News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
March 23, 2020
Letter to WAGLACers:
We are hopeful that the June 2020 WAGLAC Meeting in Bozeman will proceed as scheduled, and therefore, encourage you to make with your travel arrangements. CWAG per its policy will cover attendance costs for one person from each member and affiliate member state. Early registration is encourage because seating on the bus for the field trip is limited. 
CWAG is dedicated to ensuring the health and safety of our members and will advise you if the COVID 19 crisis requires adjustments to the meeting schedule. Do not hesitate to reach out to us with any questions or concerns.
On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support.
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.
Baltimore’s Climate Liability Suit Should be Heard in State Court
Legally Speaking Newsletter
March 19, 2020
"In a ruling that may impact other climate liability cases across the country, the U.S. Court of Appeals for the Fourth Circuit on March 6 affirmed a federal district court’s decision to remand the City of Baltimore’s climate liability lawsuit against oil companies to a Maryland state court. In rejecting the oil companies’ request to remove the case to federal court, the court of appeals concluded that the oil companies failed to establish that they were “acting under” the instructions of “federal officers” when engaging in their oil and gas business — a necessary prerequisite for invoking the so-called “federal officer” doctrine, the only ground for removal that was open on appeal."
20 State and City AGs Oppose EPA'S Proposed Scientific Evidence Rule

Twenty state and city attorneys general filed a comment letter on EPA's proposed "Strengthening Transparency in Regulatory Science" rule. They asked EPA to extend the public comment deadline. They said "a significant extension or, alternatively, a suspension of the rulemaking process is necessary in light of the national emergency that has arisen from the COVID-19 pandemic.” "States, healthcare professionals, and scientists who should weigh in on the supplemental proposal will not be able to devote the time necessary to fully evaluate the supplemental proposal and its implications during this evolving crisis."

A number of state organizations and public interest groups have also requested that the Trump administration halt the rulemaking process.

The EPA proposal would preclude EPA from using scientific research to support environmental and public health regulations if the data could not be made public.
Corps Withdraws Water Supply Rule
In response to letters written by CWAG, Western Governors Association, Western States Water Council and the National Water Supply Alliance, the Corps of Engineers officially withdrew its proposed rule titled ‘‘Use of U.S. Army Corps of Engineers Reservoir Projects for Domestic, Municipal & Industrial Water Supply,’’ on March 23, 2020. The so called Water Supply Rule was contrary to the cooperative federalism principles Congress incorporated into the 1944 Flood Control Act and the 1958 Water Supply Act and would have usurped the States’ exclusive authority to guide water allocation and development within their borders.
Farmers Take Water Fight to the Supreme Court
E&E News
March 17, 2020

"Nearly 20 years after Oregon and California farmers stormed irrigation canals in protest of a decision to cut off water deliveries, they have taken their case to the Supreme Court.

In 2001, George W. Bush's administration shut off deliveries from an irrigation project on the Klamath River in south-central Oregon and Northern California to protect salmon in a drought.

The protests were swift, and nearly turned violent. One group wielded a blowtorch at a diversion head gate.

It also spurred litigation alleging that the decision amounted to an unconstitutional "taking" of the farmers' water.

They've been unsuccessful so far. A federal appeals court ruled against them last November.

Now they've enlisted a veteran Supreme Court water attorney and have asked the justices to hear their case."
Environmentalists Sue Feds, Trying to Force Fort Huachuca Cutbacks
March 18, 2020

"Environmentalists filed suit versus the federal government, hoping to force cutbacks in staffing at the Army’s Fort Huachuca, water use in the Sierra Vista area or both, to protect the San Pedro River and four imperiled species.

The lawsuit seeks to overturn a 2014 U.S. Fish and Wildlife Service biological opinion that found the fort’s operations would not jeopardize the existence of the species or destroy the critical habitat they depend on."
Public Duty Doctrine Applies to Washington State DNR Firefighting Duties

The Washington Supreme Court affirmed a lower court decision granting the Department of Natural Resources’ (DNR) motion for summary judgment on claims by landowners seeking to recover for property damage caused by the Carlton Complex fire.
The DNR has two distinct roles. “In its proprietary role, DNR manages millions of acres of state trust land, state-owned aquatic lands and natural areas that protect native ecosystems. Its regulatory role involves forest practices, surface mining, and suppressing forest fires on public and private forestland. In its firefighting role, it is charged with protecting over 13 million acres of private and public forestlands, making it ‘Washington’s largest ‘on call’ wildland fire department.’”
Plaintiffs did not allege DNR started the fire, but rather, claimed the agency was negligent in its efforts to suppress the fires on DNR lands, which allowed the fires to spread to neighboring lands.  DNR argued “Plaintiffs were seeking to recover for what are inherently fire suppression agency acts or omissions, not landowner acts or omissions ” and therefore the claims were barred by the “public duty doctrine.” 
The Court stated that “‘[i]n a negligence action, in determining whether a duty is owed to the plaintiff, a court must not only decide who owes the duty, but also to whom the duty is owed, and what is the nature of the duty owed.’” “If a fire starts on the land of an owner, and the owner knows of the fire and knows that, if not controlled, it will spread and destroy valuable property of his neighbor, the common law recognizes a duty to use reasonable care to prevent this result.” The Court found “no evidence of a breach of this landowner duty. Instead, the Court found “only allegations that DNR committed negligence in protecting or suppressing fire in the forest protection zones for which it is responsible as a fire suppression agency.” The Court stated that “[w]hen the defendant in a negligence action is a governmental entity, the public duty doctrine provides that a plaintiff must show the duty breached was owed to him or her in particular, and was not the breach of an obligation owed to the public in general.” The Court held that the public duty doctrine barred the plaintiffs’ claims because DNR in its firefighting capacity was carrying out duties owed to the public in general and not to the individual landowners.
Judge Strikes Down Ohio Fracking on NEPA Grounds
E&E News
March 16, 2020

"Conservation groups are cheering a federal judge's finding last week that federal agencies improperly authorized hydraulic fracturing in Ohio's Wayne National Forest.

The Center for Biological Diversity, Heartwood, the Ohio Environmental Council and the Sierra Club had challenged the Bureau of Land Management and the Forest Service for approving fracking on 40,000 acres of the state's only national forest, located in the foothills of the Appalachian Mountains."
Millennium Loses Appeal Over Coal Dock Shorelines Permit
The Columbian
March 18, 2020

"Millennium Bulk Terminal’s long-running proposal to build a $680 million coal export dock in Longview was dealt another legal blow when the Washington State Court of Appeals upheld the denial of a key shorelines permit."
Interior to Allow Catawba to Build Casino Across State Line
E&E News
March 16, 2020

The South Carolina-based Catawba Indian Nation has received permission from the federal government to build a casino and resort on land over the border in North Carolina.
The Interior Department approved in writing the American Indian tribe's request to use 16 acres near Interstate 85 in Kings Mountain, just west of Charlotte. The location sits about 35 miles northwest of the Catawba reservation in upstate South Carolina.

The $273 million investment in the entertainment complex could generate over 1,600 construction jobs and create more than 3,000 direct and indirect jobs once built, according to an economic development evaluation of the project last month cited in the decision.
Pakdel v. City and County of San Francisco
Divided Ninth Circuit panel declines to exercise discretion to excuse noncompliance with Williamson County finality requirement
Clay R. Smith, Chief Editor, AILD
CWAG & AG Alliance

Last Term, a five-Justice majority of the United States Supreme Court held that a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation[] and therefore may bring his claim in federal court under [42 U.S.C.] § 1983 at that time.” Knick v. Township of Scott, Pa. , 139 S. Ct. 2162 (2019). The majority thus eliminated what it characterized as a judicial “Catch 22”—i.e., a litigant “cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court.” The Court therefore overruled Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985), to the extent that it imposed a “state-litigation requirement” for federal court taking actions. The Court, however, did not overrule Williamson County ’s rule that a taking claim does not prudentially ripen until the governmental actor has finally denied compensation. The distinction between state remedy exhaustion eliminated by Knick and the need for finality still adhering under Williamson County was the focus the Ninth Circuit’s divided panel opinion in Pakdel v. City and County of San Franci sco, ___ F.3d ___, 2020 WL 1270732 (9th Cir. Mar. 17, 2020). Given the dissent and the issue’s general importance to local governments, this litigation warrants monitoring even though § 1983 does not extend to States and their agencies. Will v. Mich. Dep't of State Police , 491 U.S. 58 (1989) (State agency lacks “person” status under § 1983.).
New Mexico Farm and Livestock Bureau v. U.S. Dept. of Interior
FWS designation of critical habitat for endangered jaguar species invalidated
Clay R. Smith, Chief Editor, AILD
CWAG & AG Alliance

The Endangered Species Act provides for designation of “occupied” and “unoccupied” critical habitat in 16 U.S.C. § 1533(5)(A). “Occupied” critical habitat is “the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Id. § 1533(5)(A)(i). “Unoccupied” critical habitat is “specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Id. § 1533(5)(A)(ii). In 2014, the United States Fish and Wildlife Service designated two units of land as “occupied” critical habitat and, alternatively, as “unoccupied” critical habitat for a jaguar species ( Panthera onca ). Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Jaguar , 79 Fed. Reg. 12,572 (Mar. 5, 2014). Several groups sought judicial review, where the district court found FWS’s designation unlawful as to the units’ status as “occupied” critical habitat but valid as to their “unoccupied” critical habitat status. New Mexico Farm and Livestock Bureau v. U.S. Dept. of Interior , No. 2:15-cv-00428-KG-CG (D.N.M. Oct. 25, 2017). The Tenth Circuit reversed on appeal, holding the designation invalid under both subparts of § 1533(5)(A). New Mexico Farm and Livestock Bureau v. U.S. Dept. of Interior , No. 17-2211, 2020 WL 1265668 (10th Cir. Mar. 17, 2020).
Groups Want New Mexico High Court to Strike Down Access Rule
E&E News
March 16, 2020

Conservation advocates are urging New Mexico's Supreme Court to strike down a regulation that would block public access to rivers and streams that cross private property.
A coalition made up of the New Mexico Wildlife Federation, the Adobe Whitewater Club and the New Mexico chapter of Backcountry Hunters & Anglers filed a petition asking the court to nullify a 2018 rule issued by the state's game commission.

The "non-navigable waters rule" allows private landowners to petition New Mexico's State Game Commission to close public access to rivers or streams unless visitors have written permission from the landowners.
  • Managing Attorney - Cheyenne, Wyoming Attorney General's Office
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.
In Matter of: K.G. , ___ S.E.2d ___, 2020 WL 1264004 (N.C. Ct. App. Mar. 17, 2020) Child custody proceeding remanded for compliance with Indian Child Welfare Act notice requirements.
Yukon-Kuskokwim Health Corp. v. U.S. , ___ F. Supp. 3d ___, 2020 WL 1275726 (D.D.C. Mar. 17, 2020) Continuing violation doctrine applied to the Department of the Interior’s failure to convey a parcel of land to a tribal corporation pursuant to a statutory mandate.
Snoqualmie Indian Tribe v. Washington , ___ F. Supp. 3d ___, 2020 WL 1286010 (W.D. Wash. Mar. 18, 2020) Tribe’s claim of entitlement to hunting and gathering rights under the Treaty of Point Elliott was barred by issue preclusion based on a treaty status determination in the  United States v. Washington  litigation.
Peidlow v. Williams , ___ P.3d ___, 2020 WL 1316358 (Alaska Mar. 20, 2020) State superior court erred by not according full and faith under 25 U.S.C.A. § 1911(d) to tribal court child-in-need-of-aid orders where physical custody was placed initially with the child’s maternal grandmother and later in the home of her paternal grandparents.
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.