October 15, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
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
WGA Seeks Clarification on Section 404 Delegation
October 10, 2018
Western Governors seek to better understand the Administration’s goals and plans for state delegation and infrastructure permitting and environmental reviews. To that end, on Oct. 10, 2018 they shared observations and questions regarding the Clean Water Act's Section 404 and the Administration’s recent actions concerning state delegation, permitting and environmental review in the One Federal Decision policy, the White House’s Legislative Outline for Rebuilding Infrastructure in America.
McNamee’s FERC Nomination
State Energy & Environmental Impact Center NYU School of Law, Legally Speaking
October 11, 2018

“The Administration has nominated Bernard McNamee to replace FERC Commissioner Robert Powelson. McNamee currently serves as the executive director of the Department of Energy’s (DOE) Office of Policy. He has participated in DOE and White House efforts to justify subsidizing non-economic coal plants, in the hope of keeping them operating – including DOE’s request that FERC develop a plan to subsidize coal plants, based on its assertion that coal’s on-site fuel storage strengthens grid security. FERC soundly rejected the request, and debunked the premise behind it. “ 
National Monument Litigation
State Energy & Environmental Impact Center NYU School of Law, Legally Speaking
October 11, 2018

On September 24, a District Court Judge resolved a drawn-out skirmish regarding where litigation brought by environmental groups and Native American tribes over the reduction of Utah’s Bears Ears and Grand Staircase-Escalante national monuments should be heard. The judge decided that the cases will remain in federal court in the District of Columbia. The case will now move toward the merits. The Department of Interior (DOI) filed its motion to dismiss the claims by environmental groups and Native American tribes on October 1; environmental groups and Native American tribes’ response is due on November 1 with DOI’s reply brief due two weeks later on November 15. 

In another high profile monuments case, on October 5th, the U.S. District Court for the District of Columbia upheld the establishment of the Northeast Canyons and Seamounts Marine National Monument, dismissing a lawsuit from commercial fishing groups that challenged presidential authority to establish the monument. President Barack Obama created the monument in 2016, motivated by the area’s “unique ecological resources that have long been the subject of scientific interest.” 
As states Near Deal on Colorado River Shortage, California Looks At Water Cuts of As Much As 8%
October 12, 2018

After years of stop-and-go talks, California and two other states that take water from the lower Colorado River are nearing an agreement on how to share delivery cuts if a formal shortage is declared on the drought-plagued waterway.

Under the proposed pact, California – the river’s largest user – would reduce diversions earlier in a shortage than it would if the lower-basin states strictly adhered to a water-rights pecking order. California’s huge river take would drop 4.5 percent to 8 percent as the shortage progressed.

With occasional years of relief, the river that greens farm fields and fills faucets from Colorado to California has been stuck in drought since 2000. A shortage declaration has been looming over the seven-state basin for more than a decade, only to be narrowly averted time and again when rain and snow in the upper basin pushed reservoir levels above the trigger point.

But flows into Lake Powell – one of the Colorado’s two massive reservoirs – fell to a little more than a third of the average for the April-through-July period this year. And September’s inflow was negligible, less than 1 percent of the average. Looking at those numbers, federal officials say the U.S. Interior Department could declare a shortage in 2020.
Wilson v. Horton's Towing
October 9. 2018

The Ninth Circuit has concluded that colorable tribal court jurisdiction existed to issue a notice for forfeiture directed to a non-Indian’s vehicle that had been impounded off reservation by a towing company and that the owner was therefore required to exhaust tribal court remedies to contest the notice.  Wilson v. Horton’s Towing, No. 16-35320, 2018 WL 4868025 (9th Cir. Oct. 9, 2018). 

The owner was stopped by a tribal police officer for suspected driving while intoxicated on a state highway within the Lummi Indian Reservation after he left the Tribe’s casino. A Washington State Patrol officer was called to the scene, and the plaintiff consented to a search that revealed several containers of marijuana. The Washington officer arrested the plaintiff, impounded the truck and had it towed off reservation. On the following day, a tribal court issued a notice for the truck’s forfeiture based on a tribal code provision making possession of marijuana over an ounce grounds for civil forfeiture. 

A second tribal police officer presented the notice to the towing company that released the truck to him. The plaintiff sued the towing company and the second officer alleging, inter alia, conversion. The district court subsequently substituted the United States as a defendant for the tribal officer under the Federal Tort Claims Act and granted the defendants’ motion for summary judgment for failure to exhaust tribal court and federal administrative procedures. The Ninth Circuit affirmed although it modified judgment to provide for dismissal without prejudice. With respect to the tribal court jurisdiction issue, it reasoned that “the threshold question is whether Plaintiff’s claim ‘bears some direct connection to tribal lands,’ such that tribal jurisdiction is colorable. . . . Our inquiry is not narrowly focused on ‘deciding precisely when and where the claim arose.’ . . . Rather, we must examine ‘how the claims are related to tribal lands.’ . . . Tribal jurisdiction is colorable, for example, when the events that ‘form the bases for [Plaintiff’s] claims occurred or were commenced on tribal territory.’” [Citations omitted.] 

In a footnote, it acknowledged that “Plaintiff argues that the focus of his conversion claim is the seizure of the truck itself, which took place off tribal lands” but responded that “the conversion claim involves a determination of whether the seizure was made with ‘lawful justification’” and that “[t]his determination may implicate Plaintiff’s prior conduct on tribal lands.” The decision’s implications are significant because it opens the door for off-reservation enforcement of tribal court forfeiture orders, with any challenge required to be maintained in that court.
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.