News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
January 6, 2020
WAGLAC NEWS
UPCOMING MEETINGS
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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
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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
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WAGLAC Fall
Meeting
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.
ENVIRONMENT
Columbia Riverkeeper v. Wheeler
Summary By Clay Smith, Chief Editor, AILD

The States of Oregon and Washington have never adopted or submitted to the Environmental Protection Agency a temperature total maximum daily load (TMDL) under the Clean Water Act, 33 U.S.C. §§ 1251 to 1388, for the Columbia and Snake Rivers. Nor has EPA promulgated a temperature TMLD. Several environmental groups sued in 2017, claiming that the States’ inaction constituted a “constructive submission” of no temperature TMLD under § 1313(d)(2) that required the EPA to issue one. The district court agreed. Columbia Riverkeeper v. Pruitt, 337 F. Supp. 3d 989 (D. Or. 2018). On appeal, the Ninth Circuit affirmed. Columbia Riverkeeper v. Wheeler, No. 18-35982, 2019 WL 6974376 (9th Cir. Dec. 20, 2019).
EPA Releases PFAS Groundwater Guidance for Federal Cleanup Programs, Fulfilling PFAS Action Plan Commitment
Environmental Protection Agency
December 20, 2019

"The U.S. Environmental Protection Agency (EPA) issued Interim Recommendations for Addressing Groundwater Contaminated with Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonate (PFOS) under federal cleanup programs, a priority action under EPA’s PFAS Action Plan. Aggressively addressing per- and polyfluoroalkyl substances (PFAS) is an active and ongoing effort for the agency."
The Western States Air Resources (WESTAR) Council Letter to EPA
December 19, 2019

"The The Western States Air Resources (WESTAR) Council is an association of 15 western state air quality agencies. The WESTAR member states value the partnership with EPA and view their role as co-regulators with respect to implementation of Clean Air Act (CAA) requirements. We are writing today in the spirit of cooperative federalism to express the imperative for the federal government to consult with western state air quality agencies given the impact of federal regulatory actions that have far reaching effects on the ability of state air quality agencies to successfully manage air pollution within their states. "
New York, Others Challenge Trump Rollback of Waters Rule
Bloomberg
December 20, 2019

"A coalition of states is heading to court to challenge the Trump administration’s repeal of the Obama-era Clean Water Rule, a landmark regulation aimed at clarifying federal water protections.

New York, California, Connecticut, and other states and cities filed suit Dec. 20 in the U.S. District Court for the Southern District of New York.

They say Trump administration officials violated the Administrative Procedure Act and the Clean Water Act by repealing the Obama-era regulation and reverting to 1986 regulations for federal water protections."
President Trump's Rule Rollbacks Spark Year of Court Battles
E&E News
December 23, 2019

"It's been a whirlwind year in environmental law, and courtroom action is expected to accelerate in 2020 as President Trump closes out his term.

The Supreme Court heard arguments in 2019 in two key environmental cases, and blockbuster battles began in lower benches over the Trump administration's changes to the Obama-era Clean Power Plan and Waters of the U.S., or WOTUS, rule.

Both issues could eventually reach the high court."
EPA Science Advisory Board/CWA/WOTUS
Western States Water (WSW) Newsletter
January 3, 2020

"A draft 8-page commentary document yet to be reviewed and approved by the Science Advisory Board (SAB) for Environmental Protection Agency (EPA) Administrator Andrew Wheeler, addresses the proposed rule defining the scope of Waters Federally Regulated
Under the Clean Water Act (CWA), discusses the “scientific and technical underpinnings of the proposed WOTUS rule, and concludes that aspects of the proposed rule are in conflict with established science, the existing WOTUS rule developed based on the
established science, and the objectives of the Clean Water Act.”
INDIAN LAW
McGirt v. Oklahoma
By Clay Smith, Chief Editor, AILD

On December 13, 2019, the Supreme Court granted certiorari in  McGirt v. Oklahoma , No. PC-2018-1057 (Okla. Crim. App. Feb. 25, 2019), cert. granted, No. 18-9526, 2019 WL 6797731 (U.S. Dec. 13, 2019), which presents the question “whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as ‘justiciable matter’ in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act—which are under exclusive federal jurisdiction.” This question raises the diminishment issue presented in  Murphy v. Royal , 875 F.3d 896 (10th Cir. 2017), cert. granted sub nom.  Royal v. Murphy , 138 S. Ct. 2026, 201 L. Ed.2d 277 (2018). Following oral argument in  Murphy , the Supreme Court ordered supplemental briefing on two questions: (1) Whether any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status; and (2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U. S. C. § 1151(a). The Court subsequently calendared  Murphy  for re-argument during the present Term. A link to the  McGirt  petition for writ of certiorari follows:
ENERGY
8 Energy Battles to Watch in 2020
E&E News
December 23, 2019

"The start of the new decade will be a milestone year for litigation on energy issues.
Federal courts will kick off 2020 with arguments and hearings in cases that could more clearly define federal authority over the oil, gas and electricity sectors and agencies' duty to consider environmental harms from energy use and development.

The battles are scattered across district and appellate benches, and at least one case has made its way to the Supreme Court.

Click the article to read more about the eight energy law battles to watch in the new year."
CANNABIS
AGA Spring Dinner Will Convene Cannabis Project Working Group

The Cannabis Project supports Attorneys General in the development and enforcement of state cannabis laws, studies trends in law & policy, and convenes forums for discussion on how cannabis laws might protect public health and safety while respecting the role of states as laboratories of democracy.

To this end, at the Attorney General Alliance and CWAG Spring Dinner, on April 21, the Cannabis Project will host a forum for Attorneys General Staff and interested parties to dialogue on legal and policy issues inherent in this space. Topics may include consumer protection, public health and safety, the illicit market and law enforcement, and financial transparency. Attendance is by invitation only.

Registration and sponsorship information will be made available on January 2, 2020.

For questions or inquiries on how to partner with the Cannabis Project or attend the AGA Spring Dinner, please contact  Austin P. Bernstein , Director and Assistant Attorney General.
FISH & WILDLIFE
San Francisco Herring Assn. v. U.S. Dept. of Interior
Summary By Clay Smith, Chief Editor, AILD

In 2013, the San Francisco Herring Association sued the Department of the Interior, challenging a National Park Service determination to enforce a ban on commercial herring fishing within the Golden Gate National Recreational Area. The district court granted summary judgment to the Department on the merits. San Francisco Herring Assn. v. U.S. Dept. of Interior, 2014 WL 12489595 (N.D. Cal. Apr. 29, 2014). On appeal, the Ninth Circuit held that the enforcement decision did not constitute a final agency action subject to review under the Administrative Procedure Act and vacated the judgment, with instructions to dismiss the action without prejudice. 683 Fed. Appx. 579 (9th Cir. 2017). Although the district court allowed the Association on remand to request leave to file a second amended complaint, it concluded that the new allegations still did not establish final agency action and accordingly denied the motion on futility grounds. 2018 WL 905847 (Feb. 15, 2018). The court of appeals reversed in part on appeal. San Francisco Herring Assn. v. U.S. Dept. of Interior, No. 18-15443, 2019 WL 7342999 (9th Cir. Dec. 31, 2019).
Center for Biological Diversity v. Bernhardt
Summary By Clay Smith, Chief Editor, AILD

In 1994, Alaska authorized the State Board of Game “‘to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals.’” The Fish and Wildlife Service eventually responded in 2016 by “promulgat[ing] an expansive new rule [the “Refuges Rule”] that substantially deviated from the state’s regulations” and “ effectively prevent[ing] the Board from implementing Alaska’s intensive management on federal land.” In 2017, the House of Representative and the Senate passed a Joint Resolution under the Congressional Review Act, 5 U.S.C. §§ 801-808, disapproving the FWS rule, and the President signed the Resolution into law. FWS then rescinded the disapproved rule and reverted to the text of the prior rule. The Center for Biological Diversity sued, alleging that the CRA improperly delegated congressional authority and violated the Take Care Clause (U.S. Const. art. II, § 3) and related separation-of-power principles. CBD further alleged that the process used to adopt the Joint Resolution was flawed and that FWS thus “acted ultra vires in adhering to the Joint Resolution and rescinding the Refuges Rule.” The district court dismissed the complaint. Center for Biological Diversity v. Zinke , 313 F. Supp. 3d 976 (D. Alaska 2018). On appeal, Ninth Circuit affirmed in part and dismissed in part. Center for Biological Diversity v. Bernhardt , No. 18-35629, 2019 WL 7287569 (9th Cir. Dec. 30, 2019).
Gov. Inslee's Office Releases Draft Report on Breaching Lower Snake River Dams
The Seattle Times
December 20, 2019

"Gov. Jay Inslee’s office has released a draft report on the power-generating Lower Snake River dams that some propose should be breached or removed to aid declining salmon and ailing orca whales.

The report, which represents the views of a diverse range of stakeholders on the controversial dams, does not offer a recommendation; instead, it summarizes competing views and champions more dialogue and a push for respect and understanding."
Legal Brawl Over Sage Grouse Reaches 9th Circuit
E&E News
December 17, 2019

"The Trump administration is appealing a decision by a federal judge in Idaho that temporarily stopped the government's greater sage grouse plan from taking effect.

Interior Department officials yesterday asked the 9th U.S. Circuit Court of Appeals to review a preliminary injunction issued by Judge B. Lynn Winmill blocking the Trump administration's changes to sage grouse plans while litigation proceeds."
Interior Wordsmiths 'Habitat' With Eye On Regulatory Reach
E&E News
December 27, 2019

"The Interior Department is moving to formally define "habitat" in the Endangered Species Act, part of an anticipated second wave of changes to the bedrock conservation law under the Trump administration.

According to a notice published recently by the White House Office of Information and Regulatory Affairs, the addition to the ESA is undergoing interagency review.
Interior's Fish and Wildlife Service and the Commerce Department's NOAA Fisheries are overseeing the proposed revisions."
STATE ENDOWMENT LANDS
What is the Future of Washington State's Forests: Endangered Marbled Murrelet Seabird Caught in Fight
The Seattle Times
December 30, 2019

"Nobody’s happy about the latest plans for our state’s forest lands.Caught in the hubbub is the marbled murrelet, a zippy, robin-sized bird that spends time in coastal waters and nests in Washington forests.

No matter what officials choose for the forest, the seabirds are likely slated for at least a decade of decline, according to population models in the final plan for their conservation. Ocean conditions, prey availability, human activity and habitat loss are among factors scientists believe are playing a role.

The marbled murrelet needs thick tree branches in mature forest to raise its young."
DNR
OPPORTUNITIES
Position: ASSISTANT ATTORNEY GENERAL
Organization & Department: Wyoming Attorney General’s Office, Water & Natural Resources Division
State: Wyoming
INDIAN LAW DESKBOOK
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.
State v. Bellcourt , ___ N.W.2d ___, 2019 WL 6834143 (Minn. Dec. 16, 2019) Tribal law enforcement officer acted in the course and scope of employment within the meaning of Minn. Stat. § 629.40, subd. 3 when making an off-reservation arrest of an offender with respect to an off-reservation traffic violation.
Muckleshoot Indian Tribe v. Tulalip Tribes , ___ F.3d ___, 2019 WL 6885507 (9th Cir. Dec. 18, 2019) District court in the  U.S. v. Washington  fishing rights litigation did not possess continuing jurisdiction under Paragraph 25(a)(6) of Judge Boldt’s 1974 final decision over a subproceeding brought by a tribe to obtain additional usual and accustomed fishing rights.
Video Gaming Technologies, Inc. v. Rogers County Bd. of Tax Roll Corrections , 2019 OK 83, ___ P.3d ___ (Dec. 17, 2019) Ad valorem property tax imposed on the value of electronic gaming equipment owned by non-Indian corporation and leased for use at a tribal casino is preempted.
Confederated Tribes of Warms Springs Reservation of Or. v. Vanport Int’l, Inc. , ___ F. Supp. 3d ___, 2019 WL 6879736 (D. Or. Dec. 16, 2019) Under the facts presented, a tribal corporation formed pursuant to section 17 of the Indian Reorganization Act is an alter ego of the tribe itself.
In the Matter of the Termination of the Parent-Child Relationship, S.K. , ___ N.E.3d ___, 2019 WL 7045432 (Ind. Ct. App. Dec. 23, 2019) Membership in a Canadian tribe did not establish that the child was an Indian child under the Indian Child Welfare Act
Walter v. Oregon Board of Education , 301 Or. App. 516, ___ P.3d ___ (Dec. 26, 2019) Administrative rule implementing a statute authorizing district school boards to enter into agreements with Oregon federally recognized tribes “to allow the use of a mascot that represents, is associated with or is significant to the Native American tribe entering into the agreement” is facially valid.
People in Interest of S.B. , 2020 COA 5, 2019 WL 34683 (Colo. Ct. App. Jan. 2, 2020) Juvenile court’s inquiry of a father, but not the county department, concerning whether reason to believe that “Indian child” status existed was harmless where the only claim of such status related to a non-federally recognized tribe
Rosebud Sioux Tribe v. Trump , ___ F. Supp. 3d ___, 2019 WL 7421956 (D. Mont. Dec. 20, 2019) District court denied motions to dismiss a complaint filed by two tribes challenging a 2019 executive order under which a cross-border permit to construct the TransCanada Keystone Project was issued.
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
About WAGLAC
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.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
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.