WAGLAC News & Updates
November 11, 2019
WAGLAC Winter Meeting
February 17-18, 2020
Westin San Diego
San Diego, California

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Water Law Issues
-Please plan to arrive February 16th
-The contracted room rate is $209/night
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
-Announcement and agenda to follow
October, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Announcement and agenda to follow.
Argument Analysis: Context Trumps Text As Justices Debate Reach of Clean Water Act
November 7, 2019

"The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” On Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former, the County of Maui wins, because the millions of gallons of treated sewage it discharges into its underground wells run through groundwater before reaching the Pacific Ocean. If it means the latter, the environmental groups win, because the treated sewage originates from the county’s wells, and all agree that these wells are point sources under the statute.

At oral argument yesterday, the justices appeared to find little purchase in the bare word 'from.'"
EPA Continues Progress Under PFAS Action Plan
Environmental Protection Agency
November 7, 2019

"As part of the U.S. Environmental Protection Agency’s (EPA) extensive efforts to help communities address per- and polyfluoroalkyl substances (PFAS) under the PFAS Action Plan, the Agency is releasing the Systematic Review Protocol for five PFAS toxicity assessments for a 45-day public comment period. The assessments are being developed under the Integrated Risk Information System (IRIS) Program. In addition to this assessment, EPA took an important step in September by sending two regulatory proposals on PFAS for interagency review. By the end of the year, EPA will issue its proposed regulatory determination for PFOA and PFAS which is the next step in the drinking water standard setting process outlined in the Safe Drinking Water Act (SDWA)."
Idaho, DOE Announce Deal On Spent Fuel, Waste Cleanup
The Post Register
November 7, 2019

"The state of Idaho and the U.S. Department of Energy have reached a deal that could allow the resumption of shipments of spent research fuel to Idaho National Laboratory.

Under the agreement, which could end years of impasse, INL would get a one-time waiver to receive 25 commercial power spent nuclear fuel rods, weighing about 100 pounds in total, from the Byron Nuclear Generating Station in Illinois. However, before this could happen, DOE would have to prove its ability to treat the 900,000 gallons of liquid radioactive waste being stored at DOE’s desert site west of Idaho Falls in tanks above the East Snake Plain Aquifer by successfully producing one full canister of dry treated waste. After years of delay, the Integrated Waste Treatment Unit started to hold test runs on simulant there in fall 2018."
Fifth Circuit Order Rehearing En Banc in Challenge to The Indian Child Welfare Act

On November 7, 2019, the Fifth Circuit ordered en banc rehearing of a challenge brought by three States and seven individual parties to the constitutionality of the Indian Child Welfare Act and the validity of a regulation issued by the Secretary of the Interior concerning its implementation. A three-judge panel, with one member dissenting in part, reversed a district court judgment in the plaintiffs’ favor.  Brackeen v. Bernhardt , 937 F.3d 406 (5th Cir. 2019). Oral argument before the en banc court is tentatively calendared for the week of January 20, 2020. Links to the rehearing order and the panel majority and dissenting opinions follow.
Colorado Prop DD, The Sports Betting Measure, Narrowly Passes
The Denver Post
November 6, 2019

"Legalized sports betting can begin in six months in Colorado.

Proposition DD, the measure that was too close to call on election night, widened its lead in overnight and morning vote-counting, and The Associated Press predicted Wednesday afternoon that it will pass. With more than 1.4 million ballots counted, Prop DD had 50.8% of the vote by late afternoon, according the Colorado Secretary of State’s Office.

The proposition’s approval will allow the state’s 17 casino operators to apply for licenses for physical or online sportsbooks, where bets can be placed on the outcomes of sports events. The casinos have to pay a 10% tax on net proceeds, and a majority of the money will go toward Colorado’s water plan."
Department of the Interior Announces Enhanced Processes for Public Records Requests
Department of the Interior
October 25, 2019

"The U.S. Department of the Interior (DOI) announced the issuance of a Final Rule amending its Freedom of Information Act (FOIA) regulations. The revisions will help create a more efficient and transparent process that are aligned with recent legal developments, court decisions and policy guidance from the Department of Justice (DOJ) and has bipartisan support from Congress."
USDA Releases Interim Final Rule on With Guidance on State Plans
Attorney General Alliance Cannabis Newsletter

After much anticipation, on October 31, 2019, the U.S. Department of Agriculture issued an interim final rule which outlines state hemp plan approval requirements. Under the 2018 Farm Bill, the cultivation of hemp and manufacturing of CBD products must occur under state approved plans. As noted by Squire Patton Boggs, the rule and concurrent guidelines do not create uniform testing standards or seed certification programs. Comment period is open for sixty days from release of the rule. The interim rule also does not provide guidance on the FDA's regulation of food and dietary products infused with CBD. 

Meanwhile, research recently published from the Grocery Manufacturers Association found that while nearly 1/3 of Americans have purchased a CBD product, there is widespread confusion about the regulation and contents of CBD infused products. The survey indicates that 39% of respondents believe CBD is another name for marijuana, and 51% of respondents believe CBD is a psychoactive substance when it is not. Most concerning, 76% of respondents believe CBD products are subject to FDA regulation, when in fact the agency has approved only one product, Epidiolex, as a treatment for epilepsy.

This past October, the Cannabis Project hosted a CBD and Hemp webinar with panelists from public and private sector. What is beyond question is that Attorneys General can play a large role in protecting consumers and public health in this rapidly growing industry. The AGA will continue to monitor the evolving regulatory climate and report back.
Vaping Crisis Continues As Death Toll Rises to 37
Attorney General Alliance Cannabis Newsletter

EVALI (e-cigarette, vaping associated lung injury) is the term used to describe illnesses caused by nicotine and THC vaping. To date, the CDC reports 1,888 confirmed cases of EVALI, including 37 deaths across 24 states. Results from a survey in Illinois and Wisconsin indicate 76% of the reported cases were identified with THC use. However, no single compound or ingredient is the cause of the health crisis, and it may be that more than one compound is the cause. Regardless, the CDC recommends patients and consumers avoid using vaping products (THC or nicotine) purchased from “off-the-street” vendors or friends, and to refrain from modifying products purchased from a legal vendor. More information form the CDC can be found in the Morbidity and Mortality Weekly Report (MMWR).

In September, Massachusetts Governor Baker issued a total ban on nicotine and THC vaping products. The ban faced litigation from nicotine vaping shop owners. At the preliminary injunction hearing on October 28, a state court judge required the administration to promulgate emergency rules, which would shorten the length of the Governor’s initial ban by one month. Attorney General Maura Healy’s office is defending the ban. State responses continue to vary. Oregon and Washington state are the latest to issues emergency rules banning vaping products to some degree. Industry members in Washington state filed a lawsuit to enjoin the ban. The Cannabis Project will monitor this developing litigation and report back.
SAFE Banking Act Passes the House But Path Forward is Unclear
Attorney General Alliance Cannabis Newsletter

On Wednesday, September 25, 2019, the House of Representatives passed the SAFE Banking Act. The bill sailed through with 229 Democrats and 91 Republicans voting in favor. The bill creates a safe harbor for banks serving the cannabis industry. Sen. Crapo (R-ID), the Chairman of the Senate Banking Committee, stated he would be interested in hearing a cannabis banking bill in committee before the end of the year. It is unclear whether the committee will the House version or something different. Despite these initial promising signs, forward movement is complicated by the politics of competing legislation. For one, the Senate must decide what to do with the STATES Act, led in the Senate by Sen. Corey Gardner (R-CO) and Sen. Elizabeth Warren (D-MA). The STATES Act creates protections for states with cannabis programs but does not deschedule cannabis from the C.S.A. On the other hand, the MORE Act, led by Sen. Kamala Harris (D-CA) and Rep. Jerry Nadler (D-NY) removes cannabis from the C.S.A. entirely and includes much called for social equity components. Aside from the complications of additional cannabis legislation, Sen. Gardner faces a tough reelection campaign, which means Senate Democrats might be reluctant to grant him a win.
New Indian Law Case Summaries
Ute Indian Tribe of Uintah and Ouray Indian Reservation v. U.S. , ___ Fed. Cl. ___, 2019 WL 5688826 (Nov. 4, 2019) Tribe’s causes of action based on breach of trust and statutory violations with respect to alleged mismanagement of the and wrongful appropriation of revenue from the Tribe’s surplus property within the Uncompahgre Reservation failed to state a claim and were time-barred under 25 U.S.C. § 2501. Fact questions existed over whether the Tribe’s taking claim was barred by settlement or § 2501.
In Matter of K.L. , 2019 MT 256, 2019 WL 5561035 (Oct. 29, 2019) Order terminating father’s parental rights reversed for failure to provide requisite active efforts, and case remanded to allow the state agency provide such efforts.
New York v. Mountain Tobacco Co. , ___ F.3d ___, 2019 WL 5792487 (2d Cir. Nov. 7, 2019) (1) Imposition of New York State cigarette tax law on a Yakama Nation member-owned corporation did not violate the dormant Commerce Clause; (2) claim that the tribal corporation violated a New York statute prohibiting sale of unstamped cigarettes directly to Indian tribes or reservation sellers not licensed as stamping agents was not barred by res judicata, and the corporation violated that statute; (3) application of the New York cigarette tax statutes to the tribal corporation was not preempted by federal common law or the 1855 Yakama Nation Treaty; (4) the tribal corporation’s sale and transport of cigarettes from its place of business on the Yakama Reservation in Washington State to New York Indian reservations constituted “interstate commerce” under the Prevent All Cigarette Trafficking Act; and (5) the tribal corporation constituted “an Indian in Indian country” exempted under 18 U.S.C. § 2346(b)(1) from the prohibition against the sale of contraband cigarettes under the Contraband Cigarette Trafficking Act.
Brackeen v. Bernhardt , ___ F.3d ___, 2019 WL 5847349 (5th Cir. Nov. 7, 2019) : Order  directing the appeal to be reheard en banc.
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
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.
Fronda Woods, Assistant Chief Editor of the American Indian Law Deskbook, prepared a Power Point summarizing the legal principles governing enforcement of traffic laws in Indian County. The Power Point will be of assistance to those unfamiliar with this area of Indian law.  
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
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@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.