WAGLAC News & Updates
May 28, 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
Comment Period on CWA Section 401 Docket Closes

Friday was the last day to submit pre-proposal recommendations on the forthcoming Clean Water Act Section 401 Water Quality Certification rule making. Below are the comments submitted by the Western Governors Association and 10 other state organizations, the Western States Water Council, Environmental Council of States and Comments of 7 State Attorneys General submitted by Louisiana Attorney General Jeff Landry. and Comments of 16 State Attorneys General submitted by California Attorney General Xavier Becerra.

All recommendation proposals are posted on EPA’s website at:   https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0855 .
United States Files Amicus Brief in County of Maui
 
The United States asserts “[t]he NPDES program does not apply to groundwater pollution” because “[t]he CWA’s definition of ‘discharge of a pollutant’ applies only where pollutants are added to one of three categories of water: navigable waters, waters of the contiguous zone, and the ocean. 33 U.S.C. 1362(12)(A) and (B). All three are surface waters, and they are sometimes referred to as ‘jurisdictional surface waters’ because they reflect the limits of the NPDES program’s coverage. Groundwater is distinct from surface water, and the Act addresses them separately. But in contrast to the Act’s treatment of jurisdictional surface waters, Congress confined the federal role in protecting groundwater under the NPDES program to providing the States with informational, organizational, and resource-based assistance.”
Cow Manure: An Unexpected Climate Solution
E&E News
May 21, 2019

"Historically one of the most polluting industries in California, dairy farms are fixing how they contribute to climate change. And they are doing it with manure. California is the country's dairy capital, pumping a fifth of America's milk. Those dairies, however, also produce more than half of the state's emissions of methane, a potent heat-trapping gas. It comes in roughly equal amounts from both the front of cows — in burps — and the back — in manure. The dairies have to do something about their emissions, or they risk going out of business. In 2016, California became the first state to pass legislation regulating dairy methane, requiring the farms to cut their manure emissions 40% by 2030."
AG Balderas’ Statement on Contamination near Holloman Air Force Base
May 9, 2019

Please see the attached press release and letter from Attorney General Hector Balderas and New Mexico Environment Secretary James Kenney.
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 re Child of Radience K. , 2019 ME 73, ___ A.3d ___ (May 21, 2019) District court properly held that state agency satisfied the active efforts requirement in the Indian Child Welfare Act and denied the father’s motion to transfer the proceeding to tribal court as untimely.
State v. Roy , ___ N.W.2d ___, 2019 WL 2203545 (Minn. S. Ct. May 22, 2019) Tribal member was not entitled to credit for pre-conviction time served in a tribal detention center related to a tribal law-based offense to reduce prison time imposed for a prior state conviction.
Herrera v. Wyoming , ___ S. Ct. ____, 2019 WL 2166394 (U.S. May 20, 2019) (1)  Minnesota v. Mille Lacs Band of Chippewa Indians , 526 U. S. 172 (1999), repudiated the reasoning in  Ward v. Race Horse , 163 U. S. 504, 516 (1896), and therefore eliminated any preclusive effect of the judgment in  Crow Tribe of Indians v. Repsis , 73 F. 3d 982 (10th Cir. 1995), with respect to whether the right to hunting “on unoccupied lands of the United States” under the 1868 Treaty of Fort Laramie survived Wyoming’s admission to statehood. (2) The 1868 Treaty right was neither abrogated impliedly by Wyoming’s statehood nor terminated on its own accord at statehood. (3) Lands within the Big Horn National Forest were not categorically “occupied” for treaty purposes by its creation, but the State is not precluded on remand from arguing that the area in which the involved elk were taken was “occupied” or that it may regulate the treaty right’s exercise in the interest of conservation.
Tolowa Nation v. United States , ___ F. Supp. 3d ___, 2019 WL 1975442 (N.D. Cal. Mar. 12, 2019) Tribe failed to establish that the Department of the Interior acted in violation of the Administrative Procedure Act by denying its application for federal recognition.
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.