News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
February 24, 2020
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.
What Remains in High Court's Environmental Lineup
E&E News
February 21, 2020

"At the midpoint of the Supreme Court's current term, the justices have now heard arguments in some of the biggest environmental cases in years, but decisions in those disputes are still pending.

By this summer, the justices will have decided a case that could more clearly establish the scope of the Clean Water Act and a challenge that could more firmly define states' role in federal Superfund cleanups. The court has so far been slow to issue opinions while Chief Justice John Roberts was spending half of his days at impeachment trial proceedings across the street on Capitol Hill.

The most consequential environment and energy case that remains on the court's calendar this term is a dispute over the Atlantic Coast pipeline's crossing of the Appalachian Trail. The justices will decide whether the 4th U.S. Circuit Court of Appeals appropriately reached a decision in favor of conservation groups that the Forest Service did not have the power to authorize the natural gas project to pass beneath the trail."
Green Say WOTUS Violates Species Protections, Plan to Sue
E&E News
Februar 18, 2020

"Green groups are gearing up to sue the Trump administration over its Clean Water Act rollback — as soon as the Navigable Waters Protection Rule is formally finalized.

The Center for Biological Diversity, Waterkeeper Alliance and Center for Food Safety today filed a notice of intent to sue EPA and the Army Corps of Engineers over the rule, which limits which wetlands and waterways are protected under the Clean Water Act."
WOTUS Rule Webcast

The EPA and the Army held a public webcast to explain the key elements of the final Navigable Waters Protection Rule on Thursday, February 13, 2020. The webcast was recorded and links are available below.
Monday Round-Up
February 24, 2020

"The justices return to the bench for the February argument session. First on the agenda is the oral argument in U.S. Forest Service v. Cowpasture River Preservation Association, involving the power of the Forest Service to grant rights of way through lands traversed by the Appalachian Trail. Noah Sachs previewed the case for this blog. Philip Duggan and Kaitlyn Marasi have a preview at Cornell Law School’s Legal Information Institute. At Subscript Law, Mariam Morshedi provides a graphic explainer for the case."
The Ongoing Saga of the Central Valley Project
US Department of Justice
February 19, 2020

"U.S. Secretary of the Interior David Bernhardt joined President Donald Trump and other federal officials in Bakersfield, California for the signing of a Presidential Memorandum supporting more water development and delivery in California.

The Presidential Memorandum on Developing and Delivering More Water Supplies in California directs the Secretaries of the Interior and Commerce and the Chair of the Council on Environmental Quality to help deliver and develop more water supplies in California’s Central Valley. Through coordinated efforts, the federal agencies are directed to capture and store more water and provide greater regulatory certainty to agricultural and municipal water users, while improving programs to protect endangered species." ( DOJ Press Release)

"California Attorney General Becerra issued the following statement on the Trump Administration’s announcement of a final record of decision and adoption of biological opinions endangering protected species and their habitat in the Sacramento and San Joaquin River watersheds, including the Bay Delta:

'California won’t allow the Trump Administration to destroy and deplete our natural resources,” said Attorney General Becerra. “We’re prepared to challenge the Trump Administration’s harmful attack on our state’s critical ecosystems and environment." ( CA Press Release)
U.S. Army Corps of Engineers and Bureau of Reclamation: A Joint Commitment to the Nation’s Water Infrastructure
U.S. Army Corps of Engineers and Bureau of Reclamation
February 3, 2020

"The U.S. Army Corps of Engineers and the Bureau of Reclamation recently released The State of the Infrastructure: A Joint Report by the Bureau of Reclamation and the U.S. Army Corps of Engineers. The two agencies have a long history of collaboration to construct, operate and maintain the nation’s crucial water-related infrastructure.

National water-related infrastructure provides water supply, hydroelectric power generation, navigation, flood control, recreation and other benefits. Combined, the Army Corps and Reclamation oversee and manage more than 1,200 dams, 153 hydroelectric power plants, over 5,000 recreation areas, 25,000 miles of navigable waterways and tens of thousands of miles of canals and other water conveyance infrastructure. Those facilities provide enough water for 130 million people and irrigation for 10 million acres of farmland. And, combined hydroelectric power plants generate renewable electricity for 10 million homes."
Climate Change Has Stolen More Than A Billion tons of Water From the West's Most Vital River
The Washington Post
February 20, 2020

"The Colorado River’s average annual flow has declined by nearly 20 percent compared to the last century, and researchers have identified one of the main culprits: climate change is causing mountain snowpack to disappear, leading to increased evaporation.

Up to half of the drop in the Colorado’s average annual flow since 2000 has been driven by warmer temperatures, four recent studies found. Now, two U.S. Geological Survey researchers have concluded that much of this climate-induced decline — amounting to 1.5 billion tons of missing water, equal to the annual water consumption of more than 10 million Americans — comes from the fact that the region’s snowpack is shrinking and melting earlier. Less snow means less heat is reflected from the sun, creating a feedback loop known as the albedo effect, they say."
House Natural Resources/Tribal Water Rights
Western States Water Newsletter #2388
February 21, 2020

"Committee held a markup to consider several bills. The Navajo Utah Water Rights Settlement Act (H.R. 644), was unanimously approved by the committee with an amendment. The companion bill, S. 1207, was reported last May, and added to the Senate calendar in September 2019. (See WSW #2344, #2316)."
Arizona Bill Would Undercut Endangered Species Protections
E&E News
February 19, 2020

"A broadly worded bill in Arizona that would neuter enforcement of the Endangered Species Act there appears heading for a Statehouse vote as soon as today.

The proposed law appears to outlaw the sharing of some endangered species data between state and federal agencies, a key part of how decisions on whether to list a species for protections are made."
BLM Pushes to Lift Order Blocking Sage Grouse Plans
E&E News
February 19, 2020

"The Bureau of Land Management is hoping to revive controversial revisions to Obama-era greater sage grouse protection plans that a federal judge blocked last year.

BLM has completed six draft supplemental environmental impact statements (EISs) that correct problems identified by Judge B. Lynn Winmill in the U.S. District Court for the District of Idaho, according to multiple sources familiar with the situation."
Bridge Aina Le'a, LLC v. Hawaii Land Use Commission Case Summary

Ninth Circuit rejects regulatory takings claim based upon land’s reversion from conditional urban use classification to its prior agricultural use classification

In 1989, a landowner petitioned the Hawaii Land Use Commission to reclassify 1060 acres of a 3000-acre parcel zoned for agricultural use to urban use with the objective of developing a mixed residential community. The Commission granted the request on the condition that the landowner make 60% of the proposed development affordable housing units. Title to the property passed to another company and then to Bridge Aina Le‘a, LLC in 1999. During that period, no housing development occurred on the 1060 acres. In 2005, the Commission amended it prior orders at Bridge’s request by reducing the affordable housing unit requirement to 20%, with a minimum of 385 units, and established a deadline (November 17, 2010) for the developer to provide occupancy certificates for all affordable housing units. Concerned over the development’s inactivity, the Commission issued an order in late 2008 for Bridge to show cause why the land should not revert to its original agricultural use classification. During the course of the subsequent show cause proceeding, Bridge agreed, inter alia, to sell the 1060 acres to DW Aina Le‘a Development, LLC in three phases for $40.7 million. The Commission, however, voted orally to revert the land to an agricultural use classification. Bridge and DW sought rescission of that oral order, which the Commission granted in September 2009 “subject to the single ‘condition precedent’ of requiring the construction of sixteen affordable units by March 31, 2010.” Bridge and DW revised their agreement, retaining the $40.7 million purchase price but modifying other terms and setting a final closing date for February 28, 2010. After Bridge and DW failed to make adequate process on the residential housing development, the Commission reinstated the order to show cause, reaffirmed the November 2010 deadline and later issued a final reversion order in April 2011. Before the rescission, DW had paid Bridge only $5 million of $40.7 million purchase price for the 1060 acres.
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.
Gilbert v. Weahkee , ___ F. Supp. 3d ___, 2020 WL 779460 (D.S.D. Feb. 18, 2020): Plaintiffs lacked standing to pursue a claim for violation of the Indian Self-Determination and Education Assistance Act in authorizing a tribally constituted health board to assume control over an Indian Health Service health service unit and failed to state a claim under the 1868 Fort Laramie Treaty as to such assumption. They also could not pursue these claims because the health board possessed immunity from suit and the Fed. R. Civ. P. 19(b) criteria did not warrant the suit’s continuance in the board’s absence. 
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.