News & Updates from WAGLAC
June 7th, 2021
UPCOMING EVENTS
CWAG Natural Resources and Environment Meeting and
WAGLAC Summer Meeting
June 15, 2021

The WAGLAC summer meeting will be held in conjunction with the AGA 2021 Annual Meeting. The CWAG Agenda scheduled for the morning of June 15th will feature panels on environmental justice, water marketing, the Colorado River water management, state/tribal consultation, and emerging environmental issues. The in person panel discussions will be broadcast live here.

There will be a short WAGLAC meeting on Wednesday June 16th from 7:30am - 9:00am HST for WAGLAC members in attendance.

Please email Andrea Friedman at AFriedman@AGAlliance.org for more information.
ENVIRONMENT
Biden Administration Wants To Give More Power Back To States To Block Pipelines
The Washington Post
May 27, 2021

"Plans to build massive ports for shipping coal abroad, seaside terminals for supercooling gas and thousands upon thousands of miles of pipelines cutting through rivers and streams across the United States will all soon be getting extra scrutiny as the Biden administration prepares to give states and tribes more authority to block energy projects.

The Environmental Protection Agency announced Thursday it will rewrite a rule finalized last year under President Donald Trump that upended the way the Clean Water Act had worked for half a century. The Trump administration tried to clear away regulatory hurdles for fossil fuel development after New York and other left-leaning states halted gas pipelines and other projects they feared may contaminate rivers, lakes and other waterways within their borders."
Connecticut Climate Suit Against Exxon Sent Back To State Court
Thomson Reuters
June 3, 2021

"A federal judge in New Haven, Connecticut, has granted the state's bid to send back from federal to state court its lawsuit accusing oil major Exxon Mobil Corp of misleading the public over the impacts of its fossil fuels on climate change.

U.S. District Judge Janet Hall on Wednesday ruled that Texas-based Exxon failed to establish that the case must be heard in federal court, including because it raises questions of interstate and international pollution that the company argued are exclusively governed by federal common law.

Exxon spokesman Casey Norton said the company is reviewing the decision and will consider next steps. The company is represented by attorneys at Paul Weiss Rifkind Wharton & Garrison."
Voight v. Coyote Creek Mining Co.—On rehearing, divided Eighth Circuit panel adheres to prior determination that coal open storage pile is not “in” a coal processing plant but gives no deference to state agency interpretation of the relevant EPA regulation
Clay R. Smith
Chief Editor, AILD
CWAG & AG Alliance
June 7, 2021

"The Coyote Creek Mining Company constructed a lignite coal mine in North Dakota that became operational in 2016. The overall project consists of the open face mine connected by a several-mile private hauling road to a coal processing facility. Prior to processing, the coal is placed into an open storage pile with a capacity of 180,000 tons of raw coal and generally maintained at 130,000 to 145,000 tons. A retaining wall separates the storage pile and the processing plant, with an apron feeder located near the wall’s top to place coal into the processing facility for crushing. Coal is transferred from the storage area into the feeder by gravity or bulldozer. 
Prior to the mine’s construction, CCMC applied for and received a minor source permit from the North Dakota Department of Health under the Clean Air Act state implementation plan approved by the Environmental Protection Agency. See N.D. Admin. Code § 33.1-15-14-03. During the mine’s construction, however, lessees of a nearby ranch filed suit under the CAA alleging that the mine required a major, not a minor, source permit and that the processing plant violated the federal statute because it lacked a coal-dust control plan. The ranchers’ claim turned on the interpretation of an EPA regulation, 40 C.F.R. § 60.250(a), which appears in 40 C.F.R. Part 60, Subpart Y and states that “[t]he provisions of this subpart apply to affected facilities in coal preparation and processing plants that process more than 181 megagrams (Mg) (200 tons) of coal per day.” [Emphasis added.] The facts made clear that if the storage pile coal was “in” the coal preparation and processing plant, the storage’s “fugitive emissions”—i.e., coal dust—when added to the plant’s other emissions would make the regulation’s requirements applicable and the plant a major emitting facility. On cross-motions for summary judgment, the magistrate judge, sitting as the district court, entered judgment in CCMC’s favor. Voight v. Coyote Creek Mining Co., LLC, 329 F. Supp. 3d 735 (D.N.D. 2019)."
FISH AND WILDLIFE
Ninth Circuit Cans Trump Gut of Pacific Walrus Protections
Courthouse News Circuit
June 3, 2021

"A Ninth Circuit panel on Thursday blasted the Trump administration’s decision to remove the Pacific walrus from the Endangered Species Act list in 2017. 
The three-judge panel found U.S. Fish and Wildlife Service provided an inadequate rationale for delisting the animal after having found the species to be in need of such protections in 2011. 

"The essential flaw in the 2017 decision is its failure to offer more than a cursory explanation of why the findings underlying its 2011 decision no longer apply,” U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, wrote for the unanimous majority. "
Biden Administration Moves To Bring Back Endangered Species Protections Undone Under Trump
The Washington Post
June 4, 2021

"The Biden administration announced plans on Friday to reverse policies implemented under President Donald Trump that weakened the Endangered Species Act, a half-century-old law credited with the recovery of the bald eagle, humpback whale, grizzly bear and dozens of other species.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service under President Biden are moving to undo much of the Trump administration’s work that altered the ways habitats of plants and animals on the verge of extinction are kept from total collapse."
ENERGY
Biden Administration To Suspend Arctic Oil Leases Issued Under Trump
The Hill
June 1, 2021

"The Biden administration will suspend controversial leases issued under the previous administration for drilling at the Arctic National Wildlife Refuge (ANWR), it announced Tuesday.

The leases will be halted amid a further environmental review, which will determine whether they should be reaffirmed, voided or subject to additional measures to lessen their environmental impacts, according to an Interior Department statement. 

An order signed on Tuesday by Interior Secretary Deb Haaland said that a departmental review found "multiple legal deficiencies" in the record supporting the leases."
WATER
Klamath Battle Lines Blur As Protests Escalate
E&E News
June 3, 2021

"Tensions surrounding a Western water shortage are on the verge of exploding, with some activists threatening to seize control of federal water infrastructure and anti-government rabble-rouser Ammon Bundy waiting in the wings.

But several farmers and irrigators in the Klamath River Basin in southern Oregon and Northern California have a message for Bundy and others: Stay away.

And some are questioning the leaders' anti-government bona fides since public records show they have directly benefited from government programs.

The Bureau of Reclamation's Klamath Project provides water to about 240,000 acres of cropland spanning the California-Oregon border.

For the first time since the project came online in 1907, Reclamation has said it won't deliver any water this year due to extreme drought and the agency's endangered species obligations. There are threatened sucker fish species in the project's main reservoir and, downriver, a severely threatened salmon run."
The Western Drought Is Bad. Here’s What You Should Know About It
The New York Times
June 4, 2021

"Much of the Western half of the United States is in the grip of a severe drought of historic proportions. Conditions are especially bad in California and the Southwest, but the drought extends into the Pacific Northwest, much of the Intermountain West, and even the Northern Plains.

Drought emergencies have been declared. Farmers and ranchers are suffering. States are facing water cutbacks. Large wildfires are burning earlier than usual. And there appears to be little relief in sight."
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 reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
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.
Adams v. Elfo, No. C19-1263-JCC, 2020 WL 1929375 (W.D. Wash. Apr. 21, 2020), on reconsideration, 2020 WL 6484399 (Nov. 4, 2020), magistrate judge report and recommendation adopted, 2021 WL 2253589 (June 3, 2021)Magistrate judge’s recommendation concerning dismissal of a suit under the habeas corpus provision of the Indian Civil Rights Act was remanded for determination of whether the lack-of-jurisdiction exception to the exhaustion requirement applied. On reconsideration, the magistrate judge was also directed to consider a Public Law 280 issue concerning whether the Nooksack Tribe had jurisdiction over activity on a non-reservation allotment. The magistrate judge subsequently determined that, regardless of whether Public Law 280 predated the Nooksack Tribe’s federal recognition, its inherent authority over the allotment was unaffected. The district court agreed that Public Law 280 did not divest tribes of any such authority and adopted the magistrate judge’s recommendation.
Ohlsen v. United States, ___ F.3d ___, 2021 WL 2252270 (10th Cir. June 3, 2021)Pueblo whose employees carried out tree-thinning functions under a Cooperative Funds and Deposits Act agreement with USFS was an independent contractor for Federal Tort Claims Act purposes.
AG Alliance Cannabis Newsletter

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at CWhite@AGAlliance.org.
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 40 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 database of all previously published WAGLAC newsletters, please follow the link below.