WAGLAC News & Updates
April 1, 2019
Contributions For WAGLAC Newsletter

We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to clive.strong@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.
WAGLAC Meeting
Park City, Utah
June 24 - 25, 2019
Fourteen States’ File Amicus Brief Seeking Rehearing in Hoopa Valley Tribe v. FERC
Oregon Attorney General Ellen Rosenblum filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit to grant rehearing in Hoopa Valley Tribe v. FERC. The attorneys general of Alaska, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, New Jersey, Rhode Island, South Dakota, Vermont, Washington and Wyoming joined Oregon in filing the brief.  
As reported in the January 28, 2019 WAGLAC Newsletter, under the Klamath Hydroelectric Settlement Agreement the parties agreed to defer the one-year statutory limit for Section 401 approval by annually withdrawing—and—resubmitting the [California and Oregon] certification requests that serve as a pre-requisite to FERC’s review of PacifiCorp’s petition to decommission its dams. The Court of Appeals held that the “withdrawal-and-resubmission scheme” was ineffective and that California and Oregon had waived their right to certify the project under Section 401 of the Clean Water Act. The Attorneys General assert the Hoopa Valley Tribe v. FERC decision threatens state authority over water quality permitting and "undercuts the coequal management of the nation's waters.
Farmers Who Disputed Frog-Focused Habitat Lose Suit
Courthouse News
March 28, 2019

"Nearly 2 million acres designated as critical habitat for three imperiled frog species survived a court challenge Wednesday by California farmers.

The Fish and Wildlife Service had designated the land in 2016 under the Endangered Species Act to protect two high-altitude species — the mountain yellow-legged frog and the Sierra Nevada yellow-legged frog — as well as Yosemite toads.

But the California Cattlemen’s Association, the California Wool Growers Association and the California Farm Bureau Federation filed suit a year later, saying the designation severely burdened ranchers and farmers in the area.

U.S. District Judge Trevor McFadden, elevated to the bench in June 2017 by President Donald Trump, dismissed the suit Wednesday, however, for lack of standing."
Judge Restores Drilling Ban in Arctic

Last week, U.S. District Judge Sharon Gleason overturned President Trump’s Executive Order revoking President Obama’s 2015 and 2016 Executive Orders withdrawing the Arctic’s Chukchi Sea, part of the Arctic’s Beaufort Sea and large parts of the Atlantic Ocean off the U.S. East Cost from oil and gas leasing. At issue in the case was the meaning of Section 12(a) of Outer Continental Shelf Lands Act, which provides that: “The President of the United States may, from time to time, withdraw from disposition any of the unleashed lands of the outer Continental Shelf.” Judge Gleason held: “The text of Section 12(a) refers only to the withdrawal of lands; it does not expressly authorize the President to revoke a prior withdrawal. Congress appears to have expressed one concept—withdrawal—and excluded the converse— revocation.”

The Court vacated Section 5 of Executive Order 13795. “As a result, the previous three withdrawals issued on January 27, 2015 and December 20, 2016 . . . remain in full force and effect unless and until revoked by Congress.”

Supreme Court Reaffirms State Sovereignty Over Navigable Rivers
March 26, 2019

Governor Michael J. Dunleavy, Attorney General Kevin Clarkson and Fish and Game Commissioner Douglas Vincent-Lang issued a press release hailing the unanimous decision by the United States Supreme Court in favor of John Sturgeon, a moose hunter legally using a hovercraft on the Nation River in the Yukon Charley Preserve in 2007. National Park Service Rangers threatened to cite him for violating a National Park Service (NPS) ban on using hovercraft in federal park units. Sturgeon sued to protest the NPS action, pursuing the case through the Ninth Circuit Court of Appeals and finally to the United States Supreme Court.

The Sturgeon case hinged on whether Congress gave the National Park Service the right to control access to the State’s navigable waters within federal conservation units, like the Yukon-Charley Preserve. The landmark decision overturns an earlier Ninth Circuit Court decision and ensures that the state can continue to manage state-owned navigable waterways within federal lands in Alaska. “This decision by the Supreme Court means the people of Alaska can continue to exercise their freedom to use state-owned waterways for every legal purpose, including economic development, recreation, hunting, and fishing, without illegitimate restrictions imposed by distant federal authorities,” said Attorney General Kevin G. Clarkson.

The Court’s analysis turned on two points: 1) statutory interpretation of the term “public land” in Section 103(c) of ANILCA; and, 2) ownership of the bed of the Nation River. While the Court’s statutory construction analysis only applies to lands within Alaska, its ownership analysis addresses significant legal issues affecting public lands, federalism and water rights throughout the nation.
Acting Secretary Bernhardt Signs Order to Prioritize Implementation of Bipartisan Public Lands Bill
Department of the Interior
March 28, 2019

"U.S. Acting Secretary of the Interior David Bernhardt signed a secretarial order to establish a Departmental task force to facilitate and prioritize the implementation of S. 47, the John D. Dingell, Jr. Conservation, Management, and Recreation Act (Dingell Act). The bill was made up of more than 100 individual bills that were introduced by 50 Senators and several House members. The Interior Department had advocated for in concept or worked with Members of Congress on many of the individual provisions that made up the package.

Secretarial Order 3374, Implementation of the John D. Dingell, Jr. Conservation, Management, and Recreation Act establishes a task force to ensure the timely and coordinated implementation of the Dingell Act and consistency among all offices and Bureaus within the Department of the Interior."
Seven States Testify in Support of Colorado River Drought Plan as Chair Grijalva Announces Authorizing Bill Introduction Next Week
House Natural Resources Subcommittee on Water, Oceans and Wildlife
March 28, 2019

"Chair Raúl M. Grijalva (D-Ariz.) announced at a hearing on the Colorado River Drought Contingency Planthat he will introduce legislation – expected early next week – to enact the Drought Contingency Plan into law and expedite its passage through the Committee. The plan will safeguard the water supply for the American Southwest and the 40 million people who live there through 2026. The announcement came as representatives from the U.S. Bureau of Reclamation and from seven states in the Colorado River Basin voiced support for the plan in formal testimony.

To address the near-term threat of water shortages and the increasingly rapid decline of water levels at the two primary reservoirs of the Colorado River – Lake Mead and Lake Powell – the Colorado River Basin states (Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming) have worked over the past several years to develop the Drought Contingency Plan, a set of agreements outlining new water conservation measures in all seven Basin states and voluntary water contributions by Arizona, California, and Nevada."
Indian Water Rights Settlement Extension Act
Western States Water Council (WSWC) Newsletter
March 29, 2019

"On March 28, House Natural Resources Committee Chair Raúl M. Grijalva (D-AZ) and Senator Tom Udall (D-NM), the Vice Chairman of the Senate Committee on Indian Affairs, introduced the Indian Water Rights Settlement Extension Act to fund water infrastructure projects in tribal communities."
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 
Recent Indian Law Case Summaries
State, Dept. of Health & Soc. Servs. v. Eva H. , ___ P.3d ___, 2019 WL 1087327 (Alaska Mar. 8, 2019):   Attorney with 18 years’ experience as a guardian  ad litem  in the relevant geographical area did not possess qualified expert witness status under the Indian Child Welfare Act in the absence of specialized training necessary to testify competently on whether returning children to their parents would result in serious emotional or physical damage to them.
Solomon v. American Web Loan , ___ F. Supp. 3d ___, 2019 WL 1324490 (E.D. Va. Mar. 20, 2019) Various corporations and individuals associated with usurious on-line loan enterprise are not entitled to assert a tribe’s immunity from suit, to compel arbitration to enforce the loans, or to have venue transferred to the Western District of Oklahoma.
City of Council Bluffs, Iowa v. U.S. Dept. of Interior , ___ F. Supp. 3d ___, 2019 WL 1368561 (S.D. Iowa Mar. 26, 2019) National Indian Gaming Commission decision approving tribe’s site-specific class II gaming ordinance for tract of land determined to be restored lands under 25 U.S.C. §2719(b)(1)(B)(iii) remanded for evaluation of a 2002 oral agreement with Iowa and related notice of intent to take the parcel into trust providing for such gaming only if the tribe obtained Secretarial/gubernatorial approval under §2719(b)(1)(A).
Seminole Tribe of Fla. v. Azar , ___ F. Supp. 3d ___, 2019 WL 1359478 (D.D.C. Mar. 26, 2019) Questions of fact precluded granting either party’s motion for summary judgment in dispute over the proper indirect contract support services amount under an Indian Self-Determination and Education Assistance Act agreement, but case remanded to the Department of Health and Human Services “for further consideration” and possible settlement.
Fontenot v. Hunter , ___ F. Supp. 3d ___, 2019 WL 1413760 (W.D. Okla. Mar. 28, 2019) Application of the prohibition against the marketing of any article represented as American Indian-made under Oklahoma’s American Indian Arts and Crafts Sales Act, which defines “American Indian” as an enrolled member of a federally recognized tribe, to a member of a state recognized tribe is preempted by the federal Indian Arts and Crafts Act of 1990, which defines “Indian” to include a members of an Indian tribe formally recognized by the Bureau of Indian Affairs or a State, with respect to the marketing of articles represented as of Indian origin.
All summaries are posted in CWAG's google docs acc ount, accessible through the link below. Should you have any issues with the links, contact 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.