WAGLAC News & Updates
June 24, 2019
WAGLAC Summer Meeting
June 24 - 25, 2019
Double Tree by Hilton
Park City, Utah
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on public lands issues.  Idaho Attorney General Lawrence Wasden will discuss the fiduciary duties of state trust land managers. 
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.
White House Unveils Long-Awaited Greenhouse Gas Guidance
E&E news
June 21, 2019

"The White House Council on Environmental Quality released its long-awaited draft
guidance on how federal agencies should consider greenhouse gas emissions under the
National Environmental Policy Act."
EPA finalizes Rollback of Key Obama Climate Rule That Targeted Coal Plants
The Boston Globe
June 19, 2019

The Trump administration recently completed one of its biggest rollbacks of environmental rules, replacing a landmark Obama-era effort that sought to wean the nation’s electrical grid off coal-fired power plants and their climate-damaging pollution.
Wetlands Mitigation Rule Briefing

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps)(hereafter, known as the Agencies) are planning to propose revisions to the jointly-promulgated regulations titled "Compensatory Mitigation for Losses of Aquatic Resources" (Mitigation Rule) (40 CFR Part 230, Subpart J and 33 CFR Part 332). The Agencies are seeking your input on this forthcoming proposal; please see the invitation and presentation below.
Washington Attorney General Ferguson Sues Trump Administration Over Reversal of Water Quality Protections
June 6, 2019

"Attorney General Bob Ferguson filed a lawsuit in U.S. District Court for the Western District of Washington challenging the Environmental Protection Agency’s decision to revise Washington’s water quality standards. These standards, which apply specifically to Washington, are used to determine how clean the state’s waters must be in order to protect human health."
Judge Orders Sawtooth Valley Water Diversions Examined
Associated Press
June 18, 2019

"A federal judge has ordered the U.S. Forest Service to consult with other federal agencies about nearly two dozen water diversion projects in central Idaho’s Sawtooth Valley that could be harming salmon, steelhead and bull trout."
New Law: Farmers, Ranchers Have Immunity in Fire Fights
AP News
June 21, 2019

"A law passed by the Oregon Legislature gives farmers and ranchers immunity from liability while fighting dangerous wildfires, such as the one that chewed through acres of wheat fields and grasslands last year, a newspaper reported."
Attorney General Becerra Challenges BLM Proposal to Open Central California to Fracking for Oil and Gas
June 10, 2019

"California Attorney General Xavier Becerra filed a comment letter opposing a U.S. Bureau of Land Management (BLM) plan to open up more than one million acres of public lands in Central California to oil and gas drilling, including hydraulic fracturing (fracking). The comment letter responds to BLM’s deficient draft supplemental environmental impact statement (EIS), which fails to fully evaluate the project’s impact on the communities and environment of Fresno, Kern, Kings, Madera, San Luis Obispo, Santa Barbara, Tulare, and Ventura Counties. In the letter, Attorney General Becerra asserts that BLM’s draft supplemental EIS disregards important impacts to the communities, relies on incorrect assumptions, ignores alternative options, and is otherwise unlawful."
Western Governors Approve Policy Resolutions on Federal-State Land Exchanges, Invasive Species, National Parks, Migration Corridors
Western Governors' Association
June 12, 2019

"Western Governors have formally approved four policy resolutions on: Federal-State Land Exchanges and Purchases, Biosecurity and Invasive Species Management, National Parks, and Wildlife Migration Corridors. Click the press release below to view each resolution."
Sylte v. Idaho Department of Water Resources, Docket. No. 46062
Sylte appealed the district court’s decision to affirm the Idaho Department of Water Resources’ final order concerning distribution of water to water right 95-0734 in the Twin Lakes-Rathdrum Creek Drainage Basin. Sylte argued that the Department’s instructions to the local watermaster were inconsistent with the 1989 Final Decree—which established all existing rights to Twin Lakes’ surface waters, tributaries, and outlets—because they improperly limited the water right to Twin Lakes’ natural tributary inflow. The Supreme Court affirmed the district court, holding the Department’s distribution instructions complied with the plain language of the 1989 Final Decree.  
Washington State Completes Yakama Adjudication
Western States Water
June 21, 20198

"On May 9, the Yakima County Superior Court entered a Final Decree in Washington Department of Ecology v. Acquavella, et al. (No. 77-2-01484-5). The Department of Ecology petitioned the court in 1977 to adjudicate the rights to surface water in the Yakima River Basin, which covers 31 tributary watersheds in the counties of Yakima, Kittitas, Klickitat, and Benton, and the lands of the Yakama Nation. Over the past 42 years,
more than 4,000 claims were reviewed, and most of them date back to before 1917 when Washington’s first surface-water law was adopted. The Final Decree defines the relative priorities of about 2,300 water rights, including claims from individuals, irrigation districts,
cities, tribes, and the U.S. Forest Service."
Opinion analysis: Virginia’s moratorium on uranium mining is not pre-empted, but the role of legislative purpose remains open for debate
June 17, 2019

"The Supreme Court has concluded that Virginia’s decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

This judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts’ dissent would have used evidence of state legislative purpose to find that Virginia’s ban was pre-empted. Overall, this opinions likely presage important battles to come on the matter of legislative purpose as the court’s composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields."
Opinion analysis: Court overrules takings precedent, allowing more suits in federal court
June 22, 2019

"In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent, Williamson County Regional Planning Commission v. Hamilton Bank, triggering a sharp dissent and another debate among the justices about the meaning of stare decisis. The majority opinion also rests on a reading of the takings clause—that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later—that may have consequences beyond this case."
High Street Building LLC v. Atkins
High Street alleged the Arizona State Land Department (“ASLD”) improperly delegated its power over public lands to a private developer who used that power to preclude Plaintiff from developing five acres within its twenty-five acre leasehold. The Amended Complaint included the following claims:
  1. ASLD violated Plaintiff’s due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution and under the Arizona Constitution by delegating state authority in the form of master developer rights;
  2. ASLD’s creation of master developer rights violate the federal Enabling Act and Arizona Constitution by unlawfully encumbering trust lands;
  3. ASLD’s creation of master developer rights exceeds its statutory authority under the ULA;
  4. Those defendants holding the master developer rights violated their duties of good faith and fair dealing to Plaintiff by failing to comply with the terms of the Core CC&Rs and PDA;
  5. Pursuant to 42 U.S.C. § 1983, ASLD (and the master developer rightsholders) violated the Arizona Constitution, the Fourteenth Amendment of the U.S. Constitution, and the Enabling Act by delegating (or improperly exercising) ASLD’s authority in the form of master developer rights; and
  6. CPF tortiously interfered with Plaintiff’s contract to have a third-party purchaser develop a hotel on a portion of Plaintiff’s parcel.
The Arizona Federal District Court granted Defendants’ motions to dismiss counts 2 and 5 for failure to state a federal cause of action. The Court held the Arizona Enabling Act does not create a federal cause of action for breach of trust. Although the Court found that counts 1 and 5 stated a federal cause of action, the Court concluded there “is nothing inherently arbitrary” in requiring the lessee to clear development plans with the master developer before pursuing the rezoning process. The Court declined to exercise jurisdiction over the remaining state claims.
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
In Interest of M.T.R. , ___ S.W.3d ___, 2019 WL 2144686 (Tex. Ct. App. May 16, 2019) Alleged failure to comply with the Indian Child Welfare Act is not subject to procedural default, but maternal grandmother’s denial of Indian child status rendered ICWA inapplicable.
Western Shoshone Identifiable Group v. United States , ___ Fed. Cl. ___, 2019 WL 2480154 (June 13, 2019) United States had trust obligation to manage funds awarded tribes by the Indian Claims Commission and its successors in three cases and breached that obligation for various periods of time between 1979 and 2013 for one investment fund and between 1992 and 2013 for two other funds.
Steve H. v. State of Alaska, Dept. of Health & Social Services , ___ P.3d ___, 2019 WL 2480199 (Alaska June 14, 2019) Superior court did not abuse its discretion in terminating father’s parental rights under Indian Child Welfare Act standards.
Miccosukee Tribe of Indians of Florida v. Lewis Tein P.L. , ___ So.3d ___, 2019 WL 2518262 (Fla. 3d Dist. Ct. App. June 19, 2019) Circuit court abused its discretion in denying a motion for attorney’s fees by a defendant tribe pursuant to offers of judgment because it found the offers were not made in good faith
Yocha Dehe Wintun Nation v. Newson , ___ F. Supp. 3d ___, 2019 WL 2513788 (E.D. Cal. June 18, 2019) District court dismissed breach-of-contract and breach-of-implied-covenant-of-good-faith-and-fair-dealing claims alleging that the State violated three tribes’ class III gaming compacts by not enforcing against non-tribal cardrooms a statutory ban on banking and percentage card game
  Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) , ___ F. Supp. 3d ___, 2019 WL 2525470 (D. Mass. June 19, 2019): Following reversal of a judgment that had held the Indian Gaming Regulatory Act inapplicable to lands set aside under the 1987 Massachusetts Indian Claims Settlement Act, the district court reinstated on remand the portion of the previous judgment not challenged on appeal by the tribe or addressed by the circuit court.
Stathis v. Marty Indian School , 2019 S.D. 33, ___ N.W.2d ___ (S.D. June 19, 2019) Non-Indian’s contract and tort claims against an on-reservation high school operating under a tribally approved constitution and the school’s board members were preempted by the Indian Self-Determination and Education Assistance Act and the Tribally Controlled Schools Act.
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.
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.
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.