News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
March 9, 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.
Science Advisory Board Slams Trump's WOTUS Rewrite
E&E News
March 4, 2020

"An EPA advisory panel has finalized a striking rebuke of the Trump administration's revamped Clean Water Act rule, saying critical elements are not adequately based on science.

Trump's EPA in January issued its Navigable Waters Protection Rule, which revises the definition of "waters of the United States," or WOTUS, clarifying which streams, wetlands and marshes warrant federal protections.

The rule is significantly narrower in scope than one issued by the Obama administration, and it is sure to be met with lawsuits once published.

EPA's Science Advisory Board (SAB) said some of the changes are not sufficiently based in science.

In a commentary, the board took issue with, for example, the rule's exclusion of groundwater, ephemeral streams and wetlands that connect to bodies of water below the surface."
President Trump Admin Fights Columbia River Ruling
E&E News
March 5, 2020

"The Trump administration yesterday urged federal judges to reconsider a ruling forcing EPA to set Columbia River water temperature standards to aide struggling salmon runs in the Pacific Northwest, saying it will open the floodgates to more litigation.

In December, the 9th U.S. Circuit Court of Appeals sided with Columbia Riverkeeper and other conservation groups, giving EPA 30 days to move ahead with standards (Greenwire, Dec. 20, 2019).

The Trump administration, however, said the ruling flouts the plain language of the Clean Water Act and that the law does not require EPA to set such standards."
E.P.A. Updates Plan to Limit Science Used in Environmental Rules
The New York Times
March 4, 2020

"The Trump administration has formally revised a proposal that would significantly restrict the type of research that can be used to draft environmental and public health regulations, a measure that experts say amounts to one of the government’s most far-reaching restrictions on science.

The revisions made public mean the Environmental Protection Agency would give preference to studies in which all underlying data is publicly available. That slightly relaxed restrictions in an earlier draft that would have flatly excluded any research that did not offer up its raw data, even if that data included medical information protected by privacy laws or confidentiality agreements."
Enviros Ask Judge to Erase Science Advisers Policy
E&E News
March 2, 2020

"An environmental group asked a federal court to scrap an EPA directive limiting membership on the agency's scientific advisory boards.

Because the U.S. District Court for the Southern District of New York found "fatal flaws" in a 2017 directive by then-EPA Administrator Scott Pruitt, lawyers for the Natural Resources Defense Council argued that Judge Denise Cote should wipe from the books the agency's policy blocking EPA funding recipients from serving on panels like the Clean Air Scientific Advisory Committee and the Science Advisory Board.

EPA is slated to file its response March 13."
Nevada Supreme Court hears Arguments About the State's Role in protecting Water for the 'Public Trust'
The Nevada Independent
March 4, 2020

"The Nevada Supreme Court heard arguments in a case weighing how state regulators should consider “public trust” values — the environment or recreation — when the sustainability of lakes or rivers could be harmed by how the state has allocated water rights. 

The questions before the court stem from ongoing federal litigation over the use of water in the Walker River. But the case has received significant attention because it could provide an opportunity for the state’s top court to bolster legal protections for the environment. At the same time, agricultural groups, businesses and municipal water users fear a broad ruling could upend their existing water rights."
Brouillette Promises to Collaborate on Interim Storage Legislation
E&E News
March 5, 2020

"Energy Secretary Dan Brouillette agreed to work with the Senate on bipartisan legislation that would end the nation's nuclear waste logjam by authorizing interim storage, amid debate over the administration's plans to walk away from Yucca Mountain."
Justices Accept Endangered Species FOIA Plea
E&E News
March 2, 2020

"The Supreme Court agreed to hear a dispute over whether certain draft documentation of Endangered Species Act decision-making should remain off-limits to the public.

Government attorneys have asked the nation's highest bench to overturn a 9th U.S. Circuit Court of Appeals ruling that said the Freedom of Information Act required federal officials to release a draft biological opinion that informed 2014 regulations for cooling water intake structures at power plants."
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.
Berry v. Baca , ___ F. Supp. 3d ___, 2020 WL 977789 (D. Nev. Feb. 28, 2020) Habeas corpus petition of a non-Indian defendant would not be dismissed with respect to a state court conviction for attempted robbery on the Fallon Paiute-Shoshone Indian Reservation where a dispute existed over whether the victim was a non-Indian employee or a tribal store owner.
Swinomish Indian Tribal Community v. BNSF Railway Co. , ___ F.3d ___, 2020 WL 1038679 (9th Cir. Mar. 5, 2020) The Interstate Commerce Commission Termination Act did not impliedly repeal the Indian Right of Way Act or abrogate the 1855 Treaty of Point Elliott and federal common law-established rights to the extent that they reserve a tribe’s right to condition access to its reservation.
Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 10654906 (D.D.C. Mar. 5, 2020) The Department of the Interior failed to comply with the Michigan Indian Land Claims Settlement Act when it imposed its determination, rather than the Tribe’s, as to whether taking a land parcel into trust was “for... enhancement of tribal lands.”
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.