WAGLAC News & Updates
May 20, 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
EPA Seeks Public Input on Draft Study of Oil and Gas Extraction Wastewater Management
Environmental Protection Agency
May 15, 2019

"The U.S. Environmental Protection Agency (EPA) is seeking public input on a draft study that takes a holistic look at how the agency, states, tribes and others view the current state of regulation and management of wastewater from the oil and gas industry and provides insight into how this wastewater might be returned to beneficial use in the water cycle."
Fight Over Washington Export Terminal heads to 9th Circuit
E&E News
May 13, 2019

"The coal company backing a beleaguered export terminal proposed for the Pacific Northwest is heading to a federal appeals court to fight Washington state's blockage of the project. Lighthouse Resources Inc. filed a notice of appeal Friday targeting several lower court orders related to Millennium Bulk Terminals.

At issue is the Washington State Department of Ecology's 2017 decision denying a water permit for the 44-million-ton export facility in Longview. Lighthouse, joined by BNSF Railway Co., argued that the decision violated the Constitution and was preempted by federal laws governing interstate commerce and ports."
WATER
Attorney General Becerra Sues Westlands Water District to Block Unlawful Shasta Dam Project
May 14, 2019

"California Attorney General Xavier Becerra has filed a lawsuit to block Westlands Water District (Westlands) from taking unlawful action to assist in the planning and construction of a project to raise the height of Shasta Dam. The project poses significant adverse effects on the free-flowing condition of the McCloud River and on its wild trout fishery, both of which have special statutory protections under the California Wild and Scenic Rivers Act. The Act prohibits any agency of the State of California, such as Westlands, from assisting or cooperating with actions to raise the Shasta Dam. In addition to the lawsuit filed by Attorney General Becerra, a coalition represented by Earthjustice has filed a separate suit. The coalition includes Friends of the River, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Natural Resources Defense Council, Defenders of Wildlife, Sierra Club, and Golden Gate Salmon Association."
SUPREME COURT
Academic Highlight: The States Arguing as Amici Curiae in the Supreme Court
SCOTUSblog
May 17, 2019


"Those of you paying close attention to oral argument in the Supreme Court this term may have noticed something unusual. In three cases ( Sturgeon v. Frost , Gamble v. United States and Tennessee Wine & Spirits Retailers Association v. Blair ), one of the advocates was a state government attorney arguing on behalf of a state or group of states as amicus curiae. As discussed in my recent article for Green Bag 2D, “ The Modern History of State Attorneys Arguing as Amici Curiae in the U.S. Supreme Court,” the court appears once again willing to hear from the states even when no state is a party."
INDIAN LAW
Herrera v. Wyoming , ___ S. Ct. ____, 2019 WL 2166394 (U.S. May 20, 2019)
Summary written by Clay Smith, Chief Editor, AILD & WAGLAC
May 20, 2019
A member of the Crow Tribe (Herrera) was convicted in state court of taking elk in the Big Horn National Forest in violation of Wyoming law. Sitting in an appellate capacity, the state district court rejected, citing Ward v. Race Horse , 163 U. S. 504, 516 (1896), Herrera’s reliance on Article IV of the 1868 Fort Laramie Treaty that reserved to the Tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists ... on the borders of the hunting districts.” Race Horse addressed an identically worded provision in another 1868 treaty and held that (1) the hunting right terminated at Wyoming statehood conflicted with the right of States to regulate such activities within their borders and (2) no evidence existed in the treaty “that Congress intended the treaty right to continue in ‘perpetuity.’” The state district court also held that a Tenth Circuit decision issued almost a century after Race Horse , Crow Tribe v. Repsis , 73 F. 3d 982, 985 (10th Cir. 1995), had issue preclusion effect on Herrera’s defense. There, the Tribe raised, and lost, its preemption challenge to application of Wyoming law to its members’ hunting within the Big Horn National Forest. Repsis also concluded summarily that the National Forest was categorically “occupied” for treaty purposes when created by President Cleveland in 1897. The Supreme Court granted certiorari after the Wyoming Supreme Court denied review. Click below for full summary.
FEDERAL AGENCIES
Interior Announces Todd Willens as Chief of Staff
US Department of the Interior
May 17, 2019

"The U.S. Department of the Interior announced the appointment of Todd Willens to serve as Chief of Staff. Mr. Willens joined the Department in July of 2017 as the Associate Deputy Secretary and assumed the duties of the Acting Chief of Staff in January 2019."
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
State v. Thompson , ___ N.W.2d ___, 2019 WL 2079426 (Minn. Ct. App. May 13, 2019) Tribal officer possessed authority to detain non-Indian suspected of on-reservation driving while impaired and to transport him to the reservation boundary for transfer to a county deputy sheriff.
El Paso Natural Gas Co., LLC v. U.S. , ___ F. Supp. 3d ___, 2019 WL 2137265 (D. Ariz. May 16, 2019) The United States’ ownership-based liability under Comprehensive Environmental Response, Compensation, and Liability Act § 107(n) for cost recovery and contribution with respect to lands held in trust for a tribe could be satisfied only from non-land trust assets such as revenue derived from the use of the land and not the land itself.
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.