November 13, 2018
WAGLAC NEWS
UPCOMING MEETINGS

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
February 18-20, 2019
The Westin San Diego
San Diego, CA
June 17-20, 2019
CWAG Annual Meeting
The Ritz Bacara
Santa Barbara, CA
ENVIRONMENT
Idaho Power’s Lawsuit Against EPA Involving Chinook Salmon on Hold
November 11, 2018

A lawsuit by an Idaho utility against the U.S. Environmental Protection Agency concerning water temperature standards below a hydroelectric project where federally protected fall chinook salmon reproduce has been put on hold.

A U.S. District Court judge last week agreed to stay the lawsuit by Idaho Power against the EPA while the federal agency works to complete tasks requested by the state of Idaho in 2012. Read more below.
WATER
Washington State Enacts Stream Flow Restoration Law

Washington State protects rivers and streams by creating instream flow rules, which establish the quantity of water necessary for protecting fish, wildlife, and recreation. In 1985, Washington adopted an instream flow rule for the Nooksack River (WAC 173-501) in Whatcom County. The rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed the instream flow rule. In 2016, the Washington Supreme Court in, Whatcom County v. Hirst, held that new wells may not impair more senior water users, including instream flows and that counties had to make their own decisions about whether there was enough water, both physically and legally, to approve any building permit that would rely on a well.

The Hirst decision was a significant threat to development, because a reliable, year-round supply of water is necessary for new homes or developments. Last session, the Washington Legislature adopted an in-stream flow restoration law in response to the Hirst decision.

"The Hirst fix returns most counties located within 41 WRIAs [Water Resource Inventory Areas] to the pre-Hirst reliance on the 5,000 gallon per day permit-exempt wells for approval of building permits and subdivision applications. . . . However, other WRIAs are subject to new restrictions under the new law." 
Chuitna, DNR Head Back to Court
October 4, 2018

The Chuitna Citizens Coalition is appealing a decision to reverse an order granting the group what’s called an instream flow reservation. An IFR, in effect, saves water in a stream for a specific purpose. In this case, that reservation was granted in 2015 in order to protect salmon spawning grounds in Middle Creek. But the project that Chuitna sought to protect those spawning grounds from is no longer being pursued.

This summer, DNR Commissioner Andy Mack reversed the previous order, triggering the latest legal fight.
PUBLIC LAND
Wyoming Data Laws
October 29, 2018

Wyoming enacted W.S. 6-3-414 (criminal statute) and W.S. 40-26-1-1 (civil statute) commonly referred to as the “Data Laws.” These statutes sought to prevent the public from gathering “resource data” on public or private “open land” in the State of Wyoming.

On October 29, 2018, the Federal District Court for Wyoming struck down the Data Laws applying the strict scrutiny test. The court concluded Wyoming had “no plausible reasons for the specific curtailment of speech … beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant.”
Dakota Access Pipeline: Thunderhawk v. County of Morton

In 2017, protesters camped out at a location near the intersection of Highway 1806 and the Cannonball River in south-central North Dakota to protest the construction of the Dakota Access Pipeline (DAPL). Highway 1806 is the largest and most direct road used by the protestors to access the camps. In the complaint, plaintiffs allege North Dakota closed the road to use by the protestors, but allowed use of the road by DAPL employees and local residents. Plaintiffs allege the “travel limitations . . . prevented [them] from exercising their First Amendment right to assemble, speak, and pray . . ..”
INDIAN LAW
North Dakota: Spirit Lake Tribe v. Jaeger
November 1, 2018

On November 1, 2018, the United States District Court for North Dakota denied a motion for a temporary restraining order to enjoin enforcement of N.D.C.C. §§ 16.1-01-04.1(2)(b) and 16.1-01-04.1(3)(b). Those statutes require a voter to produce valid identification containing a “current residential street address” before the voting. Spirit Lake Tribe v. Jaeger, No. 1:18-cv-222, 2018 WL 5422665). The action was brought by the Spirit Lake Tribe on behalf of its members and six individuals who are Native Americans belonging to the Spirit Lake, Turtle Mountain or Standing Rock Sioux Tribes. 

The case is related to a pending Eighth Circuit appeal, Brakebill v. Jaeger, No. 18-1725, in which the North Dakota Secretary of State appealed a preliminary injunction that barred the statutes’ enforcement. The Eighth Circuit stayed the injunction pending appeal on September 24, 2018 to the extent that the district court’s order “require[ed] the Secretary to accept forms of identification and supplemental documents that include a current mailing address rather than a current residential street address.” A majority of the appeal panel observed that “[i]n its order granting injunctive relief, the district court highlighted its concern that under current state law, a resident who does not have a ‘current residential street address’ will never be qualified to vote. No plaintiff in this case falls in that category. If any resident of North Dakota lacks a current residential street address and is denied an opportunity to vote on that basis, the courthouse doors remain open.” The Supreme Court denied an application to vacate the stay on October 9, 2018, with Justices Ginsburg and Kagan dissenting. 

In the Spirit Lake order, the district court reasoned that “[t]he federal courts are unanimous in their judgment that it is highly important to preserve the status quo when elections are fast approaching.” Applying that general principle, it held that “early voting has already begun. Election day is less than one week away. The allegations in the complaint, the motion for a temporary restraining order, and the attached affidavits give this Court great cause for concern. The allegations will require a detailed response from the Secretary of State as this case proceeds.” Under these circumstances, “a further injunction on the eve of the election will create as much confusion as it will alleviate, and is foreclosed by precedent which is hesitant to permit ‘eleventh-hour changes to election laws.’” The relevant orders are attached.
SCOTUS 2018 Indian Law Merits Docket: Reservation Status, Tax, and Hunting Rights Cases

The Supreme Court has granted certiorari in three Indian law cases that will be decided this Term--Carpenter v. Murphy, Washington Department of Licensing v. Cougar Den, Inc., and Herrera v. Wyoming. Each involves issues that will have substantial practical and legal effects on both the parties and others.
 
Please join Kansas Attorney General Derek Schmidt as he moderates a discussion featuring Mithun Mansinghani, Solicitor General, State of Oklahoma; John G. Knepper, Chief Deputy Attorney General, State of Wyoming; and Fronda C. Woods, former Assistant Attorney General, State of Washington.
 
This webinar will be on Thursday, November 15th at 2pm EST and is available via CWAG’s content partner Thomson Reuters and may be available to you at special pricing via your existing WestLegalEd subscription.

Visit West LegalEdcenter and search Content Partner “Conference of Western Attorneys General” to add this content to your cart.

For questions, please contact Clay Smith at  Clay.Smith@cwagweb.org.
Ute Tribe Takes U.S. Government to Court Over ‘Theft’ of Land and Water in Historic Uncompahgre
March 14, 2018

More than a century ago, the U.S. government made several promises to the Ute Indian Tribe when it evicted the Uncompahgre and White River bands from fertile homelands in Colorado in a largely failed effort to resettle tribal members to Utah’s Uinta Basin, though the arid land was ill-suited for farming.

But that ground under the historic 1.8 million-acre Uncompahgre Reservation near the Colorado-Utah border proved to be rich in minerals, and tribal officials now say they never were compensated for more than a century of mining and drilling on leased lands around the East Tavaputs Plateau.

According to new lawsuits filed by the Ute tribe late last week, federal authorities should have managed the forage, gilsonite, oil and gas, water and other natural resources on those lands for the benefit of the tribe, but instead orchestrated their “theft.”
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
NEW 2018 STATE AGs
Newly Elected State Attorneys General and CWAG Members

Below please find a list of the recently elected state attorneys general.  Newly elected members of CWAG are Colorado Attorney General Phil Weiser, Guam Attorney General Leevin Camasho, Nevada Attorney General Aaron Ford, and South Dakota Attorney General Ravnsborg.  Newly elected associate members of CWAG are Connecticut Attorney General William Tong, Florida Attorney General Ashley Moody, Illinois Attorney General Kwame Raoul, Michigan Attorney General Dana Nessel, Rhode Island Attorney General Peter Neronha, and Wisconsin Attorney General Josh Kaul.
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