majority concluded that allowing an agency to gain jurisdiction over Federal Lands through the act of delegation of authority “has striking implications for federalism and private property rights.” “Under respondents’ view, . . . privately owned and state-owned lands would also become lands in the National Park System. Our precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of Government over private property rights.”
Wild Wilderness v. Hurlocker
Forest Service did not act arbitrarily or capriciously in approving two timber-thinning and prescribed-burn projects under the Healthy Forest Restoration Act and without National Environmental Policy Act review

The United States Forest Service approved in 2018 timber thinning actions in the Hype Park Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency Project under the HFRA. Both projects lie northeast of Santa Fe, New Mexico, and cover in the aggregate 3982 acres. The actions consisted of tree thinning and prescribed burns “aimed to reduce the risk of high-intensity wildfires and tree mortality related to insects and disease.”
Indian Water Rights
WSWC Newsletter, Issue # 2404
June 12, 2020
“On June 4, the Senate passed an amended version of S. 886 by voice vote, after omitting language that would have authorized transfers of $120M from the Reclamation Fund to the Reclamation Water Settlements Fund (43 U.S.C. 407) through FY2039. In its place, the Senate packaged the Navajo Utah Water Rights Settlement Act, the Aamodt Litigation Settlement Completion Act, and the Kickapoo Tribe Water Project Study. The Kickapoo Tribe Water Project Study directs the U.S. Department of Agriculture to conduct a study of the Upper Delaware and Tributaries Watershed Plan, in order to advance water rights settlement discussions involving the Tribe and the State of Kansas. The Aamodt Litigation Settlement Completion Act allows for the completion of the Pojoaque Basin Regional Water System, increases the federal cost ceiling by $137M, and extends the completion date to 2028.

The Navajo Utah Water Rights Settlement Act authorizes $210M in funding for water infrastructure and quantifies the right to deplete 81,500 acre-feet of water per year from Utah’s Colorado River Basin apportionment. It settles current and future reserved water rights claims by the Navajo Nation in Utah, and requires the State of Utah to contribute $8M toward the settlement, which has already been approved by the Utah legislature and Governor Gary Herbert (R-UT). Governor Herbert said: “This agreement is the result of more than 15 years of good faith work between Utah leaders, the U.S. Department of Interior, and the Navajo Nation. It will create clean drinking water projects for our Navajo friends and certainty for Utah’s future water needs.” Navajo Nation President Jonathan Nez said: “As the Navajo Nation continues to struggle to address COVID-19, we welcome the passage by the United States Senate of the Navajo Utah Water Rights Settlement Act, which would provide desperately needed funding for clean drinking water to our members…. [W]e ask our friends in the House to pass the legislation without delay.”
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.
Mashpee Wampanoag Tribe v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 3037245 (D.D.C. June 5, 2020) Assistant secretary of the Interior’s determination that a tribe was not “under federal jurisdiction,” as that phrase is used in the first definition of “Indian” in section 19 of the Indian Reorganization Act, remanded for reconsideration under the standards in Solicitor Opinion M-37029 (2014).
Mashpee Wampanoag Tribe v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 3034854 (D.D.C. June 5, 2020) Tribe is granted a stay to maintain the status quo under a 2015 Department of the Interior decision taking land into trust pending disposition of a remand of a 2018 decision that had overruled the earlier determination
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.