News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
May 26, 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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States Call On Court To Halt WOTUS Rewrite Nationwide
E&E News
May 19, 2020
"A coalition of states led by California and New York have asked a federal court to block the Trump administration's new definition of "waters of the United States" while the rule is litigated.
The states called on the U.S. District Court for the Northern District of California to stop the Navigable Waters Protection Rule in order to prevent disruption to state and local waterways.
The states requested a nationwide injunction, a legal remedy that has drawn scrutiny for enabling district court judges to reach beyond their jurisdictions to stop federal rules.
Because waters of the United States, or WOTUS, are interconnected, the states said, a nationwide halt to the Trump rule is required."
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Litigation and Water Quality: Navigable Waters Protection Rule/WOTUS
Western States Water Council Newsletter
May 22, 2020
"On May 8, House Transportation and Infrastructure Chairman Peter DeFazio (D-OR), and Representative Grace Napolitano (D-CA), introduced the Clean Water for All Act to prohibit the implementation of the new Navigable Waters Protection Rule, which goes into effect June 21. The legislation states that the Trump Administration’s “Dirty Water Rule” will eliminate “…Clean Water Act (CWA) protections for countless rivers, streams, lakes, and wetlands that have been protected by the [CWA] for decades under regulations..."
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What They Are Saying: EPA Proposes First Ever Rule to Improve Transparency of Guidance
Environmental Protection Agency
May 19, 2020
"The U.S. Environmental Protection Agency (EPA) announced its first-ever proposed rule to establish consistent requirements and procedures for the issuance of guidance documents. This new rule will significantly increase the transparency of EPA’s practices around guidance and will improve the agency’s process for managing guidance documents."
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D.C. Circuit Faults EPA for Not Limiting Cross-State Emissions
E&E News
May 19, 2020
"A federal appeals court instructed EPA to take a closer look at its findings on the cost-effectiveness of controlling airborne contaminants that cross state borders.
The case stems from petitions filed in 2016 by Maryland and Delaware under Section 126(b) of the Clean Air Act requesting that EPA help control downwind pollution that was causing the states to fall short of national ozone standards.
A panel of three judges for the U.S. Court of Appeals for the District of Columbia Circuit instructed EPA to reconsider its determination that non-catalytic controls were not a cost-effective solution for upwind pollution. That determination may change, the court said, when the agency revisits its Cross-State Air Pollution Rule update in light of a separate D.C. Circuit ruling in a case known as
Wisconsin v. EPA."
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Judge Allows One Challenge to President Trump Overhaul, Blocks Another
E&E News
May 19, 2020
"A federal judge kept alive a challenge from states to the Trump administration's effort to remake the Endangered Species Act while dismissing a similar lawsuit from environmental groups.
The lawsuits concern August 2018 rules that would reshape how the law is implemented, including how species are identified for listing and critical habitat is determined.
California, New York and more than a dozen predominantly blue states along with seven conservation groups challenged the rules, claiming they would fundamentally weaken protections and have far-reaching impacts."
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Attorneys General Weiser and Stenehjem Lead Bipartisan Group of AGs Urging Passage of SAFE Banking Act
May 19, 2020
A bipartisan coalition of Attorneys General, led by Phil Weiser (CO-D) and Wayne Stenehjem (ND-R), sent a letter to Congress reiterating their support for passage of the SAFE Banking Act, or similar legislation, that would create a "safe harbor" for financial institutions and insurance providers that service legitimate state cannabis businesses.
As the attorneys general make clear, support for the Act does not call for legalization of medical or retail marijuana but rather reflects the realities on the ground -- during the COVID-19 pandemic, the lack of access to national banking has created public health and public safety issues for millions of Americans. The cash intensive business model could result in a further spread of the virus and creates an opportunity for criminal activity.
As part of the AG Alliance Cannabis Project, the attached white paper, "Solving an Untenable Situation: The Public Health and Safety Rationale Behind the Secure and Fair Enforcement Banking Act," provides an overview of the legal and policy issues surrounding cannabis banking. For inquires about the Cannabis Project, please contact Austin Bernstein at
ABernstein@AGAlliance.org.
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DOI Tribal Land-Into-Trust Guidance 'A Joke,' DC Judge Says
Law360
May 20, 2020
"A D.C. federal judge slammed the U.S. Department of the Interior's guidance for deciding when a tribe qualifies to have its land taken into trust, calling it "a joke" and blasting the government's contention that the guidance should apply to the Mashpee Wampanoag Tribe's land-into-trust application if it's sent back to the agency."
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Montana Supreme Court Holds Fossils Are Not Minerals
The Montana Supreme Court held that, under Montana law, dinosaur fossils do not constitute minerals that transfer with the mineral estate under a general mineral reservation deed.
Seversons owned a sizable farm and ranch. In 2005, they sold the surface estate and one-third of the mineral estate to Murrays. The Seversons retained two-thirds of the mineral estate. The Murrays found valuable dinosaur fossils on the ranch, including the fossilized remains of two dinosaurs. The Seversons claimed they owned a portion of the fossils. The deed reserving the mineral estate did not “refer to dinosaur fossils or whether fossils are considered minerals owned by the mineral titleholder.
The Court, reaffirming its precedent, held that the ‘end goal when analyzing a
general mineral reservation is to interpret the term ‘minerals’ according to its ‘ordinary and natural meaning,’ unless the parties manifest a different intention in the transacting document.’ The Court held that unlike oil, gas, and hydrocarbons, fossils are not valuable as raw material to be processed into fuel or goods. The ordinary and natural meaning of ‘mineral’ is more commonly thought of as a resource, often nonrenewable, including hard compounds, oil, or gas, which are mined as raw material for further processing, refinement, and eventual economic exploitation. The Court considered that the rarity and value of dinosaur fossils is not related to their mineral composition or their usefulness for further refinement and economic exploitation. Rather, dinosaur fossils are valuable because of their very existence as the remains of once-living organisms.”
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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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Gila River Indian Community v. Cranford, ___ F. Supp. 3d ___, 2020 WL 2537435 (D. Ariz. May 12, 2020): District court possessed subject matter jurisdiction over a claim that landowners’ irrigation violated a tribe’s federal reserved water rights, and abstention under the prior exclusive jurisdiction and Colorado River doctrines was not warranted.
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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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