News & Updates from WAGLAC
July 6th, 2021
UPCOMING WAGLAC MEETINGS
The WAGLAC Fall meeting will be held in Seattle, WA in early October, 2021.
The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day, 2022. Meeting details will follow.
ENVIRONMENT
WGA Policy Resolution 2021-10, Water Quality in the West
Western Governors Association
July 1, 2021

"In this updated resolution, Western Governors emphasize states’ management authorities and role as a co-regulator in implementing the Clean Water Act and Safe Drinking Water Act. The resolution also communicates Western Governors’ shared perspectives and priorities related to groundwater resources, emerging contaminants, and stormwater pollution"
Supreme Court Rejects Coal Export Appeal
E&E News
June 29, 2021

"A pair of coal-producing states failed to convince the Supreme Court to hear their case challenging Washington state's denial of a key water permit for a proposed coal export facility.

Wyoming and Montana had petitioned the justices to use their original jurisdiction over disputes with states to review Washington's denial of a permit for the Millennium Bulk Terminals along the Columbia River (Energywire, Jan. 22, 2020).

The Evergreen State discriminated against their "sovereign interests" and violated constitutional protections for interstate commerce, they argued, because blocking construction of the project hindered their ability to export coal to Asian markets.

Washington maintained that the project's application for certification under Section 401 of the Clean Water Act was rejected because the project would not comply with state water quality standards. State regulators found that the facility would have "unavoidable and significant" adverse environmental impacts.

The case reached the high court in the midst of the Trump administration's efforts to limit options for states like Washington to reject project approvals under the Clean Water Act."
EPA Withdraws Rule Allowing Use of Radioactive Material in Road Construction
The Hill
July 2, 2021

"The Environmental Protection Agency (EPA) has withdrawn a 2020 rule that would allow a radioactive substance in some road construction.

The October 2020 rule allowed the use of phosphogypsum, a substance generated by phosphate fertilizer production. The waste product is kept in 13 predominantly southeastern states, where the majority of the construction would have occurred.

Between 1989 and the Trump-era rule, the EPA required that all phosphogypsum be stored in “stacks” that experts and activists said would release dangerous amounts of radon gas if dispersed. In Florida alone, 1 billion tons of the substance are stored in 25 stacks, one of which recently leaked millions of gallons into a wastewater reservoir near Tampa Bay.


In a memo dated June 30, EPA Administrator Michael Regan specifically addresses the Oct. 14, 2020, letter from the agency approving a request from the Fertilizer Institute to use the stacks for road construction."
MINING
WGA Policy Resolution 2021-09, Cleaning Up Abandoned Hardrock Mines in the West  
Western Governors Association
July 1, 2021

Western Governors call on Congress to protect “Good Samaritans” that voluntarily clean up abandoned mines from potential liability under the Clean Water Act, CERCLA, and RCRA. The resolution enunciates the Governors’ support for pilot projects if comprehensive legislation is not possible and provides recommendations for Good Samaritan remediation plans, permitting, reviews, and approvals that will facilitate the voluntary cleanup of abandoned mines and allow for responsible development on remediated mine land. This updated resolution also calls for increased federal funding and workforce capacity dedicated to addressing the backlog of abandoned hardrock mine inventory.
WATER
Groundwater Pumping in Wood River Basin Curtailed
 
On July 2nd the Fifth Judicial District Court of the State of Idaho affirmed Idaho Director of Water Resources June 28th Order, which requires the holders of over 300 groundwater rights in the Wood River Basin to cease pumping groundwater for the remainder of the 2021 irrigation season. The Order applies to all consumptive use groundwater rights, including “agricultural, commercial, industrial and municipal uses” in area south of Sun Valley, Idaho known as the Bellevue Triangle. Because of unprecedented drought conditions, the Director determined curtailment of ground water pumping was necessary to protect senior surface water rights.
 
In denying the groundwater users motion for a preliminary injunction, the District court stated: 
“The evidence . . . shows there is going to be a water supply shortfall in [the] Basin for the 2021 irrigation season. Simply stated, there is not enough water to satisfy all existing water rights. As a result, this is not a typical preliminary injunction case where the Court can enter an order enjoining an action that is going to cause injury, maintain the status quo, and then wait for the issue to work its way through the process without harm to the parties. Without curtailment, senior surface water rights will suffer material injury this irrigation season. With curtailment, certain junior ground water rights will be required to turn off in whole or in part this irrigation season. Maintaining the status quo via the entry of a preliminary injunction in this case cannot create more water supply so as to satisfy all water rights. There are going to be water rights that are unsatisfied during the 2021 irrigation season one way or another and entering a preliminary injunction to maintain the status quo cannot avoid that result.” The Court then concluded that the groundwater users had failed to show “a clear right to divert groundwater this irrigation season to the detriment of senior surface water rights.”
WGA Policy Resolution 2021-08, Water Resource Management in the West
Western Governors Association
July 1, 2021

"Western Governors reassert, in this renewed resolution, that states have primary authority over water management and allocation, and that federal investment is critical to meeting water infrastructure needs. The Governors offer specific support for the Bureau of Reclamation’s WaterSMART Program and the U.S. Army Corps of Engineers’ Planning Assistance to the States Program. The resolution further communicates the importance of water resource information and forecasting for informing sound water management."
Group Appeals Dismissal of Montana Water Rights Lawsuit
Helenair
June 29, 2021

"In advocacy group is appealing a state District Court judge’s dismissal of its lawsuit attempting to overturn a 2019 law dealing with water rights when water is diverted from private onto state land.

Advocates for School Trust Lands, a Utah-based organization with members in Montana, and two Helena public school students, filed the lawsuit in 2019. The lawsuit sought to overturn a law passed that year that halted the state’s practice of obtaining a partial water right when water is diverted from private to state land by a lessee."
Settlement Reached in 20 Year Battle Over Water Rights at Nā Wai ʻEhā
Maui News
June 29, 2021

"A settlement has been reached in the 20 year battle over water rights at Nā Wai ʻEhā on Maui. The state is calling it the “most comprehensive application of the Hawai‘i Water Code to water use and protection in history” amid more than two decades of conflict. The term Nā Wai ʻEhā refers to the “four great waters” of West Maui: Waihe’e, Waiehu, Wailuku, and Waikapū.

The Hawai‘i Commission on Water Resources Management reports that the 20-plus years of legal proceedings are now settled in a formal and lengthy Decision and Order, which for the first time recognizes appurtenant rights to west Maui waters. This includes setting aside “sufficient supply” for traditional taro farming and other traditional and customary practices.

State officials say the D&O is a result of a lengthy and complicated Contested Case Hearing that synthesizes voluminous evidence in what was a multi-faceted proceeding."
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 reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
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.
Butler v. Leech Lake Band of Ojibwe, ___ F. Supp. 3d ___, 2021 WL 2651981 (D. Minn. June 28, 2021): Employment termination claims under the Age Discrimination in Employment Act, the Equal Pay Act, and Title VII of the 1964 Civil Rights Act were dismissed on sovereign immunity, inapplicability to internal tribal matters, and absence of individual officer liability grounds, while the district court declined to exercise supplemental jurisdiction over state law-based claims.
State v. Begay, 312 Or. App. 647, ___ P.3d ___ (June 30, 2021): Yakama tribal member was entitled to proffer as a defense to taking a deer on privately owned property that the land was “open and unclaimed” based on the absence of outward indicia of such ownership and that his conduct was accordingly protected from state prosecution under Article III of the 1855 Yakama Treaty.
In re K.S., 2021 VT 51, ___ A.3d ___ (July 2, 2021): Family division court did not err in determining that state department’s notice to several Cherokee tribes and the regional Bureau of Indian Affairs director satisfied Indian Child Welfare Act requirements.
AG Alliance Cannabis Newsletter

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at CWhite@AGAlliance.org.
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 40 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 database of all previously published WAGLAC newsletters, please follow the link below.