January 14, 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, sets up meetings with the heads of federal agencies.  The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. This year CWAG plans to meet with the Department of Interior. Please send Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior. 
CWAG Annual Meeting
June 17-20, 2019
The Ritz Bacara
Santa Barbara, CA
Ocean Warming Is Accelerating Faster Than Thought, New Research Finds
New York Times
January 10, 2018

Scientists say the world’s oceans are warming far more quickly than previously thought, a finding with dire implications for climate change because almost all the excess heat absorbed by the planet ends up stored in their waters.

A new analysis, published in the journal Science, found that the oceans are heating 40 percent faster on average than a U.N. panel estimated five years ago. The researchers also concluded that ocean temperatures have broken records for several straight years.

As the planet has warmed, the oceans have provided a critical buffer. They have slowed the effects of climate change by absorbing 93 percent of the heat trapped by the greenhouse gases humans pump into the atmosphere.

But the rising water temperatures are already killing off marine ecosystems, raising sea levels and making hurricanes more destructive.

As the oceans continue to heat up, those effects will become more catastrophic, scientists say. Coral reefs, whose fish provide key sources of protein to millions of people, will come under increasing stress; a fifth of them have already died in the last three years. Rainier, more powerful storms like Hurricane Harvey in 2017 and Hurricane Florence in 2018 will become more common, and coastlines around the world will flood more frequently.
Recreational Fishing Rules To Be Overhauled Under New Law
ABC News
January 13, 2019

The rules that govern recreational marine fishing in the U.S. will get an overhaul due to a new law passed by Congress, and the country’s millions of anglers and the groups that stake their livelihoods on them hope the changes will bring better management.

The new standards are part of a suite of changes that proponents call the Modern Fish Act that were approved by the House and Senate in December. Supporters of the new rules have said they will boost an industry that contributes billions to the economy, though some members of the fishing industry felt deeper rule changes were warranted.
Franchise Tax Board of California v. Hyatt Oral Argument
As reported last week, the Supreme Court heard oral argument in Franchise Tax Board of California v. Hyatt. The issue was whether the Court should overrule Nevada v. Hall, which held that states do not enjoy sovereign immunity in another state’s court. Seth Waxman represented the Franchise Tax Board, and Erwin Chemerinsky represented Hyatt. The SCOTUSblog contains an excellent summary of the argument, including the following discussion of the amicus brief submitted by 47 states.

“The argument . . . featured an interesting debate about what to make of the friend-of-the-court briefs filed by a great majority of states. Waxman pointed out that, all told, 47 states had expressed support for overruling Hall. That impressive display suggests that states generally have use for immunity in one another’s courts. But Sotomayor asked why all those states didn’t simply “move to get the Constitution amended”? The result would be a popular repudiation of Hall somewhat like the 11th Amendment’s repudiation of the 1793 decision Chisholm v. Georgia. Waxman responded that ‘[o]ur Constitution is not amended lightly’and that similar arguments could have been made against the court’s other structural holdings.

Later, Chemerinsky doubted that ‘you can equate a brief filed by state attorney generals with the position of state governments,’ including the states’ judiciaries and legislatures. And he further suggested that the attorneys general simply ‘don’t want to have to defend suits’ that immunity might block. Chief Justice John Roberts bristled at that idea, saying: ‘It’s a pretty remarkable assertion that we shouldn’t understand representations of the states’ attorneys general to represent the views of the state.’” 
Chernaik v. Brown , 295 Or. App. 584
January 9, 2019

Last week, the Court of Appeals of Oregon issued its decision in Chernaik v. Brown, in which plaintiffs asserted the State of Oregon had an affirmative duty “to protect the state’s public-trust resources from the effects of climate change.” In their amended complaint, the plaintiffs alleged “the state holds ‘vital natural resources’ of the state in trust for the benefit of its citizens, including waters of the state, submerged and submersible lands, islands, shorelands, coastal areas, wildlife, fish and atmosphere.” Plaintiffs further alleged “that the state has a fiduciary obligation to protect and preserve those resources for purposes of ‘conservation, pollution abatement, maintenance and enhancement of aquatic and fish life, habitat for fish and wildlife, ecological values, in-stream flows, commerce, navigation, fishing, recreation, energy production, and the transport of natural resources.’”

On cross motions for summary judgment, the trial court held the public trust doctrine only applies to submerged and submersible lands, and that “the state does not have a fiduciary obligation to protect public-trust resources from the effects of climate change.” On appeal, the Court of Appeals affirmed the trial court’s holding that the Oregon public trust doctrine does not impose an affirmative duty on the state to act to protect public trust resources.

“The Oregon public-trust doctrine is rooted in the idea that the state is restrained from disposing or allowing uses of public-trust resources that substantially impair the recognized public use of those resources. We can find no source under the Oregon conception of the public-trust doctrine for imposing fiduciary duties on the state to affirmatively act to protect public-trust resources from the effects of climate change."
“The Oregon public-trust doctrine is rooted in the idea that the state is restrained from disposing or allowing uses of public-trust resources that substantially impair the recognized public use of those resources. We can find no source under the Oregon conception of the public-trust doctrine for imposing fiduciary duties on the state to affirmatively act to protect public-trust resources from the effects of climate change."
Because its conclusion on affirmative duty issue was dispositive of the case, the Court of Appeals declined to address the question of what resources in Oregon are subject to the public trust.
Department of Interior FOIA Rule
On December 28, 2018, the Department of Interior (DOI) released a proposed rule that will establish new limits on its responsibility to respond to Freedom of Information Act requests. DOI states the amendments are necessary because of the “exponential increases” in requests and litigation. For example, the preamble to the rule states that from Fiscal Year 2016 to 2018, FOIA requests to the Department have “increased 30 percent (from 6,428 to over 8,350)”, and FOIA litigation has increased from 30 active cases to 129 cases. Comments on the proposed rule must be submitted on or before January 28, 2019.
Oral Argument Summary in Herrera v. Wyoming

The Supreme Court granted certiorari in Herrera v. Wyoming, No. 17-532, to consider whether Ward v. Race Horse (1896), which held Wyoming’s admission to statehood abrogated the off-reservation hunting rights of the Eastern Band of Shoshones and Bannock Tribe reserved under an 1868 treaty to hunt on “unoccupied lands of the United States,” applies to another 1868 treaty entered into with the Crow Tribe with identical language. The Tenth Circuit in Crow Tribe v. Repsis (1995) had held that Race Horse did control and, “in addition,” that “the lands of the Big Horn National Forest have been ‘occupied’ since the creation of the national forest in 1887.” Subsequently, however, the Supreme Court cast doubt on the continuing validity of Race Horse’s reasoning in Minnesota v. Mille Lacs Band of Chippewa Indians (1999) but did not expressly overrule the earlier decision. The petitioner in Herrera is a member of the Crow Tribe convicted of taking elk in the Big Horn National Forest without compliance with Wyoming law. The oral argument in Herrera on January 8 was lively, with all Justices other than Thomas and Ginsburg, asking multiple questions. George Hicks argued on behalf of Herrera; Assistant to the Solicitor General Frederick Liu for the United States argued as amicus curiae in support of the petitioner; and Wyoming Chief Deputy Attorney General John Knepper argued for the State. The questioning focused on two issues—whether Herrera had a right to hunt in the national forest under the treaty, and whether Repsis has issue preclusion effect.

Justice Alito began with questions about Repsis’s preclusive effect, especially as to the “unoccupied” status of the Big Horn National Forest. Hicks responded in part that the forest’s status had not been fully and fairly litigated before the Tenth Circuit and was not raised below. Justice Gorsuch then turned to the merits with the question as to whether any reason existed to reach the preclusion issue given Mille Lacs. Justice Kavanaugh noted Mille Lacs had not expressly overruled Race Horse, to which Hicks responded that it had rejected all of the reasoning that underlay Race Horse. Justices Kavanaugh and Sotomayor followed up with questions asking how to distinguish the two treaties. Hicks responded that the hunting occurred in substantially different locations and that the Crow treaty arose out of different conflicts with settlers and a different tribal history. Ultimately, however, he attributed any basis for a different outcome to the “new” reasoning in Mille Lacs. Hicks relied similarly on Mille Lacs in addressing the Chief Justice’s concern about having opposite results for two tribes with identical treaty language.

Liu answered Justice Gorsuch’s preclusion question about simply overruling Race Horse by stating the United States would be “fine” with that outcome but that express overruling was not necessary. He later responded to a question from Justice Sotomayor that the Government could not identify a difference in history to justify treating the two tribes differently. Liu then concurred with Justice Kagan that Mille Lacs‘s discussion of Race Horse “troubles all of us” but that, taken as a whole, it clearly indicates Race Horse is no longer “good law.” In response to the Chief Justice’s questioning, he identified as the test for “unoccupied” status whether the land has been settled and pointed to federal regulations prohibiting firearm use within 150 yards of a camp site in a national forest. Liu agreed with Justice Gorsuch, however, that no need exists to reach the “unoccupied” issue and that, if necessary, it could be addressed on remand. Justice Gorsuch followed up on a question concerning the conservation necessity doctrine that pointed out nothing in the treaty provision prevented non-Indians from taking all game and asked why a contrary result with respect to tribal members now. Liu responded that the treaty did not reserve exclusive hunting rights to the Tribes and that Wyoming thus has the ability to exercise some measure of conservation-based authority.

A major topic during Knepper’s argument was what level of change in law was necessary to deny preclusive effect to Repsis. He responded to questions from Justices Breyer and Gorsuch that a “major doctrinal change” sufficed. As to the merits, Knepper argued Race Horse reasoned that the parties to the Shoshone Bannock treaty intended the treaty right would terminate at statehood, as opposed to statehood terminating the right as a matter of law without regard to the parties’ intent. In answer to questioning by Justice Sotomayor, he contended the term “unoccupied lands” should be read in pari materia with the term “hunting districts” as used in the treaty provision and thus would include only lands “of such a character” as would be included in those districts. The Chief Justice observed that interpretation might be “a bit of a stretch,” to which Knepper responded the controlling factor should be whether the government has a specific purpose for the land that it has set aside—just as there would be no doubt no right to hunt exists on private land. Justice Breyer returned to Mille Lacs and explained at length why he saw it as a major change in law. Knepper reiterated that Race Horse merely construed the treaty to determine the parties’ intent—an approach not overruled by Mille Lacs. Justices Kavanaugh and Gorsuch then questioned why the conservation necessity doctrine would not adequately protect Wyoming’s interests. Knepper replied the doctrine is essentially a reverse preemption principle and places state law enforcement offices in a situation where they do not know whether they have or had jurisdiction to act until the conclusion of litigation.
Hicks’s brief rebuttal parsed Mille Lacs ‘s reasoning; stressed the necessity of “actual physical presence,” and not “simply a legal declaration . . . to do something” to give rise to occupation; and responded to the contention that the conservation necessity doctrine inadequately protected a State’s wildlife interests. There were no questions.
Attorney General Ford Sworn in as Nevada’s 34th Attorney General
January 7, 2019

Nevada Attorney General Aaron D. Ford was sworn in as Nevada’s 34th attorney general and the first African American to take statewide constitutional office. He swore an oath to serve and protect Nevadans at an 11:30 a.m. ceremony in front of the Capitol Building in Carson City. Nevada Supreme Court Justice Hardesty administered the Oath of Office to AG Ford, along with the five other constitutional officers. At the ceremony, AG Ford was joined by members of the public, as well as his family, friends, staff and numerous other public officials.

Before his election, AG Ford served as the Majority Leader of the Nevada State Senate. He previously served as the Minority Leader, Assistant Majority Whip, chair of the Senate Committee on Natural Resources, vice chair of the Senate Committee on Education, and member of the Judiciary Committee. Before beginning his legal career, AG Ford served as a public school math teacher, shaping hundreds of lives. He later attended law school and went on to clerk for the Honorable Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, as well as the Honorable Johnnie B. Rawlinson of the U.S. Court of Appeals for the Ninth Circuit. He spent many years in private practice, including as a Partner at Snell & Wilmer LLP and later as Partner at Eglet Prince, both in Las Vegas.

AG Ford earned his B.A. from Texas A&M University in Interdisciplinary Studies and then earned his M.A. in International Education from George Washington University. He also earned an M.A. in Educational Administration, as well as his law degree and Ph.D. in Educational Administration from The Ohio State University.
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.