News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
April 20, 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.
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
Supreme Court: EPA Must OK Cleanup Claims
April 20, 2020

 A divided Supreme Court held CERCLA does not preempt state courts from hearing damage claims made under state law, but held the “Montana Supreme Court erred by holding that the landown­ers were not potentially responsible parties under the [CERCLA] and thus did not need EPA approval to take remedial action.”
New Mexico Federal District Remands New Mexico's PCB Case Against Monsanto to State Court

In May 2019, New Mexico filed an action in the First Judicial District Court in the County of Santa Fe to recover for damages to New Mexico’s natural resources resulting from Monsanto’s manufacturing, marketing and sale of PCBs. Monsanto filed a motion to remove the case to federal court, in December 2019, asserting that removal is authorized under 28 U.S.C. § 1441(a) (general removal statute); § 1331 (federal question for “federal enclave” jurisdiction); and § 1442(a)(1) (federal officer removal). Chief District Judge William P. Johnson granted New Mexico’s motion to remand the suit to state court.  Judge Johnson concluded in his Memorandum Opinion and Order that Monsanto failed to satisfy any of the requirements for removal under the three statutes.

Judge Johnson held removal under Section 1442(a)(1) is not appropriate because Monsanto failed to prove it was a “federal officer.” Monsanto claimed that it was acting as a “federal officer” when “it sold PCB products to the U.S. Army and Navy and to Government agencies . . ..” Judge Johnson found, however, that “[a]t most, Monsanto was a subcontractor for certain companies that incorporated PCBs into products that were then sold to the Government.” He further found the evidence did not demonstrate Monsanto was subject to specific government standards in the manufacture of PCBs, or the existence of any causal nexus between Monsanto’s actions on behalf of the Federal Government and New Mexico’s natural resource damage claims.

Judge Johnson found no basis for Monsanto’s claim of federal enclave jurisdiction based upon the existence of certain water ways that arise on or cross federal enclaves located in New Mexico. New Mexico argued that “water is not part of a federal enclave merely because it is located adjacent to or near the enclave or flows into or out of it.” Judge Johnson agreed:  “Federal enclave jurisdiction exists only where the claim arises on the federal enclave—not nearby or adjacent to it.” 

Judge Johnson also rejected Monsanto’s argument that federal common law provided a basis for removal under Section 1331. He found the 1972 amendment to the Clean Water Act (CWA) displaced federal common law, and the CWA does not preempt an action under state law for recovery of natural resource damages. “The State’s complaint . . . alleges that Monsanto’s acts violated New Mexico state laws” and “claims only State-owned, State-controlled, or State-managed natural resources . . ..” “The environmental interests at issue as alleged in the complaint can be adequately protected by a state rule of decision; there is not conflict between state laws in this case which would call for the application of federal common law and that any federal common law which may exist does not displace or preempt the claims asserted in the complaint.”
EPA Announces Coronavirus (COVID-19) Resources for State, Local, and Tribal Governments
Environmental Protection Agency
April 17, 2020

"The U.S. Environmental Protection Agency (EPA) is updating its coronavirus website to include new resources for state, local, and tribal agencies and intergovernmental associations. These resources will help EPA and its partners continue to provide the environmental protection the nation depends on without interruption during the coronavirus public health emergency."
EPA Proposes to Retain NAAQS for Particulate Matter
Environmental Protection Agency
April 14, 2020

"The U.S. Environmental Protection Agency (EPA) is announcing its proposal to retain, without changes, the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) including both fine particles (PM2.5) and coarse particles (PM10). This proposal comes after careful review and consideration of the most current available scientific evidence and risk and exposure information, and with consultation and confirmation by the agency’s independent science advisors."
President Trump's Soot Proposal Bucks Advice of EPA Career Staff
E&E News
April 14, 2020

"EPA Administrator Andrew Wheeler is proposing to leave the agency's existing soot standards in place for years to come — delivering a win for industry over the conclusions of agency career staff.

Under the plan, EPA would keep the existing limits on fine particulate matter set in 2012.

Those particles, technically known as PM2.5, are associated with a variety of respiratory and cardiovascular ailments; in a study released last week, Harvard University researchers tentatively linked long-term exposure to even slightly higher levels of fine particles to sharply increased odds of death from COVID-19.

Under the Clean Air Act, particulate matter is one of a half-dozen pollutants for which EPA must periodically review its National Ambient Air Quality Standards in light of the latest research into their health and environmental effects.

Business groups like the American Petroleum Institute and U.S. Chamber of Commerce, however, oppose any change to the status quo for the soot standard."
Arizona Supreme Court Hears Appeal of ABOR Tuition Lawsuit
April 16, 2020

Attorney General Mark Brnovich’s ongoing effort to seek greater transparency and accountability from Arizona's public universities continued before the Arizona Supreme Court. The lawsuit was brought against the Arizona Board of Regents (ABOR) over the skyrocketing costs of attending Arizona’s public universities, where in-state tuition and mandatory fees have risen more than 300 percent since 2003 despite a state constitutional requirement that such instruction be provided “as nearly free as possible.”
President Trump Reopens Mexican Wolf Study
E&E News
April 14, 2020

"The Fish and Wildlife Service reopened a debate over the best way to protect the Mexican wolf.

Facing legal pressure, the agency announced plans to revise the "nonessential experimental population" designation and management of the wolves living in Arizona and New Mexico. The plans require drafting an environmental impact statement supplement."
Judge Axes Keystone Xl Permit Over Endangered Species Act
E&E News
April 16, 2020

"A federal judge blocked a key federal approval process that allowed Keystone XL and other pipelines to cross waterways, just as developers are beginning construction on the controversial oil project.

Chief Judge Brian Morris for the U.S. District Court for the District of Montana sent the Army Corps of Engineers Nationwide Permit 12 back to the agency for further Endangered Species Act consultation. While Morris' order stems from a lawsuit over Keystone XL, the impact of his decision may extend beyond the project as the Army Corps has used the permit to approve water crossings by other pipelines."
Judge Probes BLM Leasing Fight with Impacts for Sage Grouse
E&E News
April 16, 2020

"Attorneys for green groups and the federal government took to their phones to argue over whether a set of Bureau of Land Management leasing directives and sales violated Obama-era protections for the greater sage grouse.

In a tele-hearing before Chief Judge Brian Morris for the U.S. District Court for the District of Montana, the lawyers clashed over whether guidance from BLM under the Trump administration undermined a directive in the 2015 sage grouse plan to prioritize lease sales outside the bird's habitat."
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.
Hudson v. Zinke , ___ F. Supp. 3d ___, 2020 WL 1821120 (D.D.C. Apr. 10, 2020): The Department of the Interior violated the Indian Reorganization Act by certifying the results of a tribal election where a quorum of all adult members, as opposed to a quorum of registered voters, did not participate.
Mille Lacs Band of Ojibwe v. County of Mille Lacs, Minn. , ___ F. Supp. 3d ___, 2020 WL 184574 (D. Minn. Apr. 13, 2020) Motion to compel production of internal tribal report concerning the conduct and oversight of the tribe’s police department denied on relevancy grounds in lawsuit seeking a declaratory judgment that the reservation had not been disestablished and that a deputation agreement under 18 U.S.C.A. § 2804 authorized tribal police officers to investigate violations of federal law and to arrest Indian and non-Indians for alleged violation of such law.
In re Austin J. , ___ Cal. Rptr. 3d ___, 2020 WL 1872524 (2d Dist. Apr. 15, 2020) The record before the juvenile court referee did not establish either a “reason to know” under the Indian Child Welfare Act or its California statutory counterpart so as to trigger the duty to give notice to potentially affect tribes or a “reason to believe” under the California statute so as to trigger the need to make further inquiry as to the involved children’s Indian child status.
Confederated Salish and Kootenai Tribes v. Lake County Bd. of Comm’rs , ___ F. Supp. 3d ___, 2020 WL 1891263 (D. Mont. Apr. 16, 2020) County did not have authority to issue a conditional permit for development of a recreational vehicle park on nonmember fee land where the proposed access road included land that had been restored to reservation status.
Inter-Tribal Council of Arizona, Inc. v. U.S. , ___ F.3d ___, 2020 WL 1897240 (Fed. Cir. Apr. 17, 2020) Allegation that the United States breached its trust obligation by failing to maintain adequate security for compliance under an agreement for payments from a purchaser of tribal school property stated a claim upon which relief could be granted and was not barred by the applicable statute of limitations, but the allegation that the United States failed to ensure adequate security at the time the involved agreement was negotiated did not state a breach of trust claim. The allegation that the United States had a duty under the related land exchange statute to make payments owed by purchaser in the event of the latter’s default did not state a claim.
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.