October 22, 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
Saving Orcas ‘May Be Impossible’ Without Dam Removal, Scientists Say
October 20, 2018

Leading killer-whale scientists and researchers are calling for removal of four dams on the Lower Snake River and a boost of water over the dams to save southern resident killer whales from extinction.

The scientists sent a letter this week to Gov. Jay Inslee and co-chairs of a governor’s task force on orca recovery. The whales need chinook — their primary prey — year round, scientists state in their letter, and the spring chinook runs in particular returning to the Columbia and Snake are among the most important.

That is because of the size, fat content and timing of those fish, making them critical for the whales to carry them over from the lean months of winter to the summer runs in the Fraser River, the scientists wrote.

The need for Columbia and Snake river fish is so acute, “we believe that restoration measures in this watershed are an essential piece of a larger orca conservation strategy. Indeed, we believe that southern resident orca survival and recovery may be impossible to achieve without it.”

Based on the science and the urgency of the current threats confronting the southern residents, the scientists recommended two top priorities for the task force in its recommendations for orca recovery: Immediately initiate processes to increase the spill of water over the dams on the Columbia and Snake, to create more natural river conditions, and to breach the Lower Snake River dams.

The letter comes as the death of three southern resident orcas in four months last summer, one from L pod and two in J pod, have added fuel to the long running-campaign to free the Snake.

Lower Snake River dam removal has been debated in the region for decades as a way to boost salmon runs.

Three federal judges in a row in five rulings since 1994 also have called for an overhaul of hydropower operations by federal agencies at eight dams on the Columbia and Snake rivers to boost salmon survival, including a serious look at dam removal. The latest court review now underway will not be concluded until 2021.
US Tries to Stop Youth Climate Lawsuit days Before it Goes to Trial
October 20, 2018

The U.S. Supreme Court has temporarily blocked a high-profile climate change lawsuit that 21 young activists brought against the federal government.

The order issued Friday by Chief Justice John Roberts freezes trial proceedings in U.S. District Court in Oregon until lawyers for the young people provide a response and until another court order.

Justice Department lawyers had asked the high court Thursday to dismiss the case before it went to trial Oct. 29.

The lawsuit alleges the federal government has violated young people’s constitutional rights through policies that have caused a dangerous climate.

They have said their generation bears the brunt of climate change and that the government has an obligation to protect natural resources for present and future generations.

The young activists have until Wednesday to provide a response.

Justice Department lawyers Thursday asked the U.S. Supreme Court to dismiss the case, saying the suit attempts to redirect federal environmental policies through the courts rather than through the political process. That court in July denied the government’s previous request to dismiss the case, calling it “premature.”
2018 State Initiatives
Voters in Arizona and Nevada will be voting renewable energy initiatives this fall. 

NextGen Climate Action proposed Proposition 127 in Arizona and Question 6 in Nevada. These initiatives would require electrical utilities in Arizona and Nevada to acquire 50 percent of their power from renewable sources by 2030.  

Initiative 1631 in Washington State would impose pollution fees on large emitters of greenhouse gas pollutants. The pollution fee would apply to fossil fuels sold or used within Washington State and electricity generated within or imported into the state. The fee charged would be based on the amount of carbon content in the fossil fuels. The initiative would establish a public oversight board to implement the measure.
Question 3 on the Nevada ballot is a constitutional amendment that would deregulate the Nevada electrical market. Question 3 would require the Nevada legislature to enact legislation to “establish an open, competitive retail electric energy market." According to the Las Vegas Review this is the most expensive campaign in Nevada history with “nearly $100 million in contributions."
Montana Initiative 186 would require "the Department of Environmental Quality to deny a permit for any new hardrock mines in Montana unless the reclamation plan provides clear and convincing evidence that the mine will not require perpetual treatment of water polluted by acid mine drainage or other contaminants. The terms ‘perpetual treatment,’ ‘perpetual leaching,’ and ‘contaminants’ within I-186 are not fully defined and would require further definition from the Montana Legislature or through Department of Environmental Quality rulemaking.” Voter Information Pamphlet at 39.
Colorado Proposition 112 calls for increasing the minimum distance from new oil and gas wells to homes, schools, rivers and lakes to 2,500 feet. The current set back from an oil and gas well is 500 feet for homes and 1,000 feet for schools. The group behind the proposition is Colorado Rising, which believes the current setback exposes residents to unhealthy emissions from well sites. The Colorado Oil and Gas commission estimates that “four out of every five non-federal acres in Colorado would be off-limits to new drilling under the stricter setback . . .”  Denver Post October 19, 2018. 

Also, on the ballot is Initiative 108, which would “require the state or a local government to compensate a property owner if a law or regulation reduces the fair market value of his or her property.” Any reduction in the fair market value would be compensable taking. The purpose of the Initiative 108, according to the Colorado Farm Bureau, is to protect farmers and ranchers from attempts to enforce random setback requirements for oil and gas development.
Idaho Proposition 1 is an initiative that would authorize historical horse racing at certain locations where live or simulcast horse racing occurs. Historical horse racing is betting on a race involving live horses that was conducted in the past and that is rebroadcast by electronic means and shown on a delayed or replayed basis for the purposes of pari-mutuel wagering. The Idaho Legislature authorized this form of betting in 2013, but in 2015 repealed the statute. The measure has drawn strong interest with each side reporting raising more than $2million in campaign funds. 
Trump Memo Pushes Water Projects
October 21, 2018

President Donald Trump ordered the government to speed up environmental reviews and streamline regulations that he claims are hindering work on major water projects in California and other Western states.

Trump signed a memorandum aimed at helping the Central Valley Project and the California State Water Project in California, the Klamath Irrigation Project in Oregon and California, and the Columbia River Basin system in the Pacific Northwest.
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.