WAGLAC News & Updates
October 21, 2019
WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a 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
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Natural Resource Damages and a field trip to Butte and Anaconda cercla sites. Announcement and agenda to follow.
WAGLAC Fall Meeting
October, 2020
The Grove Hotel
Boise, Idaho
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law issues. Announcement and agenda to follow.
National and Regional State Organizations Comment On Proposed CWA Section 401 Rule

Twelve National and Regional State Organizations led by the Western Governors’ Association sent a comment letter to the U.S. Environmental Protection Agency (EPA) expressing “concerns about the substantial effects the proposed rule would have on states’ authority and autonomy to manage and protect water resources and to implement Clean Water Act Section 401. The letter requests that EPA “respond to and incorporate the numerous CWA Section 401 process reforms proffered to the agency on February 20, 2019, by the Western Governors’ Association, National Conference of State Legislatures, Association of Clean Water Administrators, Association of State Wetland Managers, Council of State Governments –West, and Western States Water Council (attached). Those recommendations are intended to address several aspects of CWA Section 401 that EPA has identified as needing clarification and revision, including:
  • Preservation of state authority under a system of cooperative federalism;
  • Timelines for state certification review;
  • Increased early coordination and communication between applicants and state and federal
  • The scope of state certification review and conditioning; and
  • Data and staffing needs.
We are disappointed that EPA has failed to acknowledge these process recommendations, let alone explain why the process reforms were not incorporated into the proposed rule.”
Climate Change Cases in State Courts

"An Alaska law promoting fossil fuel development infringes on the constitutional rights of young residents to a healthy environment, a lawyer told Alaska Supreme Court justices.A lawsuit filed by 16 Alaska youths claimed long-term effects of climate change will devastate the country's northernmost state and interfere with their constitutional rights to
life, liberty and public trust resources that sustain them."

"A federal judge denied two energy companies' request for a stay on a previous order sending the city of Boulder and Boulder County's climate change lawsuit back to state court, pending their appeal aimed at keeping it in federal court. The same judge turned down the energy companies' emergency motion seeking a reconsideration of the original order to kick the case back to court in Boulder. "
Supreme Court Formalizes Guidance for Its ‘Friends’
Bloomberg Law
October 17, 2019

"The Supreme Court issued guidance for filers of friend-of-the-court briefs. It’s the second round of guidance issued by the court in recent weeks. Just before the start of the new term, it issued protocols noting that the justices must give advocates two minutes to get their arguments going before they can interrupt with comments or questions."
Corps Agrees to Consult with States and Tribes Regarding Water Supply Rule
Major General Spellmon spoke to the National Water Supply Alliance and the Western States Water Council about the Corps proposed water supply rule. General Spellmon said the Corps heard the federalism concerns “loud and clear.” He admitted the Corps made a mistake in not acknowledging the federalism implications of the rule. General Spellmon said the Corps will meet with every state and tribe that wants to discuss the rule, and will issue a federal register notice opening a federalism consultation period on the rule that will run from January 15 to March 15, 2020. He said the Corps acknowledges the authority of states to allocate and administer natural flow of rivers, and will seek to make that point clear in the rule. The General committed to revising the definition of surplus water and welcomed state assistance in drafting a new definition. He stated “surplus water” is not a Corps term, but feels compelled to define the term because it appears in Section 6 of the 1944 Federal Flood Control Act. Finally, the General said that the Corps does not intend to charge for water; but, rather, seeks to recover its costs for processing water supply agreements. As for storage water contracts, the Corps wants to figure out a way to amortize the cost of providing storage.
Nevada Seeks to Restart Lawsuit Over US Plutonium Shipment
Reno Gazette Journal
October 17, 2019

"Lawyers for Nevada and the U.S. Energy Department are accusing each other of contradicting their own past arguments as the state seeks to restart a legal challenge to force the government to remove weapons-grade plutonium it secretly shipped last year to a site near Las Vegas.

A federal judge in Reno refused earlier this year to issue a temporary injunction banning shipments of the radioactive material to Nevada after the government disclosed in January it already had trucked one-half metric ton of plutonium there.

The 9th U.S. Circuit Court of Appeals refused to overturn that decision in August, agreeing the matter was moot because the plutonium was already there. The San Francisco-based court declined to consider a new request to force removal of the material because Nevada’s original lawsuit didn’t seek such relief."
State’s Removal of a Case From State to Federal Court Waives Eleventh Amendment Immunity
9th Cir. Oct. 16, 2019

Ninth Circuit establishes a categorical rule that a State’s removal of a case from state to federal court waives Eleventh Amendment immunity as to all federal law claims.

A group of correctional officers brought an action in state court against the State of Nevada and its Department of Corrections alleging claims under the Fair Labor Standards Act and state law. The state defendants removed the case to federal court and asserted in their answer “immunit[y] from liability as a matter of law.” Almost four years into the litigation, the defendants filed a motion to dismiss on the basis of sovereign immunity from suit under the Eleventh Amendment. The district court denied the motion with respect to the FLSA claims but granted it as to all but one of the state-law claims. After the parties stipulated to dismissal of the remaining state-law claim, the defendants appealed under the collateral order doctrine. The Ninth Circuit affirmed. Walden v. Nevada , No. 18-15691, 2019 WL 5199557.
Sage Grouse Ruling Scrambles Leasing Outlook
E&E Reporter
October 18, 2019

"A federal judge's decision this week casts uncertainty over large areas of Western public land that the Trump administration has offered up to the oil and gas industry.
Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho on Wednesday temporarily reinstated Obama-era protections for the iconic sage grouse from oil and gas drilling on federal land, pending the outcome of a broader lawsuit opposing Trump administration revisions.

Under the "energy first" agenda of the Trump White House, oil and gas leasing has shot up. Regulations perceived to hamper industry's success — like the restrictions put in place to protect the bird — have been pared away."
Yakama, Lummi Tribal Leaders Call for Removal of Three Lower Columbia River Dams
The Seattle Times
October 14th, 2019

"The Yakama and Lummi nations called for taking down the Bonneville, The Dalles and John Day hydroelectric dams on the Columbia River to restore salmon runs once the mightiest in the world.

The three big energy producers churn out enough electricity to power more than 2 million Pacific Northwest homes annually and also provide an important inland navigation route for commercial goods.

The tribes’ call for main-stem dam removal intensifies a long-running debate over the teardown of dams in the Columbia River Basin. This year in particular feels desperate for tribes and fishermen and advocates of endangered southern resident orcas, which rely on chinook salmon from the river. Some fish runs are at 13 percent of their 10-year averages."
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
Castleberry v. Arkansas Dept. of Human Servs. , 2019 Ark. App. 404, ___ S.W.3d ___ (Ct. App. Sept. 25, 2019): Circuit court’s determination that father’s continued custody would likely result in serious emotional or physical damage to his child was not clearly erroneous.
In Matter of I.C. , 299 Ore.App. 668, ___ P.3d ___ (Ct. App. Oct. 9, 2019): Where a juvenile court made “active efforts” findings under the Indian Child Welfare Act when it changed Indian children’s permanency plans from reunification to guardianship, the court was not required to make those findings again when it established the guardianships.
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.
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.