News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
August 31st, 2020
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom

In response to COVID-19, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020.

TO REGISTER: email RSVP to Andrea Friedman at AFriedman@AGAlliance.org, then you will receive full login details.
 
In addition to the roundtable discussion of natural resource, environmental, and Indian law issues, there will be an Indian Law Seminar. Topics to be covered are:
 
  1. Larry Echo Hawk, Former United States Assistant Secretary of the Interior for Indian Affairs, Former Idaho Attorney General, and Former Shoshone-Bannock Tribal Attorney will share his Thoughts on State/Tribal Relations in the 21st Century;
  2. Adam Crepelle, Associate Professor, Southern University Law Center, and Managing Fellow of its Native American Law and Policy Institute, will discuss Tribes and Internet Payday Loans;
  3. Fronda Woods, Assistant Editor, American Indian Law Deskbook, will discuss Public Law 280: Fundamentals and Misconceptions;
  4. Clay Smith, Chief Editor, American Indian Law Deskbook, will discuss Tribal Adjudicatory Authority: Exhaustion, Deferral and the Merits; and 
  5.  Bruce Turcott, Managing Assistant Attorney General, and Michelle Carr, Assistant Attorney General, State of Washington will discuss Cannabis and Indian Country.
 
WAGLAC meetings are limited to CWAG Attorneys General and staff. Subject matter experts are encouraged to participate in the roundtable discussions. 
 
*Please note the meeting dates, times and duration have changed to accommodate participation by all CWAG member states. 

CWAG is pursing CLE credits for meeting.
ENVIRONMENT
Kansas Natural Resource Coalition v. U.S. Department of Interior

The 1996 Congressional Review Act requires that “[b]efore a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—(i) a copy of the rule; (ii) a concise general statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.” 5 U.S.C. § 801(a)(1)(A). The CRA incorporates by reference, with several exceptions not relevant here, the definition of “rule” in the Administrative Procedure Act. See id. § 551(4) (“rule” includes, inter alia, “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy”). Subsequent to the CRA’s adoption, the Fish and Wildlife Service adopted a Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15,100 (Mar. 28, 2003) but did not submit it for review. The Kansas Natural Resource Coalition, a group of western Kansas county governments, sued the Department of the Interior and various officials in 2018 alleging that the Policy was invalid given the lack of submission. KNRC argued that the Policy’s invalidity caused injury in fact because the coalition could not “not beneficially rely on the [Policy] in implementing” a lesser prairie-chicken conservation plan that it had developed; i.e., the CRA noncompliance “puts conservation agreement participants ‘in a bind: they must show that their plans are certain to be implemented and effective but the failure to submit the PECE Rule undermines the incentives necessary to achieve that certainty.’” The district court dismissed the action, construing CRA § 805 to deprive it of subject matter jurisdiction. That section reads: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” Kansas Natural Resource Coalition v. U.S. Dep’t of Interior, 382 F. Supp. 3d 1179 (D. Kan. 2019). In view of this determination, the court did not address two other grounds raised by the federal defendants for dismissal: lack of Article III standing and failure to bring the action within the six-year limitation period under 28 U.S.C. § 2401(a).
Judge: EPA Can Be Sued Over Flint Crisis
E&E News
August 27, 2020

"The federal government can be sued for failing to act quickly enough after discovering lead in Michigan's water supply during the 2014 Flint crisis, a district court judge said.

According to the 87-page opinion by U.S. District Court for the Eastern District of Michigan Judge Judith Levy, EPA failed to act as a "good Samaritan" and didn't act quickly enough to investigate complaints that would have required corrosion control or treatment."
NEPA Rules Rewrite: Potential Impacts on Federal-State Environmental Reviews & Studies
JD Supra
August 28, 2020

"This is the seventh in a series of eAlerts on revisions to National Environmental Policy Act (NEPA) regulations published in the Federal Register on July 16, 2020 by the Council on Environmental Quality (CEQ).

In this eAlert, we focus on (1) the potential impact of the 2020 NEPA regulations on coordination of federal and state environmental reviews, and (2) whether the regulations will achieve the goal of reducing duplication of state and federal environmental studies. "
21 States Sue White House Over Rollback of Bedrock Environmental Law
The Hill
August 28, 2020

"A coalition of 21 states sued the Trump administration for rolling back what they say is a “rule that is, at its heart, the gutting” of America’s bedrock environmental law.

The White House in July finalized a rollback of the National Environmental Policy Act (NEPA), which for 50 years has required the government to weigh environmental and community concerns before approving pipelines, highways, drilling permits, new factories or any major action on federal lands."
ENERGY
Feds: Army Corps Permit Ruling 'Blindsided' Developers
E&E News
August 27, 2020

"The Trump administration is calling for a federal appeals court to overturn a ruling on a key water crossing permitting program that it says "blindsided" industry and many states.

Justice Department attorneys told the 9th U.S. Circuit Court of Appeals that companies relying on the program had no warning that a federal judge planned to broadly block the use of the Army Corps of Engineers' Nationwide Permit 12 in May, as part of litigation over the Keystone XL pipeline.

They pointed repeatedly to statements from the pipeline challengers that said they only sought to block the use of the permitting program for dredge and fill activity for the crude oil pipeline."
The Trump Administration Says Alaska's Pebble Mine Can't Be Permitted 'As Currently Proposed'
The Washington Post
August24, 2020

"The Trump administration delayed a key permit for the proposed Pebble Mine in Alaska, saying the company that wants to build the biggest gold and copper mine in North America needs to take extensive action to offset the harm it will cause to the environment.

The decision by the U.S. Army Corps of Engineers marks another reversal for the project, which had been blocked by the Obama administration, then revived by the Trump administration, only to be opposed again recently by members of President Trump’s inner circle, including Donald Trump Jr., who enjoys fishing in the area that would be affected by the mine.

In a statement, the Corps said the project as currently designed would not be allowed under federal law. While the Trump administration “supports the mining industry,” the Pebble Mine proposal would be too damaging to the Bristol Bay region in southwest Alaska, the Corps said."
President Trump Faces New Lawsuits Over Drilling in Alaska Reserve
E&E News
August 26, 2020

"Conservation groups are hauling the Trump administration to court for its new plan to expand oil and gas development in the western Arctic.

In two parallel lawsuits, Trustees for Alaska and Earthjustice are challenging the Bureau of Land Management's integrated activity plan (IAP) for leasing on the 23 million-acre National Petroleum Reserve-Alaska.

The lawsuits, filed in the U.S. District Court for the District of Alaska, came the same day as Indigenous and conservation groups challenged a separate plan opening the coastal plain of the Arctic National Wildlife Refuge to development."
INDIAN LAW DESKBOOK
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
Indian Law Case Summaries
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.
Goodface v. Lower Brule Sioux Tribe, ___ F. Supp. 3d ___, 2020 WL 5017352 (D.V.D. Aug. 25, 2020)Tribal member’s allegedly improper denial of eligibility to seek position on tribal council did not give rise to federal court jurisdiction under the Indian Civil Rights Act.
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
About WAGLAC
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.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
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 database of all previously published WAGLAC newsletters, please follow the link below.