News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
May 18, 2020
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Letter to WAGLACers:
The CWAG Annual Meeting and the WAGLAC Summer Meeting are being rescheduled to ensure the health and safety of our members. The CWAG Annual Meeting will be held July 23
rd
through the 26
th
.
The WAGLAC Summer Meeting in Bozeman, Montana previously scheduled for June 8th through June 10th is rescheduled for August 10 - 12, 2020. See details below.
On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support.
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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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Washington Regulates Water Temperatures, Sets Up Duel With President Trump
E&E News
May 11, 2020
"Washington state took an unprecedented step to protect the Pacific Northwest's iconic salmon and steelhead, requiring federal agencies to control reservoir temperatures in the Columbia River basin.
The move exercises state Clean Water Act authority that the Trump administration has sought to limit, setting up a potential conflict. For years, conservationists have sought to force EPA and Washington state to set temperature standards.
They declared victory as the Washington State Department of Ecology notified EPA in a series of letters that the state would require the permits for eight federal dams to account for temperature."
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E.P.A. Opts Against Limits On Water Contaminant Tied to Fetal Damage
The New York Times
May 14, 2020
"The Trump administration will not impose any limits on perchlorate, a toxic chemical compound that contaminates water and has been linked to fetal and infant brain damage, according to two Environmental Protection Agency staff members familiar with the decision.
The decision by Andrew Wheeler, the administrator of the E.P.A., appears to defy a court order that required the agency to establish a safe drinking-water standard for the chemical by the end of June. The policy, which acknowledges that exposure to high levels of perchlorate can cause I.Q. damage but opts nevertheless not to limit it, could also set a precedent for the regulation of other chemicals, people familiar with the matter said."
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Nine States Sue EPA for Suspending Pollution Monitoring Requirements During Coronavirus
The Hill
May 13, 2020
"Nine states are suing the Environmental Protection Agency (EPA) for a policy that halts penalizing companies that don’t monitor their pollution during the coronavirus outbreak.
A March 26 memo issued by the EPA informs companies the agency won’t take legal action against companies that fail to track emissions, so long as the company documents when they stopped their pollution monitoring and why coronavirus was the cause."
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Judge Tosses 'Happy Cow' Suit Against Ben & Jerry's
VPR News
May 9, 2020
"A federal judge has dismissed a lawsuit that alleged Ben & Jerry's Homemade Inc. misleads consumers with claims that its farms protect the environment and keep their cows contented.
Clean water activist James Ehlers filed the suit in October. He took aim at Ben & Jerry's marketing of its social mission. The suit alleged that the company falsely claims all its cream comes from "happy" cows raised on farms enrolled in the Caring Dairy program that pays a premium if farms follow strong environmental and animal welfare standards."
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California Judge Grants Preliminary Injunction in Water Diversion Lawsuit
Reuters
May 13, 2020
"A federal judge in Fresno, California, temporarily halted a plan to divert water to California farmers in the Central Valley so as not to jeopardize endangered fish species, handing a victory to the state and a coalition of fisheries groups who had brought separate lawsuits against the project.
U.S. District Judge Dale Drozd granted the plaintiffs’ request for a preliminary injunction through May 31 to stop implementation of the U.S. Bureau of Reclamation’s plan to send water from north California to some 20 million farmers and residents further south, finding that diverting freshwater from rivers risked irreparable harm to fish in violation of the Administrative Procedure Act and the Endangered Species Act (ESA)."
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New Mexico to Consider River Protections as Mining Plan Looms
E&E News
May 14, 2020
"More than 200 miles of the Pecos River, its tributaries and other parts of the upper reaches of the northern New Mexico watershed would be protected from future degradation under a petition being considered by state regulators.
A coalition of farmers, ranchers, environmentalists and local officials filed the petition last month, seeking an "Outstanding National Resource Waters" designation for the river, nearby streams and surrounding wetlands. The Water Quality Control Commission agreed Tuesday to consider the request and set a public hearing for November."
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Interior Sued Over Temporary Appointments of Top Officials
The Hill
May 11, 2020
"Environmentalists sued the Interior Department over its temporary appointments of top officials to positions that typically require a Senate confirmation.
In a lawsuit filed in federal court in Washington, D.C., Public Employees for Environmental Responsibility (PEER) and the Western Watersheds Project objected to the continued appointments of the acting leaders of the Bureau of Land Management (BLM) and National Park Service (NPS).
The groups argue that the repeated tenure extensions of William Perry Pendley and David Vela are unconstitutional and claim that neither is qualified to lead their respective agency. "
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Argument Analysis: For the Second Time in Two Terms, Justices Consider Reservation Status of Eastern Oklahoma
SCOTUSblog
May 12, 2020
"McGirt v. Oklahoma asks whether the eastern half of Oklahoma is an Indian reservation, exempt in important ways from the control of state and local authorities. It would be the most populous reservation in the United States, and it would include the state’s second largest city, Tulsa, as well as many other predominantly non-Indian communities in the area. Among other things, reservation status would require federal (rather than state) prosecution of major crimes involving Indians, and thus would involve a commitment of federal prosecutorial resources and likely call into question numerous recent Oklahoma felony convictions."
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In a First, Renewable Energy Is Poised to Eclipse Coal in U.S.
The New York Times
May 13, 2020
"The United States is on track to produce more electricity this year from renewable power than from coal for the first time on record, new government projections show, a transformation partly driven by the coronavirus pandemic, with profound implications in the fight against climate change."
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U.S. Approves Giant Solar Project in Nevada
The Wall Street Journal
May 11, 2020
"The Interior Department has given final approval for what it says will be the largest solar-power project in the U.S., a $1 billion installation in Nevada that could power about 260,000 households—enough to cover the residential population of Las Vegas."
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Montana Judge Upholds Ruling That Canceled Keystone XL Pipeline Permit
Reuters/The New York Times
May 11, 2020
"A federal judge in Montana on Monday upheld his ruling last month that canceled an environmental permit for the long-delayed Keystone XL oil pipeline and threatened other oil and natural gas pipeline projects with delays.
Chief U.S. District Judge Brian Morris denied a request by the U.S. Army Corps of Engineers to narrow his April 15 ruling that canceled the so-called Nationwide Permit 12. The permit allows dredging work on pipelines across water bodies."
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Court Preserves Army Corps Permit Freeze--For Now
E&E News
May 15, 2020
"A federal appeals court yesterday declined to immediately scrap a ruling from a lower bench that suspended a key federal water-crossing permit for new oil and gas pipelines but said it would fast-track its consideration of the case.
The Army Corps of Engineers this week asked the 9th U.S. Circuit Court of Appeals for an emergency freeze on the amended court order from the U.S. District Court for the District of Montana, which blocked use of the agency's Nationwide Permit 12 (NWP 12) program for pipelines."
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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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Reyes v. U.S. Department of Interior
, ___ F. Supp. 3d ___, 2020 WL 2319848 (S.D. Cal. May 11, 2020)
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Bureau of Indian Affairs properly withheld in its response to a Freedom of Information Act request for tribal enrollment applications personal information of living and deceased individuals.
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Agua Caliente Band of Cahuilla Indians v. Mnuchin
, ___ F. Supp. 3d ___, 2020 WL 2331774 (D.D.C. May 11, 2020)
:
Tribes were not entitled to a preliminary injunction requiring the Secretary of the Treasury to immediately distribute the remaining COVID-19 funds set aside for tribal governments under the Coronavirus Aid, Relief, and Economic Security Act.
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Magee v. Shoshone Paiute Tribes of Duck Valley Reservation
, ___ F. Supp. 3d ___, 2020 WL 2468774 (D. Nev. May 11, 2020)
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Tribes’ nonmember chief financial officer did not establish either the bad faith or the “plainly lacking” jurisdiction exception to the exhaustion doctrine in tribal court suit alleging misconduct in carrying out his functions.
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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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