News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
May 11, 2020
Letter to WAGLACers:
The CWAG Annual Meeting and the WAGLAC Summer Meeting are being rescheduled to ensure the health and safety of our members. The CWAG Annual Meeting will be held July 23 rd  through the 26 th .  

The WAGLAC Summer Meeting in Bozeman, Montana previously scheduled for June 8th through June 10th is rescheduled for August 10 - 12, 2020. See details below.
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
August 10-12, 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
4th Circuit To Revisit Pipeline Case After Groundwater Ruling
E&E News
May 4, 2020

"A federal appeals court must reconsider a dispute over a South Carolina pipeline leak in light of the Supreme Court's new test for determining the scope of federal water permitting.

[T]oday, the justices instructed the 4th U.S. Circuit Court of Appeals to revisit its determination that a pipeline leak in the Palmetto State fell under the Clean Water Act and in fact could be considered an "ongoing violation" after the discharge has ended."
Center for Biological Diversity v. Esper
DOD did not violate National Historic Preservation Act’s foreign property provision

The Ninth Circuit Court of Appeals affirmed the Northern Federal District Court of California’s decision finding that DOD did not violate the National Historic Preservation Act’s foreign property provision. Section 402 of the National Historic Preservation Act, 54 U.S.C. § 307101(e), requires covered agencies “to take into account” the effects of actions on foreign property. Here, the Department of Defense determined that its construction of a replacement facility in Okinawa, Japan would not have an adverse impact on Okinawa dugong, an endangered mammal possessing cultural significance for many Okinawans. A group of individuals and environmental organizations sued the Department in 2003 alleging violation of Section 402. Following a 2008 district court decision, the agency conducted a “take into account” analysis that involved considering five reports addressing the dugong’s biological and cultural status. One of those reports was translated excerpts from a final and draft environmental impact statement dealing with the project’s effect on the mammal. The Department reached a “no adverse effect” determination as a result of this review. The district court concluded that the agency had satisfied Section 402’s procedural requirements and that the determination was not arbitrary or capricious under Administrative Procedure Act standards. Okinawa Dugong v. Mattis, 330 F. Supp. 3d 1167 (N.D. Cal. 2018). The plaintiffs appealed, and the Ninth Circuit affirmed with one panel member concurring separately. Center for Biological Diversity v. Esper, No. 18-16836, 2020 WL 2182175 (9th Cir. May 6, 2020).
Bark v. U.S. Forest Service
Environmental impact statement required for proposed variable density thinning project in the Mount Hood National Forest

The United States Forest Service has proposed to use variable density thinning in the Mount Hood Nation Forest Crystal Clear Restoration project. The timber project affects 11,742 acres of land including trees in the Forest’s moist and dry climate areas. Variable density thinning “gives the agency flexibility in choosing which trees to cut, thereby allowing the USFS to create variation within an area of forest so that the stands ‘mimic more natural structural stand diversity.’ The USFS plans to leave an average canopy cover of 35–60%, with a minimum of 30% where the forest is more than 20 years old.” The Forest Service prepared an environmental assessment under the National Environmental Policy Act that concluded the project would have no significant effects and therefore did not require preparation of an environmental impact statement. This determination prompted several environmental groups to sue alleging violation of NEPA and the National Forest Management Act. The district court granted the agency summary judgment. Bark v. U.S. Forest Service, 393 F. Supp. 3d 1043 (D. Or. 2019). The Ninth Circuit reversed the district court judgment in a memorandum opinion filed on April 3, 2020 and granted the appellants’ motion to publish the decision on May 4, 2020. Bark v. U.S. Forest Service, No. 19-35665, 2020 WL ______ (9th Cir. May 4, 2020).
South Dakota Governor Demands Tribe Leaders Remove Checkpoints Set Up to Prevent the Spread of COVID-19
May 9, 2020

"Cheyenne River Sioux Tribe and Oglala Sioux Tribe leaders have rejected South Dakota Gov. Kristi Noem’s demand that they remove checkpoints meant to regulate traffic through their reservation, set up to prevent the spread of coronavirus on tribal land.

South Dakota Gov. Kristi Noem sent letters to Chairman Harold Frazier of the Cheyenne River Sioux Tribe and President Julian Bear Runner of the Oglala Sioux Tribe demanding that they remove the checkpoints from state and U.S. highways. Noem said if the checkpoints are not removed within 48 hours, she would take “necessary legal action.”
Judge Vacates Oil and Gas Leases on 145,000 Acres in Montana
The New York Times
May 1, 2020

"A federal judge vacated 287 oil and gas leases on almost 150,000 acres of land in Montana, ruling that the Trump administration had improperly issued the leases to energy companies in 2017 and 2018.

The judge, Brian Morris of the United States District Court for the District of Montana, said the Interior Department’s Bureau of Land Management failed to adequately take into account the environmental impacts of the drilling. In particular, Judge Morris found that the officials had not accounted for the drilling’s impact on regional water supplies and the global impact that the increased drilling would have on climate change.

The decision is at least the third such legal loss that criticized the Trump administration for failing to consider the cumulative impacts of expanding fossil fuel production on the warming of the planet.

It comes as the Trump administration is seeking to eliminate the legal requirements that the government take such impacts into account at all."
America's Water Infrastructure Act of 2020 Advances Without Water Supply Amendments

Last week, the Senate Environment and Public Works Committee unanimously passed out of committee the America’s Water Infrastructure Act of 2020 (S. 3591) and the Drinking Water Infrastructure Act of 2020 (S. 3590). These bills, if enacted, will authorize the Army Corps of Engineers projects, reauthorize the Clean Water State Revolving Fund and the Safe Drinking Water Act emergency fund.

The Committee rejected on a voice vote amendments proposed by Senator Kevin Cramer (R.-N.D.) that would have amended Section 6 of the Flood Control Act of 1944 (FCA) and Section 301 of the Water Supply Act (WSA). The amendment to Section 6 of the FCA would have codify the Corps of Engineers historic practice of not requiring a water supply contract as a condition of granting water users access to project reservoirs for the purpose of appropriating water.  The amendment to Section 301 of the WSA would have required a state water right for storage of water for consumptive uses in Corps reservoir storage space. Both amendments would have applied only in states wholly or partly west of the 98th meridian.

The Cramer amendments were a response to the Corps 2016 water supply rule that sought to establish a federal system for allocating water held in project reservoirs. Although the Corps’ proposed rule was withdrawn after a coordinated effort by the Western Governors’ Association, the Western States Water Council and CWAG, Western States remain concerned that the Corps will not require a state water right for the use of natural flow from river systems in prior appropriation states. The Western Governors’ Association and the Western States Water Council endorsed the Cramer amendments.

Senator Richard Shelby (R-Ala), Chair of the Senate Committee on Appropriations, opposed the Cramer amendments. He asserted the amendments could impact Alabama’s litigation position its tri-state litigation with Georgia and Florida over the use of waters of the Apalachicola-Chattahoochee-Flint and Alabama-Coosa-Tallapoosa basins, even though the amendments were expressly limited to States west of the 98th meridian.
Senator Cramer vowed to continue to pursue the amendments. A number of Senators expressed support for continued discussion of the amendments.
Climate Change Unleashes Interstate Water Wars
E&E News
May 6, 2020

"A looming Supreme Court showdown over water flows from the Pecos River may be the first in a rising swell of interstate water battles driven by climate change.

The justices had been set to hear Texas v. New Mexico, a dispute over floodwaters that overwhelmed the Pecos River in 2014 and 2015, last month, but the court bumped oral arguments to next term in light of the coronavirus pandemic.

Several other battles between states over water from rivers and aquifers could also soon make it to the nation's highest bench, said Beveridge & Diamond PC principal John Cruden to an audience during a recent conference hosted by the Environmental Law Institute and American Law Institute."
District Court Judge Strikes Down State-Backed Groundwater Market for Violating "First In Time, First In Right" Rule
The Nevada Independent
May 1, 2020

"A District Court judge ruled that state officials approved a program to address a longstanding water rights imbalance in Eureka County “contrary to Nevada water laws.”

Pending an appeal or a stay, the ruling puts the brakes on a closely watched groundwater market in Diamond Valley, where the state has, for decades, allowed irrigators to pump more than twice the amount of water than is sustainable, causing groundwater levels to decline.

A spokesperson for the state engineer, Nevada’s top water regulator, declined to comment on the ruling or whether the state will appeal the decision to the Supreme Court. Jake Tibbitts, the natural resources director for Eureka County, said that the county would decide how to move forward after seeking input from the irrigators involved in crafting the groundwater plan."
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.
Eastern Band of Cherokee Indians v. U.S. Dept. of Interior , ___ F. Supp. 3d ___, 2020 WL 2079443 (D.D.C. Apr. 30, 2020) Tribe failed to establish either the procedural or concrete harm required for preliminary injunctive relief with respect to a claim under the National Historic Protection Act.
U.S. v. Scott , ___ F. Supp. 3d ___, 2020 WL 2126694 (D. Mont. May 4, 2020) Various constitutional challenges to prosecution under the Major Crimes Act rejected on the basis of existing United States Supreme Court precedent.
Robbins v. Mason County Title Ins. Co. , ___ P.3d ___, 2020 WL 2212437 (Wash. S. Ct. May 7, 2020) Title insurance company violated duty to defend an insured with respect to a tribe’s claim of entitlement to enter the former’s property for the purpose of exercising a treaty right to harvest shellfish.
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.