WAGLAC News & Updates
August 26, 2019
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues. 
WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.
CWAG
Western Attorneys General Lead Effort Urging the Administration to Withdrew Water Supply Rule
 
Attorneys General Wayne Stenehjem, Lawrence Wasden and Jason Ravnsborg are leading a bipartisan group of CWAG Attorneys General in urging the Trump administration to instruct the Army Corps of Engineers to comply with state water laws and withdraw its proposed Water Supply Rule that would usurp the authority of the states over their own water. “In the ‘Water Supply Rule’ (“Rule”), the Corps seeks ‘to update and clarify its policies governing the use of its reservoir projects pursuant to Section 6 of the Flood Control Act of 1944 and the Water Supply Act of 1958.’ 81 Fed. Reg. 91556. The ‘policies’ of the Rule, however, are directly contrary to the express congressional policy declarations in these same statutes. In both the Flood Control Act of 1944 and the Water Supply Act of 1958, Congress specifically and unambiguously declared that the Corps’ water supply operations are subject to state law.  If allowed to take effect, the Rule would effectively override these express congressional declarations, usurp the States’ exclusive authority to guide their water allocation and development, and eviscerate cooperative federalism principles that Congress has expressly and repeatedly reaffirmed.” Alaska, Arizona, Colorado, Montana, New Mexico, Oregon, Utah, Washington and Wyoming Attorneys General are cosponsors of the letter.

“Congress and the courts have repeatedly held that the states are in the best position to manage their own water resources for their citizens,” Attorney General Wayne Stenehjem said. “We stand ready to engage with the Corps in a collaborative government-to-government discussion on how to address our respective interests, but the first step of that discussion must be withdrawal of this unlawful proposal,” he continued.
 
State Organizations Join CWAG in Opposing the Corps Water Supply Rule
 
CWAG, the Western Governors’ Association, the Western States Water Council and the National Water Supply Alliance collectively issued a letter opposing the Corps of Engineers Water Supply Rule. In addition to reiterating the substantive concerns expressed in the CWAG Attorneys General letter, the Coalition expressed concern about “the process under which the Proposed Rule was developed.” The Coalition state that: “The Corps has failed to engage with states in meaningful government-to-government consultation throughout the development of the Proposed Rule, even after extensive comments calling for such consultation were submitted to the Corps’ docket. Executive Order 13132, Federalism, requires federal agencies to, ‘have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.’”
ENVIRONMENT
Judge Slaps Down Obama-era WOTUS, But Greens See Bright Side
E&E News
August 22, 2019

"The Obama administration's long-litigated Clean Water Rule stumbled again in court yesterday as a federal judge found the regulation strayed from the bounds of the Clean Water Act.

Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia said the regulation — also known as the Waters of the U.S., or WOTUS, rule — adopted an overly broad interpretation of the federal statute."
EPA Wins U.S. Court Reversal Over Coal Jobs Study
Reuters
June 29, 2019

"A federal appeals court said the Environmental Protection Agency should not have been ordered by a lower court judge to assess how its air regulations affect coal industry jobs, in a defeat for Murray Energy Corp, a large coal miner.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled on Thursday that in passing the Clean Air Act, Congress did not authorize lawsuits such as Murray’s, depriving federal courts of jurisdiction to hear them."
Public Webinar on proposed CWA Section 401 Rule

On August 8, 2019, the EPA signed a proposed rule to implement Clean Water Act section 401. On August 20, 2019, the EPA hosted a public webinar to help explain the key elements of the proposed “Updating Regulations on Water Quality Certifications” rule. The webinar was recorded and will be posted on this website for those who were unable to attend. 
State and Tribal Listening Sessions for Proposed CWA Section 401 Rule

The EPA will hold state and tribal listening sessions on the proposed CWA 401 Rule. The listening sessions will provide state and tribal representatives the opportunity to present data, views, or information concerning the proposed rule. The listening sessions are for in-person attendance only, and no remote participation options will be offered for these meetings. 
 
The first series of listening sessions will take place at the Salt Lake City Public Library, 210 E 400 S, Salt Lake City, Utah, 84111. The second listening session will be in Chicago, Illinois on September 16th.
DEPARTMENT OF INTERIOR
Deadline Passes, Trump's BLM Advances Relocation Plans
E&E News
August 16, 2019

"A top Interior Department official said the agency will now begin executing a plan to transfer the Bureau of Land Management's Washington, D.C.-based headquarters to Colorado after the conclusion of a congressional review period passed without objections from lawmakers."
MINING AND ENERGY
Reclamation Funds Dwindle While Congress Dawdles
E&E News
August 19, 2019

"Last year, a backyard in Butte, Mont., collapsed without warning. No one was hurt, but a 30-foot sinkhole yawned where a children's wading pool once sat. At the bottom was a century-old mine shaft that had never made the state's list of abandoned mines needing
attention.

The cave-in was just another of the unknown hazards popping up every day across the country, stoking questions over how to clean up more than three centuries of unregulated mining and who will pay for it."
FEDERALISM
Federal Advisory Committee Act/ACWI
Western States Water Council Newsletter
August 16, 2019

"On September 1, the White House Office of Management and Budget (OMB) is expected to announce the termination of a number of federal advisory committees. Last June 14, President Trump issued an Executive Order (EO) requiring that each executive department and agency evaluate the need for its current advisory committees established under Section 9(a)(2) of the Federal Advisory Committee Act (FACA) and those advisory committees established under Section 9(a)(1) that are authorized by law, but not required by statute (eligible committees). By September 30, each agency was directed to terminate at least one-third of its current committees, including where the: (I) stated objectives of
the committee have been accomplished; (ii) subject matter or work of the committee has become obsolete; (iii) primary functions have been assumed by another entity; or (iv) agency determines that the cost of operation is excessive in relation to the benefits."
FISH AND WILDLIFE
Why We're Changing the Rules on Endangered Species
Opinion by David L. Bernhardt and Wilbur Ross
CNN
August 17, 2019

"Jointly implemented by the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), the Endangered Species Act (ESA) is one of our nation's most important wildlife conservation laws. This act requires us to use the best scientific data and commercial information available to identify and address the threats facing imperiled species and to facilitate their recovery.

We are committed to conserving threatened and endangered species and protecting the nation's rich biological diversity for future generations. To best serve this goal, we have taken on the task of improving implementation of the ESA to make the law work better for species of concern and the American people."
Top Interior Official: More Reg Rewrites Are On The Way
E&E News
August 22, 2019

"Keep an eye out for more proposed reforms to the federal government's management of
endangered species, a key architect of the Trump administration's changes to a landmark 1973 law told members of Congress, lobbyists and other stakeholders at a recent policy roundtable here."
INDIAN LAW SUMMARY UPDATES
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
Recent Indian Law Case Summaries
United States v. Vigil , ___ F. Supp. 3d ___, 2019 WL 3881702 (D.N.M. Aug. 16, 2019): Land owned by non-Indians within pueblo constituted Indian country under 18 U.S.C. § 1151.
Chemehuevi Indian Tribe v. McMahon , ___ F.3d ___, 2019 WL 3886168 (9th Cir. Aug. 19, 2019): Deputy sheriffs lacked authority to cite tribal members for regulatory traffic offenses within their reservation, and the latter but not their tribe stated a claim under 42 U.S.C. § 1983 against the sheriff and his deputies for violation of federal statutory and constitutional rights.
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.
INDIAN LAW DESKBOOK
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
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
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.