News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
March 2, 2020
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 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow.
EPA Releases PFAS Action Plan: Program Update
U.S. Environmental Protection Agency (EPA) 
February 26, 2020

"The U.S. Environmental Protection Agency (EPA) is releasing the PFAS Action Plan: Program Update. Over the past year, EPA has made significant progress under the Action Plan to help states and local communities address per- and polyfluoroalkyl substances (PFAS) and protect public health and the agency’s Program Update highlights those efforts."
Environment Groups Demand EPA Action to Help Downwind States

"Several environmental organizations have sued the Environmental Protection Agency under the Clean Air Act, demanding the agency place restrictions on states whose drifting emissions hamper neighboring states' ability to meet air pollution standards."
CWAG, WGA and WSWC Support Corps Water Supply Legislation
The Conference of Western Attorneys General, the Western Governors Association and the Western States Water Council sent a joint letter asking the Senate Committee on Environment and Public Works to consider including language in the 2020 water resources development legislation to address the protection of states’ primary authority to manage and allocate waters stored in U.S. Army Corps of Engineers reservoirs. “ Specifically, we request[ed] that the legislation include bipartisan language that has been submitted by Senator Cramer and Senator Merkley that expressly recognizes states’ primary authority over natural flows within river systems and excludes such waters from any Corps’ definition of ‘surplus water.’”  
Judge Voids nearly 1 Million Acres of Oil and Gas Leases, Saying President Trump Policy Undercut Public Input
The Washington Post
February 28, 2020

"A federal judge in Idaho has voided nearly 1 million acres of oil and gas leases on federal lands in the West, saying that a Trump administration policy that limited public input on those leases was “arbitrary and capricious.”

The ruling Thursday by U.S. Chief Magistrate Judge Ronald E. Bush represented a win for environmentalists, who challenged the leasing policy as part of a broader effort to block drilling in habitat for the imperiled greater sage-grouse. The contested area spans 67 million acres across 11 Western states."
Long-Awaited Snake River Dam Assessment Rejects Removal, Recommends Increasing Spill to Help Endangered Salmon
Oregon Live
February 28, 2020

A report from several federal agencies has recommended the four dams on the lower Snake River stay in place but that the amount of water spilled over those dams be increased to help endangered salmon.

The Draft Environmental Impact Statement, which spans thousands of pages, is the sixth attempt by the federal government to operate the 14 dams that comprise the Columbia River Hydropower System in compliance with the Endangered Species Act. The five previous attempts have been rejected after legal challenges from environmental groups, the state of Oregon and local tribes.
Utilities and Enviros Paddle Together on Lower Snake River
E&E News
February 25, 2020

"Environmentalists and Pacific Northwest power producers are urging elected officials to seek "collaborative solutions" for the myriad complicated issues roiling the Lower Snake River.

In a letter to the governors of Washington state, Oregon, Montana and Idaho, 17 leaders of energy companies, utilities and conservation organizations called for a "new dialogue with all sovereigns and constituents" with a stake in the river and its bounty.

The group's ambitious array of goals include recovering "abundant and harvestable" salmon and steelhead populations; honoring cultural values and federal treaties; enhancing regional economies; and ensuring electric system "reliability, affordability and decarbonization."

The letter sent yesterday was timed to coincide with the expected release of the Columbia River System Operations draft environmental impact statement."
Lawsuit: President Trump Officials 'Twiddling Their Thumbs' on Backlog
E&E News
February 27, 2020

"The Center for Biological Diversity this morning filed a broad legal challenge against the Interior Department for delaying protections for more than 200 vulnerable plants and animals.

In their complaint filed in the U.S. District Court for the District of Columbia, attorneys for the environmental group took aim at the Trump administration for so far listing just 21 species as endangered or threatened under the Endangered Species Act."
Argument Analysis: The Trail, the Pipeline and A Journey to the Center of the Earth
February 25, 2020

"Environmental groups faced a skeptical bench during a recent argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the National Park System and therefore, under the Mineral Leasing Act, the trail is off-limits for energy development and pipeline rights-of-way."
Washington Sued for Breach of Fiduciary Duty
The Skagit County Prosecuting Attorney and Concrete School District sued the State of Washington Department of Natural Resources and the Washington Board of Natural Resources alleging they breached their fiduciary duty when the Board lowered logging-harvest levels on state-managed timber lands.  The Skagit County complaint alleges that while the decision is “couched as a response to climate . . ., it does not appear logically connected to use the State transfer lands for carbon sequestration, but rather appears more oriented toward the conversion of the trust forest lands to other uses. This is inconsistent with the State-County trust relationship . . ..”  

In a separate action, Concrete School District alleges “the Board breached its fiduciary duties by adopting Resolution 1559, selecting a Long-Term Conservation Strategy for the Marbled Murrelet (the “Murrelet Strategy” or “LTCS”) that improperly reduced the corpus of the trusts by setting aside trust lands for purported murrelet conservation that do not provide habitat for the murrelet and are not required to be set aside in order for DNR to meet its obligations under the Endangered Species Act (“ESA”).”
PennEast Asks Supreme Court to Review State Land Grabs
E&E News
February 25, 2020

"Natural gas pipeline developers have asked the Supreme Court to review a lower bench's ruling blocking their use of eminent domain on state-owned land.

PennEast Pipeline Co. LLC is fighting a decision last fall by the 3rd U.S. Circuit Court of Appeals that the company could not seize state land in the path of its 120-mile project between Pennsylvania and New Jersey.

The court found that the practice violated the Garden State's sovereign immunity under the 11th Amendment to the Constitution.

In its petition, titled PennEast v. New Jersey, the company argued that the Natural Gas Act allows the federal government to delegate its eminent domain authority for approved projects, including on state land."
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.
Hwal’Bay Ba: J Enterprises, Inc. v. Jantzen , ___ P.3d ___, 2020 WL 891158 (Ariz. Feb. 25, 2020) Tribally chartered corporation did not carry the burden of establishing its status as an “arm of the tribe” in a personal injury suit resulting from an off-reservation rafting accident.
Littlefield v. Mashpee Wampanoag Indian Tribe , ___ F.3d ___, 2020 WL 948895 (1st Cir. Feb. 27, 2020) The words “such members” in the second definition of “Indian” under 25 U.S.C.A. § 5108—“all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation” –-incorporate the entirety of the section’s first definition—“all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” 
People in Interest of K.R. , 2020 COA 35, ___ P.3d ___ (Colo. Ct. App. Feb. 27, 2020) Appeal remanded for determaination of whether a parent of children, who were eligible for tribal membership, is a tribal member, thereby making them Indian children for Indian Child Welfare Act purposes.
State v. Nobles , ___ S.E.2d ___, 2020 WL 967439 (N.C. Feb. 28, 2020) Under standards adopted by the Eighth and Tenth Circuits, state court defendant did not have “Indian” status so as to preclude prosecution and conviction for the offenses of armed robbery, first degree (felony) murder and possession of a firearm by a felon committed in Indian country, and the superior court did not err in resolving the jurisdictional issue and not submitting it to the jury given the absence of any factual dispute over the relevant factors.
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.