WAGLAC News & Updates
October 7, 2019
WAGLAC NEWS
UPCOMING MEETINGS
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. 
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. Announcement and agenda to follow.
ENVIRONMENT
States Echo Call for Supreme Court to Hear Permitting Dispute
E&E News
September 30, 2019

"A coalition of 21 states is calling on the Supreme Court to review a practice of prolonging state water quality permitting deadlines for complex federal infrastructure projects such as dams and pipelines.

California Trout Inc. and Trout Unlimited this summer asked the justices to reverse a U.S. Court of Appeals for the District of Columbia Circuit ruling finding that Oregon and California had "far exceeded" their authority under Section 401 of the Clean Water Act (Greenwire, Aug. 27). The provision allows states to certify that federally permitted projects comply with water quality requirements within their borders.

A panel of D.C. Circuit judges found the states had abused that power by reaching an arrangement with PacifiCorp to withdraw and resubmit certification applications for a set of hydroelectric dams along the Klamath River, effectively resetting the clock on the states' review.

Led by Oregon, the state coalition echoed the conservation groups' request for the Supreme Court to scrutinize the lower court's finding."
Appeals Court Tosses EPA 'Good Neighbor' Ozone Rule
E&E News
October 2, 2019

"A panel of appeals court judges scrapped a Trump-era rule that it said did not set strong enough restrictions on downwind states' exposure to smog-forming air pollutants produced by upwind neighbors.

The 2018 regulation, known as the closeout rule, relies on a part of the Obama-era Cross-State Air Pollution Rule (CSAPR) update that the U.S. Court of Appeals for the District of Columbia Circuit recently instructed EPA to revisit (Greenwire, Sept. 13).

EPA's closeout rule "did not require these reductions to be made by 2021, the next applicable attainment deadline," the court wrote in a judgment issued recently afternoon. 'Recently, we reaffirmed that the Clean Air Act requires upwind states to make such reductions.'"
Western Governor's Association Submits Comments on Waste Isolation Pilot Plant

“Western Governors are disappointed that the Technical Advisory Group (TAG) of state nuclear waste and transportation experts was not involved with updates to the Department of Energy’s (DOE) Strategic Plan for the Carlsbad Field Office and Waste Isolation Pilot Plant (WIPP). The TAG, established by WGA to address issues affecting the safe and uneventful movement of waste to WIPP, would have made a valuable contribution to DOE’s consideration of future plans and activities at WIPP, asserts the letter signed by WGA Chair North Dakota Gov. Doug Burgum and Vice Chair Oregon Gov. Kate Brown. “The Strategic Plan makes only minimal references to the crucial role that states play in planning, organizing, and transporting waste to WIPP,” notes the outreach shared on Sept. 30, 2019.”
Attorney General Becerra and Senator Mitchell’s Bill Tightening Restrictions on Toxic Metals in Jewelry Signed into Law
September 30, 2019

"California Attorney General Xavier Becerra and Senator Holly Mitchell (D-Los Angeles) applauded Governor Gavin Newsom for signing into law SB 647, a bill that protects consumers by updating California’s metal-containing jewelry laws to better reflect current science and international standards on the toxicity of lead and cadmium in jewelry. Lead and cadmium are toxic metals that can cause severe and chronic health effects including neurological impairments, kidney damage, seizures, comas, and death. Young children are especially susceptible to these adverse health effects, because their bodies and brains are still developing."
OIL & GAS
4 Pipeline Fights to Watch This Term
E&E News
September 30, 2019

"The Supreme Court could decide to wade into the natural gas pipeline wars this term.

As the court begins its 2019 session, energy experts are watching whether the justices will weigh in on federal permitting, eminent domain and state sovereignty issues around pipeline construction.

So far, the justices have opportunities to consider the Forest Service's authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail and to decide whether developers of the Mountain Valley project can lawfully seize private property before paying."
FISH & WILDLIFE
Judge Blocks Trump Admin in Sage Grouse Dispute
E&E News
October 4, 2019

"A federal judge in Idaho has shot down a request by the Bureau of Land Management and Forest Service to either toss or transfer a challenge to greater sage grouse habitat management plans.

The case is the latest iteration of a protracted legal battle over the federal government's 2015 resource management plan for the bird. This year, environmental groups amended that challenge to encompass BLM's revised final sage grouse plan, which is now in effect.

The green groups argued that BLM did not do enough to limit oil and gas drilling or livestock grazing in the greater sage grouse's habitat. BLM and the Forest Service had asked the U.S. District Court for the District of Idaho to evaluate whether the court was the right venue for the lawsuit, or if review of the resource management plan should be split up and heard in several states."
Defying Environmentalists, Newsom Vetoes Bill to Block Trump’s Endangered Species Act Rollback
LA Times
September 27, 2019

"Gov. Gavin Newsom vetoed a bill that would have allowed California to preserve Obama-era endangered species protections and water-pumping restrictions for the Sacramento-San Joaquin Delta should they be dismantled by the Trump administration, a move scorned by environmental groups that have been among the governor’s most important political allies."
SOVEREIGN LANDS
Judge Sides With Wilkinson Family in Lake Sakakawa Mineral Dispute
Bismarck Tribune
September 10, 2019

A Williams County judge has sided with a family whose lawsuit over oil and gas mineral rights under Lake Sakakawea reached the North Dakota Supreme Court in 2017.

An attorney for the family says he thinks the decision could impact hundreds of mineral
owners with interests under Lake Sakakawea.

Northwest District Judge Paul Jacobson issued the decision late last week after the Supreme Court reversed his initial ruling and sent the case back for further consideration. In his new
opinion, he concludes that “the State has no basis to continue claiming that it owns the
Wilkinsons’ property."
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
Lozeau v. Anciaux , 2019 MT 235, ___ P.3d ___ (Mont. Oct. 1, 2019): Montana properly asserted Public Law 280 jurisdiction over the Flathead Indian Reservation.
Fort McDermitt Paiute and Shoshone Tribe v. Azar , ___ F. Supp. 3d ___, 2019 WL 4711401 (D.D.C. Sept. 26, 2019): Tribe is entitled to receive as part of its recurring contract amount under an Indian Self-Determination and Education Assistance Act contract for operation of an emergency medical services program and a health clinic amounts attributable to provision of services to another tribe and amounts received from third-party sources that were expended by the Indian Health Service in the year prior to the Tribe’s proposed assumption of responsibility for the EMS program and the clinic. 
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.