News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
December 02, 2019
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WAGLAC Winter Meeting
February 17-18, 2020
Westin San Diego
San Diego, California
-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Water Law Issues
-Plan to arrive February 16th
-Contracted room rate $209/night
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WAGLAC Summer Meeting
June 7-10, 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, 2020
The Grove Hotel
Boise, Idaho
-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Announcement and agenda to follow.
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EPA CLEAN WATER ACT INTERPRETATION REASONABLE, COURT SAYS
November 26, 2019
Ellen Gilmer and Blake Brittain, Bloomberg Environment
"The EPA’s determination that it "categorically' can’t regulate pollution-via-groundwater under the Clean Water Act is entitled to deference despite “opening a gaping regulatory loophole,” the U.S. District Court for the District of Massachusetts said Nov. 26.
"The decision comes after the Supreme Court heard arguments over the same question in
County of Maui v. Hawai’i Wildlife Fund
on Nov. 6.
"At issue in the Massachusetts case is a wastewater treatment facility at the Wychmere Beach Club on Cape Cod, where treated wastewater seeps through the groundwater into Wychmere Harbor. The Massachusetts Department of Environmental Protection found that the discharges were partially responsible for excessive nitrogen in the harbor.
"The nonprofit Conservation Law Foundation filed two lawsuits, one under the Clean Water Act and one under the Resource Conservation and Recovery Act. The district court on Nov. 26 allowed the group’s RCRA case to move forward but rejected its Clean Water Act arguments, citing a recent federal policy change."
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BRETT KAVANAUGH IS READY TO JOIN THE SUPREME COURT'S CONSERVATIVES TO TEAR DOWN KEY FEDERAL REGULATIONS
November 25, 2019
Mark Joseph Stern, Slate.com
"On Monday, Justice Brett Kavanaugh sent the clearest signal yet that the Supreme Court’s conservative majority is ready to take a wrecking ball to federal regulations. By doing so, the court could jeopardize a vast swath of laws that govern pollution, Wall Street, wage and hour rules, campaign finance limits, and more.
"Kavanaugh’s fellow conservative justices already declared their disdain for the 'administrative state'—that is, the agencies that interpret and enforce federal law—in June’s Gundy v. United States. All four conservatives argued for a revival of the 'nondelegation doctrine,' which bars Congress from transferring its legislative power to another branch of government. But Kavanaugh did not join the court in time to hear Gundy. As a result, Justice Elena Kagan and her fellow liberals were able to stave off an assault on the federal bureaucracy. The big question, then, was whether Kavanaugh would join the conservatives’ crusade."
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JUDGE KAVANAUGH ON ADMINISTRATIVE LAW AND SEPARATION OF POWERS
Christopher Walker, SCOTUS Blog
Law Professor, The Ohio State University Moritz College of Law
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NEW MEXICO PROHIBITS TRAPPING OF COUGARS
November 27, 2019
Albuquerque Journal
New Mexico adopted new rules that prohibit trapping or snaring cougars for sport. The New Mexico Game Commission voted unanimously to adopt the rule after “Animal Protection of New Mexico and the Humane Society of the United States filed a lawsuit arguing that traps and snares threatened legally protected species such as endangered Mexican gray wolves and that hunting quotas for cougars were unsustainably high.”
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GROUPS SUE TO STOP BULL TROUT PLAN
November 19, 2019
Missoulian
"Save the Bull Trout, Friends of the Wild Swan and Alliance for the Wild Rockies allege that the recovery plan put forth in 2015 by the U.S. Fish and Wildlife Service
ignores both the best available science
and the federal agency's own previous findings about the bull trout status and what they need for recovery. [...]
" 'The impacts have been well-documented over a long period of time,'” said Mike Garrity, director of the Alliance for the Wild Rockies, in a news release. 'Yet, the recovery plan issued by the Fish and Wildlife Service fails to clearly identify and address those threats.'
" 'Fact is, the ‘plan’ doesn’t even call for actually monitoring bull trout populations to see if they are recovering, continuing to decline, or even test for genetic inbreeding.' "
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FUTURE OF CASCADE-SISKIYOU MONUMENT IN DOUBT
November 26, 2019
Jennifer Yachnin, E&E News
"U.S. District Court for the District of Columbia Judge Richard Leon held that President Obama exceeded his authority when he limited harvesting on 40,000 acres of former railroad lands in the Cascade-Siskiyou National Monument. Judge Leon 'found "no doubt" that the 2016 resource management plans for the 100,000-acre site violated the Oregon and California (O&C) Revested Lands Act. The O&C Act plainly requires that timber grown on O&C land "be sold, cut, and removed in conformity with the [principle] of sustained yield."' Judge Leon’s decision conflicts Oregon Federal District Court Judge Michael McShane’s decision earlier this year, which found that BLM had previously opted to legally reduce timber harvest on the disputed lands and that Obama's decision to expand the monument "presents no irreconcilable conflict with the O&C Act.' The conflicting opinions leave in doubt the future of the monument, which straddles the Oregon-California border."
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WESTERN WATERSHED PROJECT SUES FOREST SERVICE FOR FAILURE TO ENFORCE GRAZING PERMITS IN UTAH
November 22, 2019
Jennifer Yachnin, E&E News
"Western Watershed Project 'sued the Forest Service, accusing the agency of kowtowing to "scofflaw grazing Permittees on public lands in Utah. . . . [The lawsuit alleges] the Forest Service is allowing ‘excessive stocking rates, repeated trespass, and non-compliance with federal regulations' on Monroe Mountain in south-central Utah.” “In its lawsuit, the group alleges the Forest Service is focused on avoiding potential confrontation with local ranchers who have voiced anti-government sentiments.” The lawsuit alleges the “USFS's failures to remedy damaging livestock use have been influenced by threats made by a handful of scofflaw grazing permittees on Monroe Mountain who refuse to acknowledge the agency's role as trustee of the national forests for all Americans, and who refuse to abide by the most basic of permit terms and conditions."
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FEDERAL QUIET TITLE ACT DOES NOT PRECLUDE DECLARATORY JUDGMENT ACTION IN STATE COURT TO VALIDATE RS 2477 ROAD
In
Nemeth v. Shoshone County, the Idaho Supreme Court held a private landowner may pursue validation of an RS 2477 road across federal land in state court
.
“The Nemeths own real property and accompanying mining claims in Shoshone County, which are accessed by an old dirt road that crosses National Forest Service lands. After Shoshone County failed to act on the Nemeths’ petition to validate a public right-of-way across federal land pursuant to Idaho Code section 40-204A and United States Revised Statute 2477 (“R.S. 2477”), the Nemeths brought a declaratory action seeking validation under Idaho Code section 40208(7). The district court dismissed the complaint for lack of subject matter jurisdiction. The Supreme Court reversed and remanded, holding that the Quiet Title Act does not conflict with or supersede the provisions of R.S. 2477 and Idaho laws that allow for county validation of an R.S. 2477 right-of-way on federal land. The Court also held that Idaho Code section 40-208(7) permits a district court to validate an R.S. 2477 right-of-way through a declaratory judgment action.”
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WHAT AND WHERE TO EXPECT CANNABIS INITIATIVES AND LEGISLATION IN 2020
From the Attorney General Alliance Cannabis Project
11 states (and the District of Colombia) permit recreational cannabis and 33 states permit some form of medical consumption. Cannabis proponents and opponents are gearing up for an active 2020. The following provides an overview of possible cannabis related initiatives or legislation.
Ballot initiatives
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Arizona
- Petitioners
filed
the Smart and Safe Arizona Act with the Secretary of State.
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Arkansas
– Two ballot initiatives: one legalizing recreational sales and the other allows expungement of cannabis related offenses. Read more
here
.
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Florida
– Competing
efforts
to place full recreational sales on the November 2020 ballot. An opposition group recently formed. The Florida Supreme Court
will
hear arguments on February 4, 2020, following a challenge by Attorney General Allison Moody.
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New Jersey
– Legislators called an audible and are
asking
the voters to decide legalization on the November 2020 ballot. State polling
suggest
a majority – 6 in 10 – of New Jerseyans are in favor.
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Idaho
– Supporters of a medical marijuana
initiative
gather signatures.
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South Dakota
– Medical marijuana initiative
turns
in sufficient signatures for 2020 ballot question.
Legislation
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New Hampshire –
After efforts stalled in 2019, the legislature is expected to
review
two bills; one to allow recreational sales and one to permit home grows.
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New Mexico
– Following recommendations from Gov. Michelle Lujan Grisham, the legislature is
expected
to hear legislation authorizing recreational sales.
•
New York
– State legislators
will
take up legislation to permit recreational cannabis in 2020.
•
Pennsylvania
– Two state Senators
introduced
legislation to create a recreational market.
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Rhode Island
– Gov. Raimondo
will
pursue legalized cannabis in 2020.
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Wisconsin
– State lawmakers are
considering
a bill to legalize medical marijuana use.
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Virginia
– Virginia Attorney General Mark Herring will
host
a Cannabis Summit to inform lawmakers expected to take up decriminalization in 2020.
Regardless of where one stands on legalization as good or bad public policy, the populist tidal wave begs the ultimate question facing Attorneys General:
How might cannabis laws protect public safety and consumers, preserve public health and ensure the rule of law, while also respecting the role of states to experiment as laboratories of democracy?
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MORE ACT PASSES HOUSE JUDICIARY COMMITTEE
From the Attorney General Alliance Cannabis Project
On November 19, 2019, the House Judiciary Committee approved the Marijuana Opportunity Reinvestment and Expungement Act (MORE). The MORE Act is notable in three key respects: (1) descheduling cannabis from the Controlled Substances Act; (2) allow states to set their own cannabis policies; and (3) require courts to expunge convictions for marijuana related offenses. The Act also imposes a 5% federal tax on cannabis and cannabis products to create a trust fund for people disproportionately harmed by the War on Drugs, providing small business loans to social equity applicants, job training and substances abuse treatment.
Appropriations Activity
While Congress continues to debate how to address cannabis at large, the Senate appropriations bill contains two key provisions that may affect the Federal government's enforcement of cannabis and hemp laws:
The Senate Commerce, Justice, and Science appropriations bill includes a provision preventing the Justice Department from interfering with states that have medical marijuana laws, ensuring that the prescribing and dispensing of medical marijuana in those states is both legal and regulated.
The Senate Agriculture, Rural Development, FDA, and Related Agencies appropriations bill report provides the FDA with $2 million for research, policy evaluation, market surveillance,
issuance of an enforcement discretion policy
, and appropriate regulatory activities with respect to products under the jurisdiction of the FDA that contain cannabidiol (CBD) and meet the definition of hemp.
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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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Parker v. Baker
, ___ F. Supp. 3d ___, 2019 WL 6310754 (W.D. Pa. Nov. 25, 2019)
:
Tribal officials possessed sovereign immunity against claim of improper membership denial.
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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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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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