WAGLAC News & Updates
April 8, 2019
WAGLAC Meeting
Park City, Utah
June 24 - 25, 2019

Please note: the WAGLAC summer meeting will now be held independent of the CWAG Annual Meeting. More details to follow in next newsletter.
Trump Signs Permit for Construction of Controversial Keystone XL Pipeline
The Washington Post
March 29, 2019

"President Trump signed a new order granting permission for the construction of the Keystone XL pipeline, marking the White House’s latest effort to jump-start one of the most controversial infrastructure proposals in recent U.S. history."

On April 5th Indigenous Environmental Network and the North Coast Rivers Alliance filed a complaint challenging the Keystone Pipeline Executive Order. They assert that the President lacks authority to permit a 1.2 mile section of the pipeline because those lands are controlled by the Bureau of Land Management.
President Expected to Address State CWA Section 401 Authority In Executive Order to Boost Pipeline Construction
April 5, 2019

"The White House is planning to roll out an executive order next week that aims to cut regulations, spur interstate pipeline construction and lower energy costs, according to two senior administration officials.

The effort was spurred by the blockage of the construction of the 125-mile Constitution Pipeline from Pennsylvania to New York. A protracted legal battle over the project has been underway since the Federal Energy Regulatory Commission, or FERC, gave a greenlight in 2014 and 2016, because the state of New York has refused to issue a water permit."
Sackett v. EPA Round 2

After successfully arguing before the United States Supreme Court that they were entitled to bring a civil enforcement action challenging EPA’s administrative order under Section 309 of the Clean Water Act, U.S. District Judge Edward Lodge upheld EPA’s administrative order against Michael and Chantell Sackett for illegally filling wetlands adjacent to Priest Lake. Judge Lodge found that EPA had correctly interpreted the 1987 WOTUS regulations. Judge Lodge found the Sackett property was subject to regulation because of a ground water connection between the wetlands and the lake. The Sackett's intend to appeal the order, which will put the Department of Justice in the uncomfortable position of defending regulations the Trump administration has concluded misinterpret the intent of the Clean Water Act. Under the proposed WOTUS rule the Sackett property would not be subject to regulation under the Clean Water Act.
Foreign Affairs Doctrine Does Not Preempt Washington State’s 401 Certification Authority
On April 1st the United States District Court for the Western District of Washington granted Washington State’s motion to dismiss BNSF Railway Company’s foreign affairs doctrine claim in Lighthouse Resources Inc. et al. v. Jay Inslee et al. This case raises numerous challenges to Washington State’s denial of a Clean Water Act Section 401 certification for the proposed coal export facility at the existing Millennium Bulk Terminal in Longview, Washington. 
Lighthouse, a coal supply chain company, proposes to build a coal export facility capable of exporting 44 million metric tons of coal a year. Most of the coal would come from the Powder River Basin, in Montana and Wyoming, and the Uinta Basin, in Utah and Colorado. 
On September 26, 2017, Washington State denied Lighthouse’s 401 application. Lighthouse appeal of the Pollution Control Hearings Board’s denial of the 401 certification application is on appeal to the Cowlitz County Superior Court.
Intervenor-Plaintiff BNSF, who intends to provide rail service for the terminal, argued that the State’s denial of the 401 certification is preempted by the foreign affairs doctrine. Under the foreign affairs doctrine, state laws that intrude on foreign relations “are preempted, under either the doctrine of conflict preemption or the doctrine of field preemption.” 
Under the doctrine of conflict preemption, a state action is preempted if there is a clear conflict between the state and federal policies. BNSF pointed to the National Security Strategy Report and Executive Order 13783 as establishing an executive policy in conflict with the State’s denial of the 401 permit. The District Court found neither of these documents established a conflict because they both called for a balancing the policy of coal exports with environmental protection.
BNSF also argued that under the doctrine of field preemption the state’s denial of the 401 permit should be preempt because the state’s action did not concern an area of traditional state responsibility and intruded upon the federal government’s foreign affairs power. The Court brushed this argument aside noting that the management of natural resources is a “traditional state responsibility” and that the denial of the permit have “no more than ‘some incidental or indirect effect on foreign affairs . . ..’”
Still pending before the District Court is BNSF’s challenges under the commerce clause. Also the parties were asked to address Pullman abstention at the last hearing and are submitting additional briefing on that issue. 
California Adopts New Wetland Protections as Trump Administration Eases Them
The San Francisco Chronicle
April 2, 2019

"California water regulators adopted a far-reaching plan to prevent more of the state’s creeks, ponds and wetlands from being plowed or paved over, a move that comes as the Trump administration scales back protections under the federal Clean Water Act.

The new state policy targets the rampant spread of suburbia and agriculture across California’s watery landscapes, areas that have become increasingly sparse yet remain important for drinking water, flood protection, groundwater recharge and wildlife.

The regulation, to the chagrin of many industry groups, establishes strict rules for virtually any human activity that could disrupt the natural flow of water, like farming, home building and highway construction, on public and private property."
Long Time WAGLAC Member Wayne Howle Retires from Nevada Attorney General’s Office

Wayne Howle retired from the Office of the Nevada Attorney General last week. Wayne was hired by former Nevada Attorney General Brian McKay in 1990. Thanks, he progressed from deputy attorney general to senior deputy attorney general, then chief deputy attorney general and, ultimately to solicitor general for former Attorney General Catherine Cortez Masto. He finished his career with the Nevada Attorney General’s Office as chief deputy for the Government and Natural Resources Division. Wayne said: “I got to serve seven Attorneys General, all of them great public servants--I really feel that way.” Likewise, Wayne was as a consummate public servant. Best wishes to Wayne as he moves into retirement.
President Trump Nominates Daniel Habib Jorjani to be Solicitor of the Department of the Interior

Last week, President Trump officially nominated Daniel Habib to be the Solicitor of the Department of Interior. The White House provided the following summary of his prior experience in a February 26, 2019 press announcement. 

“Daniel Habib Jorjani held several position within the Department of the Interior from 2001 to 2009, including Chief of Staff and Counselor to the Assistant Secretary for Policy, Management and Budget and Counselor to the Deputy Secretary. Since May 2017, Mr. Jorjani has served as principal deputy solicitor at the Interior and has managed more than 330 attorneys in the Department. He is also the Regulatory Policy Officer on the Interior’s Regulatory Reform Task Force and a member of the Interior’s Executive Resources Board. Mr. Jorjani received an undergraduate degree from Vanderbilt University, master’s degree from Columbia University, and Juris Doctor degree from Cornell Law School. Mr. Jorjani is a member of the New York and District of Columbia bars. He is married to Aimee Jorjani and resides in Northern Virginia with their three children.”
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
Oneida Nation v. Village of Hobart, Wisc. , ___ F. Supp. 3d ___, 2019 WL 1429580 (E.D. Wis. Mar. 29, 2019): The 1838 Oneida Reservation was diminished from original boundaries through the sale of allotted lands to non-Indians pursuant to General Allotment Era statutes, thereby allowing a village’s imposition of its special events permit ordinance to a tribal festival.
In Matter of Dupree M. , ___ N.Y.S.3d ___, 2019 WL 1461831 (App. Div. Apr. 3, 2019): Petition seeking determination that mother derivatively neglected her child constituted a “child custody proceeding” under state law incorporating the Indian Child Welfare Act’s requirements for purposes of adjudicating such proceedings, and the matter was properly transferred to a non-federally recognized tribe’s council for adjudication.
Pueblo of Isleta v. Grisham , ___ F. Supp. 3d ___, 2019 WL 1429586 (D.N.M. Mar. 30, 2019): Dispute over Pueblos’ exclusion of the face value of free plays and deduction of the value of prizes won through such plays in calculating revenue sharing amounts was not arbitrable under their class III compacts’ dispute resolution provision, and the State’s claim for such amounts constituted an attempt to impose a tax prohibited by 25 U.S.C. §2710(d)(4) of the Indian Gaming Regulatory Act.
In Interest of D.H. , ___ P.3d ___, 2019 WL 1495698 (Kan. Ct. App. Apr. 5, 2019) ( per curiam ): Failure to include information concerning a child’s great-grandparents as required by BIA rules in a notice seeking determination of “Indian child” status constituted reversible error even though harmless because neither parent possessed membership in the noticed tribe.
Employers Mutual Casualty Co. v. Branch , ___ F. Supp. 3d ___, 2019 WL 1489121 (D. Ariz. Apr. 4, 2019): Company providing commercial general liability policies to nontribal businesses located on reservation trust land was not subject to tribal court jurisdiction with respect to damages claims arising from underground storage tank leaks.
Swanger-Metcalfe v. Bowhead Integrated Support Servs., LLC , ___ F. Supp. 3d ___, 2019 WL 1493342 (M.D. Pa. Mar. 31, 2019): Indirect subsidiary of Alaska Native Corporation is not encompassed with the exception from “employer” status under Title VII of the 1964 Civil Rights Act provided by the Alaska Native Claims Settlement Act.
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.
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.