September 24, 2018
WAGLAC NEWS
UPCOMING MEETINGS

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
ENVIRONMENT
Update on Hearing to Examine Implementation of Clean Water Act Section 401 and S.3303

Tony Willardson on behalf of the Western States Water Council submitted responded to questions from the U.S. Senate Committee on Environment and Public Works.

Willardson August 16, 2018 response will be included in the hearing record titled, “Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018.”
AG’s Hanford Worker Safety Lawsuit Leads to Big Win for Workers
Federal government will pay $925,000, must test and begin implementing new technology to destroy hazardous vapors or lawsuit may resume
September 19, 2018

Attorney General Bob Ferguson today announced that the U.S. Department of Energy will conduct testing and, if successful, begin implementing a new system to treat or capture hazardous tank vapors at the Hanford Nuclear Reservation within the next three years, under the terms of an agreement submitted to a federal court today.

For the first time, Energy has agreed to:
  • Phased testing of new technology to capture and destroy tank vapors, and, if successful, implementation
  • Install a vapor monitoring, detection, and alarm system in the areas where vapor exposures are most likely to occur
  • Maintain current safety measures implemented after Ferguson’s lawsuit, including supplied air and respirators, in place to keep workers safe during testing
  • Improve sharing of information regarding vapor events, worker protections, worker health monitoring, and medical surveillance
  • Pay Washington state and Hanford Challenge $925,000 to reimburse for costs and fees

This agreement  places Ferguson’s lawsuit on hold while the testing takes place. However, Ferguson may resume his lawsuit if Energy fails to meet the terms of the agreement.

This marks the first time in the history of the Hanford Nuclear Reservation that Energy will destroy or capture tank vapors at their source, thereby eliminating the hazard to workers.

In 2015, Attorney General Ferguson filed a lawsuit against the Department of Energy after 20 years of workers getting sick from vapor exposures despite multiple studies and reports, but little action from the federal government.
Alaska: SAVE OUR SALMON INITIATIVE

Alaska has an initiative on the ballot this fall that would add new permitting requirements to protect salmon. The following impartial ballot statement describes the effect of the Initiative 1.

“An act providing for the protection of wild salmon and fish and wildlife habitat."

This act would amend Alaska’s fish habitat permitting law. The act would require
the Department of Fish and Game (ADF&G) to apply new standards to permitting
activities and development projects that have the potential to harm fish habitat. The
act would exempt existing projects, operations, or facilities that have received all
state and federal permits until a new permit is needed. The act would create fish
and wildlife habitat-protection standards. The standards would address water
quality, temperature, streamflow, and more. The act defines “anadromous fish
habitat.” The act would allow ADF&G to apply the law to all habitat in Alaska that
directly or indirectly supports salmon or other anadromous fish. The act would
provide for three types of permits for development in anadromous fish habitat.
ADF&G could issue a general permit—a single permit that applies to many
people—for certain activities. For other activities that require a permit, the act
would establish a two-track permitting system. Minor permits would be issued for
activities that have little impact on fish habitat. Major permits would be issued for
projects that have the potential to cause significant adverse effects on fish habitat.
The act defines “significant adverse effects.” The act would require ADF&G to
avoid or minimize adverse effects through mitigation measures and permit
conditions. It would provide public notice on all permits and a chance to comment
on major permits. The act would create criteria, timeframes, and an appeals
process for the permits by interested persons. The act would allow ADF&G to
respond to specified conduct with tickets, civil fines, or criminal penalties. The act
would repeal two current statutes. One is regarding mitigation from a dam. The
other is regarding criminal penalties that are addressed elsewhere.”
WATER
Central New Mexico Project? How a 50-year-old Rule Could Let New Mexico Use Arizona Water
Critics say the rule could siphon Arizona's water in a time of historic drought
August 26, 2018

As Arizona officials laid the groundwork for the Central Arizona Project 50 years ago, they made promises that critics now say could imperil habitat, weaken river health amid worsening drought and cost taxpayers in a big way.

In a bid to secure votes in Congress for the CAP Canal, the concrete channel that supplies Phoenix and Tucson with water from the Colorado River, Arizona struck a deal in 1968 that would give New Mexico the rights to water at Arizona's expense.

Now New Mexico wants to make good on the deal and claim as much as 14,000 acre feet from the Gila River before it flows into Arizona. The Central Arizona Project would replace the water from the Gila with water from its allocation of the Colorado River.
PUBLIC LANDS
Pope Resources, LP v. Washington State Department of Natural Resources , 190 Wash. 2d744, 418 P. 3 rd 90 (2018)
 
The Pope Resources signed a consent decree with the Washington Department of Ecology in 2013 to remediate contamination to Port Gamble Bay from a sawmill and forest products manufacturing facility owned by Pope Resources. After entering in the consent decree, Pope Resources brought an action against the Washington Department of Natural Resources (DNR) under the Washington Model Toxics Control Act (MTCA). The MTCA imposes liability for environmental contamination on the “owner or operator” of a subject facility, or any person who owned or operated the facility at the time of the hazardous substance release or disposal. Pope Resources asserted DNR was liable as an owner or operator because of its management of state submerged lands.

The Washington Supreme Court in overturning the Court of Appeals decision finding DNR was an owner found the lower court had “interposed ownership attributes into the State’s delegation of aquatic lands management to DNR.” 418 P.3d at 95. The Court stated aquatic lands are public trust lands owned by the State and the “public trust duty “devolves upon the State, not any particular agency thereof.”  Id . at 96.

The Washington Supreme Court also found the Court of Appeals “wrongly seized on DNR’s management role over aquatic lands and, without reference to legal authority, equated this role with having operational control over the Pope/OPG facility.” Looking to CERCLA, the Court “read MTCA to follow the CERCLA test, under which ‘an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility.”  Id . at 100. Since DNR did not control the management of the facility, the Court concluded DNR was not an operator.
INDIAN LAW
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  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. 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
WAGLAC
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