WAGLAC News & Updates
November 4, 2019
WAGLAC NEWS
UPCOMING MEETINGS
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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
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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
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WAGLAC Fall
Meeting
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.
ENVIRONMENT
EPA TO ROLL BACK RULES TO CONTROL TOXIC ASH FROM COAL PLANTS
New York Times
October 31, 2019

“The Trump administration is expected to roll back an Obama-era regulation meant to limit the leaching of heavy metals like arsenic, lead and mercury into water supplies from the ash of coal-fired power plants, according to two people familiar with the plans.
With a series of new rules expected in the coming days, the Environmental Protection Agency will move to weaken the 2015 regulation that would have strengthened inspection and monitoring at coal plants, lowered acceptable levels of toxic effluent and required plants to install new technology to protect water supplies from contaminated coal ash.”  
ARGUMENT PREVIEW: JUSTICES TO CONSIDER REACH OF CLEAN WATER ACT'S PERMITTING REQUIREMENT
SCOTUS Blog
October 30, 2019
“The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation’s waters of any pollutant that comes “from any point source.” Congress’ high hopes for the cleansing power of the act’s permitting system are reflected in the name Congress chose for it – the “national pollutant discharge elimination system” – and the attendant statutory goal that “the discharge of pollutants into the navigable waters be eliminated by 1985.” Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system’s reach. County of Maui, Hawaii v. Hawaii Wildlife Fund , which will be argued next Wednesday, asks whether the act 'requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.’”
WATER LAW
WALL STREET SPENDS MILLIONS TO BUY UP WASHINGTON STATE WATER
Seattle Times
October 28, 2019

“Follow the water and you’ll find the money.

"That’s how it often works in the dusty rural corners of Washington, where a Wall Street-backed firm is staking an ambitious venture on the state’s water.

"Crown Columbia Water Resources since 2017 has targeted the water rights of farms on tributaries of the mighty Columbia River.
. . .

"Amid a changing climate , a population boom in Washington and churning development, Peterson’s client plans to buy, lease and sell water in a privately operated water market of its own creation. Crown’s activities here are unprecedented in scope for a private firm.
. . .

"Crown has faced regulatory scrutiny from the state Ecology Department. And in emails, some officials privately expressed concern over Wall Street influence on water markets.
"Some critics fear business models like Crown’s could lead to speculation or consolidation.

"'We’re potentially allowing a marketplace to develop here that could be pretty destructive in the future,' said Paul Jewell, a policy director for the Washington State Association of Counties. 'With a growing population and growing need for water, we’re going to be beholden to private interests with a profit motive for something that’s supposed to be a public resource.'"
STATE SOVEREIGN LANDS
DOES A PRIVATE CITIZEN HAVE A RIGHT TO ASSERT ACCESS TO FISH ON A NAVIGABLE RIVER?

The United States Court of Appeals for the Tenth Circuit is scheduled to hear argument in Hill v. Warsewa (19-1025) later this month. At issue in the case is whether the equal footing doctrine or the doctrine of navigability for title creates an individual interest in the use of navigable riverbeds.

Hill alleges that Warsewa and Joseph illegally barred him from fishing on a stretch of the Arkansas River, which Warsewa and Joseph claim to own. Hill contends the bed of the Arkansas River adjacent to any privately owned property is public land owned by the State of Colorado in trust for the public by virtue of the doctrine of navigability for title, and that the State of Colorado’s title is encumbered by an easement that gives Hill the right to fish on the river. Hill filed a declaratory judgment and quiet title action in Colorado state court, which was subsequently removed to federal court. All respondents, including the State of Colorado, filed motions to dismiss asserting Hill lacked prudential standing to bring the action. Hill filed a motion to remand the case back to state court for lack of subject matter jurisdiction under the Eleventh Amendment and a motion to certify the question of the nature of the State of Colorado’s title in navigable riverbeds to the Colorado Supreme Court. The District Court granted the motions to dismiss because it found Hill (1) lacked prudential standing and (2) had asserted only a generalized grievance. Hill’s motions were denied as moot.
FISH & WILDLIFE
THE NEW WEAPON IN THE WAR OVER DAM REMOVAL
Jeremy P. Jacobs, E&E News reporter
October 23, 2019

“The decades long Pacific Northwest salmon war may be nearing the end.

But it's economics, not fish, that could be the demise of four dams at the center of the fight. The dams on the Lower Snake River — besieged by conservationists and biologists for killing fish — are now battered by falling prices for renewable energy, skyrocketing replacement costs for aging turbines and a growing tab for environmental mitigation.
. . . .
The Lower Snake River dams account for 5% to 13% of the Bonneville Power Administration's power generation. But due to river flow conditions and endangered species requirements for fish, they produce far less than their capacity — and they are most productive at exactly the wrong time.
. . . .
When power demand is high, supply from the eastern Washington dams is low. When demand is low, the dams produce too much electricity when combined with BPA's other generation.

There are other factors, as well, including BPA's financial health. The federal power agency is $15 billion in debt, and its electricity rates have climbed 30% since 2008 as the wholesale market has fallen due to growing supplies of wind, solar and natural gas . . ..

Hydropower is no longer the Northwest's cheapest energy, and if BPA wants to get its books in order, critics say, it should start by removing expensive and possibly money-losing assets like the four Lower Snake River dams from its books.”
INDIAN LAW SUMMARY UPDATES
New Indian Law Case Summaries
Cayuga Nation v. Bernhardt , 374 F. Supp. 3d 1 (D.D.C. 2019) : Department of the Interior did not violate the Administrative Procedure Act or the Due Process Clause in recognizing one tribal faction as the Cayuga Nation’s governing body for purposes of entering into Indian Self-Determination and Education Assistance Act contracts.
Cayuga Nation v. Campbell , ___ N.E.3d ___, 2019 WL 5549801 (N.Y. Ct. App. Oct. 29, 2019) : New York courts lacked jurisdiction to resolve tort, replevin and trespass claims brought by one tribal faction against another faction notwithstanding 25 U.S.C. § 233 and N.Y. Indian Law §§ 5 and 11-a.
Drake v. Salt River Pima-Maricopa Indian Community , ___ F. Supp. 3d ___, 2019 WL 5653447 (D. Ariz. Oct. 31, 2019) : Tribe possessed immunity from suit for claim under Title III of the Americans with Disabilities Act.
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.
ENFORCEMENT OF TRAFFIC LAWS IN INDIAN COUNTRY
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.  
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.