NALW Winter 2016-2017

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  • Dakota Access Pipeline Project Update
    The Dakota Access Pipeline (DAPL) project continues to be the subject of extensive news coverage and ongoing controversy. Last quarter’s Watch discussed U.S. District Judge Boasberg’s memorandum opinion denying the Standing Rock Sioux Tribe’s Motion for Preliminary Injunction immediately followed by the joint decision by the Departments of the Army, Justice, and Interior to administratively halt portions of the DAPL project. In this Watch, we provide a brief summary of events that have occurred since our last report. Continue Reading
  • Wind River Reservation Held Diminished: EPA’s Contrary Determination Set Aside Despite Reliance on Solicitor Opinion
    In Wyoming v. Environmental Protection Agency, the Tenth Circuit Court of Appeals held that the Wind River Reservation in Wyoming was diminished by a 1905 Act of Congress and vacated the United States Environmental Protection Agency’s (EPA) determination that the Eastern Shoshone and Northern Arapahoe Tribes qualified to administer certain non-regulatory provisions of the Clean Air Act on the Reservation. In reaching its decision, the Tenth Circuit did not meaningfully defer to a Department of the Interior legal opinion concluding that the 1905 Act did not change the Wind River Reservation’s boundaries. This article provides an overview of the decision and its implications. Continue Reading
  • The Demise of Deference? Chevron’s and Auer’s Uncertain Future
    President Trump’s recent executive orders and ongoing commitment to regulatory reform are finding complimentary provisions in the form of a number of bills being considered in Congress. One of those bills, the Regulatory Accountability Act of 2017, includes a provision that seeks to repeal both the Chevron and Auer doctrines, which set out the deference due to an agency, either when it is interpreting its organic statute or when it is interpreting its implementing regulations. This article discusses the potential demise of deference. Continue Reading
  • The Congressional Review Act: Regulations on the Chopping Block
    Since it was enacted, the Small Business Regulatory Enforcement Act of 1996, better known as the Congressional Review Act, 5 U.S.C. §§ 801-808 (CRA), has been rarely used and certainly has not been the topic of headlines or water-cooler conversations. That has changed of late, however, and the CRA is now being used by the Republican-controlled Congress to revoke regulations passed in the final months of the Obama administration. A number of regulations finalized in the latter half of 2016 that affect Native American lands have been repealed by the President’s signature or are the subject or a resolution of disapproval in one of both houses of Congress. This article discusses several of those regulations. Continue Reading
  • Tule Wind Farm Passes NEPA Test, Again

    On March 6, 2017, the United States District Court for the Southern District of California rejected a challenge to a wind project in southeastern San Diego County, with known potential impacts to golden eagles. The March 6 decision involved a challenge to the Bureau of Indian Affairs (BIA) approval of a second phase of the project. The court upheld the BIA’s National Environmental Policy Act (NEPA) process, including the BIA’s decision to rely on an environmental impact statement prepared by the Bureau of Land Management for the first phase of the project and BIA’s decision not to prepare a supplemental NEPA document. This article reviews the challenges to the BIA’s NEPA decision and the court’s rationale for upholding the BIA analysis. Continue Reading