News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
April 13, 2020
Letter to WAGLACers:
We are hopeful that the June 2020 WAGLAC Meeting in Bozeman will proceed as scheduled, and therefore, encourage you to make with your travel arrangements. CWAG per its policy will cover attendance costs for one person from each member and affiliate member state. Early registration is encourage because seating on the bus for the field trip is limited.

CWAG is dedicated to ensuring the health and safety of our members and will advise you if the COVID 19 crisis requires adjustments to the meeting schedule. Do not hesitate to reach out to us with any questions or concerns.

On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support.
WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow.
EPA Announces Extended Comment Period on Supplement to Science Transparency Proposed Rule
April 2, 2020

U.S. Environmental Protection Agency (EPA) announced an extension of the comment period on the supplemental notice of proposed rulemaking for the proposed rule, “Strengthening Transparency in Regulatory Science.”
Split Court Stops EPA From Rolling Back Climate Change Safeguard
Courthouse News
April 7, 2020

"The D.C. Circuit blocked the government from stripping limits on a class of chemicals known as hydrofluorocarbons, or HFCs, that spew harmful greenhouse gases.

HFCs tend to appear in aerosol sprays, air conditioning units, insulation and refrigerators. Though industries initially embraced them as a replacement for substances found to deplete the ozone layer, HFCs fell out of favor amid research about their contribution to climate change with harmful greenhouse gas emissions."

A divided U.S. District of Columbia Circuit Court of Appeals panel vacated EPA’s rule finding that the agency failed to follow necessary notice-and-comment procedures.
Riverkeeper v. Wheeler/CWA/Columbia River
Western States Water Newsletter; Litigation/Water Quality
April 10, 2020

"On March 30, the 9th Circuit Court of Appeals denied the Environmental Protection Agency’s (EPA) request to reconsider their December ruling, requiring EPA to set a total maximum daily load (TMDL) limit for temperature for the Columbia and Snake Rivers. Riverkeeper et al. vs. Wheeler, 18-35982. The opinion was based on the doctrine of “constructive submission,” which courts have used in the past to address what happens when states refuse to submit TMDLs. Previously, the doctrine had only applied to cases where states did not implement a full TMDL program. This is the first time it has been applied to a singular TMDL. The 9th Circuit concurred with the District Court’s opinion: “Washington and Oregon have clearly and unambiguously indicated that they will not produce a TMDL for these waterways, [and as a result] EPA has violated the CWA by failing to issue a TMDL for the Columbia and lower Snake Rivers.” Columbia Riverkeepers v. Pruitt, 337 F. Supp. 3d 989, 998 (W.D. Wash. 2018).
United Affiliates Corp. v. United States
Ryan & Kuehler PLLC
April 9, 2020

United Affiliates Corp. v. United States , No. 17-67L (Ct. Cl. March 27, 2020) (granting plaintiffs’ motion to compel in takings case against government in connection with EPA’s 404(c)-veto of the Spruce/Mingo Mine permit 2011, held that discovery is not limited in a takings case to APA review of the official record; plaintiffs are entitled to discover pre-decisional documents because they are potentially relevant to the extent that they demonstrate the agency foresaw any retroactive liability; court denied production of privileged documents pending submission of a privilege log by EPA)
Kansas Supreme Court Strikes Down Fee for Rooftop Solar
E&E News
April 6, 2020

"Kansas' Supreme Court ruled that a fee charged by utilities to residential customers with rooftop solar systems is unlawful and "simple price discrimination" because it requires them to pay more for the same service as neighbors without solar.

In a 14-page opinion handed down, the Kansas Supreme Court reversed a 2018 decision by the Kansas Corporation Commission and sent the case back to regulators."
Tuesday, April 21
11:30am – 4pm (ET)
The AG Alliance Cannabis Project is hosting a Cannabis Law & Policy Virtual Summit to educate national Attorneys General on key issues within the cannabis, hemp, and CBD marketplace and to facilitate dialogue among diverse stakeholders.

Austin Bernstein,
Cannabis Project Director
Cascabel Cattle Co., LLC v. United States, No. 19-40077 (5th Cir. 2020)

"Plaintiffs filed suit against the United States and others, alleging violations of the Federal Tort Claims Act (FTCA) and seeking monetary damages associated with their loss of livestock following the implementation of a temporary fever tick quarantine.

The Fifth Circuit affirmed the district court's dismissal for lack of jurisdiction, holding that plaintiffs' claims were barred by the quarantine exception to the FTCA. The quarantine exception states that the statute's sovereign immunity waiver does not apply to any claim for damages caused by the imposition or establishment of a quarantine by the United States. In this case, plaintiffs' damages were caused by the implementation of the quarantine and thus defendants' challenged actions fell within the exception."
Environmental Change, Culverts, and the "Right of Taking Fish" Under the Stevens Treaties
Fronda Woods, Assistant Editor of CWAG’s Indian Law Deskbook recently published an excellent article chronicling the treaty fishing rights cases in the Pacific Northwest. “In 2018, the U.S. Supreme Court affirmed without opinion a judgment that requires the State of Washington to replace hundreds of highway culverts that hinder fish passage. It was the result of a 40-year litigation strategy that tribal advocates pursued with the goal of establishing a treaty-based, broadly-applicable rule of law prohibiting fish habitat degradation. This Essay examines the history of treaty fishing rights litigation in the Pacific Northwest, federal policies that encouraged settlement and environmental alteration, and the culvert litigation and its aftermath. The Essay concludes that the culvert litigation did not establish a broad rule of law, and proposes that engagement with state political and administrative processes is a more effective way for tribes to achieve public policy goals.”
Indian Country and COVID-19 ABA Webinar

The American Bar Association sponsored a two-hour webinar titled "Issues Affecting Native American Communities During the COVID-19 Crisis” on April 8, 2020. Ten persons gave presentations (in order): Hon. Raul Grijalva, Chair of the U.S. House of Representatives Committee on Natural Resources; Naomi Miguel, a member of the Committee’s professional staff; Kevin Allis, Chief Executive Officer, National Congress of Indians; Stacy Bohlen, Executive Director, National Indian Health Board; Bryan Newland, President, Bay Mills Indian Community; Jerilyn Church, Chief Executive Officer, Great Plains Tribal Chairmen’s Health Board; Charles Grim DDS, Secretary of Health, Chickasaw Nation; Virginia Hendrick, Chief Executive Officer, National Indian Health Board; Elizabeth Coronado, Staff Attorney, Health and Human Services, Lummi Indian Nation; and Doreen McPaul, Attorney General, Navajo Nation. Representative Grijalva gave introductory remarks. Ms. Miguel, Mr. Allis and Ms. Bohlen discussed provisions in the three COVID-19 bills passed by Congress that relate directly or indirectly to Indian country. The remaining speakers, other than Ms. Hendrick, discussed their Tribes’ responses to the pandemic. Ms. Hendrick addressed its impact on urban Indians in southern California. PowerPoint presentations for five of the speakers are available below"
California Greenlights Massive Klamath River Dam Removal
E&E News
April 9, 2020

"The largest dam removal project in U.S. history came one step closer to fruition this week, as California issued permits for breaching the four dams on the Klamath River.

The State Water Resources Control Board issued a Clean Water Act certification and environmental assessment for the proposal to remove three dams in Northern California and one in southern Oregon."
BLM Plan Eyes 1,000 Miles of New Fuel Breaks in Three States
E&E News
April 8, 2020

"A plan to help in the battle against devastating wildfires creates fuel breaks 400 feet wide along 987 miles of roads in southwestern Idaho and southeastern Oregon that will be tied into an existing fuel break system in northern Nevada.

The Bureau of Land Management released a final environmental impact statement for the Tri-State Fuel Breaks Project, opening a 30-day comment period. The plan involves treating about 65 square miles.

The agency said creating fuel breaks by clearing vegetation will help firefighters stop wildfires and protect key habitat for sage grouse and other wildlife on land also used by cattle ranchers and outdoor enthusiasts."
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
Genskow v. Prevost , ___ F. Supp. 3d ___, 2020 WL 1676960 (E.D. Wis. Apr. 6, 2020) Cause of action under 42 U.S.C.A. § 1983 seeking prospective and retroactive relief based upon alleged use of unreasonable force in removing a member from a tribal council meeting was barred by sovereign immunity and otherwise did not state a claim under Fed. R. Civ. P. 12(b)(6).
In Petition of M.G. , 2020 COA 66, ___ P.3d ___ (Colo. Ct. App. Apr. 9, 2020) Compliance with the Indian Child Welfare Act was not required in a stepparent adoption proceeding where the biological father and the child were merely eligible for tribal membership
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
Western Attorneys General Litigation Action Committee
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.
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. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.