October 1, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
*You are encouraged to register for WAGLAC prior to Monday, October 8th, so that we may confirm room size and meals. 
November 7-9, 2018 
Heathman Hotel
Portland, Oregon
Check in on November 7 th
Meeting start 8:00 am on Nov 8th
Meeting end at noon on Nov 9 th
February 18-20, 2019
The Westin San Diego
San Diego, CA
Hunt of Yellowstone Grizzly Bears Canceled as a Result of Judge’s Ruling
A federal court decision found that the United States Fish and Wildlife Service erred in stripping the grizzlies’ status as a threatened species.
September 25, 2018

Yellowstone-area grizzly bears, scheduled to be hunted this month for the first time in decades, were granted a reprieve by a federal judge who ordered the animal restored to full protections under the Endangered Species Act.

United States District Judge Dana Christensen ruled in favor of the Crow Indian Tribe and other tribes and environmental groups who had argued that the Fish and Wildlife Service had erred in removing the bear’s threatened status in June 2017.

The agency, beginning with a proposal to take the bears off the list during the Obama administration, had failed to consider how the de-listing would affect other populations of protected grizzlies in the region, according to the judge’s decision. He also said the agency’s analysis of threats to the animal was “arbitrary and capricious,” according to the judge’s decision.
Circuits Split on CWA Liability for Addition of Pollutants through Groundwater

On September 24th, the U.S. Court of Appeals for the Sixth Circuit issued two opinions rejecting Clean Water Act (CWA) liability where pollutants travelled through groundwater to navigable waters. In Kentucky Waterways Alliance v. Kentucky Utilities Company and Tennessee Clean Water Network, the Sixth Circuit disagreed with Fourth Circuit’s Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F3d 637 (4th Cir. 2018) and the Ninth Circuit’s Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018). The Court said: “The CWA defines effluent limitations as restrictions on the amount of pollutants that may be ‘discharged from point sources into navigable waters.’ The term ‘into’ indicates directness. It refers to a point of entry . . .Thus, for a point sources to discharge into navigable waters, it must dump directly into those navigable water – the phrase ‘into’ leaves no room for intermediary mediums to carry the pollutants.” Kentucky Waterways Alliance at 12. Stay tuned as a petition for cert. is pending before the Supreme Court in the County of Maui case.
States Renew Fears Over CWA 401 Changes, Dimming Senate Bill's Prospects
September 26, 2018

The following article from InsideEPA reports that states continue to oppose Section 401 Clean Water Act amendments. Western governors and other state officials are reiterating their opposition to legislation that would curtail their authority to limit federal actions that could violate state water quality standards, dimming prospects that senators who are reaching out to states to address their concerns will be able to reach a deal on the issue anytime soon.

Western states “strongly support streamlined permitting . . . but not at the cost of state authority,” James Ogsbury, executive director of the Western Governors Association (WGA), said in opening remarks to a Sept. 24 webinar hosted by WGA and titled “The Importance of State Authority under CWA Section 401.”

And Jeanne Christie, a senior policy analyst with the Association of State Wetlands Managers (ASWM) and the organization's executive director emeritus, warned that while the bill's sponsors are seeking to set a deadline for states to act, “changing the law will make everything unclear” about the timeline.

Section 401 of the Clean Water Act (CWA) generally gives states authority to review and impose conditions on federal actions that may adversely impact water quality standards. But industry officials and GOP lawmakers have charged that states have abused the authority to block construction of natural gas pipelines and other projects.

To address the concern, Sens. John Barrasso (R-WY), Shelley Moore Capito (R-WV), James Inhofe (R-OK) and Steve Daines (R-MT) have introduced a bill, S. 3303, that would amend the 401 certification process.

Among other things, the bill would clarify that state reviews are limited to water quality impacts only; clarify that states can only consider discharges that would result from the federally permitted or licensed activity itself and not other sources; require states to publish clear requirements for water quality certification requests; require states to make a final decision in writing on whether to grant or deny a request for a 401 certification; and require states to inform a project applicant within 90 days whether the state has all of the materials needed to process a certification request.
Supreme Court Kicks Off October Term 2018 with ESA Case
Weyerhaeuser Company v. U.S. Fish and Wildlife Service
September 24, 2018

The Supreme Court began the October term with Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a challenge to the Fish and Wildlife Service’s decision designating critical-habitat for the dusky gopher frog. The SCOTUSblog provides an excellent overview of the case.
U.S. Secretary of Commerce Declares Commercial Fishery Disasters for West Coast Salmon and Sardines
September 25, 2018

Secretary of Commerce Wilbur Ross announced that commercial fishery failures occurred between 2015 and 2017 for salmon fisheries in Washington, Oregon, and California, in addition to the sardine fishery in California. 

“The Department of Commerce and NOAA stand ready to assist fishing towns and cities along the West Coast as they recover,” said Secretary of Commerce Wilbur Ross. “After years of hardship, the Department looks forward to providing economic relief that will allow the fisheries and the communities they help support to rebound.”

Between July 2016 and March 2018, multiple tribes and governors from Washington, Oregon, and California requested fishery disaster determinations. The Secretary, working with NOAA’s National Marine Fisheries Service (NMFS), evaluated each request based on the available data, and found that all but one (the California red sea urchin fishery) met the requirements for a fishery disaster determination. 

The determinations for West Coast salmon and sardines now make these fisheries eligible for NOAA Fisheries fishery disaster assistance. The 2018 Consolidated Appropriations Act provided $20 million in NOAA Fisheries fishery disaster assistance. The Department of Commerce is determining the appropriate allocations of these funds to eligible fisheries. 
Interior Department Finalizes New Waste Prevention Rule 
The new rule re-establishes long-standing requirements and eliminates duplicative regulations that hurt states and Tribes
September 18, 2018

As part of the Trump Administration’s ongoing goal to reduce the regulatory burden on the American people and foster economic growth and energy development by using innovation, best science, and best practices, the U.S. Department of the Interior's Bureau of Land Management (BLM) today announced a final rule that revises the 2016 Waste Prevention Rule (also known as the Venting and Flaring Rule). The new rule, which included a 60-day public comment period, will reduce unnecessary burdens on the private sector and restore proven regulations at a time when investment in Federal onshore oil and gas is skyrocketing. 
“Sadly, the flawed 2016 rule was a radical assertion of legal authority that stood in stark contrast to the longstanding understanding of Interior’s own lawyers,” said Deputy Secretary David Bernhardt. “The Trump Administration is committed to innovative regulatory improvement and environmental stewardship, while appropriately respecting the clear and distinct authorities of the States, Tribes, as well as the direction we receive from Congress.”
The BLM reviewed the 2016 rule and found that it had considerable overlap in existing State, Tribal and Federal regulations. Additionally, the agency determined that the previous administration underestimated the cost in the 2016 rule.  
The rule was reviewed as part of Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, Executive Order 13783, Promoting Energy Independence and Economic Growth, and Secretarial Order 3349, American Energy Independence, issued March 29, 2017. The BLM found that many parts of the 2016 rule were unnecessarily burdensome on the private sector. 
Publication of the final rule in the Federal Register is forthcoming. The rule is effective 60 days after publication. A pre-publication version of the final rule can be found at https://go.usa.gov/xP2qE.
Flandreau Santee Sioux Tribe v. Sattgast, 2018 WL 3432047 (D.S.D. July 16, 2018)

A tax case now on appeal before the Eighth Circuit bears monitoring. Flandreau Santee Sioux Tribe v. Sattgast, 2018 WL 3432047 (D.S.D. July 16, 2018), appeal pending, No. 18-2750 (8th Cir.). The Tribe operates a casino under a class III gaming compact with South Dakota. It entered into an agreement with an off-reservation construction company to serve as the general contractor. State law imposes a two percent gross receipts on the contractor subject to an exemption for certain Indian country projects. The Tribe and the general contractor applied unsuccessfully for the exemption. The former then sued, arguing that the tax was preempted. The district court initially held that the excise tax was not categorically preempted because its legal incidence fell on the nonmember contractor. However, it found preemption on three independent grounds. 

First, the court deemed the tax preempted under the interest-balancing test formulated in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). The court distinguished Barona Band of Mission Indians v. Yee, 528 F.3d 1184 (9th Cir. 2008), which upheld a sales tax on casino renovation purchases from a nonmember vendor, because there “the contractor devised language that circumvented state sales tax by scheduling deliveries to occur on tribal lands”—manipulation that did not exist in this case. The court next found preemption on the basis of the “catch-all” compacting authorization in 25 U.S.C. § 2710(d)(3)(C)(vii)—which allows compacts to address “any other subjects that are directly related to the operation of gaming activities.” The court reasoned that the renovation project was critical to the Tribe’s casino operations (and hence a topic captured by the catch-all provision) and should have been authorized in the compact. Finally, it held that concluding that the excise tax’s imposition infringed on the Tribe’s right to govern itself. This aspect of the decision rested on a single rationale: “[T]he State’s tax infringes on the Tribe’s ability to govern itself because there is not a nexus between State services and the excise tax and the Tribe has not engaged in manipulation of tax policy.
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or 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.