October 29, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
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
Millennium Bulk Terminal Section 401 Water Quality Certification 

The Washington Department of Ecology (Ecology) denied a request by Millennium Bulk Terminals – Longview (Millennium) for Section 401 Certification of its proposed coal export terminal near Longview, Washington on September 26, 2017. Millennium’s proposal to build a $680 million export facility at the old Reynolds Metals Co. aluminum smelter west of Longview has been in a permitting battle for six years and is currently the subject of state and federal legal challenges. According to Ecology, the project is estimated to impact approximately 32 acres of wetlands and six acres of ditches.

“Pursuant to Section 401 of the Clean Water Act, in order for Ecology to issue a water quality certification it must have reasonable assurance that the Project as proposed will meet applicable water quality standards and other appropriate requirements of state law.” In the Matter of Denying Section 401 Water Quality Certification to Millennium Bulk Terminals-Longview, LLC, Order # 15417 at 13. Ecology found Millennium’s application and supplemental documents fail to demonstrate reasonable assurance of compliance with water quality standards in the following areas: 1) wetlands impacts and mitigation; 2) stormwater and wastewater; 3) water rights; and 4) toxics cleanup.

Millennium filed a petition for judicial review of Ecology’s denial order in the Superior Court of the State of Washington for Cowlitz County on September 5, 2018. Millennium asserts Ecology denied its application on “non-water-quality effects found in the EIS as a pretext to veto the water quality certification—and the Project—altogether.” Millennium also is requesting the Corps of Engineers declare that Ecology waived its Section 401 certification rights under the Clean Water Act because 1) Ecology failed to issue a final decision within one year of the application; and 2) Ecology’s decision is “based on grounds other than the five statutorily enumerated grounds under CWA section 401.”
Will Judge’s Ruling Help Salmon Survive Hot Water?
October 24, 2018

It might be the most gruesome element of the drought conditions that have gripped the West in recent years: salmon being cooked to death by the thousands in rivers that have become overheated as water flows dwindle.

So now that a federal judge in Seattle has directed the Environmental Protection Agency to find a way to keep river waters cool, will that be enough to help salmon survive?

U.S. District Judge Ricardo Martinez, ruling in a case filed by environmental and fishermen’s groups, told the agency last week that it must develop a plan to keep water temperatures low in the Columbia River and its main tributary, the Snake, to protect multiple varieties of salmon and steelhead that are covered by the Endangered Species Act.

The ruling comes at a tense time. Environmentalists and state officials throughout the West are trying to grasp the implications of a memorandum President Donald Trump signed last week to streamline environmental regulations in order to increase water deliveries to farms and cities in the region.

At the same time, drought-like conditions persist: The federal government’s U.S. Drought Monitor says 48 percent of California is in moderate to severe drought, along with 39 percent of Washington and 36 percent of Idaho. Just a month ago, the U.S. Commerce Department issued a disaster declaration for commercial salmon fishing on the West Coast, making communities that depend on those fisheries eligible for financial assistance.

Martinez’s ruling last week was sparked by an ecological catastrophe in 2015, when an estimated 250,000 sockeye salmon died on the Columbia and Snake because the waters got too warm. In California, more than 95 percent of juvenile winter-run Chinook salmon perished in the Sacramento River in 2014 and 2015 when temperatures spiked during the worst of the drought. The Chinook are protected under the Endangered Species Act.

In the Northwest, the problems facing salmon and steelhead are being exacerbated by climate change. The massive fish kills of 2015 represent “a glimpse into the future as we get hotter and drier,” said attorney Miles Johnson of Columbia River-keeper, an environmental group that spearheaded the Seattle case.
Government of Guam v. United States of America CERCLA Suit

As discussed in the WAGLAC Newsletter dated October 8, 2018, the United States District Court for the District of Columbia denied the United States motion to dismiss Guam’s suit to compel the United States to pay for the closure and remediation of the Ordot Landfill under CERCLA’s section 107(a) or for contribution under section 113(f)(3)(B). The United States asserted CERCLA only provides Guam with a claim for contribution under section 113(f)(3)(B), and, that the contribution action must be dismissed as untimely, because the action was brought after the applicable three-year statute of limitation. The United States’ asserted the section 107(a) claims and section 113(f)(3)(B) claims are mutually exclusive, and that “Guam’s circumstances fit the latter provision, because Guam previously executed a 2004 Consent Decree with the EPA that purportedly ‘resolve[d] its liability to the United States’ for the cleanup and closure of the Ordot Landfill, and the United States considers that agreement to be a cognizable ‘settlement’ for section 113(f)(3)(B) purposes.” On September 30, 2018, the Court denied the United States motion from the bench. In its Memorandum Opinion the Court stated: “[A] cost-recovery action under section 107(a) remains available to Guam because the 2004 Consent Decree plainly left the issue of liability for the costs associated with the Ordot Landfill cleanup unresolved, and therefore, section 113(f)(3)(B)’s contribution mechanism was not triggered. Consequently, and to that extent, the Court finds that the United States’s motion to dismiss Guam’s cost-recovery claim under section 107(a) must be denied.”
Resolution of the Western States Water Council in Support of State CWA Section 401 Certification Authority

On October 26, 2018 the Western States Water Council (WSWC) adopted a resolution in support of the state CWA Section 401 Certification Authority. The WSWC opposes any changes that may weaken the deference to state water laws and diminish the primary state authority and responsibility for the appropriation, allocation, development, conservation, and protection of state water resources
Bullock Takes Questions Over Conservation Easements To the Montana Supreme Court
October 22, 2018

Whether the Montana Fish and Wildlife Commission or the Montana State Board of Land Commissioners has the final say on state conservation easements is now in the hands of the Montana Supreme Court.

Gov. Steve Bullock and FWP Director Martha Williams sued Attorney General Tim Fox on Monday morning, seeking to overturn a legally binding opinion he issued last week. The opinion faulted the Bullock administration for bypassing the Land Board earlier this year to allow FWP to close on the 15,000-acre, $6.1 million Horse Creek conservation easement in eastern Montana.

Republicans Superintendent of Public Instruction Elsie Arntzen, state Auditor Matt Rosendale and Secretary of State Corey Stapleton voted to indefinitely delay action on the easement last winter. Stapleton opposes locking in land management decisions for perpetuity, while Arntzen and Rosendale questioned the impacts to mineral development and later the appraisal.

Bullock, a Democrat, and Fox, a Republican, had voted against delay. All of the Republicans were critical of Bullock’s decision.

After filing the attorney general’s opinion last week, Fox said in an interview that while he supported the easement, he believed Bullock, “decided to unilaterally ignore the law,” and found that the Land Board has the final legal say over state conservation easements of more than 100 acres or $100,000. The opinion, which came at the request of Senate President Scott Sales, R-Bozeman, carries the weight of the law unless overturned by the court.

The lawsuit asks the court to determine if the term “land acquisition” includes not only land purchases, but also the purchase of an interest in land via conservation easements.
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.