WAGLAC News & Updates
November 18, 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.
Corps Responds to CWAG Water Supply Rule Letter

On October 31, 2019, the Corps of Engineers sent a response to CWAG Attorneys General letter expressing concerns regarding the Corps’ proposed Water Supply Rule. Director of Civil Works James Dalton said the Corps halted “the issuance of a final Water Supply Rule until the consultation process and coordination with interested States, Tribes and partners is complete.” He also stated that “[t]he proposed rule is intended to enhance the Corps ability to make its reservoirs available for water supply uses in a manner that is consistent with the authorized purposes of those reservoirs, and State and Tribal water rights. The rule is not intended to establish or define water rights, or interfere with State or Tribal prerogatives to allocate water. . . . The Corps does not, and would not under the proposed rule, issue, sell, adjudicate, or allocate water rights. We are interested in discussing further with States and Tribes how we could clarify or improve the proposed rule.”
California and Nearly Two Dozen Other States Sue Trump Administration for the Right To Set Fuel-Efficiency Standards
The Washington Post
November 15, 2019

"California and 22 other states sued the Environmental Protection Agency on Friday, asking a federal court to block the Trump administration from stripping the nation’s most populous state of its long-standing authority to set its own fuel-efficiency standards on cars and trucks.

The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, marks the latest round in an escalating fight between the White House and California officials over how quickly the nation’s auto fleet must increase its fuel-efficiency. Already, the feud has led to several legal skirmishes, a divided automotive industry and uncertainty in the nation’s car market."
E.P.A. to Limit Science Used to Write Public Health Rules
The New York Times
November 11, 2019

"The Trump administration is preparing to significantly limit the scientific and medical research that the government can use to determine public health regulations, overriding protests from scientists and physicians who say the new rule would undermine the scientific underpinnings of government policymaking.

A new draft of the Environmental Protection Agency proposal, titled Strengthening Transparency in Regulatory Science, would require that scientists disclose all of their raw data, including confidential medical records, before the agency could consider an academic study’s conclusions. E.P.A. officials called the plan a step toward transparency and said the disclosure of raw data would allow conclusions to be verified independently."
Safer   Chemicals, Healthy Families v. U.S. Environmental Protection Agency , Nos. 17-172260 et al., 2019 WL 5997404 (9 th  Cir. Nov. 14, 2019)
Clay Smith, Chief Editor, AILD

The Ninth Circuit address a number of challenges to EPA’s 2017 Risk Evaluation Rule issued under the Toxic Substances Act. In summary, the panel opinion (1) held that a challenge to the process by EPA will conduct determinations under the Rule was non-justiciable because it lacked constitutional ripeness; (2) rejected a challenge to the Rule as contravening the TSCA’s requirement that EPA consider all of a chemical’s “conditions of use” when conducting a risk evaluation; (3) upheld challenge to the Rule’s excluding “legacy uses” and “associated disposals” from the TSCA’s and the Rule’s definition of “conditions of use”; and (4) rejected a challenge to the Rule’s excluding “legacy disposal[s]” from the definition of “conditions of use.”
The Council of State Governments (CSG) Roundup: WOTUS & Clean Water Act Update for State & Local Government Officials
November 14, 2019

"CSG West is presenting a seminar on December 11 on Waters of the United States (WOTUS). “Samuel Brown, a former EPA attorney, and currently a partner at Hunton Andrews Kurth LLP, will provide an overview of how we got to the recent repeal of the 2015 WOTUS rule, what WOTUS rule applies throughout the United States currently, what final rules replacing the repeal of the 2015 WOTUS rule might look like, and how the upcoming presidential election may affect the definition of WOTUS and all the litigation surrounding it.”
CWAG WEBINAR: Traffic Law Enforcement, Violence Against Women Act, and Sports Betting Issues in Indian Country

The annual CWAG Indian Law West LegalEdcenter webinar will be on November 20, 2019 beginning at 11:30 am ET and ending at 1:00 pm ET. The title is Traffic Law Enforcement, Violence Against Women Act, and Sports Betting Issues in Indian Country. The speakers are Fronda Woods (Traffic Enforcement), O.J. Flores (Violence Against Women Act), and Clay Smith (Sports Betting). The program is audio only, but PowerPoint presentations are available for registrants. The cost is $195.

To register, follow the link below. From the homepage, locate the calendar on the bottom right and select "November 20th." This webinar should then be listed at the top.

The completed program will be available for download at the LegalEdcenter for those unable to attend on November 20.
Interior Paves Way for Transfer of Roads to States
E&E News
November 12, 2019

"The Interior Department is weighing whether to cede a 10-mile stretch of gravel road in Utah to state control, and conservationists worry a favorable decision could trigger an avalanche of similar requests — and a potential loss of public lands access.
In a notice in the Federal Register on Friday, Interior revealed it would open a 30-day review of control of Manganese Road in southwest Utah.

Nearly all of the 10.18-mile thoroughfare sits on lands governed by the Bureau of Land Management. Interior's approval would give control of the right of way — including maintenance and improvements — to state and local officials."
The Future of Water Law
Christal Keegan, Esq.

Please follow this link to access an Interview with Justice Ronald B. Robie of the California Court of Appeal, Third Appellate District, and Colorado Supreme Court Justice Gregory J. Hobbs, Jr.
Court Tosses Farmers' Takings Claim in Klamath Battle
E&E News
November 14, 2019

"A federal appeals court rejected a claim from farmers in southeastern Oregon that their property rights were violated when federal regulators cut off water deliveries in 2001 to save endangered fish in the Klamath River.

The ruling from the U.S. Court of Appeals for the Federal Circuit follows 18 years of litigation stemming from a decision from George W. Bush's administration to cut off water delivery from an irrigation project to safeguard

That decision spurred protests, including some that nearly turned violent. And it spurred lawsuits contending that shutting off water deliveries from the federal Klamath Project amounted to an unconstitutional taking of property
without just compensation.

In this decision, the federal circuit ruled against the remaining challengers in the case. But it sidestepped the sticky issue of whether water diversions for Endangered Species Act protections could be challenged as a taking."
How the DACA Battle Could Change Environmental Law
E&E News
November 12, 2019

"At the heart of a Supreme Court battle over the Trump administration's decision to walk back deportation protections for immigrants who came to the United States illegally as children is a question that could have a domino effect for administrative law and environmental policy.

Government attorneys asked the high court to find that the courts cannot scrutinize a 2017 Department of Homeland Security memo that walked back the Obama administration's Deferred Action for Childhood Arrivals policy and that the rescission is lawful under the Administrative Procedure Act, which governs rulemaking by federal agencies such as the Interior Department and EPA."
New Indian Law Case Summaries
In re N.R. , ___ S.E.2d ___, 2019 WL 5875962 (W. Va. Nov. 7, 2019) Circuit court did not violate the notice, active efforts or qualified expert witness requirements of the Indian Child Welfare Act, and the parents’ challenge to the foster care placement of the Indian children in two separate, non-Indian homes, rather than a single family residing on the father’s California reservation, was premature.
U.S. v. Washington , ___ F. Supp. 3d ___, 2019 WL 5963052 (W.D. Wash. Nov. 13, 2019) Lummi Nation preliminarily enjoined from exercising claimed treaty rights in a crab fishery.
Baley v. U.S., ___ F.3d ___, 2019 WL 5996861 (Fed. Cir. Nov. 14, 2019): No compensable taking occurred when the Bureau of Reclamation temporarily terminated water deliveries in 2001 from the Klamath River Basin Project to farmers and irrigation districts pursuant to a reasonable and prudent alternative specified in a biological opinion issued by the National Marine Fisheries Service.
FMC Corp. v. Shoshone-Bannock Tribes, ___ F.3d ___, 2019 WL 6042469 (9th Cir. Nov. 15, 2019): District court properly accorded comity to a tribal court’s judgment against a non-Indian corporation for $20.5 million in unpaid permit fees, attorney’s fees and costs and $1.5 million in continuing annual use permit fees.
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.