Our WAGLAC newsletter will resume on Monday, January 6, 2020.
News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
December 16, 2019
WAGLAC Winter Meeting
February 17-18, 2020
Westin San Diego
San Diego, California

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Water Law Issues
-Plan to arrive February 16th
-Contracted room rate $209/night
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, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Announcement and agenda to follow.
ExxonMobil Prevails Over New York in High-Profile Climate Fraud Case
The New York Times
December 10, 2019

"ExxonMobil prevailed in its much-watched legal battle with the state of New York, beating back claims that it misled investors for years in how it calculated the financial risks of climate change.

The high-profile trial, which included testimony from former ExxonMobil chief executive and former secretary of state Rex Tillerson, marked the culmination of a four-year-old probe under three different New York attorneys general, during which Exxon handed over millions of documents about its internal dealings."
Eyes on the EPA After Justices Reject Water Permitting Case
E&E News
December 9, 2019

"Supreme Court justices said that they will not take up a case concerning state water quality certifications for pipelines, dams and other federally permitted projects.

Their decision means that the Trump administration's rulemaking on Section 401 of the Clean Water Act is even more critical, said Brian Johnson, California director of Trout Unlimited, one of the groups that filed the petition.

Conservation groups had asked the justices to take a second look at a finding by the U.S. Court of Appeals for the District of Columbia Circuit that two states "far exceeded" their authority when they struck a deal to take additional time to review a hydroelectric project.The Supreme Court declined to take up the question.

The petition dealt with Section 401 of the Clean Water Act, which allows states to certify that federally approved projects adhere to water quality standards with their borders. States generally have a year to act before the federal government can find that they have missed their opportunity for review."
N.Y. Landowners Sue Over WOTUS Repeal
E&E News
December 9, 2019

"The Trump administration is facing yet another challenge in its decision to walk back Clean Water Act protections — this time from property owners who say they will be affected by the rule change.

A pair of landowners in upstate New York last week filed a lawsuit challenging the government's repeal of the 2015 Clean Water Rule that redefined which waterways and wetlands are waters of the U.S., or WOTUS."
Attorney General Becerra Leads Bipartisan Coalition of 27 Attorneys General in Brief Defending the Rights of Native American Children, Families, and Tribes
December 13, 2019

"California Attorney General Xavier Becerra led a bipartisan coalition of 27 attorneys general in filing an amicus brief before the full U.S. Fifth Circuit Court of Appeals to defend the Indian Child Welfare Act (ICWA) in Brackeen v. Bernhardt. In the brief, the coalition urges the appellate court to uphold ICWA and affirm the decision of a three-judge appellate panel. ICWA is a 41-year-old federal law that furthers the best interests of Native American children and protects the sovereignty of tribes by preserving children’s connections to their heritage during child placement proceedings.

In filing the brief, Attorney General Becerra is joined by the attorneys general of Alaska, Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, Wisconsin, and the District of Columbia."
Adjudicating Groundwater: A Judge’s Guide to Understanding Groundwater and Modeling
Dividing the Waters published Adjudicating Groundwater: A Judge’s Guide to Understanding Groundwater and Modeling. “This bench book explains both the fundamentals of groundwater science (hydrogeology) and groundwater modeling. The bench book received peer review from scientists and judges, with oversight by the U.S. Geological Survey, making this book among the most reliable resources for judges with water cases.” 
Dividing the Waters is part of the National Judicial College. Dividing the Waters “offers judicial officers with water cases an opportunity to collaborate as a network with a vast array of knowledge of water resources, law and management. The Program relies on judges helping judges. The network includes judges, special masters and referees who preside over water adjudications and other complex water litigation. Some specialize in water litigation and others have a long history of experience with a complex water case.”
The following link explains how to obtain a copy of the deskbook:  https://dev-the-national-judicial-college.pantheonsite.io/dtw/adjudicating-groundwater/
The Risk of Curtailment under the Colorado River Compact
By Anne Castle and John Fleck
November, 2019

"Water supply in the Colorado River could drop so far in the next decade that the ability of the Upper Colorado River Basin states – Colorado, Utah, Wyoming, and New Mexico – to meet their legal obligations to downstream users in Nevada, Arizona, California, and Mexico would be in grave jeopardy.

Legal institutions designed nearly a century ago are inadequate to address the significant risk of shortfall combined with uncertainty about whose water supplies would be cut, and by how much.

This report indicates that declines in the Colorado River’s flow could force water curtailments in coming decades, posing a credible risk to Colorado communities and requiring serious consideration of insurance protection like demand management."
Special Master Sides With Georgia in Southeast Water War
E&E News
December 13, 2019

"Georgia notched a fresh victory this week against Florida over water flows in the Apalachicola-Chattahoochee- Flint River Basin, but the states' long battle is still not over.

The Sunshine State has not shown that its northern neighbor was unreasonable in its use of two waterways that feed the basin or that Georgia has caused harm to the region's oyster fisheries, said New Mexico-based attorney Paul Kelly, who serves as special master over the Supreme Court litigation.

The Supreme Court will have the final say on whether Florida can secure a decree to curb
Georgia's water use."
Governors Appoint Members to Western Governors' Association's (WGA) new Western Invasive Species Council
December 5, 2019

Western Governors launched the Western Invasive Species Council (WISC) "to enhance coordination between existing state invasive species councils, improve communication and collaboration on regional biosecurity and invasive species control efforts, and to advocate for regional needs at the federal level. 

The Governors authorized creation of the council through the WGA Policy Resolution Biosecurity and Invasive Species Management. At that time, they also directed that the work of WISC initially be coordinated through WGA to address cross-boundary and cross-jurisdictional invasive species management challenges."
WGA Policy Resolution 2020-01, Strengthening the State-Federal Relationship

"Western Governors passed a resolutions entitled, Strengthening the State-Federal Relationship. Improving state-federal communication and coordination is among the Western Governors’ highest priorities. In the absence of a Constitutional delegation of authority to the federal government, state authority should be presumed sovereign. Each executive department and agency should have a clear and accountable process to provide states with early, meaningful and substantive input in the development of federal regulatory policies. Where authority has been delegated by the federal government to the states, states should be granted the maximum administrative discretion possible and should be treated as partners and co-regulators."
WGA Policy Resolution 2020-03, Tax-Exempt Federal Lands and Secure Rural Schools:

"The federal government must honor its historic Payment In Lieu of Taxes (PILT) agreement with states and counties in the West to compensate them for the presence of tax-exempt federal lands within their borders. Predictable and full payments under the PILT and Secure Rural Schools (SRS) programs are vital to the provision of state and county public goods and services, such as roads, emergency response, and wildlife and natural resources protection. Western Governors support legislative efforts to improve the predictability and reliability of PILT payments and ensure forest counties receive stable SRS payments."
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.
In Interest of S.J.H. , ___ S.W.3d ___, 2019 WL 6696533 (Tex. App. El Paso Dec. 9, 2019): Order terminating mother’s parental rights vacated for non-compliance with the Indian Child Welfare Act’s notice requirements and without a conditional remedy that would leave termination in place if Indian child status was not found after proper notice.
Bay Mills Indian Community v. Whitmer , ___ Fed. App’x ___, 2019 WL 6824855 (6th Cir. Dec. 13, 2019) (per curiam) Summary judgment declaring an off-reservation parcel purchased by the Bay Mills Indian Community for casino purposes not to be “Indian lands” under the Indian Gaming Regulatory Act vacated, and the case remanded for further proceedings.
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.