WAGLAC News & Updates
April 29, 2019
To optimize the opportunity for state coordination on environmental, natural resource and Indian law issues, the WAGLAC summer meeting will be a stand-alone meeting rather than as part of the CWAG Summer meeting. The stand-alone WAGLAC summer meeting will expand from one and a half day to two full days. We are excited to have you all at our upcoming WAGLAC meeting! Clive
WAGLAC Meeting
June 24 - 25, 2019
Double Tree by Hilton
Park City, Utah
WAGLAC (Western Attorneys General Litigation Action Committee) meets three-times a year to discuss current litigation and issues facing Western States. The WAGLAC meeting will be held on June 24-25, 2019 at The Doubletree by Hilton Park City. 

In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on public lands issues.  Idaho Attorney General Lawrence Wasden will discuss the fiduciary duties of state trust land managers. Please fill out and return the form below or email CWAG Legal Director Clive Strong at Clive.Strong@cwagweb.org. Please email to Clive any items you wanted distributed at the meeting.
EPA/State CWA Section 401 Conference Call

EPA held a conference call with the Big 10 intergovernmental associations on April 23 rd  to discuss its process for reviewing EPA CWA Section 401 Guidance. This was a follow on call to EPA’s April 17 th  webinar on CWA Section 401. As you will notice in reviewing the link below, the slides for the April 23 rd  call are almost identical to those presented at the April 17 th  webinar. 

EPA characterized the conference call as a federalism consultation. After a 40 minute presentation, EPA took comments from the associations for 20 minutes. EPA did not provide any insight on the types of changes it intends to propose even though EPA acknowledged that it has been working on the changes for awhile

A number of the associations took issue with EPA’s characterization of meetings listed on slide 12 as consultation meetings. And, all of the associations expressed concern with EPA’s intent to issue new 401 guidance by June 9 th . When asked about how EPA intended to consult with states, EPA responded that it would have a follow-up conference call in May. The Western Governors Association representative stated that slides 13 and 14 failed to accurately reflect state feedback. EPA did not respond to a question asking it define what it perceived the need was for changing the current guidance.

EPA urged states to submit comments and recommendations. Comment and recommendations must be submitted by May 24, 2019 . To submit comments or read more about the process use the links below.
Maui County Could Settle Clean Water Act Case
E&E News
April 29, 2019

The biggest environmental case on the Supreme Court's docket in years might not happen after all.

Earthjustice confirmed to E&E News that it made a settlement offer last week to Maui County in closely watched litigation over the scope of the Clean Water Act.
14 State Attorneys General Express Concern Regarding Corps' CWA Section 401 Directive
Fourteen State Attorneys General requested the Corps withdraw its Regulatory Policy Directives Memorandum dated December 13, 2018. The Directive states that the Corps regulations give states “sixty (60) days to act on a request for a Section 401 water quality certification upon receipt of such request” unless special circumstances warrant more time. The Attorneys General assert the Corps action infringes on States’ Rights to protect the quality of their waters and “upends the Clean Water Act’s system of cooperative federalism.”
Trump Administration Reevaluating Offshore Drilling Plans
AP News
April 25, 2019

The Trump administration said Thursday it is reevaluating its controversial plan to sharply expand offshore drilling as it responds to a court ruling that blocked oil and gas development off Alaska and parts of the Atlantic.
Court Won't Revisit Ruling That Tossed Atlantic Coast Pipeline's Permit to Cross Appalachian Trail
AP News
February 29, 2019

A federal appeals court on Monday denied a request to reconsider a ruling throwing out a permit for the Atlantic Coast Pipeline to cross two national forests, including parts of the Appalachian Trail.

The 4th U.S. Circuit Court of Appeals rejected a request from lead pipeline developer Dominion Energy and the U.S. Forest Service to hold a full-court rehearing.
EPA Approves Idaho Human Health WQ Criteria
April 4, 2019
Over the last decade, Idaho, Washington and Oregon have been working to update their human health criteria. Idaho received EPA approval of its human health water quality criteria for toxics on April 4, 2019. 
In rejecting Idaho’s 2010 proposed criteria based on the national default fish consumption rate of 17.5 g/day, EPA stated that “Idaho failed to consider available local and regional fish consumption information suggesting that fish consumption among some Idaho population groups was greater than [the default rate]. The EPA’s review of available information suggested that recreational anglers and subsistence fishers in Idaho consume fish at rates higher than the national default rate.” 
In 2015 EPA asserted for the first time in writing that “when setting criteria to adequately protect Idaho’s designated uses, it is necessary to consider tribal reserved rights, including tribal treaty-reserved fishing rights . . ..” as a designated use. 
Idaho hired a contractor to conduct a statewide fish consumption survey, and EPA funded a parallel tribal survey of fish consumption. After considering all of the surveys, Idaho Department of Environmental Quality selected a fish consumption standard of 66.5 g/day, which EPA found to be protective of both the general population and more highly exposed subpopulations of Idaho anglers and tribes. And, EPA ultimately determined that Idaho’s criteria was protective of Idaho’s designated recreational uses.
In approving Idaho’s revised criteria, EPA reconsidered its authority to require Idaho to reinterpret its designated uses to include tribal subsistence fishing, and concluded “the existence of tribal treaties with reserved fishing rights does not grant EPA authority to recharacterize a state’s designated uses or otherwise skew the federal-state balance of the [Clean Water Act] towards the federal government, and they also do not limit or prohibit the EPA from taking lawful action under the CWA to approve a WQS that does not include a subsistence fishing designated use.”
Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (Phase II)

In 2013, the Agua Caliente Band of Cahuilla Indians brought an action in the Federal District Court the Central District of California seeking declaratory and injunctive relief against the Coachella Valley Water District for injury to its claimed right to ground water. The parties stipulated to trifurcate the case. In Phase I, the District Court held that the Tribe is entitled to a reserved right ground water. After the Ninth Circuit affirmed the District Court’s Phase 1 decision and the Supreme Court denied cert., the case was remanded to the District Court. 

On April 19, 2019, the District Court issued a decision in response to motions for summary judgment on the questions of “(1) whether the Tribe owns the pore space underlying its reservation; (2) whether there is a water quality component to the Tribe’s federal reserved water right; and (3) the appropriate legal standard to quantify the Tribe’s reserved water right.” Order at 2. 

The District Court held that the Tribe lacked Article III standing to pursue its quantification claim because the Tribe failed to show injury-in-fact to its Winters right. The District Court found that “an overdraft condition—whether currently or cumulatively over many years—is not enough to satisfy the Tribe’s burden to provide evidence of injury related to its quantification claim.” Id. at 15. And, the District Court found that the Tribe failed to provide any evidence of actual or imminent injury to the Tribe’s Winter’s right. The District Court rejected the Tribe’s water quality claim on similar grounds stating: “the Tribe focuses on changes to the water but does not provide evidence that these changes preclude the Tribe, either currently or imminently, from being able to use its reserved water for any purpose.” Id. at 18. The District Court, however, held that a concrete dispute existed over the ownership of the pore space below the reservation; and, therefore, deferred “to Phase III the narrow issue of whether the Tribe owns sufficient pore space to store its federally reserved water right.” Id. at 21.
GAO Tribal Consultation Report
The Government Accountability Office issued a report in March entitled Tribal Consultation, Additional Federal Actions Needed for Infrastructure Projects. GAO identified key factors that tribes and agencies believe hinder effective consultation on infrastructure projects. Key factors identified by the tribe included: 1) agencies initiating consultation too late; 2) agencies not adequately considering tribal input; and 3) agencies not respecting tribal sovereignty “or the government-to-government relationship between federally recognized tribes and the federal government.” States have expressed similar concerns regarding federal/state consultations.
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 
Recent Indian Law Case Summaries
Knighton v. Cedarville Rancheria of Northern Paiute Indians , ___ F.3d ___, 2019 WL 1781404 (9th Cir. Apr. 24, 2019) : T ribe possessed adjudicatory jurisdiction over claims against former nonmember Tribal Administrator for tortious conduct related to her employment.
Gingras v. Think Finance, Inc. , ___ F.3d ___, 2019 WL 1780951 (1st Cir. Apr. 24, 2019) Officers of a tribal payday on-line lender are subject to  Ex parte Young -like prospective relief for alleged violation of state usury laws and the Racketeer Influenced and Corrupt Organizations Act, and the loan agreements’ arbitration provisions are unenforceable on the basis of unconscionability.
People in Interest of E.T. , 2019 S.D. 23, ___ N.W.2d ___ (S.D. Apr. 17, 2019) Circuit court abused its discretion in denying request to offer expert witness testimony concerning the existence of good cause not to transfer child custody proceeding to a tribal court.
Clay v. Commissioner , 152 T.C. No. 13, Tax Ct. Dec. (RIA) 152.13 (Apr. 24, 2019) Distributions from a tribe’s nontaxable distribution revenue account, which was composed principally of revenue from a gross proceeds tax on its class II casino’s income, to tribal members were subject to federal income taxes.
Unkechaug Indian Nation v. New York State Dept. of Environmental Conservation , ___ F. Supp. 3d ___, 2019 WL 1872952 (E.D.N.Y. Apr. 23, 2019): Tribe’s complaint alleging violation of on- and off-reservation fishing treaty rights was not subject to dismissal on Eleventh Amendment, ripeness, or failure to state a claim grounds.
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.