WAGLAC News & Updates
September 16, 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
EPA, U.S. Army Repeal 2015 Rule Defining “Waters of the United States” Ending Regulatory Patchwork
Environmental Protection Agency
September 12, 2019

"At an event in Washington, D.C., U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced that the agencies are repealing a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act. The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 Rule—ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States."
EPA Seeks Comment and Commitment on Draft National Water Reuse Action Plan
Environmental Protection Agency
September 10, 2019

"At the 34th Annual WateReuse Symposium in San Diego, California, the U.S. Environmental Protection Agency (EPA) announced the release of a draft National Water Reuse Action Plan that identifies priority actions and the leadership and collaboration that is needed between governmental and nongovernmental organizations to implement these actions. Water reuse represents a major opportunity to support our nation’s communities and economy by bolstering safe and reliable water supplies for human consumption, agriculture, business, industry, recreation and healthy ecosystems."
Superfund Task Force Issues Final Report and Announces Plans to Continue Program Improvements Moving Forward
Environmental Protection Agency
September 9, 2019

"In Chattanooga, Tennessee, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the completion of the Superfund Task Force and issued the Task Force’s final report outlining significant accomplishments over the past two years at Superfund sites across the country. The announcement, made from the Southside Chattanooga Superfund Site, included plans for integrating the work of the Task Force into EPA’s ongoing cleanup work moving forward."
Red States Seek to Join Litigation Over Trump Climate Rule
E&E News
September 13, 2019

"Red states filed a brief last night supporting the rollback of Obama-era rules that they say "unconstitutionally commandeered the States and their officials."

Those states and their leaders are looking to counter the Democratic jurisdictions that filed a lawsuit against EPA's new Affordable Clean Energy rule."
Greens Hail Cross-State Ruling, But Legal War's Not Over
E&E News
September 13, 2019

"A federal appellate court largely upheld EPA's latest attempt to address the problem of ozone-forming pollution that crosses state lines, with one formidable exception: a provision that allows continued emissions from upwind states even when those releases make it harder for downwind states to meet statutory Clean Air Act attainment deadlines."
Cleanup At Contaminated Military Bases Will Top $2 Billion
Idaho Statesman
September 13, 2019

"The cost to clean up contaminated water sources at all military installations is likely to climb higher than the $2 billion original cost estimate, the Pentagon said.

Defense Secretary Mark Esper in July directed the Pentagon to establish a task force to not only look at the contamination, but begin to assess the health impacts that per- and polyfluoroalkyl substances, known commonly as PFAS, may have had on service members, their families and the communities surrounding their bases.

The Pentagon estimated in 2018 that the cleanup would likely cost around $2 billion. But in the months since, it has found additional locations where there is PFAS contamination."
Montana Environmental Information Center and Sierra Club v. Montana Department of Environmental Quality Summary

"The Montana Supreme Court has reversed a lower court decision that had ruled the
Department of Environmental Quality (DEQ) had illegally issued a permit to Western
Energy Company to discharge rain and snow water into the surrounding ditches and creeks from its Rosebud Coal Mine in Colstrip, Montana.

The Supreme Court sent the matter back to the District Court in Lewis and Clark County
to conduct a trial to determine factual issues that must be decided before the Court can
make a ruling involving the permit. Please find the fully summary below."
U.S. Seeks Dismissal of Tribes' Pipeline Lawsuit
E&E News
September 11, 2019

"Attorneys for the Trump administration want a U.S. judge to throw out a lawsuit from Native American tribes trying to block the proposed Keystone XL oil pipeline from Canada to Nebraska.

Tribes in Montana and South Dakota say President Trump approved the pipeline without considering potential damage to cultural sites from spills and construction.

The administration counters that Trump's approval applies only to a 1-mile section of pipeline along the U.S.- Canada border and not the rest of the line."
WATER LAW
Montana Has Right to Water Diverted From Private Land Onto State Land, Lawsuit Says
Helena Independent Record
September 10, 2019

"A lawsuit is attempting to overturn a new law that halts the state of Montana’s practice of acquiring partial water rights from lessees who divert water from private land onto state land.

Advocates for School Trust Lands, a Utah-based advocacy group that includes members in Montana, brought the lawsuit in Lewis and Clark County District Court on Sept. 6 against the state of Montana. The organization describes itself as a nonprofit that “helps states honor their historic commitment to optimize revenues from school trust lands and manage their permanent funds as an ever-growing, sustainable source of education funding.”
FISH & WILDLIFE
Population Stumbles in Mont., Across the West
E&E News
September 12, 2019

"Montana's greater sage grouse population has fallen more than 40% over the past three years, mirroring recent declines across the U.S. West for the wide-ranging bird species, which federal officials rejected for protections in 2015.

State wildlife officials estimate there were about 44,000 ground-dwelling sage grouse in Montana this spring. The figure is included in a report to be delivered to state lawmakers later this month. Sage grouse once numbered in the millions but have seen their range, which stretches across portions of 11 states, diminished by oil and gas drilling, wildfires, grazing and other pressures."
How Long Before These Salmon Are Gone? ‘Maybe 20 Years
The New York Times
September 16, 2019

"The Middle Fork of the Salmon River, one of the wildest rivers in the contiguous United States, is prime fish habitat. Cold, clear waters from melting snow tumble out of the Salmon River Mountains and into the boulder-strewn river, which is federally protected.

The last of the spawning spring-summer Chinook salmon arrived here in June after a herculean 800-mile upstream swim. Now the big fish — which can weigh up to 30 pounds — are finishing their courtship rituals. Next year there will be a new generation of Chinook.

In spite of this pristine 112-mile-long mountain refuge, the fish that have returned here to reproduce and then die for countless generations are in deep trouble."
OIL & GAS
Trump Administration Opens Huge Reserve in Alaska to Drilling
The Washington Post
September 13, 2019

"The Trump administration said it would seek to open up the entire coastal plain of the Arctic National Wildlife Refuge to oil and gas exploration, picking the most aggressive development option for an area long closed to drilling.

In filing a final environmental impact statement, the Interior Department’s Bureau of Land Management (BLM) took a key step closer to holding an oil and gas lease sale for the nearly 1.6 million-acre coastal plain, which is part of the 19.3 million-acre ANWR."
FEDERALISM
Bold New Bench: How Trump’s Judges Are Changing The Law
Law360
September 10, 2019

"When attorney Ryan Parsons saw which judges would be on the Seventh Circuit panel that would hear his client’s pension case, he knew what his strategy was going to be.
Parsons had drawn two of President Donald Trump’s newest appointees to the federal appeals court in Chicago — Judge Amy J. St. Eve and Judge Amy Coney Barrett — and quickly understood that his arguments would have to focus on the plain wording of the contract.

Like most of Trump’s appointees to the federal circuit courts, Judge St. Eve and Judge Barrett have demonstrated a penchant for “textualism,” a method of judicial interpretation where judges look primarily to the precise wording of a disputed statute or contract before considering other factors."
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
U.S. v. State of Idaho , ___ P.3d ___, 2019 WL 4197624 (Idaho S. Ct. Sept. 5, 2019): (1) 1873 executive order creating the Coeur d’Alene Indian Reservation reserved water rights to the Coeur d’Alene Tribe for “homeland” purposes, and those purposes were not diminished by subsequent agreements and a statute reducing the reservation’s geographical scope; (2) under the homeland rationale, reserved rights include consumptive uses for both domestic (including groundwater) and agriculture and non-consumptive uses for hunting (wildlife habitat), fishing (fish habitat), plant gathering (including seeps and springs), and cultural activities to the extent that such non-consumptive uses of water predated the reservation’s creation; (3) homeland purposes do not include industrial, commercial or aesthetic uses; (4) the Tribe did not a reserved right to control the level of Lake Coeur d’Alene; (5) the “necessity test” applies in both the entitlement and quantification phrases of a general reserved rights adjudication but at the entitlement stage merely requires that water is necessary to carry out the involved “homeland” purpose; (6) the Tribe’s reserved rights include water for on-reservation instream flows but not for off-reservation instream flows; (7) the priority date for non-consumptive water rights is time immemorial, and such rights are not lost through non-use; and (8) the priority date for consumptive water rights held by the tribe or its members is the date of the reservation’s creation other than for homesteaded land reacquired by the Tribe or its members from nonmembers where it is the date that the nonmember homesteader perfected the right under state law or, absent a previously perfected right, the date of tribal or tribal member reacquisition. 
Swinomish Indian Tribal Community v. Azar , ___ F. Supp. 3d ___, 2019 WL 4261368 (D.D.C. Sept. 9, 2019): Expenditures on health care services from funds collected by a tribe from a third party are not eligible for contract support cost funding under Indian Self Determination and Education Assistance Act contracts.
Williams & Cochrane, LLP v. Quechan Tribe of Fort Yuma Indian Reservation , ___ F. Supp. 3d ___, 2019 WL 4277431 (S.D. Cal. Sept. 10, 2019): Claim under the Racketeer Influenced and Corrupt Organizations Act by tribal members against several attorneys that, in large part, required district court to adjudicate questions of tribal law dismissed for lack of jurisdiction and failure to exhaust tribal remedies.
In re Navajo Nation , ___ S.W.3d ___, 2019 WL 4292909 (Tex. App. Sept. 10, 2019): District court did not abuse its discretion in denying transfer of a child custody proceeding to a tribal court under the Indian Child Welfare Act on the basis of  forum non conveniens  considerations.
State v. Stanton , ___ N.W.2d ___, 2019 WL 4382988 (Iowa S. Ct. Sept. 13, 2019): Repeal of a 1948 statute granting state courts criminal jurisdiction over offenses committed by or against Indians on the Sac and Fox Indian Reservation [now the Meskwaki Settlement] did not affect jurisdiction over non-Indian offenses that otherwise exists under federal common law standards.
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.