WAGLAC News & Updates
September 3, 2019
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.
EPA Proposes Updates to Air Regulations for Oil and Gas to Remove Redundant Requirements and Reduce Burden
Environmental Protection Agency
August 29, 2019

The U.S. Environmental Protection Agency (EPA) stated, "Updates to the prior administration’s national standards for the oil and natural gas industry...the proposal [will] remove regulatory duplication and save the industry millions of dollars in compliance costs each year – while maintaining health and environmental regulations on oil and gas sources that the agency considers appropriate."
Trump Admin Backs Smelter Owner in Supreme Court Showdown
E&E News
August 29, 2019

"The Trump administration is backing the owner of a Superfund site against its neighbors in a Supreme Court battle that could affect environmental cleanups across the country.

In a brief, Solicitor General Noel Francisco urged the high court to scrap a set of challenges Montana landowners filed to force Atlantic Richfield Co. to pay for restoration work at the Anaconda Smelter Superfund site."
FERC Order Jump-Starts Stalled Constitution Project
E&E News
August 29, 2019

"The Federal Energy Regulatory Commission issued an order late last night that could relaunch the controversial Constitution pipeline despite concerns from New York it would undercut the state's water quality authorities.

The decision, which appears to have unanimous backing from the commission, finds that New York waived its ability to block the water quality certificate after taking too long to block the permit.

The order builds of f the recent U.S. Court of Appeals for the District of Columbia Circuit opinion in Hoopa Valley Tribe v. Federal Energy Regulatory Commission."
The Energy 202: Here's Why Lawyers Suing Oil Companies Are Following the Opioid Cases
The Washington Post
September 3, 2019

"Lawyers suing some of the world’s largest oil and natural gas companies over climate change are closely following a seemingly unrelated ruling out of Oklahoma — one holding a drugmaker culpable for fueling the state’s opioid epidemic. 

The reason is this: Both the cases against pharmaceutical makers and those against the fossil-fuel firms are founded on the same legal theory — that the companies’ sale of allegedly harmful products is creating a crisis for which they are financially responsible. "
Court weighs whether EPA must crack down on river temps
E&E News
August 27, 2019

"A federal judge overstepped last year when he ordered EPA to craft temperature standards for a major river system in the Northwest.

EPA is asking the 9th Circuit to reverse a 2018 ruling in which the U.S. District Court for the Western District of Washington ordered the agency to regulate water temperatures in the river system, where warming waters have killed hundreds of thousands of threatened salmon and steelhead.

District Court Judge Ricardo Martinez said EPA should have followed through on a 2000 agreement with Oregon, Washington state and Idaho to set Clean Water Act standards — known as total maximum daily loads, or TMDLs — for water temperature in the rivers.
Monthly Roundup
Western Policy Network
August 2019

"On Aug. 29, WGA sent a letter to the House Committee on Oversight and Reform Subcommittee on Government Operations, expressing Western Governors’ support for the reestablishment of a forum for meaningful dialogue on intergovernmental issues, such as the Commission on Intergovernmental Relations of the United States, as proposed in H.R. 3883. The letter goes on to state that the creation of such a forum “should not take the place of broader legislative reforms, such as those Western Governors and their partners shared with the Speaker’s Task Force on Intergovernmental Affairs” in their Aug. 3, 2018 letter."
Summary Statement: Eagle Creek Irrigation Company v. A.C. & C.E. Investment Docket No. 45675
August 27, 2019

Eagle Creek Irrigation Company (“Eagle Creek”) appealed the Blaine County district
court’s award of summary judgment in favor of A.C. & C.E. Investments (“AC&CE
Investments”). In 2015, AC&CE Investments acquired title to 15 acres of property within Eagle Creek’s defined area via trustee’s deed. The property’s previous owner held 15 shares of Eagle Creek stock. Shortly after acquiring the land, AC&CE Investments began diverting water. In response, Eagle Creek brought an action for declaratory relief asserting that the trustee’s deed failed to convey any shares. After the parties filed cross motions for summary judgment, the district court held, as a matter of law, that AC&CE Investments acquired both the property and the 15 shares because the shares passed as an appurtenance with the property. Shortly after trial began to resolve other issues, the parties agreed to settle the case. The parties agreed that the district court’s summary-judgment order would be entered as a final appealable judgment, Eagle Creek would issue the 15 shares to AC&CE Investments, and all other claims would be dismissed with prejudice. The district court approved and incorporated the settlement agreement into its final judgment. Eagle Creek timely appealed. In a unanimous decision, the Idaho Supreme Court held that the district court erred in granting summary judgment to AC&CE Investments because determining whether a stock in a mutual irrigation company is appurtenant to a specific tract of land requires a factual inquiry into the company’s governing documents and the individual shares. The Court vacated the portion of the trial court’s judgment which concluded that the 15 shares were appurtenant to the property. The Court declined to award attorney’s fees on appeal and its decision did not affect the settlement agreement. 
Summary Statement: McInturff v. Shippy Docket No. 45418
The appeal arose from a disputed water right relating to the St. Joe River in Benewah County, Idaho, between a landowner and tenants who put the water to beneficial use. The license at issue described the water right as “appurtenant to the described place of use.” The Idaho Supreme Court held that the tenants owned the water right under the license. Further, the Court held that Shippy and Cedar Creek had failed to timely assert their rights and that the district court did not have jurisdiction to address their claim.
Hydropower Giant Bonneville Power is Going Broke
E&E News
September 3, 2019

"The Bonneville Power Administration, the independent federal agency that sells the electricity produced by the dams, is careening toward a financial cliff. BPA is $15 billion in debt, facing a rapidly changing energy market increasingly dominated by wind and solar and a desperate need to maintain aging infrastructure that's expected to cost $300 million to maintain and upgrade by 2023."
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
Navajo Nation v. U.S. Dept. of Interior , ___ F. Supp. 3d ___, 2019 WL 3997370 (D. Ariz. Aug. 23, 2019): Motion to file an amended complaint denied as futile where a tribe failed to identify a specific treaty, agreement, executive order, statute or regulation establishing a fiduciary duty that the United States Department of the Interior violated “(1) by failing ‘to determine the quantities and sources of water required to make the Navajo Reservation a permanent homeland for the Navajo people,’ and (2) by failing ‘to protect the sovereign interests of the Navajo Nation by securing an adequate water supply to meet those homeland purposes.’”
Spurr v. Pope , ___ F.3d ___, 2019 WL 4009131 (6th Cir. Aug. 26, 2019): The grant of federal question jurisdiction in 28 U.S.C. § 1331 did not abrogate a Band’s immunity from suit, and the Congressional delegation of authority to tribal courts in 18 U.S.C. § 2265(e) applied to a civil protection order issued by a tribal court against a nonmember prohibiting on-reservation harassment.
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.