October 8, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
*You are encouraged to register for WAGLAC by THIS FRIDAY, October 12th, 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
EPA’s Third Smart Sectors Roundtable Summit, U.S. Environmental Agency YouTube October 2, 2018

In his opening remarks to an to EPA’s Third Smart Sectors Summit on October 2 nd , acting EPA Administrator Andrew Wheeler said EPA would announce a new WOTUS rule in approximately 30 days. Wheeler give no hint on what the legal standard will be other than it will be “clear and straightforward and easy for landowners to understand.” He said the guiding principle be to follow the CWA Act and Supreme Court cases to develop a standard that “will stand the course of time and provide regulatory certainty . . . for the American people.” Environmental groups have vowed to sue over any narrowing of the CWA jurisdiction standard
CWA Section 401 Update
ACWA and ASWM letter
September 6, 2018

In a letter dated October 4 th , Senators John Barrasso, Jim Inhofe, Shelley Moore Capito, and Mike Enzi and Steve Daines asked Acting EPA Administrator Andrew Wheeler to review “the federal government’s implementation of Clean Water Act Section 401 to ensure it is consistent with the statute. We ask that you work with other federal agencies to determine whether new clarifying guidance or regulations are needed in light of recent abuses of the Section 401 process by certain states.” The letter states that “[i]n the last few years, a troubling trend directed at fossil energy projects has arisen. A select number of states have hijacked Section 401 to delay or block the development of natural gas pipelines and a coal export terminal. While the focus of these abuses today is fossil energy, the approach could be used to target any type of project that is disfavored politically.”  Letter to Acting Administrator Andrew Wheeler dated October 4, 2018 .

The Association of Clean Water Administrators (ACWA) and the Association of State Wetland Managers (ASWM), in a letter dated September 6, 2018 expressed concern that the Water Quality Certification Improvement Act of 2018 (S. 3303) “would diminish states’ ability to manage and protect water quality within their boundaries, contrary to the principles of cooperative federalism upon which the Clean Water Act (CWA) is based. . . We believe states have acted efficiently under this authorization, as required by the regulations related to §401, in certifying projects, establishing procedures, and providing primary responsibility to ensure that water quality standards are met and believe the problems identified by supporters of these efforts are exaggerated.”
CERCLA Lawsuit Against U.S. Navy Moves Forward 
October 01, 2018

The Government of Guam is one step closer in its attempt to hold the United States government accountable for its part in contaminating Ordot Dump and its surrounding area. 

Over the weekend, Judge Ketanji Jackson from the United States District Court for the District Court of Columbia denied the U.S. Government’s Motion to Dismiss in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) lawsuit filed by the Office of the Attorney General on behalf of the Government of Guam last year. 

The U.S. Government, in its motion, argued that GovGuam exceeded the statute of limitations to file under CERCLA. Ruling in favor of the OAG, Judge Jackson will issue her reasoning in a Memorandum Opinion, to be announced shortly. 

The OAG’s federal lawsuit against the United States Department of Navy is being litigated by a Houston-based law firm that specializes in environmental law. Credit goes to attorneys John Gilmour and Bill Jackson from the law firm Kelley, Drye & Warren. 
Cascadia Wildlands v. Oregon Department of State Lands , 293 Or.App. 127 (Aug. 1, 2018)

Cascadia Wildlands filed an action seeking to enjoin the Oregon State Department of Lands from selling a part of Elliott State Forest to Seneca Jones Timber Company, LLC. The issue in the case centers on whether the Oregon Legislature has authority to limit the power of the State Land Board to dispose of lands within the Elliott State Forest. The Elliott State Forest consists of lands acquired from the United States in lieu of common school lands not otherwise available for transfer to Oregon at statehood. In 2013, when the cost of managing the Elliott State Forest exceeded the revenue generated from the forest, the State Land Board decided to sale a portion of the lands to Seneca Jones. 

Cascadia Wildlands asserted the sale violated ORS 530.450, which precludes the sale of “[a]ny lands in the national forests on February 25, 1913, selected by, and patented to, the State of Oregon, for the purpose of establishing a state forest . . ..” The Oregon Department of State Lands argued the case should be dismissed for lack of standing, and that ORS 530.450 was an unconstitutional restriction on the powers of the Oregon Land Board. The Circuit Court dismissed the case for lack of standing. On appeal the Oregon Court of Appeals reversed the trial court finding Cascadia Wildlands had suffered injury to a substantial interest. Then at the request of the parties, the Court of Appeals addressed the merits of the case and found ORS 530.450 to be a lawful exercise of legislative authority.

Oregon Department of Lands has filed a petition for review of the Court of Appeals decision with the Oregon Supreme Court. The petition seeks review on whether ORS 530.450 conflicts with Article VIII, § 5 of the 1859 Oregon Constitution, which created the Land Board and gave it the power to sell school lands to meet the State’s obligation to generate revenue for public education. The petition also seeks review on whether ORS 530.450 is unconstitutional under Article III, section 1, because it violates the separation of powers.
AG Paxton Commends Court Decision Striking Down the Unconstitutional and Discriminatory Indian Child Welfare Act
October 5, 2018

Attorney General Ken Paxton commended a U.S. District Court decision striking down the unconstitutional and discriminatory Indian Child Welfare Act (ICWA). Last October, the attorney general, on behalf of Texas, Indiana, and Louisiana, filed a lawsuit alongside a Texas foster family challenging the constitutionality of ICWA, which imposes race-based restrictions on the adoption of Indian children and impedes the ability of Texas and other states to protect them from harm.

The Texas Family Code provides that all cases of custody and adoption must focus on the best interest of the child, and prohibits racial discrimination in child custody cases. However, ICWA – which Congress created – mandates different rules for custody and adoption cases involving children from federally recognized Native American tribes that could compel a placement that is directly against the best interest of the child.
A non-Native American Texas married couple is the backdrop to Attorney General Paxton’s lawsuit. The family wanted to adopt a two-year-old Native American child they have fostered since he was ten months old. The child’s biological parents and grandmother supported the adoption. And the court-appointed, neutral guardian ad litem believed placement with the foster family was in the child’s best interest. But a state court denied the adoption petition because it believed ICWA required a different outcome solely because of the child’s race: to live with an unrelated Native American family with whom he had no previous connection. After an appeal, the parties settled and the Texas couple adopted the child. The case also involved several other couples and an adult who wanted to adopt foster children but could not because of ICWA.
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
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.