News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
June 8, 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 Controversial Final CWA 401 Rule
June 2, 2020

On June 1st, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced adoption of a new Clean Water Act Section 401 rule. “EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler.

Mark Ryan, a former Clean Water Act attorney in EPA's Seattle-based Region 10 office told E&E News, "This is a fairly significant restriction of states' rights, which is rather interesting because this administration is all about states' rights until they're not."

“The rule unveiled yesterday would limit the scope of state water quality reviews — barring governors from considering other concerns like climate change — and places a one-year deadline on state action.”
Carr Leads 23-State Effort to Defend New WOTUS Rule
June 3, 2020

Attorney General Chris Carr and West Virginia Attorney General Patrick Morrisey joined by Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming have moved to intervene in California v. Wheeler (N.D. Cal. No 3:20-cv-03005) in opposition to California’s request to enjoin EPA’s new WOTUS rule.  As reported in the May 4th WAGLAC Newsletter, California and seventeen other states argue the new rule will cause “widespread harm to national water quality.” Attorney General Carr asserts “the Trump administration’s new rule defining the ‘waters of the United States’ respects the primary responsibility and right of the States to protect our lands and waters . . . and [i]t also corrects flaws in the Obama-era rule it replaced. If the motion to intervene is granted, California is likely to become the lead WOTUS case given the participation of forty-two states.
Trump Signs Order to Waive Environmental Reviews for Key Projects
The Washington Post
June 4, 2020

"President Trump signed an executive order 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."
Clean Air
Under Clean Air Act, EPA was not required to revisit Title I adequacy of
preconstruction permits during Title V permitting process.
June 3, 2020

Environmental Protection Agency's (EPA) position in its prior order, that CAA's Title
V lacked specific textual mandate requiring EPA to revisit Title I adequacy of
preconstruction permits during Title V permitting process, was persuasive, in support
of applying Skidmore deference to EPA's position in denying petition requesting EPA
to object to issuance of revised Title V permit that allegedly was based on invalid
underlying Title I preconstruction permit, since Title V did not contain explicit
language requiring EPA to reconsider Title I new source review in course of Title V
permitting or any language guiding EPA on how to perform such review.
U.S. Ruling Could Mean a Flood of New Claims Against Volkswagen
The New York Times
June 1, 2020

"Volkswagen, the German automaker that admitted to a decade-long scheme to cheat on diesel emissions tests in the United States and elsewhere, could face a “staggering” volume of claims from local governments after a federal appeals court ruled that counties in Florida and in Utah could impose local pollution laws on the manufacturer."
States Lead Court Fight Against Trump. They're Winning
E&E News
May 26, 2020

"The Trump administration's aggressive deregulatory agenda has run full-speed into a blockade set by Democratic attorneys general.

Led by New York and California, the states have challenged virtually every effort by EPA and other agencies to walk back Obama-era rules like the Clean Power Plan and Clean Water Rule.

And they are winning.

Republican attorneys general similarly sued over many rules that came out of Obama's EPA. But the Democrats have filed significantly more lawsuits, and they have been more successful — winning 80% of the cases thus far, according to an analysis of the challenges, which often take years to work their way through the courts.

The cases often draw the support of 15 to 20 Democratically led states, and they are typically helmed by New York Attorney General Letitia James and California Attorney General Xavier Becerra."
National Family Farm Coalition v. USEPA
Ninth Circuit vacates EPA’s conditional registration of dicamba herbicides 

Monsanto Company (now Bayer CropScience), as well as two other agrochemical companies, developed a new herbicide—dicamba—and genetically modified dicamba-tolerant seeds to address resistance that had formed to glyphosate, the main ingredient of Monsanto’s Roundup brand name product commonly used to treat those crops. It and the competitors applied for, and received, in 2016 conditional registration from the Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 to 136y, for a two-year period encompassing the 2017 and 2018 growing seasons in 34 States. In fall 2018, EPA approved conditional registrations for an additional two-year period. Four advocacy groups challenged the new registration decision, arguing that the agency violated FIFRA and the Endangered Species Act, 16 U.S.C. § 1531 to 1544. The groups had previously challenged the 2016 conditional registration, but the Ninth Circuit dismissed the petition on mootness grounds following issuance of the 2018 registration. They had more success with the new petition: the court of appeals granted it and vacated the registration under FIFRA. National Family Farm Coalition v. USEPA, No. 19-70115, 2020 WL 2901136 (9th Cir. June 3, 2020). The panel did not address the ESA claim.
North Dakota Tribes Protest Interior's 'Illegal Taking' of Riverbed
E&E News
June 3, 2020

"Native American tribes whose reservation sits at the center of the Bakken Shale oil field said the Trump administration illegally took their property last week when it issued a legal opinion dealing with ownership of the Missouri River.

The Mandan, Hidatsa and Arikara tribes — known as the MHA Nation — have lived along the Missouri River since before the first European settlers arrived in North America, and they now live primarily on the Fort Berthold Indian Reservation in North Dakota.
Please find the opinion for this case in last week's newsletter under 'Sovereign Lands.'"
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.
Mdewakanton Band of Sioux in Minn. v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 2800613 (D.D.C. May 29, 2020) Suit seeking a writ of mandamus to compel federal recognition dismissed for failure to exhaust remedies under 25 C.F.R. Part 83.
United States v. Waggerby , ___ F. Supp. 3d ___, 2766520 (M.D. Fla. May 28, 2020) Federal district court possessed jurisdiction over alleged violation of federal statutes of general applicability by an Indian against an Indian within Indian country.
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.