December 10, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
February 18-20, 2019
The Westin San Diego
San Diego, CA
June 17-20, 2019
CWAG Annual Meeting
The Ritz Bacara
Santa Barbara, CA
Landmark Environmental Protections Being Rolled Back
Associated Press
December 7, 2018

One after another, landmark U.S. protections for climate, air and land are in the crosshairs of the Trump administration as his agency leaders move past early fumbles and scandals to start delivering on a succession of promised environmental rollbacks.

The Interior Department proposed easing rules on oil and gas drilling for millions of acres of range in the West. The Environmental Protection Agency is expected to unveil its proposed rewrite of a major 2015 Obama rule that extended federal protections to thousands of waterways and wetlands.

Supporters and opponents expect the overhaul of the national water rule could go even further, also changing aspects of how the U.S. enforces the 1972 Clean Water Act, one of the country’s foundation environmental measures. Environmental groups say the rewrite could lift federal protections for millions of miles of streams and wetlands in the lower 48 states.
EPA and Corps Expected to Announce New WOTUS Rule on December 11th
EPA is set to announce its proposed WOTUS rule on Dec. 11. EPA talking points suggest it will propose a rule that combines Justice Scalia's and Justice Kennedy’s WOTUS definitions from the Supreme Court’s 2006 Rapanos decision where the court split 4-4-1 on how to determine which waters are jurisdictional.  While the talking points do not set out the text of the proposed rule, it does set forth six bullet points regarding the scope of the rule:
  • Excludes ephemeral streams and related features;
  • Covers only adjacent wetlands that are physically and meaningfully connected to other jurisdictional waters;
  • Cuts most ditches from unnecessary federal regulation;
  • Eliminates the use of subjective tests to determine jurisdiction over individual waters;
  • Retains exclusions for groundwater, prior converted cropland, stormwater control systems, some wastewater recycling structures, groundwater recharge basins, and waste treatment systems from federal Clean Water Act regulation; and  
  • Regulates perennial and intermittent tributaries to traditional navigable waters.
Feds to Ease Drilling Controls That Protect Sage Grouse
Idaho Statesman
December 8, 2018

The Trump administration moved forward with plans to ease restrictions on oil and natural gas drilling, mining and other activities across millions of acres in the American West that were put in place to protect the imperiled greater sage grouse.

Land management documents released by the U.S. Interior Department show the administration intends to open more public lands to leasing and allow waivers for drilling to encroach into the habitat of the bird.

Critics warned that the changes could wipe out grouse colonies as drilling disrupts breeding grounds. Federal officials under President Barack Obama in 2015 had adopted a sweeping set of land-use restrictions intended to stop the birds’ decline.

Interior Deputy Secretary David Bernhardt said the agency was responding to requests by states to give them more flexibility in how public lands are managed. He said the goal to conserve sage grouse was unchanged.
Attorney General Becerra Announces $7.4 Million Statewide Settlement with Target for Environmental Violations
December 5, 2018

California Attorney General Xavier Becerra, together with 24 local government attorneys, announced a $7.4 million statewide settlement, including enhanced environmental compliance measures and injunctive terms, with Minnesota-based Target Corporation (Target). The settlement resolves allegations that Target violated state laws and injunctive terms from a 2011 stipulated judgment regarding the company’s handling and disposal of retail hazardous waste. The current settlement follows investigations of Target’s conduct alleging that between 2012 to 2016 the company committed violations by improperly disposing hazardous waste into landfills. The waste included items such as electronics, batteries, aerosol cans, compact fluorescent light bulbs, and medical waste including syringes, over-the-counter and prescribed pharmaceuticals, as well as confidential medical information from its customers. 

Joining Attorney General Becerra in filing this settlement are the Counties of Alameda, Butte, Contra Costa, Fresno, Humboldt, Kings, Los Angeles, Merced, Monterey, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Joaquin, San Mateo, Santa Clara, Solano, Stanislaus, Tulare, Ventura, and Yolo; and the Cities of Los Angeles and San Diego. 
Mining Company Loses Bid to Toss Lawsuit
The Idaho Statesman
December 8, 2018

A Montana judge has dismissed a lawsuit from an Idaho mining company that’s fighting to overturn its designation by Montana regulators as an industry bad actor because of pollution tied to its CEO.

District Judge Mike Menahan in Helena said in his ruling that the complaint from subsidiaries of Hecla Mining Co. was premature because the bad actor designation by the Montana Department of Environmental Quality was not final.

Montana’s bad actor law blocks individuals and companies who don’t clean up their old mines from starting new ones.

Hecla CEO Phillips Baker Jr. was former chief financial officer at Pegasus Mining, which went bankrupt in 1998 and saddled the state with more than $35 million in pollution cleanup costs.

A separate suit brought by the agency against Hecla and Baker is pending.
Wyoming Files Notice It Will Appeal Grizzly Bear Ruling
Montana Public Radio
December 6, 2018

The state of Wyoming has filed notice it will appeal a judge's decision to restore federal protections for grizzly bears in and around Yellowstone National Park.

U.S. District Judge Dana Christensen ruled in September that the U.S. Fish and Wildlife Service erred in removing Endangered Species Act protections for the Yellowstone bears in 2017.

The ruling blocked planned grizzly hunts in Wyoming and Idaho. The Bozeman Daily Chronicle reports an appeal would put the case before the 9th U.S. Circuit Court of Appeals in San Francisco.

Grizzlies in the Yellowstone area have increased from fewer than 150 to around 700 today.

Federal and state officials say grizzlies have made a full recovery. Environmental groups and American Indian tribes say grizzlies still face threats.
Hopi Tribe v. Arizona Snowbowl Resort Decision
Filed November 29, 2018

The Hopi Tribe has been engaged for over a decade in litigation to prevent use of reclaimed wastewater for snowmaking purposes at the Snowbowl Resort in the San Francisco Peaks area. It began in federal court with unsuccessful claims against the U.S. Forest Service under the National Environmental Policy Act, the Religious Freedom Restoration Act, and the National Historic Preservation Act. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (en banc).  It then turned to Arizona state court and sued the City of Flagstaff alleging a public nuisance claim arising from the City’s entry into a contract with the Arizona Snowbowl Resort to provide the reclaimed wastewater. The Tribe argued that it would suffer various harms from the snow, including contamination of shrines and sacred areas. The City filed a third-party indemnification claim against the ski resort that, in turn, moved to dismiss under Ariz. R. Civ. P. 12(b)(6). The trial court granted the motion but was reversed by the court of appeals. Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship, 244 Ariz. 259, 418 P.3d 1032 (App. 2018). On further appeal by ski resort, the supreme court reversed the court of appeals, with two members dissenting. Hopi Tribe v. Ariz. Snowbowl Resort Ltd. P’ship, No. CV-18-0057-PR, 2018 WL 6205003 (Ariz. S. Ct. Nov. 29, 2018).

The majority opinion recognized that, traditionally, only public authorities could bring a public nuisance claim. However, “[t]he modern rule is more relaxed, allowing a private party to make a public nuisance claim if his or her ‘damage [is] different in kind or quality from that suffered by the public in common.’” It identified two grounds for the special injury requirement: “First, it ‘relieve[s] defendants and the courts of the multiple actions that might follow if every member of the public were allowed to sue for a common wrong.’ … Second, in keeping with principles of separation of powers and judicial restraint, it ensures that ‘harm[s] ... affect[ing] all members of the public equally [are] handled by public officials’ rather than by courts in private litigation.” The ski resort argued that “the alleged injury here is to the Tribe’s ‘desire to enjoy “pristine natural surroundings,”’ … which ‘is a right shared by the public generally[,]’” while the Tribe countered in part that “‘the reclaimed wastewater has directly and significantly impeded [its] use and enjoyment of a place of special importance to the Tribe by thwarting [its] religious practices’ on the Peaks.” The majority sided with the resort, reasoning that “[c]ontrary to the Tribe’s assertion that the place-of-special-importance form of special injury is consistent with Arizona law, the only public nuisance cases in which we have recognized special injury involved property or pecuniary interests not present here.” It then rejected the dissent’s contention that prior Arizona decisional authority did not require a distinct pecuniary interest. “First, because a particular place’s religious importance is inherently subjective, … courts are ill-equipped to determine whether ‘one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another[.]’” Second, “[a]t its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.” It later commented that “‘special injury” in this context is a term of art describing ‘harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.’ … This is different from the colloquial meaning of ‘special,’ which often describes something ‘exceptionally good or precious.’ … Thus, declining to recognize alleged harm as ‘special’ does not mean the underlying interest is insignificant or unimportant. Contrary to the dissent’s insinuation, we emphasize that our legal conclusion neither disregards nor minimizes the authenticity or meaningfulness of the Tribe’s culture, ceremonial practices, or religious beliefs.”

The dissent took a quite different tack. In its view, “the Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large. … But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use—rooted in Hopi tradition and cultural practices—recognized by federal statutes. The interference with the Hopi’s access to and use of the San Francisco Peaks, as well as surrounding lands affected by windblown or melting snow, is an injury different in kind from that suffered by the public generally.” It added that “holding that the Hopi have stated a claim does not mean they will prevail; if they are to lose, however, it should be on the merits and not by implausibly asserting that they have alleged an injury no different than that suffered by the general public.”
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to or The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or 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.