November 19, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
February 18-20, 2019
The Westin San Diego
San Diego, CA
June 17-20, 2019
CWAG Annual Meeting
The Ritz Bacara
Santa Barbara, CA
Prairie River Network v. Dynegy Midwest v. Generation 
November 14, 2018

United States District Court for the Central District of Illinois Urbana Division dismissed the Prairie Rivers Network’s citizen enforcement suit against Defendant Dynegy Midwest Generation, LLC for violations of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1311 and 1342, at the Vermilion Power Station in Vermilion County, Illinois, on November 14, 2018. “Defendant’s motion argue[d] that, because Plaintiff’s Complaint alleges that the coal ash residuals at VPS were releasing contaminants to groundwater, and that the groundwater was discharging to the Middle Fork via discrete un-permitted seeps, the Complaint should be dismissed because Seventh Circuit precedent establishes that the CWA does not regulate discharges to groundwater, even where the groundwater is hydrologically connected to surface waters regulated by the CWA.” The District Court based on the Village of Lake Hudson agreed with the defendants contention and dismissed the complaint.

The Prairie Rivers Network decision conflicts with  Hawai'i Wildlife Fund, et al., v. County of Maui, in the U.S. Court of Appeals for the 9th Circuit, and Upstate Forever, et al., v. Kinder Morgan Energy Partners in the 4th Circuit. The United Supreme Court will consider petitions for cert. in Maui and Kinder Morgan at its Nov. 30th conference.
President Trump Plans to Nominate Andrew Wheeler, Former Coal Lobbyist, As EPA Chief
November 16, 2018

"President Trump said that he intends to nominate former industry lobbyist Andrew Wheeler as the Environmental Protection Agency’s next administrator, a move that would ensure a continued deregulatory push at the agency.

Trump made the impromptu announcement during a Medal of Freedom ceremony at the White House, saying that Wheeler had done a “fantastic job” as the agency’s acting administrator in recent months. Wheeler took the helm in early July after Scott Pruitt resigned amid mounting ethics scandals.

During his brief tenure as the EPA’s acting chief, Wheeler has proved far different from the man he replaced. Where Pruitt was a politician who appeared to enjoy the limelight and trappings of Cabinet life, Wheeler has long worked behind the scenes on energy and environmental policy and generally avoids public attention. Along with Health and Human Services Secretary Alex Azar and Veterans Affairs Secretary Robert Wilkie, Wheeler represents the sort of technocrat who has risen through the ranks after an initial Trump Cabinet pick stumbled."
EPA Oversight of State and Tribal Programs
October 30, 2018

Acting EPA Administrator Andrew Wheeler on October 30, 2018, issued a set of principles tor EPA oversight of state and tribal programs entitled "Principles and Best Practices for Oversight of Federal Environmental Programs Implemented by States and Tribes."  The memorandum directs EPA to generally defer to state decision-making, but also provides guidance on when regulators should intervene to protect human health and the environment. The memorandum is part of President Trump’s effort to implement principles of cooperative federalism for state delegated programs.
Hearing on Federalism Fixes: Legislative Concepts to Improve Intergovernmental Affairs
November 16, 2018

CWAG, pursuant to its 2018 Federalism Resolution, is partnering with WGA and other state organizations to ensure that the Executive Branch and federal agencies consult with states before undertaking actions with federalism implications.  As part of this joint effort, Britta Beckstead, Policy Advisor for the Western Governors’ Association, testified before the United States House of Representatives Speaker’s Task Force on Intergovernmental Affairs.      

Beckstead testified that while the “Western Governors have attempted to engage individual federal agencies and different administrations on the need for genuine, government-to-government engagement with states. Unfortunately, this agency-by-agency, issue-by-issue approach has not yielded structural improvements to the state-federal paradigm. It has become increasingly clear that Congress is best positioned to effect systemic change.” WGA proposed “legislation [w]ould first recognize that states are cosovereigns with the federal government, distinct from any other entity or group – which is the foundation for the state-federal relationship and the need to consult with states.”
Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities
November 7, 2018

Former Attorney General Sessions issued a memorandum to heads of civil litigation components of the Department of Justice on November 7th entitled “Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities.” The memorandum “requires that the Department provide state and local governmental entities an adequate opportunity to respond to any allegations of legal violations; requires special caution before using a consent decree to resolve disputes with state or local governmental entities; provides guidance on the limited circumstances in which such a consent decree may be appropriate; limits the terms for consent decrees and settlement agreements with state and local governmental entities, including terms requiring the use of monitors; and amends the process for the approval of these mechanisms in cases in which they are permissible.”
Follow Up: Governor Bullock Takes Questions Over Conservation Easements To the Montana Supreme Court
November 13, 2018

As previously reported on October 29, 2018 in the WAGLAC newsletter , Governor Bullock filed a lawsuit against Attorney General Fox regarding land board authority over public lands in Montana.  A link to Attorney General Fox's response to Governor Bullock's lawsuit is below.

One issue in the response deals with whether government officials, solely in their official capacities, have standing to challenge an Attorney General Opinion, where the officials have not personally sustained any injury-in-fact resulting from the Opinion. The argument here calls for a petition dismissal on grounds of lack of jurisdiction because the Governor and Director lack standing.
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 or 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.