WAGLAC News & Updates
May 13, 2019
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC (Western Attorneys General Litigation Action Committee) meets three-times a year to discuss current litigation and issues facing Western States. 
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. 
ENVIRONMENT
E.P.A. Proposes Weaker Standards on Chemicals Contaminating Drinking Water
The New York Times
April 25, 2019

"After pressure from the Defense Department, the Environmental Protection Agency significantly weakened a proposed standard for cleaning up groundwater pollution caused by toxic chemicals that contaminate drinking water consumed by millions of Americans and that have been commonly used at military bases."
401 Certification Survey Summary
Association of Clean Water Administration
May, 2019

"On April 10, 2019, the White House issued the Executive Order on Promoting Energy Infrastructure and Economic Growth.

In preparation for commenting on the proposed reforms, ACWA conducted a states survey inquiring into the Section 401 certification process, including number of certification requests and denials, certification timeliness, application completeness, and best practices."

Please read the full survey summary by following the link below.
Key State Certification Denied For SW Oregon Natural Gas Export Project
OPB
May 7, 2019

"Oregon environmental regulators delivered a blow Monday to a controversial energy export proposal on Oregon’s south coast, saying the Jordan Cove liquefied natural gas pipeline and terminal project falls short of meeting clean water standards."
Three Mile Island Nuclear Power Plant Is Shutting Down
The New York Times
May 8, 2019

"Forty years after the worst commercial nuclear power plant accident in United States history unfolded on Three Mile Island in Pennsylvania, the only nuclear power reactor still operating there is preparing to shut down."
White House Mulls Exemption For Farms On Manure Emissions
E&E News
May 8, 2019

"The Trump administration is in the final stage of writing rules to exempt farms from reporting air emissions from manure — but the issue may be far from settled.

EPA's regulations are under review at the White House Office of Management and Budget, where officials met with the National Pork Producers Council, one of the farm groups pressing for the exemption, the administration reported. EPA has said it aims to publish a final rule this month, setting the stage for legal challenges from environmental groups."
Portland Harbor Superfund agreement aims to drive new cleanup plans throughout the Lower Willamette River
City and state to provide $24M in incentive funding to bring responsible parties into cleanup planning
The Environmental Protection Agency
May 10, 2019

"The U.S. Environmental Protection Agency (EPA) announced an agreement in principle with the city of Portland and state of Oregon to help fund detailed cleanup plans for the 10-mile Portland Harbor Superfund. The site is on the EPA administrator’s national Superfund emphasis list for intense and accelerated effort."
FEDERALISM
Supreme Court Overturns Nevada v. Hall
 
Today the United States Supreme Court, in a five-four decision, held that a state cannot be sued in the court of another state without its consent. The ruling in Franchise Tax Board of California v. Hyatt was in response to a lawsuit brought by Hyatt in Nevada state court in 1998 for alleged torts committed by Franchise Tax Board of California during a 1993 tax audit. This is the third time the Supreme Court has issued a ruling in the Hyatt case. In Hyatt I, the Supreme Court held that “the Full Faith and Credit Clause did not prohibit Nevada from applying its own immunity law in the case. In Hyatt II, the Court held “that the Full Faith and Credit Clause required Nevada courts to grant the Board the same immunity that Nevada agencies enjoy.” The Court’s decision today reversed course holding that the Franchise Tax Board was immune to suit in Nevada state court.
  
The Court overturned its 1979 decision in Nevada v. Hall, which “held that the Constitution does not bar private suits against a State in the courts of another State.” Justice Thomas writing for the majority stated: “[A]t the time of the founding, it was well settled that States were immune under both the common law and the law of nations. The Constitution’s use of the term “States” reflects both of these kinds of traditional immunity. And the States retained these aspects of sovereignty, ‘except as altered by the plan of the Convention or certain constitutional Amendments.’” Thomas concluded: “Each State’s equal dignity and sovereignty under the Constitution implies certain constitutional ‘limitation[s] on the sovereignty of all of its sister States.’ . . . One such limitation is the inability of one State to hale another into its courts without the latter’s consent. The Constitution does not merely allow States to afford each other immunity as a matter of comity; it embeds interstate sovereign immunity within the constitutional design.” Justice Breyer in dissent argues that “[m]andating absolute interstate immunity ‘by inference from the structure of our Constitution and nothing else’ would ‘intru[de] on the sovereignty of the States—and the power of the people—in our Union.’” 
 
The decision also contains a vigorous debate over the role stare decisis should play in constitutional law cases. Justice Thomas in rejecting Hyatt’s argument that stare decisis should control stated: “[S]tare decisis is ‘not an inexorable command’ . . . and we have held that it is “at its weakest when we interpret the constitution because our interpretation can be altered only by constitutional amendment . . ..”  Justice Breyer, countered that:: “It is one thing to overrule a case when it ‘def [ies] practical workability,’ when ‘related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,’ or when ‘facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.’ . . . It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question.”
MARIJUANA
Majority Of State Attorneys General Tell Congress To Pass Marijuana Banking Bill
Forbes
May 8, 2019
 
"The top law enforcement officials from 38 U.S. states and territories are calling on Congress to pass legislation to increase marijuana businesses' access to banks. The move comes just days after the treasurers of 17 states issued a separate call in support of the pending cannabis financial services bill.
 
The call for action was joined by the attorneys general of the following states and territories:
 
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Guam, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, New York, North Dakota, the Northern Mariana Islands, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Utah, the U.S. Virgin Islands, Vermont, Virginia, Washington, West Virginia, and Wisconsin."
INDIAN LAW
AG Ferguson Announces Historic Tribal Consent and Consultation Policy
May 10, 2019

Attorney General Bob Ferguson announced a new policy that requires the Attorney General’s Office to obtain free, prior and informed consent before initiating a program or project that directly and tangibly affects tribes, tribal rights, tribal lands and sacred sites. Attorney General Ferguson also announced that his office will refrain from filing any litigation against a tribal government or tribal-owned business without first engaging in meaningful consultation to resolve the dispute, provided that doing so does not violate the rules of professional conduct. This policy is the first of its kind in Washington state.
Montana Tribal Relations Policy

The Department of Justice in the state of Montana has adopted a tribal relations policy.
This policy is adopted pursuant to MCA §§ 2-15-141 and -142, and the Legislature’s stated purpose to recognize and support “the fundamental principle and integrity of the government-to-government relationship between the State of Montana and the Indian nations of Montana.”
FEDERAL ADMINISTRATION
Pence Slams District Court Rulings Against Trump Policies
AP News
May 8, 2019

"Vice President Mike Pence said Wednesday that the Trump administration intends to challenge the right of federal district courts to issue rulings blocking nationwide policies, arguing that such injunctions are obstructing President Donald Trump’s agenda on immigration, health care and other issues."
INDIAN LAW SUMMARY UPDATES
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 Matter of Leslie T. , ___ N.Y.S.3d ___, 2019 WL 1925606 (App. Div. May 1, 2019) Compliance with 25 U.S.C. § 1912(e) was not required when a child, temporarily placed with an Indian custodian, was returned to its mother.
Muscogee Creek Indian Freedman Band, Inc. v. Bernhardt , ___ F. Supp. 3d ___, 2019 WL 1992787 (D.D.C. May 6, 2019): Claim by Muscogee Creek Nation Freedmen descendants seeking tribal citizenship dismissed without prejudice for failure to exhaust tribal remedies.
People in Interest of Z.C. , 2019 COA 71, ___ P.3d ___ (Colo. Ct. App. May 9, 2019) (per curiam): Proceeding remanded for compliance with Indian Child Welfare Act notice requirements with respect to one of eight tribes.
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.
INDIAN LAW DESKBOOK
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
WAGLAC
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.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
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.