News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
June 29, 2020
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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
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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.
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CWAG/AGA Presents:
Supreme Court of the U.S. Virtual Term Review
Monday, July 20th at 3pm EDT
*Please note - registration is subject to approval process
Panelists:
- 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
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Plethora of WOTUS Cases
Legal challenges to the 2020 WOTUS rule continue to mount. Last week three new challenges were filed. On June 22
nd
, Earth Justice filed on behalf of the Puget Soundkeeper Alliance, Sierra Club, Idaho Conservation League, and Mi Familia Vota in the U.S. District Court for the Western District of Washington at Seattle. The complaint alleges the rule is arbitrary and capricious because it is “contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board.” The complaint also alleges the Agencies “failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on objectives of the Clean Water Act.” Also on June 22
nd
, Earth Justice filed a challenge to the WOTUS Rule on behalf of six tribes in the U.S. District Court for the District of Arizona at Tucson. The complaint in Pascua Yaqui Tribe et. al v. U.S. Environmental Protection Agency mirrors the complaint filed in the Puget Soundkeeper Alliance case. On June 25th, the Environmental Integrity Project et. al filed a complaint in the U.S. District Court for the District of Columbia challenging the 2020 WOTUS rule. Plaintiffs allege “the Final Rule’s definition not only conflicts with the plain text and purpose of the CWA [Clean Water Act], defeats a central purpose of the CWA, and disregards judicial precedent, established science, and the [EPA’s and Army Corps of Engineers’] prior factual findings and longstanding policies and practices, but does so without any rational, let alone ‘reasonable,’ explanation.” They request the Court vacate the rule.
At present there are at least eleven cases challenging the rule. In addition to the
Environmental Integrity Project
,
Puget Soundkeeper Alliance
and
Pascua Yaqui
challenges, the other eight pending challenges are:
- New Mexico Cattle Growers’ Association v. U.S. Environmental Protection Agency, Federal District Court for District of New Mexico Case No. 1:19-cv-00988-JHR-SCY (April 27, 2020).
- Chesapeake Bay Foundation et. al v. Wheeler, Federal District Court of Maryland Northern Division Case No. 1:20-cv-1063-RBD (April 27, 2020).
- Conservation Law Foundation et. al v. U.S. Environmental Protection Agency, Federal District Court for the District of Massachusetts Case No.-cv-10820-DPW (April 29, 2020).
- South Carolina Coastal Conservation League et. al v. Wheeler, Federal District Court for the District of South Carolina Charleston Division Case No. ____ (April 29, 2020).
- California v. Wheeler, Federal District Court for the Northern District of California Case No. 3:30-cv-03005 (May 1, 2020).
- Oregon Cattlemen’s Association v. U.S. Environmental Protection Agency, Federal District Court for the District of Oregon Portland Division Case No. 3:19-cv-00564-AC (May 1, 2020).
- Washington Cattlemen’s Association v. U.S. Environmental Protection Agency, Federal District Court for the Western District of Washington at Seattle Case No. 2:19-cv-00569-JCC (May 4, 2020).
- Colorado v. U.S. Environmental Protection Agency, Federal District Court for the District of Colorado Case No. 1:20-cv-01461 (May 22, 2020).
Links to the complaints for the eight cases are included in the May 11
th
and June 1
st
WAGLAC Newsletters.
The 2020 WOTUS rule went into effect in every state except Colorado on June 22
nd
. Colorado Attorney General Weiser successfully argued for a stay of the WOTUS rule in Colorado. The District Court ruled that the plurality opinion in
Rapanos
foreclosed the new rule. EPA has filed a notice of appeal of the stay with the Tenth Circuit Court of Appeals. EPA asserts it is free to reinterpret the CWA's definition of WOTUS.
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New Rule in California Will Require Zero-Emissions Trucks
The New York Times
June 25, 2020
"Rebuffing strong opposition from industry, California adopted a landmark rule requiring more than half of all trucks sold in the state to be zero-emissions by 2035, a move that is expected to improve local air quality, rein in greenhouse gas emissions and sharply curtail the state’s dependence on oil.
The rule, the first in the United States, represents a victory for communities that have long suffered from truck emissions — particularly pollution from thfe diesel trucks that feed the sprawling hubs that serve the state’s booming e-commerce industry. On one freeway in the Inland Empire region of Southern California, near the nation’s largest concentration of Amazon warehouses, a community group recently counted almost 1,200 delivery trucks passing in one hour."
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LETTER: Western Governors Urge EPA to Properly Consult States in Comments on Proposed Rule for Administrative Procedures
Western Governors' Association
June 19, 2020
"Western Governors request that the Environmental Protection Agency (EPA) recognize states as sovereignties, with reserved powers under the U.S. Constitution, and direct agency officials to conduct early and substantive consultation with states when developing guidance documents that affect states as sovereignties or as co-regulators. “We urge EPA to revise the proposed rule to expressly distinguish states and state officials from the general public and to provide states with opportunities to engage with EPA officials, on a government-to-government basis, beyond the public comment process,” asserts the letter of June 19, 2020 sent to EPA Administrator Andrew Wheeler and signed by WGA Chair North Dakota Gov. Doug Burgum and Vice Chair Oregon Gov. Kate Brown. The Governors’ comments were in response to the proposed rule, EPA Guidance: Administrative Procedures for Issuance and Public Petitions."
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Trump Administration Wants Drilling On More Than Two-Thirds of the Largest Swatch of U.S. Public Land
The Washington Post
June 25, 2020
"The Trump administration proposed to open more than two-thirds of the nation’s largest piece of public land to oil and gas drilling, removing wildlife protections for the Alaskan tract that have been in place for more than four decades.
The Interior Department’s Bureau of Land Management wants to allow fossil fuel extraction in roughly 82 percent of the National Petroleum Reserve-Alaska on the state’s North Slope. Less famous than the nearby Arctic National Wildlife Refuge, it is one of the most ecologically valuable tracts of federal property — providing a critical refuge to polar bears as well as tens of thousands of migrating caribou and waterfowl.
The reserve, about the size of Indiana, is also one of the most promising onshore oil prospects in the country. A recent analysis by the U.S. Geological Survey offered a mean estimate of 8.7 billion barrels in undiscovered oil and 25 trillion cubic feet of natural gas."
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18 States to Supreme Court: Release Army Corps Permits
E&E News
June 24, 2020
"Eighteen states say it is "critical" for the Supreme Court to intervene in a circuit court case and allow the use of a key Army Corps of Engineers water crossing permit for new oil and gas pipelines pending an appeal.
The states, led by West Virginia Attorney General Patrick Morrisey (R), said that developers of new oil and gas pipelines face a "lose-lose proposition" if an order from a lower court temporarily blocking the use of the streamlined Nationwide Permit 12 (NWP 12) program is allowed to remain in place as the Army Corps appeals the decision in the 9th U.S. Circuit Court of Appeals.
NWP 12 allows projects that meet a certain set of criteria to use an expedited permitting process for the approval of dredge-and-fill activities in waterways, rather than pursue more rigorous individual permits for each water crossing in a project.
The states said pipeline developers are choosing between "sinking time and money into the individual permitting process, or they could wait to start construction until the Corps' position is ultimately vindicated," the states wrote in a proposed "friend of the court" brief."
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Supreme Court Won't Consider Western Farmers' Water Fights
E&E News
June 22, 2020
"The Supreme Court declined to consider whether federal regulators violated farmers' constitutional rights when they cut off irrigation water to save fish in the Pacific Northwest.
Facing drought in 2001, the George W. Bush administration shut off water deliveries from the Bureau of Reclamation's Klamath River project to farms in south-central Oregon and Northern California. The goal was to provide water to threatened salmon species downriver.
The farmers revolted. They stormed irrigation canals, and one group took a blowtorch to a diversion head gate.
Their efforts were successful. The following year, Reclamation restored irrigation water deliveries to roughly 200,000 acres of cropland. It led to salmon die-off; according to some estimates, up to 70,000 fish washed up on the river's shores.
Reclamation's 2001 decision remains controversial nearly 20 years later. A group of farmers contend that the curtailment of water deliveries amounted to a "taking" of their property without just compensation under the U.S. Constitution's Fifth Amendment.
The farmers' legal efforts have been less successful than their protests, however.
The U.S. Court of Appeals for the Federal Circuit ruled last November that the decision was not a taking because Native American tribes, including the Karuk, Yurok and Hoopa Valley tribes, hold rights to the water that are higher priority than the irrigation project's claims"
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Nevada State Engineer Limits Groundwater Pumping to Protect Endangered Fish
Last Monday, the Nevada state engineer issued an order limiting groundwater pumping in a large area northeast of Las Vegas. The order addresses how much water is available in the area without harming the endangered Moapa dace. The order includes a discussion of the state’s potential liability for failure to protect the habitat of the Moapa dace, and concludes that “it is against the public interest to allow groundwater pumping from the [aquifer] that will reduce spring flow in the Warm Springs area to a level that would impair habitat necessary for the survival of the Moapa dace and could result in take of the endangered species.” Order at 46.
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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
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Indian Law Case Summaries
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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.
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Cadet v. Snoqualmie Casino
, ___ F. Supp. 3d ___, 2020 WL 3469222 (W.D. Wash. June 25, 2020)
:
Tribal casino, as an arm of the tribe, possessed immunity from suit in federal court for alleged tortious conduct by casino employees and tribal police, and tribal law did not waive such immunity with respect to federal court suits.
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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
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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.
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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.
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