News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
January 27, 2020
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.
EPA and Army Deliver on President Trump’s Promise to Issue the Navigable Waters Protection Rule – A New Definition of WOTUS
Environmental Protection Agency
January 23, 2020

"At an event at the National Association of Home Builders International Builders’ Show in Las Vegas, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James will announce a new, clear definition for “waters of the United States.” With the Navigable Waters Protection Rule, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are delivering on President Trump’s promise to finalize a revised definition for “waters of the United States” that protects the nation’s navigable waters from pollution and will result in economic growth across the country."
Justice Department Seeks Dismissal of WOTUS Lawsuit
E&E News
January 21, 2020

"The Department of Justice is asking a federal judge to dismiss a lawsuit brought by environmental groups challenging the repeal of an Obama-era rule that sought to clarify which wetlands and waterways are protected by the Clean Water Act.

The Trump administration finalized its repeal of the 2015 Clean Water Rule, also known as Waters of the U.S., or WOTUS, rule this fall, and the move was immediately challenged by the South Carolina Coastal Conservation League, Natural Resources Defense Council and Southern Environmental Law Center in the U.S. District Court for the District of South Carolina.

The groups allege that the repeal was "arbitrary and unlawful" and did not follow the Administrative Procedure Act, which governs federal rulemaking.

But DOJ is arguing in its motion to dismiss that the groups don't have standing to sue, in part because they cannot prove that pollution will occur as the result of the rule change."
Appeals Court Won't Rethink its EPA Permitting Decision
E&E News
January 22, 2020

"Judges for a federal appeals court declined to reconsider their decision to uphold a controversial change to a Clinton-era air permitting regime.

The U.S. Court of Appeals for the District of Columbia Circuit stood by its finding last year that the Trump administration's 2018 rollback of the "once in, always in" policy did not constitute a final agency action that the court could examine.

The 1995 policy required any entity that emitted enough pollution to trigger "maximum achievable control technology" standards to continue meeting those standards, even after slashing emissions.

In their request for a full-court rehearing, California Communities Against Toxics and other challengers cited an earlier dissent by Judge Judith Rogers. The Clinton appointee wrote that then-EPA air chief Bill Wehrum's memo rescinding the policy "creates a binding norm that alters the legal regime."

Rogers wrote in a short order that she disagreed with the D.C. Circuit's decision and voted for a full-court review."
Coal Export Battle Hinges on Commerce Clause
E&E News
January 22, 2020

A pair of energy-producing states may face ideological challenges in their quest for a high court review of Washington state's blockade against the last major coal export project on the West Coast.

Wyoming and Montana argued in a Supreme Court petition yesterday that Washington regulators violated constitutional protections on interstate commerce when they denied a Clean Water Act permit for the Millennium Bulk Terminals project in Longview, Wash.
National Environmental Policy Act-Public Hearings
The White House

"The Council on Environmental Quality (CEQ) is proposing to update its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA). CEQ has not comprehensively updated its regulations since their promulgation in 1978, more than four decades ago. This proposed rule would modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action. The proposed amendments would advance the original goals of the CEQ regulations to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA. If finalized, the proposed rule would comprehensively update and substantially revise the 1978 regulations. CEQ invites comments on the proposed revisions.

CEQ must receive comments by March 10, 2020. CEQ will hold public hearings on the following dates:
  1. February 11, 2020, U.S. Environmental Protection Agency Region 8, 1595 Wynkoop Street, Denver, CO.
  2. February 25, 2020, U.S. Department of the Interior, Yates Auditorium, 1849 C Street NW, Washington, DC.
All attendees or speakers must register in advance. Details concerning the hearings and information on additional outreach may be found at  and​ceq."
Idaho Senate OKs Emergency Water Rights to Clean Up Spills
AP News
January 20, 2020

"Legislation granting an emergency water right when crews are trying to clean up spills in Idaho waterways headed to lawmakers in the House.

The Senate voted 35-0 to approve the legislation that the state Department of Environmental Quality said is needed to prevent someone from contending their water right is being violated due to an emergency cleanup."
Notice of Intent To Prepare an Environmental Impact Statement for the Proposed Revision of Grazing Regulations for Public Lands
Federal Register
January 21, 2020

"In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management's (BLM) Resources and Planning Directorate, located in Washington, DC, by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues. Scoping is the process by which the BLM solicits input on the issues, impacts, and potential alternatives and the extent to which those issues and impacts will be analyzed in the Environmental Impact Statement (EIS)."
Hill v. Warsewa

Claim alleging right to fish on Arkansas River remanded to determine whether the plaintiff has asserted a generalized grievance under constitutional (Article III) standards 

The plaintiff filed suit in state court alleging that the appurtenant landowner defendants improperly denied his right to fly fish at a location on the Arkansas River. He contended that the portion of the River at issue was navigable. The landowner defendants argued the contrary and removed to federal court where the plaintiff joined the State of Colorado as a defendant. All defendants moved to dismiss on, inter alia, constitutional and prudential standing grounds. The plaintiff requested remand for lack of subject matter jurisdiction. The district court dismissed the case, holding that the plaintiff lacked prudential standing because he asserted third party rights—i.e., those of Colorado—and presented only a generalized grievance. In a divided opinion, the panel reversed and remanded for determination under Article III standards whether the plaintiff raised a generalized grievance. Hill v. Warsewa, ___ F.3d ___, 2020 WL 370796 (10th Cir. Jan. 23, 2020). 
U.S. Army Withdraws Water Supply Rule
U.S. Army
January 21, 2020

"On January 19, 2020 during remarks at the American Farm Bureau Federation conference in Austin, TX, President Donald J. Trump announced that he was directing the U.S. Army Corps of Engineers to withdraw the Water Supply Rule. “I am proud to announce that I am taking another step to protect the water rights of American farmers and ranchers . . . and allow states to manage their water resources based on their own needs and based on what their farmers and ranchers want,” President Trump stated."
PA Supreme Court Defines When Frackers Can Be Sued
E&E News
January 24, 2020

"The Pennsylvania Supreme Court this week said a lower court got it wrong in how it defined when landowners could sue energy companies for hydraulic fracturing.

The justices found that the "rule of capture" applied in conventional drilling does apply to fracking, shielding operators from trespassing claims unless they physically cross property lines underground during extraction.

The court's decision has important implications for energy producers in the Marcellus Shale, as well as for Pennsylvania landowners with oil and gas resources on their property."
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.
JW Gaming Development, LLC v. James, ___ F. Supp. 3d ____, 2020 WL 353536 (N.D. Cal. Jan. 21, 2020): Promissory note’s waiver of sovereign immunity for all claims and defenses applied to a limitation of recourse provision in the note.
Chinook Indian Nation v. U.S. Dept. of Interior , ___ F. Supp. 3d ___, 2020 WL 363410 (W.D. Wash. Jan. 22, 2020) The Office of Special Trustee for American Indians violated the Indian Tribal Fund Use or Distribution Act in discontinuing practice of sending trust fund-related account statements to a non-federally recognized Indian group, with the matter remanded for the Department of the Interior to determine whether the involved group’s members are the beneficiaries of the Indian Claims Commission judgment whose corpus is held in trust.
Gustafson v. Poitra , 2020 ND 9, ___ N.W.2d ___ (Jan. 23, 2020) Non-Indian defendants failed to carry their burden of establishing that the state court lacked jurisdiction to order eviction from fee land on the Turtle Mountain Reservation.
United States v. Cooley , 919 F.3d 1135 (9th Cir. 2019),  reh’g en banc denied , ___ F.3d ___, 2020 WL 399390 (9th Cir. Jan. 24, 2020): Evidence seized from non-Indian by tribal officer during roadside stop was subject to exclusion in federal court criminal proceeding because (1) the officer lacked jurisdiction to make the seizure under federal common law standards, (2) the seizure violated the Fourth Amendment counterpart in the Indian Civil Rights Act, and (3) the exclusionary rule applies to such violations. This summary contains an analysis of the opinions concurring and dissenting from the denial of rehearing and rehearing en banc.
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.