News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
August 3rd, 2020
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Virtual Summer Meeting
August 10-11, 2020
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In response to the Covid-19 pandemic, the WAGLAC Summer Meeting will be held as a virtual meeting on August 10-11, 2020. Please click each link below to register. After registration and approval, you will receive a confirmation and option to add each session to your calendar.
 
In addition to the roundtable discussion of natural resource, environmental, and Indian law issues, there will be three presentations.

1. Montana Attorney General Tim Fox will deliver the keynote address entitled “Civility –
The Bedrock of the Legal Profession;
2. The Montana Attorney General’s Office will present a Seminar on Natural Resource Damages; and
3. Oklahoma Solicitor General Mithun Mansinghani will discuss the Supreme Court’s McGirt v. Oklahoma opinion.

CWAG Attorneys General and staff are invited to participate in the meeting. Subject matter experts are encouraged to participate in the roundtable discussions. 
 
Please note that the agenda for the roundtable has been modified to accommodate a scheduling conflict for our speaker. The Indian law roundtable has been moved to August 11th.
CWAG is pursing CLE credits for Attorney General Fox’s keynote address and the Natural Resources Damage Seminar.

Email Andrea Friedman at AFriedman@agalliance.org with registration questions.
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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
ENVIRONMENT
EPA Announces Effort to Reduce Lead in Drinking Water
EPA
July 29, 2020  


  “The U.S. Environmental Protection Agency (EPA) announced a final rule to reduce lead in plumbing materials used in public water systems, homes, schools and other facilities. This action marks a significant milestone in implementing the Trump Administration’s Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts. Along with other actions taken by EPA and our federal, state and local partners, this final rule will help protect public health—especially children’s health—from the risks associated with lead exposure."

New DOJ Guidance Limits Federal Enforcement under the Clean Water Act
The National Law Review
July 29, 2020

"On July 27, 2020, the U.S. Department of Justice (DOJ) issued a policy memorandum designed to stay the federal government’s hand in enforcing the Clean Water Act where states have initiated a civil judicial penalty proceeding under analogous state laws on the same core of operative facts.

The policy, “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” relies heavily on principles of federalism and efficiency – and the DOJ-wide policy against “piling-on” – to limit the reach of federal government enforcement. The memo notes that the statute explicitly precludes federal administrative enforcement where the state has taken administrative enforcement under comparable state authorities. But the statute is silent regarding any preclusive effect of state judicial action."
Enviros to court: Trump 'cut every corner' on NEPA overhaul
Niina H. Farah E&E News 
Wednesday, July 29, 2020

"Environmental groups are hauling the Trump administration to court for what they argue was a failure to follow the correct process for updating regulations on how to comply with the National Environmental Policy Act.
Coalitions of groups from across the country filed two lawsuits today challenging the White House Council on Environmental Quality's newly finalized implementing regulations for NEPA, which govern analysis of projects ranging from highways and bridges to oil and gas leases.
The lawsuits are the first of what will likely be a series of challenges against regulations that CEQ has argued would speed up and simplify the federal project permitting process (Energywire, July 16).
The revisions overturn decades-old standards outlining how to comply with the bedrock environmental statute, in violation of the Administrative Procedure Act, or APA, one coalition of challengers said.
"Rather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner," 17 environmental groups wrote in a complaint filed this morning in the U.S. District Court for the Western District of Virginia."
EPA Finalizes Revisions to the Coal Ash Closure Regulations
EPA Press Release
July 29, 2020

“[T]he U.S. Environmental Protection Agency (EPA) finalized several changes to the regulations for coal combustion residuals, known as CCR or coal ash, to implement the court’s vacatur of certain closure requirements as well as adding provisions that enhance the public’s access to information about the management of coal ash at electric utilities.

“Today’s action makes changes to the closure regulations for coal ash storage that enhance protections for public health while giving electric utilities enough time to retrofit or replace unlined impoundment ponds,” said EPA Administrator Andrew Wheeler. “The public will also be better informed as EPA makes facility groundwater monitoring data more accessible and understandable.”

In response to court rulings, this final rule specifies that all unlined surface impoundments are required to retrofit or close, not just those that have detected groundwater contamination above regulatory levels. The rule also changes the classification of compacted-soil lined or “clay-lined” surface impoundments from “lined” to “unlined,” which means that formerly defined clay-lined surface impoundments are no longer considered lined surface impoundments and need to be retrofitted or closed.”

Two New EPA/Corps Rules at OMB for Review
Ryan & Kuehler PLLC
July 22, 2020

"The agencies submit their draft rules to OMB for review before releasing them to the public. So knowing what's at OMB gives us an insight into what's in the pipeline. Here are two that are of interest to CWA practitioners.


Corps' Nationwide 404 Permits. The current NWPs don't expire until 2022, but the Trump Administration has ordered an early review. The Corps is looking at nine specific NWPs related to the energy sector. This is consistent with the current administration's priorities, and should surprise no one. This could be quite controversial depending on how far they go, especially as related to pipelines, which have been aggressively challenged by some states and enviro groups in the last few years. The Corps also states that will "take a holistic look at" all of the existing 52 NWPs. "
ENERGY
EPA agreement limits uranium oversight
E&E News
July 24 2020

"EPA has agreed to limit its authority to regulate uranium mining practices that environmentalists say pollute groundwater.

In a memorandum of understanding with the Nuclear Regulatory Commission signed by Administrator Andrew Wheeler while visiting Wyoming yesterday, EPA agreed to limited authority over a process called in situ leach (ISL) recovery of uranium, in which minerals are first dissolved underground before being pumped to the surface, where they are processed."
INDIAN LAW
Tribes argue Okla. ruling applies in Bears Ears lawsuit
Jennifer Yachnin, E&E News
July 29, 2020

"Native American tribes challenging President Trump's decision to slash the size of the Bears Ears National Monument are seizing on the recent Supreme Court decision in McGirt v. Oklahoma to bolster their case against the administration.
In documents filed in the U.S. District Court for the District of Columbia on Friday, the Native American Rights Fund and attorneys for individual tribes cited the high court's recent ruling that millions of acres in Oklahoma remain part of Native American reservations for criminal law purposes (Greenwire, July 9).

In McGirt, the Supreme Court explained that 'Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right,’ Native American Rights Fund attorney Natalie Landreth wrote.
. . . .

The lawsuit alleges that Trump overreached his authority under the Antiquities Act of 1906 when he reduced the sites because only Congress may amend a monument's boundaries.
‘As the Tribes have explained, Congress reserved for itself the authority to revoke a monuments' objects and remove its lands. That past Presidents have unlawfully exercised a non-statutory power to exercise those powers does not amend the Antiquities Act,’ Landreth wrote. The Okahoman, however, reports that Muscogee (Creek) Nation and Seminole Nation have disavowed the agreement.

WATER
Judge resuscitates epic Calif. drainage lawsuit
E&E News
July 21, 2020

"California farmers frustrated by Congress' failure to greenlight a politically sensitive irrigation drainage plan have revived a major legal challenge.

At the farmers' request, a federal judge yesterday lifted a long-running stay on a lawsuit filed in 2011. Millions of dollars, a major environmental cleanup and more could all once again hang in the balance.

The case filed in the U.S. Court of Federal Claims centers on the government's failure to complete a drainage system for the Westlands Water District, although the suits were not filed by the district."
CWAG ADOPTS RESOLUTION ASSERTING STATE SOVEREIGNTY OVER ALLOCATION OF WATER FROM ARMY CORPS RESERVIOIRS

CWAG adopted Resolution 2020-01 Asserting State Sovereignty Over the Allocation and Distribution of Water from Army Corps of Engineers’ Project Reservoirs for Consumptive Uses. This resolution is in response to the Army Corps of Engineers (Corps) effort last year to adopt a Proposed Rule on Use of U.S. Army Corps of Engineers Reservoir Projects for Domestic, Municipal & Industrial Water Supply (81 FR 91556). Although CWAG Attorneys General successfully petitioned for withdrawal of the proposed rule, there is concern the Corps will continue to require water supply contracts at individual Corps project reservoirs as a condition of granting access to water users seeking to divert natural flow for consumptive uses . The resolution expresses support for legislation to clarify that state law governs the allocation, distribution, and use of natural flow passing through Corps reservoirs. 


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.
Howard v. MMMG, LLC, ___ So. 3d ___, 2020 WL 3443832 (Fla. 4th Dist. Ct. App. June 24, 2020): Member of IRA section 17 corporation’s board of directors possessed immunity from state court suit for diverting business away from a limited liability company in violation of a joint venture agreement.

Shawnee Tribe v. Mnuchin, ___ F. Supp. 3d ___, 2020 WL 4334908 (N.D. Okla. July 28, 2020): Tribe’s challenge to the calculation of its CARES Act distribution transferred to the United States District Court for the District of Columbia
Peoria Tribe of Indians of Oklahoma v. Campbell, ___ F. Supp. 3d ___, 2020 WL 4334907 (N.D. Okla. July 28, 2020): Motion to remand removed case to state court was granted where complaint alleged legal malpractice and other non-federal law claims arising from defendants’ non-compliance with management contract requirements in the Indian Gaming Regulatory Act.

Cherokee Nation v. Stitt, ___ F. Supp. 3d ___, 2020 WL 4340549 (W.D. Okla. July 28, 2020): Administrative action authorizing non-tribal electronic gaming constituted a “governmental action of the state” that satisfied a condition precedent to automatic renewal of tribal-state compacts for a 15-year period.

In Matter of Adoption of B.B., 2020 UT 53, ___ P.3d ___ (Utah S. Ct. July 28, 2020): Exclusive tribal jurisdiction under 25 U.S.C. § 1911(a) of the Indian Child Welfare Act did not exist where the mother was domiciled off-reservation at the time of the Indian child’s birth and did not abandon the child through initiation of formal state law adoption proceedings.

Oneida Nation v. Village of Hobart, ___ F.3d ___, 2020 WL 4355703 (7th Cir. July 30, 2020): Oneida Nation’s Wisconsin reservation was not diminished from its original 1838 treaty boundaries, and application of a village’s permitting requirement on a tribally sponsored festival was therefore preempted. 

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, searchable database of all previously published WAGLAC newsletters, please follow the link below.