September 17, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
*You are encouraged to register for WAGLAC prior to Monday, October 8th, so that we may confirm room size and meals. 
November 7-9, 2018 
Heathman Hotel
Portland, Oregon
Check in on November 7 th
Meeting start 8:00 am on Nov 8th
Meeting end at noon on Nov 9 th
February 18-20, 2019
The Westin San Diego
San Diego, CA
WGA Clean Water Act Section 401 Webinar Rescheduled to September 24th

The Western Governors’ Association will host the webinar, The Importance of State Authority under Clean Water Act Section 401, on Monday, Sept. 24 at 11 a.m. (MT). The webinar will provide an overview of states’ legal authority to issue water quality certifications and the importance of Section 401 in the protection of the nation’s water resources.

In enacting the federal Clean Water Act, Congress established a system of cooperative federalism, whereby states – in partnership with federal agencies – are granted meaningful authority to ensure the proper balance of powers in the implementation and enforcement of the Act’s various programs. The states’ Section 401 authority has been the target of recent legislative and regulatory efforts to diminish and subordinate the states in environmental review processes.

Panelists presenting will include Darrell Early, Chief, Natural Resources Division, Idaho Office of the Attorney General; and Jeanne Christie, Senior Policy Advisor, Association of State Wetland Managers.
County of Maui v. Hawai’i Wildlife Fund
Docket No. 18-260 (August 30, 2018)

 The County of Maui filed a petition for writ of certiorari in Hawai’i Wildlife Fund et al. v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The primary question presented is whether the County of Maui is liable under the Clean Water Act (CWA) for discharging pollutants into waters of the United States also known as navigable waters. The County of Maui injects wastewater from the Lahaina Waste Water Reclamation Facility into ground water. While ground water is not considered navigable waters under the CWA, the U.S. District Court for Hawai’i nonetheless held the County violated the CWA. The U.S. Ninth Circuit Court of Appeals affirmed reasoning that: 1) the injections wells are discharging pollutants through point sources; 2) the pollutants are fairly traceable from the point sources to a navigable waters, the ocean, “such that the discharge is the functional equivalent of a discharge into navigable waters; and 3) the pollutants reach navigable waters at “more than de minimis” levels. Response briefs must be filed by October 1, 2018.  
EPA Announces Interest in Improving Implementation of CWA Section 401

EPA announced it is considering revising its Clean Water Act (CWA) section 401 program regulations that govern states' approval of federally permitted projects. As reported in Inside EPA.Com, “David Ross, assistant administrator for EPA's Office of Water, told the Environmental Council of the States (ECOS) Fall Meeting [on] Aug. 29 that EPA is considering revising the 401 process, including clarifying the timeliness and scope of state reviews, and raised the possibility of new guidance or rulemaking. Ross said that while industry concerns, outdated rules, and incomplete EPA guidance suggest an update to 401 rules may be necessary, EPA wants state input about what approach to take to any future 401 modernization.” Acting Director of Wetlands, Oceans, and Watersheds John Goodin has been tasked with reaching out to states and tribes. 
Lake Mead and Lake Powell are Dropping to Dangerous Levels

The Associated Press reported that Lake Powell is about 48% full, and Lake Mead is about 38% full. By the end of this year, Lake Powell is expected to fall 94 feet below the 2000 level when it was nearly full.
Environmental Law Foundation et al., Plaintiffs and Respondents, v. State Water Resources Control Board, Defendant, Cross-defendant and Respondent; County of Siskiyou, Defendant, Cross-complainant and Appellant
2018 WL 4103188 (Court of Appeal, Third District, California 8/29/2018)

ELF sued the State Water Resources Control Board and the County of Siskiyou asserting the Board and County had a duty under the public trust doctrine to ensure ground water extractions would not impair the Scott River, a public trust resource. The trial court ruled in favor of ELF. On appeal the County of Siskiyou contended the State Water Resources Control Board had neither the authority or the duty to consider how groundwater extractions affect the Scott River, nor did the County have a duty to consider whether groundwater uses by new wells affected the river.  

The Court addressed two questions of law: 1) whether the public trust doctrine applies to groundwater extractions and, 2) if so, whether the 2014 Sustainable Groundwater Management Act (SGMA) abrogated the application of the doctrine to ground water. In responding to the first question, the Court of Appeals stated the County mischaracterized the trial court’s opinion. “The trial court did not find the public trust doctrine embraces all groundwater. To the contrary, the water subject to the trust is the Scott River, a navigable waterway. ‘[T]he court does not hold the public trust doctrine applies to groundwater itself. Rather, the public trust doctrine applies if extraction of groundwater adversely impacts a navigable waterway to which the public trust doctrine does apply.’” As to the second question, the Court rejected the County’s assertion that SGMA preempted the public trust doctrine, finding no evidence of legislative intent to “eviscerate the public trust in navigable waterways in the text or scope of SGMA . . ..” The Court observed that the two doctrines developed independent of one another and both served “important precepts which make the law more responsive in the planning and allocation of water resources.”  
SWC, LLC, et al. v. David A. Herr and Pamela F. Herr, et al .
Docket No. 17-1398 (April 2017)

SWC filed a petition for writ of certiorari seeking reversal of the U.S. Sixth Circuit Court of Appeals decision overturning U.S. Forest Service’s regulations limiting the use of gas-powered motorboats on Crooked Lake in the Sylvania Wilderness Area in Michigan. A divided Sixth Circuit panel held the Forest Service’s regulatory authority under the Michigan Wilderness Act of 1987 was subject to “valid existing rights.” The court observed that under Michigan state law “riparian and littoral rights represent a form of protected rights under the” Michigan Wilderness Act provisio regarding “valid existing rights.” Petitioners framed the question present as whether the Forest Service’s powers under the Property Clause to limit gas-powered motorboat use on lakes within a Congressionally designated wilderness area are dependent upon a state first acting to restrict motorboat activities on the portion of a lake outside the wilderness area. The United States filed a brief in opposition to the petition for certiorari. The petition was distributed for Conference on September 24, 2018.
Interior Sue and Settle Secretarial Order

On Friday September 7, U.S. Secretary of the Interior Ryan Zinke signed a Secretarial Order to prevent the practice known as “sue and settle” by promoting public engagement, transparency, and accountability in Consent Decrees and Settlement Agreements.
Over the past five years, the Department of Interior (DOI) has been party to a staggering number of settlement agreements and consent decrees, often with no input from or even notice to the American people, leaving the door open for potential abuse.  
Between January 1, 2012, and January 19, 2017, DOI agreed to enter into over 460 settlement agreements and consent decrees (an average of over 90 per year) and agreed to pay over $4.4 billion in monetary awards. From January 1, 2016 through January 19, 2017 alone, DOI entered into approximately 96 settlement agreements or consent decrees, agreeing to pay over $1.7 billion in monetary awards. This high number of settlement agreements and consent decrees and accompanying tab has sparked concerns that taxpayer dollars and DOI’s regulatory agenda are being handed off to special interest groups, contrary to the wishes of Congress and the American voters.
Secretarial Order 3368 is intended to alleviate concerns the litigation process has been used to undermine the procedural safeguards Congress put in place by giving the America people a window into where the money is going and a voice before DOI makes a recommendation to accept or enter into a settlement with large policy or budgetary implications.

Main points of the Secretarial Order (See link below for more detail):

  • Within 30 days, DOI will establish a publicly accessible “Litigation” webpage that is prominently linked from the Office of the Solicitor’s homepage.

  • Within 90 days, DOI will post a searchable list of final judicial and administrative consent decrees and settlement agreements that continue to govern Departmental actions, including a brief summary of each decree or agreement, a note of any attorney’s fees or costs paid, and a link to the text of the decree or agreement.

  • Any proposed consent decree or settlement agreement that commits DOI to seek a particular appropriation or budget authorization from Congress or formally reprogram appropriated funds, and/or places obligations on the Department that extend beyond five years at the top of the Litigation page, publish notice of the proposed consent decree or settlement agreement in the Federal Register, and provide a public comment period of at least 30 days.

  • DOI, including any agency or bureau thereof, will not recommend that the Department of Justice enter into a consent decree or settlement agreement that:

  • Converts into a mandatory duty the otherwise discretionary authority of the Secretary and/or his designees (including bureau and office heads) to revise, amend, or promulgate regulations.

  • Commits DOI or any of its bureaus and offices thereof to expend funds that Congress has not appropriated and that have not been budgeted for the action in question.

  • Requires DOI or any subdivision thereof to pay attorney’s fees and costs unless the plaintiff or petitioner has established a strong likelihood of obtaining such fees under the law.

  • Prohibits public disclosure of any consent decree or settlement agreement, except to the extent necessary to protect proprietary information, such as trade secrets, or otherwise mandated by law.
Harvey v. Ute Mnt

At the end of the 2017 Term, the Supreme Court requested the United States’ views on the certiorari petition in Harvey v. Ute Indian Tribe of Uintah and Ouray Reservation , No. 17-1301. The Solicitor General has not yet filed the invited brief. In the underlying decision, the Utah Supreme Court held that that the petitioners were required as a matter of federal law to exhaust tribal court remedies in state court litigation against tribal officials who allegedly interfered the operation of their business. There is no pending tribal court proceeding.
The Questions Presented are:
  1. Whether the tribal remedies exhaustion doctrine, which requires federal courts to stay cases challenging tribal jurisdiction until the parties have exhausted parallel tribal court proceedings applies to state courts as well.
  1. Whether the tribal remedies exhaustion doctrine requires that nontribal courts yield to tribal courts when the parties have not invoked the tribal court’s jurisdiction.
The Utah Supreme Court decision is cited in the 2018  Deskbook  Edition as reflecting the view that exhaustion is required in a state court proceeding even if no tribal court proceeding is pending. Section 6:11 n.23. State courts are divided on whether the  National Farmers  exhaustion/ Iowa Mutual  deference doctrines apply as a matter of federal law in state court. With regard to the second question, federal and state appellate courts are also split on whether the  National Farmers  exhaustion doctrine applies in the absence of an ongoing tribal court case. The Deskbook  takes the position that exhaustion requires the existence of a pending tribal court case.   See  Section 6:5 . Iowa Mutual  sets out a deferral, not an exhaustion, rule applicable only diversity cases subject to 28 U.S.C. § 1332 and thus necessarily requires the existence of parallel tribal court proceedings.
This case warrants attention. As the State of Utah’s amicus brief in support of the certiorari petition indicates, significant federalism issues are presented. 
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to or The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
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
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.