Washington has taken steps in recent years to create laws and regulations aimed at keeping the Evergreen State green, but as its population and climate vulnerabilities grow, it's facing environmental issues involving water quality, wildlife and agriculture, raising compliance concerns for industry and fueling conservationist missions.
The state has worked to strengthen environmental standards and practices, but green groups say lawmakers and regulators could go further. At the same time, industry representatives warn of the costs of what they see as new burdens, such as installing new air pollution control technology or better controlling agricultural waste.
In the thick of things are the Evergreen State's environmental attorneys, who are fielding a growing number of increasingly complex questions from clients about these issues and more, said David Weber, managing principal of Beveridge & Diamond PC's Seattle office.
"Washington State is a laboratory for muscular environmental regulation, from its economywide Climate Commitment Act to the enactment of the strongest state chemicals bill in the country," Weber said. "For environmental lawyers, the relentless pace of new legislation and rulemakings highlights the importance of being proactive in monitoring and unpacking proposed rules for clients."
Here are four pressing environmental issues in Washington state.
Under the Climate Commitment Act's "cap-and-invest," or cap-and-trade program, the state sets a greenhouse gas emissions cap and then decreases the limit over time to meet statutory reduction requirements. This program, along with other fuel and hydrofluorocarbons programs, is supposed to help the state meet a goal of net-zero carbon emissions by 2050. The CCA was passed in 2021, and the state spent last year gathering emissions data from entities covered by the law. The first cap went into effect in January, and the first credit auction will be held this month.
Robert Smith, a partner in K&L Gates LLP's Seattle office, said Washington's cap-and-trade program has similarities to California's but includes some modifications. Before Washington's law passed, California was the only single state operating such a program. On the East Coast, 12 states participate in the Regional Greenhouse Gas Initiative.
Smith said attorneys and businesses are going to have to be on top of their game to make sure they're complying with the new regime.
"It's going to be a pretty significant thing this year, in terms of making sure that regulated entities that need to comply are aware of those requirements, and learning how to comply in terms of striking a balance between getting emissions numbers down on their own … and needing to go to the auction," Smith said.
One of the unique features of Washington's program is that proceeds raised from the auctions will go to fund new investments in climate resiliency programs, clean transportation and efforts to address health disparities across the state.
"There is a very strong environmental justice component in how this is set up," Smith said. "So there will be an Environmental Justice Council that will provide recommendations on where the money goes."
The Duwamish River
On its way into Seattle's Elliott Bay, the Duwamish River travels through a heavily industrial area. More than 40 businesses are negotiating how to split the estimated $1 billion cost of cleaning up this lower portion of the river, including The Boeing Co. and the Port of Seattle. The port is suing Boeing in federal court, alleging the aerospace company is not paying its fair share. The lawsuit is currently stayed pending further negotiations between the parties.
Beveridge & Diamond's Weber, who represents several parties in the cleanup that are not involved in the lawsuit, said the litigation potentially jeopardizes the ability of all parties to resolve the matter.
As the Lower Duwamish process plays out, community and green groups are focused on starting to clean up another part of the river in Seattle, the East Waterway, said Patti Goldman, a senior attorney at Earthjustice who is based in Seattle.
She said there has been some conflict between the government agencies involved in overseeing any cleanup and Earthjustice's client, the Duwamish River Cleanup Coalition, about what is needed at the site.
"Seattle became the city it is because of the Duwamish River, but the river suffered as a result," Goldman said. "Cleaning up the river and reducing the air pollution that plagues this overburdened community will challenge lawyers to ensure implementation of bedrock environmental laws and evolution of those laws to incorporate environmental justice principles."
Puget Sound, which, along with waters in Canada, is part of the Salish Sea, provides Washingtonians and visitors with an abundance of resource and recreation opportunities. But the sound and its wild inhabitants have suffered from industrialization, development and population growth in the area. The U.S. Environmental Protection Agency, the Washington State Department of Ecology, Native American tribes and many other local community and business groups have been part of an ongoing conversation about how to improve the sound. Significant funding, new regulations and voluntary boat measures are some of the ways the organizations are approaching the problem.
Congress doles out money to the EPA as it works with state agencies, local and tribal governments, universities and nongovernmental organizations to help protect and restore Puget Sound.
One of the key issues in the sound is the survival and health of the Southern Resident population of orcas.
"Orcas and the salmon they eat are the essence of Washington state and the Salish Sea, existential to the tribes, at the core of the state's history, and our moral responsibility now that they are on the Endangered Species list," Goldman said. "Our environmental laws have the potential to recover orcas and salmon, but only if they are faithfully implemented, which is why lawyers are critical to their fate."
Several programs are aimed at helping the killer whales, from reducing noise and traffic on the sound to mandating that sightseers keep a greater distance from them in the water.
Water quality is also an issue for the sound. In November, the EPA laid out a final rule to reestablish water quality standards for Washington state that were rolled back during the Trump administration and are aimed at protecting people who eat fish and shellfish caught in the state.
And last year, a D.C. federal judge upheld an EPA finding that allowed Washington to prohibit commercial and recreational vessels from discharging their sewage into Puget Sound.
State regulators, the agricultural industry and environmentalists have been battling over concentrated animal feeding operations for a few years now. Agriculture accounts for about 12% of Washington's economy, making the sector a major component, according to the Washington Farm Bureau, an industry trade association. From wheat fields and apple orchards to dairy farms and aquaculture, the state boasts a diversity of agricultural endeavors.
Conservation groups secured a victory in their challenge to waste discharge permits used by dairy farms in Washington after a state appeals court found the approvals don't provide adequate protections to ensure excessive manure runoff doesn't pollute nearby water sources.
In December, the state Ecology Department reissued the general permit after incorporating the court's feedback, but the same coalition of green groups that challenged the authorization the first time say the department once again failed to issue a permit that meets legal standards. They have filed a new administrative challenge that could also end up in court.
"Ecology is failing at doing what the law requires in terms of actually doing analysis of what the reasonable treatments are and requiring each facility to implement those," said Andrew Hawley, a senior attorney at Western Law Environmental Center based in Seattle, who is representing the green groups.
Aquaculture is big business in Washington, too, and is going through its own period of regulatory reform.
Smith of K&L Gates noted that the state is one of the few in the nation that allow private ownership, sale and leasing of tidelands. But in November, the Washington State Department of Natural Resources announced a ban on commercial finfish net pen aquaculture on state-owned aquatic lands. The move aligns Washington's net pen salmon aquaculture policy with those of Alaska, California and Oregon.
Cooke Aquaculture Pacific LLC and the Jamestown S'Klallam Tribe have filed separate lawsuits in state court challenging the state's move.
"This is a pretty significant policy change," Smith said. "How this litigation plays out may also tell us a little bit more about the parameters of DNR authority generally as a title lessor, and how much leeway they have to terminate leases or not renew leases, which also could be generally applicable to things like shellfish aquaculture that also has a lot of state leases currently in Washington."
Serving Subpoenas! By Twitter?
A Bankruptcy Court Served a Subpoena Via Twitter. Will This Catch On?
In recent years, social media has slowly creeped its way into the legal industry, transforming decades-old practices. While some firms have turned to social media platforms to find new business opportunities, others are finding innovative marketing strategies and there are now “legal influencers.”
Courts have too, become creative with their use of social media, in some perhaps unexpected ways. Recently, for instance, the U.S. Bankruptcy Court for the Southern District of New York authorized served a subpoena via Twitter one of the founders of Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, which is going through chapter 15 bankruptcy proceedings.
Courts documents show that while foreign representatives of Three Arrows were previously unable to serve subpoenas on the founders “as their whereabouts are unknown,” the founders were active online on their email and Twitter accounts.
To be sure, serving a subpoena via social media is a fairly new concept, and has only been authorized sparingly in the past. But experts say that it could become more common as the industry continues to adapt its proceedings to technological advancements.
“I think these recent decisions permitting service via social media and alternate means show how the judiciary and judges [are] coming up with approaches to address the challenges associated with service of process,” said Bobby Malhotra, member of Winston & Strawn’s E-Discovery & Information Governance practice group.
“While personal service I think is still the overwhelming norm, there are and there may be circumstances where a service by social media or alternate means is really the best available or viable option—or potentially the only option,” he added.
In fact, Malhotra pointed to other examples of service of subpoena being authorized over email, voicemail message and even fax. And such instances have slowly started picking up in recent years.
“As social media continues to penetrate every facet of our society, it will impact our legal system. There is this growing trend of service of process being accomplished through alternative means, and it may become more common,” Malhotra said.
Of course, while other exceptions could be on the horizon, broader adoption of alternative means of service may ultimately depend on amendments made to the Federal Rules of Civil Procedure.
And those could still be years away, said Brett Burney, principal at Burney Consultants and eLaw Evangelist at Nextpoint.
“I don’t see that there’s going to be a major change in this approach until the federal rules are amended to somehow say, this can be delivered by any means necessary, including electronic means,” Burney noted.
Still, judges turning to creative solutions could be just the “catalyst” for change needed, he added.
Of course, going forward, whether other judges follow the same approach will depend on the reliability—and security—of such alternative methods.
“I think it remains to be seen how courts and the legislature will balance litigants’ need for documents and information with due process concerns of ensuring notice, personal service,” Malhotra said.
Susan Crumiller and Carrie Goldberg are law firm owners, survivors, and best friends whose firms represent plaintiffs in sexual abuse and harassment litigation. Now, the two have teamed up to create a co-counsel initiative called Survivors Law Project
Brooklyn-based attorneys Susan Crumiller and Carrie Goldberg recently teamed up and launched the Survivors Law Project as a platform to represent plaintiffs in sexual abuse and harassment cases. Both are survivors themselves—this mission is very personal to them. They sat down with NLJ to discuss how litigation, the judiciary and juries have evolved since the onset of the #MeToo movement and what’s at stake now since the state of New York enacted The Adult Survivors Act in May 2022 creating a one year window to bring claims against abusers without statute of limitations.
You recently started the Survivors Law Project as an avenue to help sexual assault victims—this mission is also very personal to you—tell me more about it.
New York state passed this really historic legislation that gives survivors an unprecedented opportunity. There are so many of us who spent our whole lives thinking, we never had a shot at justice, that we just had to get over what happened to us and move on. And this new law changes everything in terms of validating our experiences and affirming that what happened to us is something that deserves justice.
Carrie and I, our firms are just a couple floors apart in the same building. We have some overlap in our practice areas, and we collaborate a ton. We started thinking, how can we really honor the importance of this? How can we help as many survivors as possible?
We came to the realization that joining forces would really make us unstoppable.
We’ve gotten numerous inquiries and our teams have been working side by side signing up cases, and it’s been so rewarding and wonderful to be this resource.
The creation of both of our firms stems from personal trauma. We built firms that directly target the kinds of harms that we ourselves faced. We are both survivors of sexual assault. The ASA [Adult Survivors Act] providing an opportunity for victims to sue their offenders, to have to pay, that hits us in a very personal way.
Every time somebody calls the Survivors Law Project or sends us an email, it validates that we chose the right profession.
From when you started your firms to the #MeToo movement until now, how much of an increase in sexual assault cases have you noticed?
I started my firm in 2014 and Susan started hers two years after. Since the time that we both started our firms as solo practitioners, we both built teams of over a dozen each. Our firms grew very rapidly because of the demand for the services that we provide for people that were victims of stalking, sexual assault, sextortion or revenge porn.
At the time I was one of the few attorneys doing that kind of work and started this new path and was pretty astonished—it was astonishing how many people needed my services very soon. And I don’t necessarily attribute that to us having a more dangerous society.
I think the fact that having attorneys like us demonstrate that you can actually take your offender down.
Carrie basically single-handedly invented what is now a pretty established legal field. When she started, nobody was doing this—now revenge porn is a common term. And lots of firms now offer the services that that Carrie invented. She invented the claims that didn’t exist. She helped [form] the statues that exist today because she said this is a gap in the law.
I will never get tired of saying it because I just don’t think it gets said enough: the main barrier to survivors seeking justice is the shame, guilt and self-blame that we all have a tendency to carry.
I think that any woman knows countless survivors. So many of my closest friends are survivors, so many of my family members are survivors. It’s so rampant and there are way more claims than could ever be brought in any courthouse.
The main barrier is that there’s still a huge stigma, a huge shame and feeling that this is a personal, private thing that we shouldn’t talk about publicly, that we take on ourselves and we carry it around ourselves.
To the extent that more survivors, both men and women, [come forward], we are starting to chip away that shame—every day we fight sex abuse and publicize these cases. It’s a slow process because attitudes are slow to change, but it is happening.
And so many of our clients never thought this was something they could talk about, something that was real, something they had the right to do anything about. I think that the law and the culture will continue to change. But the laws changing in and of itself mean nothing, unless we all confront this shame issue.
We also want survivors to know that what has changed is this notion that that sexual injuries are injuries that were intentional. Our clients were intentionally harmed, people who are in car accidents, who the trip and fall, there’s just a general recognition that our courts’ doors are open for them and that they deserve compensation if somebody’s hurt them.
Yet when it comes to sexual assault, where the harm was intentional, there’s so much more judgment on survivors to be suing—especially because our courts deal with money, they take money from the wrongdoer to hand to the victim, and there’s this idea that that victims of sexual assault, if they’re suing, then they must be gold diggers or they must be liars, or they must be opportunists or crazy.
We’re here to dispel that myth and to say vengeance is OK.
If people who are sexually assaulted or raped, something of significant, irretrievable value was taken, and there’s no harm that requires justice more than that.
The #MeToo movement was a big step forward. How far have we come, and how far do we still need to go?
With the #MeToo movement, the pendulum swung and people ask, did it swing too far? The answer is no; it was a small fraction of a correction.
What we’re going to see with the Adult Survivor Act cases in New York is, those cases go to trial, and we are going to have more informed juries, who are more receptive to the notion and more sophisticated about consent and sexual assault. A lot of people wait to take legal action – we still have a long way to go, but bringing cases and making rapists in the institutions that protect them pay, is huge.
One huge gap that still remains in the public knowledge is just how survivors respond to an attack. There are still so many myths out there and such a lack of understanding about how survivors process what happened to them. And so many common behaviors are misinterpreted as somehow undermining survivors’ credibility.
One of the biggest gaps is, we still think, ‘she texted him back.’ That somehow undermines her credibility. Instead of saying, for survivors, it’s a very common coping strategy to try to minimize in your own mind what happened to you because it’s such a painful truth to confront.
The defense attorneys perpetuate that, they often say, there are inconsistencies that the victims were too drunk to remember, that it was somebody else.
They have a very limited bag of tricks. One of the funniest things about having done a lot of sexual assault cases is being so able to predict the tactics of the defense attorneys: First they say, ‘I’m a big supporter of #MeToo—but this particular case has just taken the #MeToo movement too far.
Wait, Carrie, you forgot, “I have daughters … as a father of a daughter.’ They always talk about their daughters. I’m wondering, ‘do your daughters know that they’re being used as a scapegoat for your representation of sex abusers?”
How has the judiciary evolved with the increased number of these cases, have you seen a change in how juries perceive these cases?
We’re both very passionate about these issues, as you can tell. I think there’s still a very racist view of sexual assault—white women and white fragility are privileged in the discourse.
White, straight victims are prioritized and given more attention, more sympathy. Whereas, unequivocally black women, women of color and transgender women are significantly more likely to be the victims of sexual violence.
Disabled people are statistically so much more likely [to become victims of sexual violence] as well.
When we think of a victim, of a survivor, we focus on white, on privileged, straight, when really the typical portrait of a survivor is a marginalized person. We as a society have been very white-focused and this is no exception.
Has the judiciary evolved with the increasing amount of cases you are bringing?
It’s pretty astonishing, there’s still many judges that ask “why were you with that person? Why did you take those pictures in the first place? You need to be more careful. You need to use better judgment.”
My office has been doing some judicial training about gender-based violence. The response from judges and their eagerness to really understand the patterns has been overwhelming. We know that the judges want to get it. And we’re looking at them to recognize that these are as important as anything else on their docket, that we need them to move through the court systems quickly.
How important is it for you to come together as two trailblazer women attorneys to tackle these issues?
Susan and I were baby lawyers together. When we graduated from law school, we both went to work for a non-profit in Manhattan representing low income, marginalized people. Our friendship has been absolutely critical. Susan and I are constantly seeking support from one another. In our firms, we work on separate things but the one area where we overlap is sexual assault cases. We’re actually building something together – it’s been fun and challenging.
Litigation is a very creative process. It’s a safe place for us to share ideas. Is it different from working with men? My experience very broadly has been that many men tend to take things too personally. Men’s egos are often too much in the way.
Looking ahead, how do you see your work evolve throughout 2023?
I only feel hope and optimism about 2023. This is the year, when we’re going to see our survivors opening up the courthouse gates and demanding what’s theirs.
Personally, my hope is that people will come forward and bring these cases.
I feel the same optimism completely. My only potential concern is similar to what happened with the Child Victims Act in New York, where there are people who didn’t know about it. It’s very fortunate that New York City actually also happens to be opening up its own window starting in March for both adult and child survivors—that will be for two years because the Survivors Law Project has actually gotten a lot of calls from people who were child victims, but they didn’t know about the Child Victims Act during that window.
And states that have not created a look-back window for adult or children’s survivors need to get on it because they’ve got a population of people that have been injured and have never been able to get redress.
Former President Donald Trump has called the Black prosecutors investigating him—including Fani Willis, the Fulton County district attorney leading an inquiry into his interference with the 2020 election results in Georgia—“racist.” Willis has said that she requires extensive personal security following death threats from Trump supporters.
Former President Donald Trump held his first presidential campaign events on Saturday, against the heavy backdrop of four major criminal investigations into his behavior while in and out of office.
In the lead-up to his campaign launch, Trump personally attacked prosecutors and the investigations they are leading as politically biased and a “hoax.”
“These prosecutors are vicious, horrible people, they’re racists and they’re very sick, they’re mentally sick. They’re going after me without any protection of my rights by the Supreme Court, or most other courts,” Trump said in January 2022 of New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg, both of whom are Black. Bragg is reportedly approaching a decision about whether to charge Trump with illegally paying money to silence porn actress Stormy Daniels about their relationship.
Trump has also called other Black prosecutors investigating him—including Fani Willis, the Fulton County district attorney leading an inquiry into his interference with the 2020 election results in Georgia—“racist.” Willis has said that she requires extensive personal security following death threats from Trump supporters.
This public castigation is helping elevate prosecutors, who typically hold fairly low profiles, into the national spotlight.
The Conversation spoke with Jessica S. Henry, a criminal justice expert at Montclair State University, to help navigate the role of prosecutors and the potential risks of making their positions fair game on the presidential election circuit.
What role do prosecutors serve in the justice system in the U.S.?
Prosecutors are among the most powerful figures in the courthouse. They are the people who decide whether to bring charges, what charges to bring, whether to negotiate a plea bargain and what those terms would be. Very few criminal cases ever go to trial. And so prosecutors wield tremendous power.
Are these posts typically considered political?
Electoral politics have always been part of the backdrop of prosecution. District attorneys–the top prosecutors in a state—are elected in 45 states. And in contested elections, the rhetoric is typically about who is the toughest on crime. Prosecutors who can prove that they’re the toughest typically win. Tough, in these terms, is defined as getting convictions and securing long sentences.
There are examples of prosecutors who used their official position to try to augment their standing in an election. Mike Nifong, for example, was the district attorney in Durham, North Carolina, in 2006, and he was also up for election in a community with a large Black population. Chrystal Magnum, a Black woman, claimed that she had been raped by white lacrosse players at Duke University. Nifong pursued rape charges against these students. But Nifong lied to the media, to the defense and to the courts—and ultimately, the charges against the Duke lacrosse players were dropped. And in a very rare occurrence of accountability for prosecutors who engage in misconduct, Nifong was disbarred.
How have prosecutors become more political in the last few years?
In 2016, about 70% of all prosecutors up for election ran unopposed. In 2022, about 12 of the 30 district attorney election races were considered competitive. So, these are not often contested positions.
And yet, there has been a shift recently, in which people who think that criminal justice can be done differently and done better, choose to run for the head district attorney position. And those with a more reform-oriented agenda—often called progressive prosecutors—have been getting elected around the country. This has brought some really important changes involving who is prosecuted and for what–and also more political opposition from those who want to maintain the status quo.
How does this change the way prosecutors go about their work?
Prosecutors are supposed to be ministers of justice, immune from outside influence, but they’re also people with biases and vulnerabilities. So, when they’ve got high-profile figures like Trump screaming their names out in the national media, it has to increase the pressure on them and how they use their discretion and power. When a case plays out on the national stage, prosecutors may wind up paying attention not only to the specific facts of the case being featured in the spotlight, but also how it is being perceived by their constituents and portrayed by the national and local media.
It can sometimes be deeply problematic when people outside the prosecutor’s office try to dictate prosecutorial decision-making for political gain. In Texas, for instance, lawmakers have proposed a bill that targets prosecutors who refuse to prosecute people who have abortions or parents who seek transgender-affirming medical care for their children. That puts a lot of pressure on prosecutors who are trying to do what they believe is right under the law.
On the flip side, prosecutors are supposed to represent “the people.” So it can be important that the community make its perspective known, such as in the case of police shootings of unarmed people, and the public’s desire for accountability by having prosecutors criminally charge officers for their actions.
In states where prosecutors are elected, they are subject to the same electoral politics as any other elected official. It would be naive to say that prosecutors are completely immune from that external pressure. Of course, we’d like to think that prosecutors, in their commitment to justice, only prosecute cases that are justified and only when there’s enough evidence. But that doesn’t always happen, and sometimes those decisions wind up reflecting local politics rather than the evidence in a particular case.
Do you see that as a risk, potentially, for prosecutors right now?
I don’t know whether we’re going to see attacks on prosecutors as part of a larger trend in national elections. But every time Trump goes after one of these institutional players, like a prosecutor or even a judge, what he’s really doing is destabilizing the public’s ability to trust government institutions.
There is research that shows that the criminal legal system is only as robust and legitimate as the public perceives it to be. While there are many flaws in the criminal system, I believe that personal attacks on prosecutors who pursue criminal charges against Trump ultimately harm our democracy.
The federal government on Thursday hit back against the Oglala Sioux Tribe's bid for extra police or funding on its South Dakota reservation, arguing that the 19th-century treaties the tribe relies on don't create a court-enforceable duty to provide a specific amount of funding or number of police.
In a 38-page brief filed Thursday in South Dakota federal court, attorneys from the U.S. Department of Justice and the U.S. Department of the Interior urged the judge to dismiss the Oglala Sioux Tribe's complaint, maintaining that the tribe fails to state a claim for breach of trust, or seek any relief under the Administrative Procedures Act in its bid for more law enforcement and funding for police presence on its Pine Ridge reservation, or create new programs to protect its 40,000 members from a purported "public safety crisis."
While the tribe leans on a trio of 19th-century treaties to argue that the U.S. breached its duties to provide police protection on the 3.1-million-acre Pine Ridge reservation, the federal government countered that the Oglala Sioux fail to point to any language in any of the treaties that create a judicially enforceable duty to provide a specific level of funding for police, much less at the tribe's preferred level.
Furthermore, the Office of Justice Services with the Bureau of Indian Affairs properly rejected the tribe's proposals under the Indian Self-Determination and Education Assistance Act to get more funding for police and criminal investigations, considering the tribe was asking for way more funding than what's allocated for law enforcement presence on Pine Ridge, Thursday's brief states.
"In an effort to forestall dismissal, plaintiff miscasts treaty language that stands in the way of its proposed interpretation and asks this court to make unreasonable inferences about what the treaties require," Thursday's brief states. "Plaintiff's opposition also improperly, and repeatedly, seeks to amend its amended complaint by asserting new factual allegations and new legal claims about the amount of funds the BIA is currently providing to plaintiff under the terms of its ISDEAA contract."
Thursday's brief is the latest development in a suit the Oglala Sioux launched in July, alleging that the U.S. pays for only 41 police personnel to cover the entire reservation that is roughly the size of the state of Connecticut. That police force, consisting of just over 30 officers and eight criminal investigators, means that only six to eight people are on each shift to service the population of 40,000 members, the tribe alleged.
The Oglala Sioux sought a court order last year requiring the BIA to provide emergency relief to hire more police amid a rash of violent crime on Pine Ridge.
Federal treaties require the U.S. to provide such resources, and the government is breaching its obligations, the Oglala Sioux argued, adding that police response time often exceeds 30 minutes, even in circumstances involving domestic violence, firearm activity and other imminent public safety threats.
The U.S. contended that tribe officials have the power to repurpose their allotment of BIA funding for police and could also seek more aid by asking agencies like the Indian Health Service to reimburse certain costs and free up existing dollars for police use.
On Thursday, the U.S. maintained that the tribe's breach of trust claim fails because the U.S. has never taken exclusive control of police presence at Pine Ridge, citing a 1983 Supreme Court ruling involving the Quinault Indian Reservation, in which the high court held that a fiduciary relationship arises when the government assumes such control over Native American-owned forests and properties.
But, without the Oglala Sioux's ability to show that the U.S. assumed exclusive control, there can be no showing of a trust duty, or a breach of that duty, the government argued.
The tribe's ISDEAA claim based on the OJS' declinations of its proposed funding requests also fails for several reasons, the U.S. said. While the Oglala Sioux argued that the OJS didn't give a basis for deciding whether its declinations complied with federal law, the record clearly shows that the tribe wanted way more funding beyond the amount allocated for police on Pine Ridge, the U.S. argued.
The agency's partial declinations were appropriate because the Oglala Sioux's proposals appeared to improperly seek an increase of approximately $3.1 million beyond the secretarial amount allocated for police on Pine Ridge, while the tribe's criminal investigations proposal seeks for an increase of $310,000 beyond the secretarial amount, the U.S. added.
"Agency letters filed with plaintiff's complaint show that the agency properly explained that OST's proposals requested a budget of $9,628,345 for its Law Enforcement program and $2,211,159 for its Criminal Investigation Program, while the Secretarial amounts for the programs were, respectively, $4,026,151 and $1,327,781," the government's brief states.
Nor can the Oglala Sioux obtain judicial review of the amount of money the BIA allocates for police programs on Pine Ridge, because the bureau's decision on how to allocate that money from its yearly lump sum appropriation is based on the agency's discretion, the U.S. said, adding that courts can't intervene in that allocation under the Administrative Procedures Act.
Representatives for the tribe and the U.S. did not immediately return inquiries for comment Friday.
The Oglala Sioux Tribe is represented by Rebecca Kidder, Patricia Marks, Ben Fenner and Conly Schulte of Peebles Kidder Bergin & Robinson LLP.
The U.S. is represented by Alison Ramsdell and Aron Hogden of the U.S. Attorney's Office for the District of South Dakota, Brad P. Rosenberg, James D. Todd Jr. and Hilarie E. Snyder of the U.S. Department of Justice's Civil Division, and Femila N. Ervin, Dondrae N. Maiden, Elizabeth A. Harvey and Kristen D. Kokinos of the Interior Department's Office of the Solicitor.
The case is Oglala Sioux Tribe v. United States of America et al., case number 5:22-cv-05066, in the U.S. District Court for the District of South Dakota.
As the 2023 legislative sessions kick off in statehouses across the country, there are bills on tap in at least four states aimed at legalizing possession and governing the use of plant- and fungus-derived psychedelic substances.
In New York on Wednesday, state Rep. Linda B. Rosenthal, Democrat of Manhattan, introduced A.B. 114, which would legalize the possession of five psychedelic substances that are found in plants and fungus: psilocybin; psilocyn; dimethyltryptamine, or DMT; ibogaine; and mescaline, excluding mescaline derived from the peyote cactus.
The bill includes provisions barring state and local law enforcement from assisting federal drug enforcers in going after activity protected by the legislation and provides that someone with a professional or occupational license should not have their status threatened for personal use and possession of these substances.
The bill would also allow local municipalities to implement their own policies "in furtherance of this law," while protecting employees from adverse action if they use the substances on their own time and off their employers' premises.
This is not the first psychedelic liberalization bill in the Empire State.
In the previous session, a New York lawmaker introduced a bill to legalize the medical use of psilocybin to treat post-traumatic stress disorder, depression, alcohol dependence and anxiety, among other ailments. A.B. 8569, sponsored by state Rep. Patrick Burke, an Erie County Democrat, was referred to the Assembly Committee on Health, where it remained at the close of the 2022 session.
In neighboring New Jersey, more narrowly tailored legislation has been introduced in both chambers that would decriminalize psilocybin and allow for its personal use and distribution, as well as expunge certain convictions.
The Psilocybin Behavioral Health Access and Services Act, introduced in the state Assembly in December as A.B. 4911 and the Senate last summer as S.B. 2934, would develop a regulatory scheme for the Department of Health to administer psilocybin treatment centers to patients age 21 and over.
The bills prescribe an 18-month development program for the new regulations, during which a governor-appointed 12-person board would advise regulators on best practices and how to balance public health and safety concerns, and expressly forbid any county or municipality from levying taxes or fees on the manufacture or sale of psilocybin or the provision of psilocybin services.
Meanwhile, in California, a state senator is taking a second shot at a piece of legislation that would decriminalize possession and personal use of certain psychedelic drugs.
Scott Wiener, D-San Francisco, told Law360 in December that he is "cautiously optimistic" about passage of the bill, which would allow for statewide individual use of a number of drugs that have the potential to treat an array of disorders, but particularly those related to mental health and substance abuse. The lawmaker said that psychedelics provide "some of the most promising treatments we have for PTSD, anxiety, depression and addiction."
The reintroduced bill, S.B. 58 would allow for the personal possession of five psychedelic substances: psilocybin, psilocyn, DMT, ibogaine and mescaline. As with the New York bill, mescaline derived from peyote would not be legalized for general adult use under the law.
Peyote-derived mescaline is considered a sacrament in some Native American religious ceremonies. Indigenous activists have lobbied the psychedelic legalization movement and nascent psychedelic industry to establish guardrails that would preserve Indigenous access to the plant against a wave of new interests.
The legislation would legalize possession of up to four grams of the substances by persons age 21 or older. The bill would also create new civil and criminal penalties for giving psychedelics to underage people.
A previous version of the bill passed the state Senate in June 2021, but stalled in the state Assembly, moving to the chamber's inactive file in August 2022.
"The bill came very close to passing last year," Wiener told Law360. "We were cautiously optimistic. What tripped it up was the chair just gutted the bill and made it not worth passing. We are trying again."
Finally, in Montana, Democratic state Sen. Jill Cohenour has initiated the drafting process for a bill to legalize psilocybin for treatment of PTSD and other mental illnesses. The request for a draft was submitted on Nov. 15 to the state Legislative Services Division's Office of Research and Policy Analysis, and there is not currently any text available for the bill.
"I'm hoping to be able to change the culture around using psilocybin under controlled circumstances, inpatient, for the treatment of PTSD and other illnesses that show promise," Cohenour told Law360. "Some success has been shown in this treatment, and I believe anything that we can use to treat devastating mental illnesses that often result in suicide should be available to the medical system in Montana."
A legally blind woman on Tuesday sued the first regulated cannabis dispensary in New York in federal court, saying its website violates the Americans with Disabilities Act because it is not accessible to the visually impaired and the blind.
In the complaint, Rasheta Bunting said she has attempted to purchase cannabis products from the website of Housing Works Cannabis LLC, which runs a shop on Broadway, but has been unable to because it lacks website features and compatibility with programs that allow the visually impaired to navigate websites and make purchases.
Bunting says in the complaint that she is legally blind and an advocate for the rights of people with disabilities, and is a "tester" of whether facilities and websites are properly accessible to people with disabilities.
People with visual impairments use text readers, keyboard shortcuts and other tools that can read aloud descriptions from websites, and Housing Works' website is designed such that it is not compatible with these tools and common practices, according to the complaint.
Bunting also noted that the blind have even more need to be able to shop online, giving the difficulties of traveling to a physical location, and despite readily available accessibility technology, Housing Works' site relies exclusively on a visual interface that requires a mouse to navigate.
According to the complaint, graphics on the site lack alt text that screen-reading software uses to describe those images to the blind, links are not adequately labeled and drop-down menus are not designed to be accessible.
The site also lacks prompting information that lets blind shoppers locate and accurately fill out online forms, such as for credit card and other information, meaning visually impaired customers cannot make purchases without assistance.
When attempting to shop on the site, Bunting said she did not receive verbal notification when an item was added to her cart, could not close the shopping cart window, couldn't access the search option and did not receive error notifications that would let her correct mistakes in the form.
She also said she likes the wide selection of products offered on the site and intends in the future to try the products, if she could navigate the website.
In the complaint, Bunting aims to represent a class of legally blind persons in the U.S., and a subclass in New York, who attempted to use Housing Works' website but were denied access because its design does not account for the visually impaired.
The complaint alleges violations of the ADA as well as New York's Human Rights Law and Civil Rights Law, and seeks an order forcing Housing Works to make its website accessible, as well as compensatory damages.
Representatives for Bunting and Housing Works could not immediately be reached for comment Tuesday.
Bunting is represented by Dan Shaked of Shaked Law Group PC.
Counsel information for Housing Works was not immediately available Tuesday.
The case is Bunting v. Housing Works Cannabis LLC, case number 1:23-cv-00286, in the U.S. District Court for the Eastern District of New York.
The U.S. Court of Appeals for the Fifth Circuit struck down the federal agency ban on bump stocks, claiming only Congress may ban the device used by a mass murderer in Las Vegas.
The en banc decision reverses a Fifth Circuit panel decision that favored the Bureau of Alcohol, Tobacco, Firearms and Explosives—and creates a split with the Sixth Circuit in Cincinnati, the Tenth Circuit in Denver and the D.C. Circuit in Washington, D.C.
The opinion was not unanimous, with one circuit judge writing a dissent that was joined by two other judges.
Circuit Judge Stephen A. Higginson’s dissent argued the bump stock is a machine gun within the meaning of the federal statute.
“The Supreme Court lets us deploy lenity to narrow laws only as a last resort when, having tried to make sense of a statute using every other tool, we face an unbreakable tie between different interpretations. Contrary to this authority, the majority opinion and the lead concurrence apply the rule of lenity to garden-variety ambiguity,” Higginson said.
“In doing so, today’s ruling usurps Congress’s power to define what conduct is subject to criminal sanction and creates grave ambiguity about the scope of federal criminal law,” Higginson said.
What Is a Machine Gun?
The legal team behind the federal regulation challenge, Michael Cargill v. Merrick B. Garland, was New Civil Liberties Alliance.
NCLA argued that the Final Rule conflicts with the statutory definition of a machine gun, and therefore exceeds Bureau of Alcohol, Tobacco, Firearms and Explosives’ authority; the ATFE’s legal interpretation is not entitled to executive agency deference; to the extent courts determine the definition of machine gun is ambiguous, they should apply the rule of lenity to determine that bump stocks are not machine guns; and if the statute were interpreted as authorizing an ATFE prohibition, then the statute would be an unconstitutional delegation of Congress’s legislative powers.
Writing for the majority, Judge Jennifer Walker Elrod stated, “In defining the term machine gun, Congress referred to the mechanism by which the gun’s trigger causes bullets to be fired. Policy judgments aside, we are bound to apply that mechanical definition. And applying that definition to a semi-automatic rifle equipped with a non-mechanical bump stock, we conclude that such a weapon is not a machine gun.”
NCLA president and general counsel Mark Chenoweth, in a prepared statement, said, “The resulting circuit split should bring this decision to the U.S. Supreme Court’s attention promptly, and supply a suitable vehicle for deciding this issue once and for all.”
Change in Direction
The Bureau of Alcohol, Tobacco, Firearms and Explosives’ defense was substantially weakened by the fact that for a decade it claimed that bump stocks on semiautomatic weapons did not meet the mechanical definition of a machine gun. It only changed its position after the 2017 mass shooting in Las Vegas where a lone gunman used the guns to kill 58 people and wound hundreds more.
Circuit Judge James C. Ho wrote a concurrence, joined by two circuit judges, in which he acknowledged that bump stocks have the effect of allowing semiautomatic weapons to mimic automatic machine guns.
Ho suggested that Congress follow the path it took with designer drugs that, during the 1980s, were constantly being chemically redesigned to get around federal controlled substance laws.
“Congress could not ban designer drugs without passing the Analogue Act,” Ho said. “Likewise, Congress cannot criminalize bump stocks absent a clear and unambiguous statute.”
Responding to Ho’s example, Higginson argued that would not work, either, since, “Under our court’s new lenity regime, it is unclear how Congress could draft such a statute while avoiding ambiguity as to what counts as a bump stock.”
In fact, Higginson wrote, after the court’s en banc ruling, it isn’t clear the Controlled Substance Analogue Enforcement Act of 1986 is now operable in practice since it also depends on a “substantially similar” to a controlled substance chemical definition.
“They are now suffering and will continue to suffer grave, immediate, and ongoing injuries to the exercise of their faith"
The U.S. Court of Appeals for the D.C. Circuit ruled that Sikh Marine recruits don’t have to shave their religious beards during basic training.
Judges Neomi Rao, Patricia Millett and J. Michelle Childs halted a Marine policy barring religious beards during training from being applied against two Sikh recruits who challenged the military branch’s rules earlier this year, saying it likely burdens the exercise of their faith.
The judges, in an opinion Dec. 23, said the Marines’ stated national security interest in barring religious beards was too broad, and noted the military branch already makes exemptions for medical beards, women’s hairstyles and tattoos. The Marine Corps had argued the policy is needed to train recruits to strip away their individuality and adopt a team mentality.
“The Corps has not shown, in light of its preexisting exemptions to the grooming process … that denying these accommodations would have any impact on its claimed interests,” Millett wrote. “They are now suffering and will continue to suffer grave, immediate, and ongoing injuries to the exercise of their faith.”
The judges also said preliminary injunctions would promote Congress’ and presidents’ goal of promoting religious diversity in the military, under the Religious Freedom Restoration Act passed in 1993 and past statements.
The panel reversed a preliminary injunction against two of the plaintiffs, Milaap Chahal and Jaskirat Singh, allowing them to begin serving in the Marines with their beards. They ordered U.S. District Judge Richard Leon to reconsider the injunction against a third recruit, Akesh Singh, who may have postponed his enlistment.
The lawsuit was filed by Winston & Strawn, Baker & Hostetler, the Sikh Coalition and the Becket Fund in April.
“Today’s injunction is a step forward in the direction of other recent policy changes in the U.S. Army and U.S. Air Force that have allowed more than 100 Sikhs to serve with their articles of faith,” Amandeep S. Sidhu, partner at Winston & Strawn, said in a statement. “Now, we must look towards a comprehensive policy change in the U.S. Marine Corps that will make full equality of opportunity in that branch a reality for all Americans, regardless of their faith tradition.”
A California judge granted a restaurant industry coalition's eleventh-hour bid to pause the state's landmark law raising wages and labor standards in the fast-food industry ahead of its Jan. 1 effective date, preserving the status quo as she considers the group's suit challenging the law. On Dec. 30, Sacramento County Superior Court Judge Shelleyanne W.L. Chang agreed to temporarily halt the enforcement of Assembly Bill 257, also known as the Fast Food Accountability and Standards Recovery Act, which was signed into law by Gov. Gavin Newsom on Sept. 6, 2022.
A coalition consisting of restaurant trade associations and small businesses called Save Local Restaurants on Dec. 29 sued the California Department of Industrial Relations director Katrina Hagen, Secretary of State Shirley Weber and Attorney General Rob Bonta, all in their official capacities, arguing in its petition for writ of mandate and complaint for declaratory and injunctive relief that A.B. 257 cannot go into effect until California voters had a chance to vote on the legislation through the referendum process.
Provisions of the statute include allowing a government-selected council of workers, union representatives and employers to set minimum wages and working conditions for the fast-food industry across California.
Judge Chang set a hearing date for Jan. 13 on the petitioners' bid for a preliminary injunction.
According to Save Local Restaurants, the coalition far surpassed the required number of signatures it was required to gather for its referendum petition challenging A.B. 257 by the early December deadline, gathering approximately 1,004,429 signatures to qualify for the ballot.
However, on Dec. 27, Department of Industrial Relations director Hagen sent a letter to the coalition's counsel, noting that the law would be paused if, and when the referendum qualifies for the ballot, and that the process for verifying signatures is underway.
But, without clear authority providing that the law is suspended "merely upon submission of unverified signatures, DIR has an obligation to proceed with implementing the duly enacted statute," Hagen's letter states.
Save Local Restaurants contended that Hagen's position runs afoul of century-old precedent that protects the fundamental right of voters to prevent a law from going into effect unless and until it is approved at a statewide election.
A.B. 257's provisions, which includes creating a Fast-Food Council that would have the authority to enact standards regulating the fast-food industry starting Jan. 1, would result in the unconstitutional enforcement of a law that California's voters already decided to challenge through the referendum process, the coalition argued, adding that temporarily allowing the implementation of the law "also would create confusion and set a dangerous and absurd precedent."
If the court doesn't step in, the petitioners and California's voters "will be threatened with the unconstitutional scenario where AB 257 goes into effect for a few to several weeks, only then to be suspended once elections official complete their administrative tasks of certifying the petition," Save Local Restaurants said.
Save Local Restaurant's bid to halt A.B. 257 comes just weeks after it announced on Dec. 5 that it collected enough signatures to repeal the monumental Golden State labor law that the group alleges would have "damaging impacts" on small and minority-owned businesses.
After Gov. Newsom signed A.B. 257 into law on Labor Day, opponents promptly initiated a voter referendum that, if successful, would repeal the law. The first step to qualify for the referendum was gathering more than 600,000 signatures by early December.
A.B. 257 came as a momentous victory for union organizers who have worked with fast-food employees for years to have more say on safety, pay and training. It has been championed by labor organizations, including the Service Employees International Union of California and Fight for $15, that say A.B. 257 gives fast-food workers a much-needed voice in determining working conditions.
Under the law, the government-appointed body can hike the pay floor for workers as high as $22 an hour in 2023. In January 2024, the council could then raise the hourly minimum wage by no more than 3.5%, or a figure pegged to the U.S. consumer price index.
In a statement last week following Judge Chang's order temporarily pausing A.B. 257, Save Local Restaurants said that the court's decision protects the voices of more than a million California voters who want to have their say on the law.
"This process has been preserved for more than 100 years and was in grave risk of being suppressed," the coalition's statement reads. "While this pause is temporary, the impact is beyond just one piece of legislation and keeps intact for the time being California's century-old referendum process."
Erin Mellon, a spokesperson for the governor, touted the act as giving "fast-food workers a seat at the table to set fair wages and important health and safety standards. Although industry is backing a referendum measure, the Secretary of State has not certified that it has enough signatures to qualify for the ballot. The State has an obligation to implement this important law unless and until that occurs. We will, of course, abide by any court order."
Joe Kocurek, spokesperson for the California secretary of state, told Law360 in an email that the agency will not be offering comment, "as it's a pending legal matter."
A spokesperson for the state attorney general's office directed all inquiries to the California Department of Industrial Relations.
Save Local Restaurants is represented by Sean P. Welch, David J. Lazarus, and Kurt R. Oneto of Nielsen Merksamer Parrinello Gross & Leoni LLP.
Counsel information for the state agencies was not immediately available Tuesday.
The case is Save Local Restaurants et al. v. Katie Hagen et al., case number 34-2022-80004062, in the Superior Court of the State of California, County of Sacramento.