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August 5, 2020

"The Office of the Utah Attorney General announces a landmark settlement with the Environmental Protection Agency (EPA) that will provide more than $220 million for remediation efforts in historic mining districts that pose an ongoing threat to Utah’s waterways and environment. The State of Utah will join forces with the EPA to monitor and clean-up these mining areas, even those located in other states.

Additionally, the State of Utah will receive $3 million in water quality grants from the federal government for projects located in Utah. Further, the EPA will initiate and bear the cost for evaluations at multiple Utah sites (costs per site may exceed $200,000) to determine if further remediation is necessary.

In exchange for all these benefits, the State will dismiss its tort and CERCLA claims against the EPA and EPA contractors. While the past five years of water monitoring shows no sign of impact to public health or the environment, the settlement with EPA allows this case to be re-instated if future evidence of harm due to the blowout emerges.

This deal ends a lawsuit filed after mine waste spilled from the Bonita Peak Mining District’s Gold King Mine in 2015. An EPA contractor accidentally caused the release of millions of gallons of toxic water which flowed into the Animas and San Juan rivers, also impacting Lake Powell in August of that year. "

Ohio and Tennessee brought suit in 2015 to enjoin EPA’s 2015 rule defining the phrase “waters of the United States” (‘WOTUS”) as used in the Clean Water Act. The States filed a preliminary injunction motion seeking to enjoin enforcement of the 2015 WOTUS Rule.  Before the motion could be heard, however, EPA and the Corps of Engineers announced their intend to suspend and replace the 2015 WOTUS Rule. Prior to the suspension and replacement of 2015 WOTUS Rule, the United States District Court for the Southern District of Ohio denied the States’ motion “on the ground that, suspended or not, the States had not shown a likelihood of imminent, irreparable harm resulting from the 2015 Rule.”

During the 1930s, Winston Churchill was asked what Britain should do if Stanley Baldwin—then        Lord President of the Privy Council, and a notorious advocate of appeasement—were to die in        office. “Embalm, bury, and cremate,” Churchill answered. “Take no chances!” The plaintiff States        advocate a similar tack for the “Clean Water Rule” here. Promulgated in 2015, the EPA and the Army Corps of Engineers (“the Agencies”) have since repealed the Rule, and more recently have replaced it with another. Yet the States now appeal the district court’s refusal to enjoin it as well. We dismiss the appeal as moot.

The Court, however, held the case as a whole is not moot because a “fair prospect exists” that “the pendency of 15 cases challenging the Repeal or Protection Rules” might result in the 2015 WOTUS Rule taking effect again.

In 2018, the Ranch Fire burned approximately 288,000 acres in northern California’s Mendocino National Forest. The United States Forest Service subsequently approved a plan to solicit bids from logging companies to fell and remove fire damaged trees. Under project criteria, “[a] logging company whose bid has been accepted may fell ‘merchantable hazard trees’ of fourteen or more inches diameter at breast height ... that are ‘within one and a half tree-heights’ of the road. Any tree within 200 feet of the centerline of the road that has been partially burned and has a 50 percent or higher probability of mortality is eligible for felling.” A lesser range of timber cutting is authorized for roads adjacent to the Snow Mountain Wilderness. “In total, the Project authorizes the logging of millions of board feet of timber on nearly 4,700 acres of National Forest land.” The Forest Service did not conduct an analysis under the National Environmental Policy Act, instead applying the categorical exclusion for road repair and maintenance in 36 C.F.R. § 220.6(d)(4).

July 31, 2020

"Weld County’s challenge of new state air-quality rules aimed at reducing oil and gas emissions has been dismissed by a district judge who rejected claims that the regulations are detrimental to the county.

Denver District Judge Michael Martinez issued a decision Wednesday granting a motion by the Colorado Department of Public Health and Environment and the Air Quality Control Commission to dismiss the case. Martinez agreed with state officials that Weld County had not shown that complying with the rules, approved by the AQCC in December, harms the county.

Martinez also said the county is subordinate to the state agency when it comes to regulating air quality. Therefore, the county is limited in its authority to adopting regulations that are the same or more restrictive than the state rules, the judge said."

Summary of Environment Texas Citizen Lobby v. Exxonmobil Corp., No. 17-20545.

 

“Plaintiffs filed a citizen suit against Exxon, seeking to recover from more than 16,000 Clean Air Act violations arising from the Baytown, Texas complex.

The Fifth Circuit held that Clean Air Act plaintiffs must prove standing for each violation in support of their claims. The court held that the evidence supports the district court's findings of injury, traceability, and redressability for a number of the violations. However, a limited remand is needed for the district court to determine what other violations could have contributed to plaintiffs' members' injuries and then to tabulate its findings. The court noted that it does not require line-by-line findings, but that the district court may group violations. Furthermore, plaintiffs have standing for at least some of the violations that Exxon asserts affirmative defenses against. The court remanded for findings on whether Exxon proved its Act of God defense for the relatively small number of violations occurring during Hurricane Ike. The court affirmed the district court's rejection of Exxon's Rule 52(b) motion, because Exxon failed to meet its burden in supporting its no-fault defenses by failing to identify evidence establishing that it met the relevant criteria for each individual emissions event. Because the court remanded for the district court to determine the number of violations for which plaintiffs have standing, as well as whether Exxon proved its Act of God defense for any violations, the court will also have to reassess the penalties.”

July 31, 2020

"A new proposal from the Trump administration that defines habitat under the Endangered Species Act (ESA) would limit the areas species will have to recover, critics say.

An advance copy of the proposal from the Fish and Wildlife Service (FWS) that was obtained by The Hill writes that habitats are “the physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species."

When species are endangered, the ESA requires the government to set aside habitat deemed critical for its recovery.

But environmental groups say the new definition being proposed by FWS will allow the agency to block setting aside any land that isn’t currently habitat but might be needed in the future, particularly as the climate changes."

August 3, 2020

"Oklahoma Attorney General Mike Hunter asked the state’s highest criminal appeals court Monday for guidance on a flood of inmate appeals after the U.S. Supreme Court unexpectedly ruled last month the state has no criminal jurisdiction on large areas the justices found are still tribal lands.

In a 5-4 majority opinion, the Supreme Court ruled on July 9 that Seminole Nation member Jimcy McGirt should have been tried in in federal court because his crimes were committed on Muscogee (Creek) Nation land. McGirt was convicted in 1997 and sentenced to 500 years in state prison for rape and sodomy."

 

"This case concerns a dispute over the construction of a two-story boat garage on Lake Coeur d’Alene. The Newtons’ property overlooks the location of the Kenworthys’ boat garage. The Kenworthys began construction of the structure in 2015. The new structure was much larger than the original boat garage and now has a second floor. The Newtons objected to the size of the new structure, and sued the Idaho Department of Lands (IDL) and the Kenworthys’ related family entities (the LLC Respondents), asserting claims of public and private nuisance and requesting injunctive relief to mandate the removal of the structure. The district court entered summary judgment for IDL and the LLC Respondents. The Idaho Supreme Court affirmed the district court. The Newtons failed to timely appeal IDL’s decision issuing the Kenworthys a permit to construct the new boat garage, and as such, the Newtons were not eligible for judicial review of IDL’s permitting decision. The Newtons’ claims for injunctive relief were based on the Lake Protection Act (LPA), the Public Trust Doctrine (PTD), and the Fourteenth Amendment Due Process Clause. The Court held that the LPA and PTD do not provide private litigants with independent enforcement rights. Further, the Court held that the Newtons failed to demonstrate a protected property interest to sustain a procedural due process claim. Thus, the Court held that the Newtons’ claims for injunctive relief were impermissible collateral attacks on final agency action. Additionally, the Court held that the Newtons’ public and private nuisance claims failed as a matter of law."

"Stanford Vina Ranch Irrigation Company (Stanford Vina) sued the California Water Resources Control Board (the Board), among other defendants, challenging the Board’s issuance of certain temporary emergency regulations in 2014 and 2015, during the height of one of the most severe droughts in California’s history. The challenged regulations established minimum flow requirements on three tributaries of the Sacramento River, including Deer Creek in Tehama County, in order to protect two threatened species of anadromous fish, Chinook salmon and steelhead trout, during their respective migratory cycles. Furthermore, Stanford Vina challenged the Board’s implementation of those regulations by issuing temporary curtailment orders limiting the company’s diversion of water from Deer Creek for certain periods of time during those years in order to maintain the required minimum flow of water. Judgment was entered in favor of the Board and other defendants. Stanford Vina appealed. Finding the Board possessed broad authority to regulate the unreasonable use of water in California by various means, including the adoption of regulations establishing minimum flow requirements protecting the migration of threatened fish species during drought conditions and declaring diversions of water unreasonable where such diversions would threaten to cause the flow of water in the creeks in question to drop below required levels, the Court of Appeal affirmed. The Board’s adoption of the challenged regulations was not arbitrary, capricious, or lacking in evidentiary support, nor did the Board fail to follow required procedures, and the Court declined to override the Board’s determination as to reasonableness set forth in the regulations."

Western States Water Council Newsletter

August 7, 2020

"The Conference of Western Attorneys General (CWAG) recently adopted a resolution relating to the Army Corps of Engineer (Corps) former Water Supply Rule. The resolution authorizes CWAG staff to work with other state associations to pursue legislation that would affirm state sovereignty over the distribution and allocation of water within Corps project reservoirs. The Corps withdrew their proposed Water Supply Rule in early 2020, which would have defined key terms under the 1944 Flood Control Act (FCA) and the 1958 Water Supply Act (WSA) to clarify Corps’ policies governing the use of project reservoirs for domestic, municipal and industrial water supply (see WSW #2384 & #2392).

The resolution emphasized deference to state water law in decades of Supreme Court decisions, congressional testimony, and congressional policy within the 1902 Reclamation Act, the FCA and the WSA. It further states that “the WSA did not authorize the [Corps] to sell water for municipal and industrial uses from its project reservoirs, but rather authorized the [Corps] to enter into contracts to make storage space available for municipal and industrial water supplies,” and “contracting to provide municipal and industrial storage space in [Corps] reservoirs pursuant to §6 of the FCA and §301 of the WSA is distinct from the Corps’ operations to regulate flows for congressionally authorized navigation and flood control purposes.”

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

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.

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.