News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
September 21st, 2020
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, 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.

The WAGLAC winter meeting will be held during the week of February 15, 2021. The decision on whether the meeting will be in person or virtual will be made later this fall in light of COVID-19 health and travel restrictions. The meeting will be conducted during the week of Presidents’ Day. The focus area will be water law.
Court Approves Consent Decree Allowing EPA to Move Forward with Butte Cleanup
U.S. Environmental Protection Agency
September 16, 2020

"The Federal District Court of Montana approved the motion to enter the Butte Priority Soils Operable Unit consent decree and supporting documents, making the consent decree an enforceable order of the Court. The Butte Priority Soils Operable Unit Consent Decree and its related documents reflect agreement on many remedial actions to be accomplished over the next several years in Butte and Walkerville Montana. The remedial work will provide additional protections for human health and the environment in Butte and Walkerville, and the consent decree specifies how that work will be implemented, monitored, and evaluated for protectiveness. "
States and Cities Scramble to Sue Oil Companies Over Climate Change
The Washington Post
September 14, 2020

"More than a dozen states, counties and cities, from fire-ravaged California to flood-prone South Carolina, are suing oil companies to hold them responsible for the damage they say their products have caused due to climate change.

In a wave of recent lawsuits, local governments are demanding some of the nation’s biggest energy firms pay for the cost of dealing with increasing temperatures and rising seas."
Ninth Circuit Remands without Vacatur Idaho NPDES Permit
In an unpublished opinion, the Ninth Circuit remanded without vacatur EPA’s approval of Idaho’s NPDES permit program. The Ninth Circuit held “EPA abused its discretion in approving a mens rea standard ‘greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action . . . .’” The Idaho NPDES program proposed to use a gross negligence standard whereas EPA may bring an enforcement action for “negligent” violation.
The Court held EPA was not arbitrary and capricious in approving Idaho’s two-year statute of limitation for bringing an enforcement action and Idaho’s sub-delegation of administration of permits for concentrated animal feeding operations to the Idaho Department of Agriculture.
Tinian Women Association v. U.S. Department of Navy

The United States and Japan entered into a 2005 alliance agreement that resulted in a decision to move the III Marine Expeditionary Force numbering approximately 8000 from Okinawa to Guam. The Department of the Navy issued a relocation environmental impact statement and related record of decision in 2010 addressing the Marines’ relocation “including the development and construction of training facilities on Guam and Tinian, one of the three principal islands of the [Commonwealth of the Northern Mariana Islands].” Five years later, the Navy issued a relocation supplemental EIS and ROD approving the construction of a live-fire training range on Guam at a different location than in the EIS. During the latter NEPA process, it issued a notice of intent to develop a CNMI Joint Military Training Environmental Impact Statement/Overseas Environmental Impact Statement (CJMT Draft EIS) for the purpose of “propos[ing] four training range complexes on Tinian and two training range complexes on Pagan, a volcanic island to the north.” The plaintiff organizations sought judicial review of the EIS and FEIS for failure “to consider (1) the impact of all mission essential training for Guam-based Marines and (2) stationing alternatives beyond Guam and the CNMI.” The district court rejected the first NEPA challenge and dismissed the second on Article III standing and political question grounds. Tinian Women Ass’n v. U.S. Dep’t of Navy, No. 16-cv-00022, 2018 WL 4189832 (D.N.M.I. Aug. 31, 2018).
ASARCO LLC v. Atlantic Richfield Co.

ASARCO entered into a consent decree under which it agreed to pay $111.4 million. ASARCO then sought contribution from Atlantic Richfield. The federal district found Atlantic Richfield to be responsible for 25% of ASARCO’s response costs. Atlantic Richfield appealed, and the Ninth Circuit reversed in part and affirmed in part. ASARCO LLC v. Atlantic Richfield Co., No. 18-35934, 2020 WL 5509748 (9th Cir. Sept. 14, 2020). The Ninth Circuit upheld the district court’s response cost allocation, however, held that “the district court erred when it counted the full settlement amount—including about $50 million of funds that had not been, and might never be, spent on the Site cleanup—as response costs subject to contribution at this stage of the Site cleanup.”
Court: Idaho Fish and Game Road Check Stations Can Continue
U.S. News and World Report
September 14, 2020

"Wildlife officials can continue setting up checkpoint stations to stop all vehicles to enforce hunting and fishing regulations, a U.S. District Court judge has ruled.

“Tanner, who wasn't hunting or fishing, was arrested and cited in late 2017 for failing to stop at a check station and for eluding a law enforcement officer after driving past a check station near his northern Idaho home.”

Tanner . . . argued that the checkpoints for those not hunting or fishing amounted to an “unreasonable” seizure under the Fourth Amendment of the U.S. Constitution.

Idaho Federal District Court Judge Nye “agreed that the checkpoints are a ‘seizure,’ but that not all seizures are unreasonable.” He “wrote the state has a compelling interest in managing its natural resources and wildlife. He said that interest was not only put into state law, but also acknowledged by the state Supreme Court.”
Abatti v. Imperial Irrigation Dist.
Justia US Law

"The Imperial Irrigation District (District) supplied water from the Colorado River system to California's Imperial Valley, holding its water rights in trust for the benefit of its users, and was empowered by California law to manage the water supply for irrigation and other beneficial uses. In 2013, the District implemented an equitable distribution plan with an annual water apportionment for each category of users (2013 EDP). Michael Abatti presently owns and farms land in the Imperial Valley. Abatti, as trustee of the Michael and Kerri Abatti Family Trust, and Mike Abatti Farms, LLC (collectively, Abatti) filed a petition for writ of mandate to invalidate the 2013 EDP on the grounds that, among other things, the farmers possess water rights that entitle them to receive water sufficient to meet their reasonable irrigation needs—and the plan unlawfully and inequitably takes away these rights. Abatti's position, fairly construed, is that farmers are entitled to receive the amounts of water that they have historically used to irrigate their crops."
Water Wars at the Supreme Court: ‘It’s Only Going to Get Worse’
Bloomberg Law
September 17, 2020

"The U.S. Supreme Court kicks off its new term next month with a unique “original jurisdiction” water dispute—the likes of which could become more common as the climate changes.

The justices are set to hear Texas v. New Mexico, virtually, on their first day of oral arguments Oct. 5. Original jurisdiction cases go straight to the high court, rather than working their way through lower benches first.

State showdowns over shared water resources are some of the most common cases to take that direct route to the Supreme Court.

“The tradition has been the justices are not enthusiastic about hearing these cases because they involve such highly technical issues,” said University of Maryland law professor Robert Percival, who tracks environmental issues at the high court.

But scholars say the court will have to get used to wading into interstate water conflicts more often, as climate change triggers extreme weather and stresses shared resources.”
Nevada Supreme Court Says State Cannot Change Water Rights for 'Public Trust,' A Loss for Environmentalists, County Seeking to Bring More Water to Walker Lake
The Nevada Independent
September 18, 2020

"The Nevada Supreme Court ruled that the state cannot reshuffle existing water rights to prevent environmental damage, despite recognizing a legal principle that requires the government to preserve natural resources for future generations.

Instead, the court ruled that principle, known as the public trust doctrine, is recognized in existing law. The Nevada court, in a 4-2 decision, separated itself from the California Supreme Court, which reached the opposite conclusion in a landmark 1980s case.

Effectively, the court found that the system that underpins Nevada’s water law, known as the doctrine of prior appropriation, is meant to take the public interest into account by defining how water can be used and by placing guardrails to prevent waste or overuse in times of scarcity."
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.
Jamestown S’Klallam Tribe v. Azar, ___ F. Supp. 3d ___, 2020 WL 5505156 (D.D.C. Sept. 11, 2020)Indian Health Service reasonably calculated a tribe’s facility lease payment under the Indian Self-Determination and Education Assistance Act based upon the proportion of square footage devoted to delivering services to the eligible Indian patient group.
Southcentral Foundation v. Alaska Native Tribal Health Consortium, ___ F.3d ___, 2020 WL 5509742 (9th Cir. Sept. 14, 2020)Regional tribal health organization possessed Article III standing to challenge actions of an intertribal consortium as violating section 325 of the Department of the Interior and Related Agencies Appropriations Act of 1998.
Ak-Chin Indian Community v. Maricopa-Stanfield Irrigation & Drainage District, ___ F. Supp. 3d ___, 2020 WL 5517307 (D. Ariz. Sept. 14, 2020)Suit by tribe against two drainage districts alleging that its water supply quality was diminished by the commingling of groundwater with surface water in canal deliveries was not subject to Colorado River abstention, but the United States was required to be joined as a necessary party under Fed. R. Civ. P. 19.
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
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.
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.