February 4, 2019

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
WAGLAC San Diego Meeting
February 18-20, 2019
The Westin San Diego
San Diego, CA
WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General will speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA). 

Please complete a registration form (located at the bottom of the meeting announcement) and email to CWAG Executive Assistant, Joy Orr at  joy.orr@doj.ca.gov or fax to 916-323 0241 by no later than  January 28th, 2019.
NAAG Winter Meeting
March 4-6, 2019
Washington, D.C.

CWAG, as part of the NAAG Spring Meeting, will be meeting with acting Secretary of the Interior David Bernhardt.  The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. Please send Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior. 
Beyond Drought: 7 States Rebalance Their Colorado River Use as Global Warming Dries the Region
As major reservoirs shrink with the changing climate, seven states seek a sustainable future for the critical regional water source.
Inside Climate News
February 1, 2019

The Colorado River watershed may be reaching a climate tipping point, drying under the influence of global warming to the point that states and tribes in the basin can no longer put off a day of reckoning about the water allocations that have been their lifeblood for the past century.

On Thursday night, Arizona joined other states that share the river basin in agreeing to voluntary water conservation plans. Its legislature approved a plan that helps balance the state's competing water rights with of those of California, Colorado, Nevada, New Mexico, Utah and Wyoming, along with Native American tribes and Mexico. The states faced a Jan. 31 deadline for completing interstate contingency plans on water rights; without them, federal officials could order mandatory cuts later this year. Only a California water district had yet to agree.

U.S. Bureau of Land Reclamation Commissioner Brenda Burman said Friday that with details in the complex web of agreements still being finalized in California and Arizona, her office would start the federal review process but halt it if all states had formal agreements in place by March 4.  
Oil Trains Make Comeback as Pipeline Bottlenecks Worsen
Crude-by-rail has rebounded across the U.S. because oil production has outstripped pipeline capacity
The Wall Street Journal
January 31, 2019

The use of trains to carry crude is surging after dropping in recent years amid concerns about safety, as drillers in parts of North America produce more oil than area pipelines can accommodate. 

An average of 718,000 barrels of crude a day traversed America’s railways as of October, the latest data available, an 88% increase from a year earlier, according to the U.S. Energy Information Administration. That compares with a peak average of about 1.1 million barrels in October 2014. 
DOE Secretly Ships Plutonium to Nevada National Security Site
January 30, 2019
In November 2018, the State of Nevada filed a NEPA action in the United States Federal District Court challenging the federal government’s plan to ship one metric ton of defense plutonium from the Savannah River Site in South Carolina to the Nevada National Security Site. Nevada sought a preliminary injunction enjoining any shipment of plutonium from Savannah River until its claims were decided on the merits. 
Nevada’s case “stems from an injunction order the United States District Court for the
District of South Carolina issued in December 2017 (“Order”). South Carolina v. United
States, No.: 1:16-cv-00391-JMC, 2017 WL 7691885 (D. S.C. Dec. 20, 2017); see also
South Carolina v. United States, 907 F.3d 742, 766 (4th Cir. 2018) (upholding the Order).
The Order required the Government to remove ‘not less than one metric ton’ of weapons grade defense plutonium or defense plutonium materials from South Carolina ‘for storage
or disposal elsewhere’ by January 1, 2020. United States, 2017 WL 7691885, at *5.” Order at 2.
On January 30, 2019, the United States disclosed to Nevada, for the first time, it had completed “shipment of plutonium (approximately ½ metric ton) to Nevada pursuant to its efforts to comply with the South Carolina U.S. District Court order.” Bruce Diamond, General Counsel for the National Nuclear Security Administration stated: “[a]lthough the precise date that this occurred cannot be revealed for reasons of operational security, it can be stated that this was done before November 2018, prior to the initiation of the litigation.” The Department of Justice also announced the Department of Energy has no further plans to ship plutonium to Nevada, and therefore, stated the case is moot.
Governor Steve Sisolak released the following statement in response to the federal government’s disclosure of the secret shipment:

“I am beyond outraged by this completely unacceptable deception from the U.S. Department of Energy. The Department led the State of Nevada to believe that they were engaging in good-faith negotiations with us regarding a potential shipment of weapons-grade plutonium, only to reveal that those negotiations were a sham all along. They lied to the State of Nevada, misled a federal court, and jeopardized the safety of Nevada’s families and environment. My administration is working with our federal delegation, and we will use the full force of every legal tool available to fight back against the federal government’s reckless disregard for the safety of our state.”

Ironically, on January 30, 2019, Federal District Judge Miranda M. Du, issued an Order on January 30, 2019, denying Nevada’s motion for a preliminary injunction finding Nevada failed to demonstrate “the likelihood of irreparable harm in the absence of preliminary injunctive relief or that the balance of hardships tipped in its favor.”
Top 50 Invasive Species in the West
Western Governors' Association

Invasive species pose an enormous environmental challenge to western states and territories. Western Governors have experienced first-hand how these invaders affect the region’s forests and rangelands, water, and agriculture. Left unchecked, invasive species permanently alter ecosystems and negatively impact the native species and local economies that depend upon them. 
Legislative Public Records Subject of New Bill in Washington
Associated Press
January 31, 2019

A year after Washington lawmakers tried to exempt themselves from the state’s Public Records Act, one lawmaker is introducing a bill he says moves the Legislature toward more transparency — within limits.

The measure introduced Thursday by Sen. Jamie Pedersen, a Democrat from Seattle, states lawmakers would be subject to the voter-approved law — something a coalition of media organizations that have sued say is already the case — but establishes broad parameters on how the law applies to the legislative branch.

Senate Bill 5784 seeks to permanently exempt records ranging from staff analyses to drafts of bills and amendments or records of negotiations between and among lawmakers. It also looks to shield identifying information in constituent communications, such as names, though communications from lobbyists would be subject to full disclosure.
Idaho and USDA Sign Historic Agreement to Improve Forest Health
December 18, 2019

The State of Idaho and U.S. Department of Agriculture (USDA) entered into a new agreement to improve forest health conditions across Idaho that sets an example of interagency collaboration for other states to follow. Jim Hubbard, USDA Under Secretary for Natural Resources and Environment overseeing the Forest Service, joined Governor C. L. “Butch” Otter and Governor-Elect Brad Little in signing the new “Shared Stewardship Agreement” in Boise.

As part of the new strategy, IDL and the Forest Service will:
  • Continue to focus on reduction of fuels and wildfire risk to communities, improvement of forest health and watershed conditions and support markets to sustain and create jobs.
  • Plan together, invest wisely and create real outcomes at a landscape scale across boundaries while respecting all ownerships values
Hemp Has Arrived: Colorado Crops Double After Farm Bill Makes Growing More Legit
Beyond rush for CBD products, hemp-reinforced plastics pioneered by Henry Ford are in the works, but legal hurdles remain
The Colorado Sun
February 1, 2019

The passage of the federal Farm Bill late in December is ratcheting up a green rush in Colorado that those in the industry say will shake up, better regulate and expand the burgeoning market for hemp.

The enthusiasm is already beginning to show in the numbers of planned new hemp crops registered with the Colorado Department of Agriculture. Already this year, there has been a doubling of registrations compared to January 2018. Registrations for more than 1,200 new acres are currently waiting to be approved with the Colorado Department of Agriculture. 

By the end of this year, department projections anticipate Colorado could have around 50,000 acres of hemp. Currently there are 31,670 acres dedicated to hemp in the state. That’s up from 1,811 acres cultivated in 2014, when the first modern hemp was grown.
Company Sues Idaho State Police Over Leafy Substance
The Idaho Statesman
February 4, 2019

In a related development, not all states have embraced the idea of a hemp market. Idaho seized a hemp shipment headed for Colorado, which has raised issues of federal preemption.

Big Sky Scientific LLC has filed a lawsuit against the Idaho State Police, Ada County and attorney Jan M. Bennetts after 6,701 pounds of a THCcontaining substance was seized last week.

According to documents obtained by the Statesman, Big Sky Scientific claims that the product seized during an inspection was industrial hemp, per the definition outlined in the 2018 farm bill, and therefore was a protected substance, should not have been seized in the first place and should be returned.

The truck driver carrying the load, 36-year-old Denis V. Palamarchuk, was stopped at the East Boise Port of Entry on Thursday, Jan. 24. Palamarchuk claimed that the substance was hemp, but the ISP troopers did not believe him and said it was marijuana. Palamarchuk is a driver for VIP Transporter LLC in Portland who said he was on his way to Colorado with the shipment.
States, Local Governments, Industry and Academics Weigh In On Judicial Deference to Agencies Interpretation of Their Rules
January 28, 2019

Twenty-five amicus briefs were filed last week in Kisor v. Wilkie, a case seeking to overturn the judicial policy of deference to federal agencies’ “reasonable” interpretations of their own rules. Utah and sixteen other states filed an amicus brief arguing that Auer deference impinges on state sovereignty by expanding the federal government’s power to preempt state law. The Pacific Legal Foundation brief asserts “Auer deference allows executive agencies to transgress on the judiciary, by taking from it the inherently judicial power to ‘say what the law is.’ This dynamic converts the judiciary from a check and balance on the executive into a rubber stamp.” Public Citizen take the opposite position asserting an agency’s interpretation “should be upheld unless it is arbitrary and capricious, an abuse of discretion, contrary to discernible dictates of statutes or regulations, or arrived at without procedures required by law. . . . Such a view makes sense because a regulation, like a statute, cannot unambiguously anticipate and prescribe outcomes for every instance to which it may apply.”
Kisor is set for argument on Wednesday, March 27, 2019.
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  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. 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.