News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
June 22, 2020
WAGLAC NEWS
UPCOMING MEETINGS
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
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WAGLAC Fall
Meeting
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.  
ENVIRONMENT
Federal Judge Denies Request to Enjoin Implementation of 2020 WOTUS Rule
 
As reported in the May 26th WAGLAC Newsletter, a coalition of states led by California asked the U.S. District Court for the Northern District of California to block the Trump administration’s new definition of “waters of the United States.”  Last Friday, U.S. District Court Judge Richard Seeborg denied the coalition’s preliminary injunction motion.  “Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different” Judge Seeborg wrote. “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act. In that context, plaintiffs have not made a sufficient showing to support an injunction or an order delaying the effective date of the new rule.” 

Judge Seeborg found the phrase “waters of the United States” is “indisputably ambiguous.” “[T]he challenge in interpreting the meaning of ‘waters of the United States’ lies in reconciling the fact that it must consist of something more than just waters that are navigable or could reasonably be made so, with the fact that it must have some limitations.” Judge Seeborg concluded that in light of the ambiguity of the phrase he was “compelled to apply Chevron deference when evaluating whether the Agencies’ interpretation of it is lawful.” He concluded “[i]n the absence of precedent construing what must be included as ‘waters of the United States,’ plaintiffs are left with little more than policy arguments that the narrowness of the 2020 Rule serves poorly to carry out the objectives of the CWA. As compelling as those arguments may be, they do not provide a sufficient basis for a court to substitute its judgment for the policy choices of the Agency.”
 
A coalition of 23 states led by West Virginia joined EPA in defending the 2020 WOTUS rule. (See June 1, 2020 WAGLAC Newsletter.)
 
The WOTUS rule is now in effect.
Pipeline Wins Appalachian Trail Battle But May Lose War
E&E News
June 16, 2020

"The Supreme Court...removed one hurdle for developers of the Atlantic Coast pipeline, but the natural gas project remains in legal limbo as a host of other obstacles stand in the way of construction.

In a 7-2 decision, the justices reversed a 4th U.S. Circuit Court of Appeals ruling stating that the Forest Service could not authorize a permit for the pipeline to cross hundreds of feet beneath the scenic Appalachian Trail.

The ruling was a win for pipeline developers Dominion Energy Inc. and Duke Energy Corp., as well as the Trump administration, but it did not resolve problems with other permits the 4th Circuit has scrapped."
EPA Issues Final Action for Perchlorate in Drinking Water
Environmental Protection Agency
June 18, 2020

"The U.S. Environmental Protection Agency (EPA) issued a final action regarding the regulation of perchlorate under the Safe Drinking Water Act (SDWA). Considering the best available science and the proactive steps that EPA, states and public water systems have taken to reduce perchlorate levels, the agency has determined that perchlorate does not meet the criteria for regulation as a drinking water contaminant under the SDWA. Therefore, the agency is withdrawing the 2011 regulatory determination and is making a final determination to not issue a national regulation for perchlorate at this time."

"The battle over perchlorate dates back to the early 2000s, when the George W. Bush administration decided not to regulate it. The Obama administration reversed that decision.

In 2011 the Obama administration issued a finding that perchlorate posed such a serious health risk when discharged into drinking water that it required regulation, setting off a fierce lobbying effort by defense contractors to block restrictions on using the contaminant.

The Trump administration again reversed the decision and additionally overturned the health finding, saying it was “not in the public interest” to regulate the contaminant.” NYTimes, June 18, 2020
EPA Grants First-Ever Petition to Add to Hazardous Air Pollutants List Under Clean Air Act
Environmental Protection Agency
June 18, 2020

"The U.S. Environmental Protection Agency (EPA) granted petitions to add 1-bromopropane (1-BP) to the list of hazardous air pollutants regulated under the Clean Air Act (CAA). This is the first time since 1990 that EPA has granted a petition to add a hazardous air pollutant to the CAA.

Petitioners requesting EPA to list 1-BP, also known as n-propyl bromide (nPB), have demonstrated its adverse health and environmental impacts. This chemical is used in a range of products and processes, including dry cleaning, electronics and metal cleaning, pharmaceutical and agricultural products, and spray adhesive applications."
DACA Ruling Carries 'Profound' Impact for Environmental Law
E&E News
June 18, 2020

"The Supreme Court's decision upholding deportation protections for people who came to the United States illegally as children also preserves the judiciary's ability to consider rollbacks of environmental laws.

In a 5-4 opinion led by Chief Justice John Roberts, the court found that the Trump administration's rescission of the Obama-era Deferred Action for Childhood Arrivals (DACA) program was both reviewable and "arbitrary and capricious" under the Administrative Procedure Act.

"This decision has profound implications for administrative law and thus environmental law," said Bob Percival, director of the University of Maryland's environmental law program"
INDIAN LAW
Solenex LLC v. Bernhardt
Secretary of the Interior did not act arbitrarily or capriciously when it terminated oil and gas lease in the Badger-Two Medicine Area

The Department of the Interior entered into a lease with Sidney Longwell to extract oil and gas from the Badger-Two Medicine Area in 1982. Bounded by Glacier National Park, two wilderness areas and the Blackfeet Indian Reservation, the Two Medicine Area “offers relative isolation and a supply of high-quality plants, animals, and minerals, all of which are central to the Blackfeet people’s religious, spiritual, and cultural practices” and “functions as a habitat for a number of species, including bald eagles, peregrine falcons, grizzly bears, elk, wolves, lynx, and wolverines, and it serves as a ‘critical wildlife movement corridor[.]’” The lease was conditioned on the lessee’s “obtain[ing] permission from the Bureau [of Land Management] and the [United States] Forest Service before drilling could occur.” It also was subject to present and future Interior regulations “‘not inconsistent with any express and specific terms herein[.]’” A series of lease transfers led to Solenex LLC, an entity controlled by Longwell, reacquiring it in 2004. During that period and through this week, a series of administrative proceedings and a lawsuit by the Blackfeet Tribe occurred during which drilling was suspended and the lease period tolled. The lawsuit, filed in 1993, was stayed pending possible Congressional action that would have been surface-disturbing activity in the Two Medicine Area. The Forest Service subsequently designated land as the Badger-Two Medicine Blackfeet Traditional Cultural District, which included the leased property, eligible for listing on the National Register of Historic Places given its traditional use by the Tribe. Congress withdrew the Two Medicine Area in 2006 “from ‘disposition under all laws relating to mineral ... leasing,’ subject to valid existing rights.” Tax Relief and Health Care Act, Pub. L. No. 109-432, div. C, § 403(b)(1)(B), 120 Stat. 2922, 3050–3051 (2006).
WATER
Stanford Vina Ranch Irrigation Co. v. State of Cal.
Justia

“Stanford Vina Ranch Irrigation Company (Stanford Vina) sued the California Water Resources Control Board (the Board), among other defendants, challenging the Board’s issuance of certain temporary emergency regulations in 2014 and 2015, during the height of one of the most severe droughts in California’s history. The challenged regulations established minimum flow requirements on three tributaries of the Sacramento River, including Deer Creek in Tehama County, in order to protect two threatened species of anadromous fish, Chinook salmon and steelhead trout, during their respective migratory cycles. Furthermore, Stanford Vina challenged the Board’s implementation of those regulations by issuing temporary curtailment orders limiting the company’s diversion of water from Deer Creek for certain periods of time during those years in order to maintain the required minimum flow of water. Judgment was entered in favor of the Board and other defendants. Stanford Vina appealed. Finding the Board possessed broad authority to regulate the unreasonable use of water in California by various means, including the adoption of regulations establishing minimum flow requirements protecting the migration of threatened fish species during drought conditions and declaring diversions of water unreasonable where such diversions would threaten to cause the flow of water in the creeks in question to drop below required levels, the Court of Appeal affirmed. The Board’s adoption of the challenged regulations was not arbitrary, capricious, or lacking in evidentiary support, nor did the Board fail to follow required procedures, and the Court declined to override the Board’s determination as to reasonableness set forth in the regulations.”
INDIAN LAW DESKBOOK
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.
Agua Caliente Band of Cahuilla Indians v. Mnuchin , ___ F. Supp. 3d ___, 2020 WL 3250701 (D.D.C. June 15, 2020) Secretary of the Interior directed to disburse to the Plaintiff Tribal government the 8.5% of its first tranche of CARES Act entitlement he had withheld pending outcome of other litigation over the tranche’s payment-calculation methodology.
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
About WAGLAC
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.
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. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.