WAGLAC News & Updates
October 14, 2019
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WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues.
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WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.
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WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Natural Resource Damages. Announcement and agenda to follow.
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CWAG Supports Indian Water Rights Settlement Extension Act
CWAG Executive Director Karen White sent a letter to congressional leadership today expressing support for the Indian Water Rights Settlement Extension Act. S. 886 and H.R. 1904 would amend Section 10501 of the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407) to make the Fund permanent. The Reclamation Water Settlement Fund, which is scheduled to terminate in FY2034, provides a source of funding for construction of infrastructure authorized by Congress as part of Indian water right settlements. After a hearing on S. 886, the Senate Committee on Indian Affairs adopted an amendment in the nature of a substitute that limits the extension of the Fund to the end FY 2044.
The Native American Rights Fund (NARF) and the Western States Water Council (WSWC) have also written a letter and testified in support of extension of the Reclamation Water Settlement Fund.
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Definition of "Waters of the United States" - Recodification of Pre-Existing Rules (Pre-Publication Version)
Environmental Protection Agency
October 12, 2019
"The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are publishing a final rule to repeal the 2015 Clean Water Rule: Definition of “Waters of the United States” (“2015 Rule”), which amended portions of the Code of Federal Regulations (CFR), and to restore the regulatory text that existed prior to the 2015 Rule. The agencies will implement the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice."
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EPA Proposes Updates to Lead and Copper Rule to Better Protect Children and At-Risk Communities
Environmental Protection Agency
October 10, 2019
"As part of Children’s Health Month, the U.S. Environmental Protection Agency (EPA) announced a proposed rule that significantly improves the actions that water systems must take to reduce lead in the nation’s drinking water. EPA Regional Administrator Mike Stoker announced the proposal at an event in Las Vegas. This action represents the first major overhaul of the Lead and Copper Rule since 1991 and marks a critical step in advancing the Trump Administration’s Federal Action Plan to Reduce Childhood Lead Exposures. "
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Administrator Wheeler Participates in Senator Cramer’s WOTUS Roundtable with North Dakota Leaders
Environmental Protection Agency
October 7, 2019
"[T]he U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler participated in a roundtable discussion on the agency’s efforts to define “waters of the United States” (WOTUS) under the Clean Water Act. North Dakota Senator Kevin Cramer hosted the roundtable at the University of Mary in Bismarck, North Dakota.
Led by Senator Cramer, Senator John Hoeven, Representative Kelly Armstrong, Lt. Governor Brent Sanford, ND Agriculture Commissioner Doug Goehring, ND Attorney General Wayne Stenehjem, ND State Engineer Garland Erbele, ND Department of Environmental Quality Director Dave Glatt, and ND Game and Fish Department Director Terry Steinward all participated in the roundtable. In addition to North Dakota state officials, roundtable participants included representatives from agriculture and business."
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What to Watch in the Appalachian Trail Pipeline Fight
E&E News
October 7, 2019
"Parties on either side of a newly picked Supreme Court case on the Atlantic Coast pipeline see starkly different consequences of justices weighing in on the legal conflict.
The high court agreed to hear an appeal of the 4th U.S. Circuit Court of Appeals ruling that the Forest Service could not authorize the pipeline to cross hundreds of feet beneath the Appalachian Trail (Greenwire, Oct. 4).
Critics of the 4th Circuit decision — the pipeline developers, a coalition of states and other industry groups — see a ruling by the Supreme Court as having significant repercussions for natural gas pipelines on the East Coast by potentially making the Appalachian Trail a barrier to pipeline development. Some groups argued the decision could also have ripple effects for public lands management across the country.
But environmental groups and others supporting the 4th Circuit decision say it would not be the only impediment to a pipeline already stymied by revoked permits and inadequate environmental assessments by the federal government. They warn the case was not ready for the justices to consider. They also say the ruling does not prevent pipeline developers from rerouting the project on state or private land, though that would delay the project and make it much more expensive
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County of Maui v. Hawai’i Wildlife Fund Saga Continues
E&E News
October 11, 2019
"A lawyer for Maui County this week apologized for local lawmakers' attempt to drop a contentious Clean Water Act case from the Supreme Court's calendar.
In a letter dated Wednesday, Maui corporation counsel Moana Lutey reinforced her position as the county's chief legal representative in a closely watched dispute over whether pollutants that travel through groundwater on their way to federally regulated water bodies are subject to Clean Water Act permitting."
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President Trump Signs Agency Guidance Executive Orders
President Trump signed “Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents” on October 9th. The EO requires all federal agencies: 1) to put their guidance documents on their websites; and 2) to submit all “significant” guidance documents to public notice and comment, which is a big departure from past practice. “Significant” is defined as a “guidance document that may reasonably be anticipated to . . . . adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities . . .”
OMB is required to issue further instructions to the agencies and all agencies must promulgate new regulations regarding use of guidance documents within 300 days of OMB issuing an implementing memorandum, which must be out within 120 days of the EO.
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DEPARTMENT OF THE INTERIOR
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Interior Proposes Streamlined Regulations for Mineral Development, Helping the U.S. Compete Globally and Supporting American Jobs
Department of the Interior
October 9, 2019
"The Bureau of Land Management’s (BLM) proposed rule to streamline the royalty rate reduction process will remove unnecessary and overly burdensome requirements providing much needed regulatory relief and efficiencies for non-energy solid leasable minerals, such as soda ash, potash, phosphate, sodium, potassium, sulphur and gilsonite. These minerals are used to make every day products such as fertilizer, toothpaste, printing ink, and cosmetics. The proposed rule is expected to save up to $5 million in regulatory costs over the next decade."
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Natural Resources Defense Council v. Perry
, No. 18-15380 (9th Cir. 2019)
Ninth Circuit affirms district court order requiring Department of Energy to publish energy-conservation standards approved by Obama Administration.
The Energy Policy and Conservation Act authorizes the Department of Energy to promulgate energy conservation standards for certain consumer products and industrial equipment. It also prohibits DOE from promulgate standards less stringent than existing ones. To build in a measure of flexibility for the “anti-backsliding” mandate, DOE adopted an “error-correction” rule, 10 C.F.R. § 430, in 2016 that establishes a 45-day period between promulgation of an amended or new standard and its publication in the Federal Register at which point the standard becomes final. The rule defines the term “error” as “an aspect of the regulatory text of a rule that is inconsistent with what the Secretary intended regarding the rule at the time of posting” and gives as examples “(i) [a] typographical mistake that causes the regulatory text to differ from how the preamble to the rule describes the rule; (ii) [a] calculation mistake that causes the numerical value of an energy conservation standard to differ from what technical support documents would justify; or (iii) [a] numbering mistake that causes a cross-reference to lead to the wrong text.” Litigation arose over the error-correction rule when DOE adopted final rules covering various products with the 45-day period expiring for certain products on January 19, 2017 and others on February 11, 2017. The DOE received minor proposed corrections to one rule but refused to publish any of standards on the ground that it is continuing to review them. Various States, municipalities and environment and consumer organizations then sued to compel their publication. Full summary link below.
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INDIAN LAW SUMMARY UPDATES
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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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Recent Indian Law Case Summaries
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Phillips v. Arkansas Dept. of Human Services
, 2019 Ark. App. 383, ___ S.W.3d ___ (Sept. 19, 2019)
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Requisite qualified expert witness testimony under the Indian Child Welfare Act existed for purposes of terminating mother’s parental rights where witness opined that the involved Indian children would be at risk of emotional or physical harm if returned home.
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Holly C. v. Tohono O’odham Nation
, ___ P.3d ___, 2019 WL 489123 (Ariz. Ct. App. Oct. 4, 2019)
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Remand ordered to determine applicability of the Uniform Child Custody Jurisdiction Enforcement Act to a private dependency proceeding initiated by a maternal grandmother and whether exclusive tribal or concurrent state-tribal jurisdiction under the Indian Child Welfare Act exists.
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Stand Up For California! v. U.S. Dept. of Interior
, ___ F. Supp. 3d ___, 2019 WL 4992183 (D.D.C. Oct. 7, 2019)
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The Bureau of Indian Affairs did not act arbitrarily, capriciously or in violation of law when it took land into trust for a tribe for gaming purposes under the restored lands exception in 25 U.S.C. § 279(b)(1)(B)(iii), and its environmental impact statement complied with the National Environmental Policy Act.
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Lumas v. U.S.
, ___ F. Supp. 3d ___, 2019 WL 5086576 (S.D. Cal. Oct. 10, 2019): District court lacked subject matter over a claim under the Federal Tort Claims Act where the allegedly negligent tribal employee was performing work under a contract not entered into under the Indian Self-Determination and Education Assistance Act.
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In re C.K.
, 2019-Ohio-4167, 2019 WL 5079671 (Ct. App. Oct. 10, 2019): Reason to know that a child was an “Indian child” under the Indian Child Welfare Act did not exist where its mother’s testimony negated any basis to believe that the child satisfied the statutory requirements for such status.
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Johnson v. Oneida Nation Enters., LLC
, ___ F. Supp. 3d ___, 2019 WL 5091952 (N.D.N.Y. Oct. 11, 2019): Tribal casino is excluded from “employer” status under Title VII of the 1964 Civil Rights Act with respect to alleged employment discrimination.
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All summaries are posted in CWAG's google docs acc
ount, 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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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@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.
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