WAGLAC News & Updates
July 1, 2019
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues. 
WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
Please plan to arrive February 16th, the contracted room rate is $209/night.
More details to follow.
PUBLIC LANDS
Court Rejects Interior Bid to Advance California Desert Project
E&E News
June 24, 2019

"A federal judge Friday said the Trump administration's position on a Southern California water project was "contrary to law" and sent it back to the Interior Department to reconsider.

Conservationists had challenged Cadiz Inc.'s plan to pump water from an aquifer in the Mojave Desert and pipe it 43 miles along a railroad right of way to Southern California."
USFS Tenmile Project In Montana Roadless Areas Challenged
 
Two lawsuits filed in Montana Federal District Court challenge the portion of US Forest Services’ Tenmile Project located on the Jericho Mountain and Lazyman Gulch roadless areas within the Helena Lewis and Clark National Forest. The project authorized thinning, logging and burning on more than 17,500 acres within a 60,000-acre project area west of Helena that supplies one of two sources of water for the city. Five-thousand acres of logging and related activities are authorized within the two inventoried roadless areas. 
 
The suits brought by the Helena Hunters and Anglers Association and the Montana Wildlife and the Alliance for the Wild Rockies and Native Ecosystem Council allege that the Forest Service’s decision to log and burn parts of the roadless areas -- including building temporary roads, bike trails and using machinery -- violates NEPA, NFMA, and the Roadless Rule. The suits focus on the reduction in hiding cover for big game.”
 
Helena Hunters and Anglers Association suit alleges "the two roadless areas are important for wildlife movement in the region and are considered by the U.S. Fish and Wildlife Service to be located within an important corridor, or linkage zone, for native wildlife, including wolverine, gray wolves, Canada lynx, grizzly bears, and big game species."
 
Melissa Schlichting, Deputy Attorney General, Montana Department of Justice is representing Montana in this litigation. Melissa is interested in hearing from other states facing similar litigation.  Melissa’s email address is MSchlichting@mt.gov.
Two Lawsuits Challenge USFS Projects Authorizing Time Harvest Projects Under Healthy Forest Restoration Act
 
Alliance for Wild Rockies and the Native Ecosystems Council filed lawsuits challenging logging projects authorized on the Gallatin National Forest and the Helena National Forests. Both projects were approved as part of the insect and disease treatment program under Title IV, Section 602, of the Healthy Forest Restoration Act (HFRA), as amended by Section 8204 of the Agriculture Act (Farm Bill) of 2014.
 
Plaintiffs’ allege that the Forest Service violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., because it failed to conduct any NEPA analysis prior to designating the project areas for inclusion in the insect and disease treatment program. They allege the designation of the lands as “treatment areas” under the program must comply with NEPA and that prior to implementing a categorical exclusion from environmental review under NEPA, the Forest Service was required to document that the action to be undertaken is insignificant. And, they also allege the Forest Service failed to consider the cumulative impacts of the actions in violation of NEPA.
 
Melissa Schlichting, Deputy Attorney General, Montana Department of Justice is representing Montana in this litigation. Melissa is interested in hearing from other states facing similar litigation.  Melissa’s email address is MSchlichting@mt.gov.
ENVIRONMENT
President Trump's Lawyer Wants to Defend EPA Groundwater Position
E&E News
June 26, 2019

"The Trump administration wants a piece of the upcoming Supreme Court fight over the scope of the Clean Water Act.

Solicitor General Noel Francisco yesterday asked the justices to give the government 10 minutes of argument time this fall in the high-stakes environmental case County of Maui v. Hawaii Wildlife Fund."
Attorney General Becerra Files Lawsuit to Force EPA to Issue Rule on Toxic Asbestos
July 1, 2019

"California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey, leading a coalition of 11 attorneys general, filed a lawsuit challenging the U.S. Environmental Protection Agency’s (EPA) failure to initiate rulemaking to regulate asbestos. The attorneys general had previously petitioned the EPA to create a new rule requiring data collection on the importation and use of asbestos, one of the world’s most toxic substances."
MARIJUANA
Illinois Becomes the 11th State to Legalize Recreational Marijuana
AP News
June 25, 2019

"Illinois’ new governor delivered on a top campaign promise Tuesday by signing legislation making the state the 11th to approve marijuana for recreational use in a program offering legal remedies and economic benefits to minorities whose lives critics say were damaged by a wayward war on drugs."
SUPREME COURT
SCOTUS Keeps  Auer  Deference
 
Auer v. Robbins   (1997) deference, courts deferring to agencies’ reasonable interpretations of their ambiguous regulations, is alive following the Supreme Court’s decision in  Kisor v. Wilkie . In part of the opinion joined by five Justices, the Supreme Court “reinforced” the limits of the  Auer  doctrine. Writing for herself, Justices Ginsburg, Breyer, Sotomayor, and Chief Justice Roberts, Justice Kagan explained exactly when Auer  deference applies. First, a regulation must be “genuinely” ambiguous, meaning a court must exhaust all the “traditional tools” of constructing it including carefully considering its “text, structure, history, and purpose.” Second, an agency’s reading of the regulation must still be “reasonable,” meaning “it must come within the zone of ambiguity the court has identified after employing all its interpretive tools.” Third,  Auer  deference is only available after a court makes an “independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” According to the majority of the Court an agency interpretation of a regulation lacks “controlling weight” and should not be given  Auer  deference unless the interpretation is “authoritative” or its “official position.” The interpretation must also “in some way implicate” the agency’s “substantive expertise.” Finally, to receive  Auer  deference an agency’s reading of a rule must reflect “fair and considered judgment” instead of a “convenient litigating position” or “ post hoc  rationalization advanced” to “defend past agency action against attack.”
Commerce Clause Ruling Packs Punch for State Energy Policy
E&E News
June 27, 2019

"A Supreme Court ruling on liquor distribution in Tennessee carries a message for states weighing ambitious climate and energy policies: The dormant commerce clause is still going strong.

In a 7-2 ruling in Tennessee Wine & Spirits Association v. Thomas, the justices affirmed a lower court's finding that a minimum residency period for individuals and companies that want to run liquor stores in the state violates constitutional protections against discrimination in interstate and international commerce."
INDIAN LAW
Justices Put Oklahoma Lands Case on Hold
E&E News
June 28, 2019

Stay tuned for news on how a Supreme Court decision related to an Oklahoma murder could affect oil and gas developers in the Sooner State.

On the court's last day of opinions for the current term, the justices yesterday held Carpenter v. Murphy for reargument later this year or early next.

The capital case, argued in November, will determine whether 3 million acres in eastern Oklahoma still belong to the Muscogee (Creek) Nation.
INDIAN LAW SUMMARY UPDATES
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
Recent Indian Law Case Summaries
Mashpee Wampanoag Tribe v. Zinke , ___ F. Supp. 3d ___, 2019 WL 2569919 (D.D.C. June 21, 2019) Motion to transfer an Administrative Proceeding Act judicial review proceeding challenging a Secretarial denial to take land into trust under 25 U.S.C. § 5108 denied.
United States v. Washington , ___ F.3d ___, 2019 WL 2608834 (9th Cir. June 26, 2019) Tribe failed to comply the  Boldt  Decision’s pre-filing requirement to invoking the district court’s continuing jurisdiction over “subproceedings,” and the district court therefore did not err in dismissing the subproceeding.
In Matter of Baby Boy W. , ___ N.Y.S.3d ___, 2019 WL 2607501 (App. Div. June 26, 2019) Mother’s mere representation of “hundred percent” Indian heritage did not give the family court reason to know that her children might have “Indian child” status.
In re Marriage of Stockwell , 2019 COA 96, ___ P.3d ___ (Colo. Ct. App. June 27, 2019) The term “parent” as defined in the Indian Child Welfare Act includes the biological male parent of a child born to a married couple and not the husband declared as the child’s legal father under a state statutory paternity presumption. Allocating primary residential responsibility to the legal father in a divorce proceeding therefore constituted a “foster care proceeding” under ICWA.
All summaries are posted in CWAG's google docs acc ount, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
ANNOUNCEMENTS
2019 NAAG/NAGTRI Bankruptcy Seminar
September 9-12, 2019
Santa Fe, NM

The National Association of Attorneys General (NAAG) will be joining the States’ Association of Bankruptcy Attorneys (SABA) to present the 2019 Bankruptcy Seminar under the auspices of the National Attorneys General Training and Research Institute (NAGTRI) at the Eldorado Hotel & Spa, from Monday, September 9 to Friday, September 12
State of Alaska Department of Law Recruitment

The Civil Division of the Department of Law is the State of Alaska’s chief legal office in civil matters. The Civil Division has thirteen sections in offices throughout the state and is considered the “largest law firm” in Alaska. The Department is looking for multiple talented, energetic, and hard-working full-time attorneys to become members of our dynamic legal team. If you want to be a part of a collegial, collaborative, and professionally inspiring workplace, we hope you will consider joining us. The Department will begin evaluating and hiring for these positions on the closing dates listed in each job opening. Applications received after that date will be considered if the position remains available. Applicants with questions about the position should contact the section supervisor identified below.
INDIAN LAW DESKBOOK
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
WAGLAC
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@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.