News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
July 6, 2020
WAGLAC Summer Meeting
August 10-12, 2020
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow
COVID-19 Policies

We all recognize the challenges of coordinating and attending a gathering while COVID-19 is circulating throughout the world. As a reminder, health officials recommend that people minimize contact to the maximum extent possible until there is a vaccine or cure. For those considering, and those comfortable attending the WAGLAC Summer meeting, the attachments detail the preventative practices implemented by Springhill Suites and the Karst Stage Company.  
CWAG/AGA Presents:
Supreme Court of the U.S. Virtual Term Review
Monday, July 20th at 3pm EDT

  • The Honorable Mark Bennett, U.S. Court of Appeals for the Ninth Circuit
  • Jeffrey F. Fisher, Stanford Professor of Constitutional Law
  • Ed Kneedler, Deputy Solicitor General, US Department of Justice
  • Clive Strong, CWAG Legal Director of Natural Resources and Environment

For more details, contact Andrea Friedman at
Sierra Club v. EPA – Permit Renewal Under Title V CAA Must Comply with All Applicable Requirements.
Justia US Law

The issue this case presented for the Tenth Circuit's review involved an interpretation of an environmental regulation addressing the renewal of permits under Title V of the Clean Air Act. The statute and accompanying regulation allowed renewal of these permits only if they ensured “compliance with” all of the “applicable requirements.” The term “applicable requirements” was defined in the regulation, but not the statute. The Sierra Club interpreted the regulatory definition to require compliance with all existing statutory requirements; the EPA interpretd the regulatory definition more narrowly, arguing that the applicability of certain requirements was determined by the state permit issued under a separate part of the Clean Air Act (Title I). The Tenth Circuit agreed with the Sierra Club’s interpretation: the regulatory definition of “applicable requirements” included all requirements in the state’s implementation plan, and Utah’s implementation plan broadly required compliance with the Clean Air Act. So, the Court concluded, all of the Act’s requirements constituted “applicable requirements” under the regulation.
American Wild Horse Campaign v. Bernhardt
NEPA challenge to BLM’s “geld and release” program to control wild horse population rejected

Congress adopted the Wild Free-Roaming Horses and Burros Act in 1971(16 U.S.C. §§ 1331 to 1340) in response the animals’ imminent disappearance and amended the law seven years later in response to the Bureau of Land Management’s success in reviving the population. The amendments’ “main purpose ... was ‘to cut back on the protection the Act affords wild horses, and to reemphasize other uses of the natural resources wild horses consume.’” Id. § 1333(a). Because adoption proved an insufficient instrument to control the animal numbers and euthanization funding does not exist, BLM has established long-term holding facilities for the excess population. BLM began a five-year Gelding Study in 2016 to “evaluate whether gelding is ‘an effective approach to slowing the annual population growth rate,’ the effects ‘of maintaining a population of gelded males on the behavior and spatial ecology of the overall population,’ and the ‘health and short-term survival’ of the geldings.” A National Academy of Sciences report issued in 2013 had examined, inter alia, the potential methods of controlling horse populations and concluded that “[a]s for gelding some males in a herd, ... the effects on reproduction and behavior ‘could not be predicted at the time [the] report was prepared.’”
Judge orders Dakota Access pipeline shut down pending review
ABC News
July 6, 2020

"A judge ordered the Dakota Access pipeline shut down for additional environmental review more than three years after it began pumping oil — handing a victory to the Standing Rock Sioux Tribe and delivering a blow to President Donald Trump’s efforts to weaken public health and environmental protections his administration views as obstacles to businesses.

In a 24-page order, U.S. District Judge James Boasberg in Washington, D.C., wrote that he was “mindful of the disruption" that shutting down the pipeline would cause, but that it must be done within 30 days. Pipeline owner Energy Transfer plans to ask a court to halt the order and will seek an expedited appeal, spokeswoman Vicki Granado said."
Landmark court ruling could spur FERC 'sea change'
E&E News
July 1, 2020

"Landowner advocates are cheering a watershed court ruling that cleared a long-standing obstacle to timely legal challenges of projects approved by the Federal Energy Regulatory Commission.

The U.S. Court of Appeals for the District of Columbia Circuit found that FERC could not use "tolling orders" to delay challengers of natural gas pipelines and other projects from bringing their claims before a court — even as construction moved forward.

This "asymmetrical finality timetable" for landowners and project developers had become commonplace, Judge Patricia Millett wrote in an opinion that sharply criticized the FERC practice."
Water Resources - Colorado/State Legislature
Western States Water Newsletter
July 3, 2020

"The Colorado legislature passed several bills related to instream flows. HB20-1037 authorizes the Colorado Water Conservation Board (CWCB) to augment stream flows to preserve or improve the natural environment to a reasonable degree by use of an acquired water right that has been previously quantified and changed to include any augmentation use. HB20-1157 amends the existing law that allows the CWCB to use loaned water for instream flows under certain procedural requirements to prevent injury to water rights. The bill expands the number of years a renewable loan may be exercised,
addresses the ability of the CWCB to use loaned water, and establishes scientific and water rights criteria for CWCB and the State Engineer (SE) to evaluate proposed water loans. It increases the filing fee, and includes a right to appeal the SE’s decision to a water
judge. HB20-1159 directs the SE to confirm claims of existing uses for water rights before CWCB may appropriate those water rights for instream flow purposes, for any water rights not already confirmed by court order or decree."
Required Attributes for Indian Reserved Water Rights
On June 29, 2020, the Special Master in Little Colorado River Adjudication in Arizona issued a summary judgment order establishing the attributes or characteristics that must be determined to decree the Hopi Tribe’s federal reserved water rights. The Little Colorado River Coalition asserted “that the federal reserved water rights must be defined by the attributes listed in §15.03 Rules for Proceedings Before the Special Master, which includes owner, priority date, type of use, source of water, flow rate, volume per year, point of diversion, place of use, period of use and irrigated acres. The United States argued “that federal reserved rights to water on an Indian reservation must
be defined by no more than a ‘sparse level of specificity’”.
After reviewing the legal development of the Indian reserved water rights doctrine, the Special Master concluded “decreed rights ‘for an Indian tribe must include sufficient attributes to allow enforceable administration of such water rights.’ The following minimum water right attributes shall be established by the Claimants for federal reserved water rights for the Hopi Reservation: beneficial use (type of use); source of water; location of the place of diversion or withdrawal (for consumptive uses); location of the place of use; and quantity. Other attributes maybe necessary to define the water right depending on the claimed use such as number or acres or consumptive use in the case of irrigation.”
Water diversions paused to ensure river keeps flowing
E&E News
July 1, 2020

"One of New Mexico's largest drinking water providers will stop diverting water from the Rio Grande to help prevent the stretch of the river that runs through Albuquerque from going dry this summer, officials said.

The Albuquerque Bernalillo County Water Utility Authority said the curtailment is expected to last until the fall as the utility switches to using groundwater exclusively over the summer to provide drinking water to customers in the metro area.

While the river's dwindling levels aren't expected to force mandatory restrictions on water use in the Albuquerque area, officials are urging people to conserve to limit the strain on the aquifer."
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
Confederated Tribes of Chehalis Reservation v. Mnuchen , ___ F. Supp. 3d ___, 2020 WL 3489479 (D.D.C. June 26, 2020) Alaska Native Corporations are “Indian tribes” eligible for funding under the CARES Act.
Confederated Tribes and Bands of Yakama Nation v. Yakima County , ___ F.3d ___, 2020 WL 3495307 (9th Cir. June 29, 2020) The word “and” in Washington State’s retrocession of Public Law 280 over certain offenses on the Yakama Reservation but retention of jurisdiction “over criminal offenses involving non-Indian defendants and non-Indian victims” is properly construed in the disjunctive.
LaVallie v. Jay , 2020 ND 147, ___ N.W.2d ___ (June 29, 2020) Jurisdiction over appeal is maintained, but matter remanded for the district court to make factual findings and a legal determination as to whether it possessed subject matter jurisdiction over a tort claim.
New Holy v. U.S. Department of Interior , ___ F. Supp. 3d ___, 2020 WL 3542251 (D.V.D. June 30, 2020) Claim alleging that the Bureau of Indian Affairs improperly declined to extend deadline to submit a petition for a tribal constitutional-amendment election was dismissed for lack of subject matter jurisdiction, while counts alleging the invalidity of a BIA rule requiring such petitions to be submitted within one year of the first signature and breach of trust in declining to extend such deadline were dismissed for failure to state a claim.
United States v. Osage Wind, LLC , ___ F. Supp. 3d ___, 2020 WL 3578351 (N.D. Okla. July 1, 2020) Leave was denied to the United States to file a second amended complaint and to an intervenor to file a complaint in intervention to the extent that those pleadings included allegations of intentional, willful or bad faith conduct or requested an accounting for revenue attributable to operation of a wind farm, disgorgement or unjust enrichment.
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers , ___ F. Supp. 3d ___, 2020 WL 3634426 (D.D.C. July 7, 2020) District court ordered vacatur of the Army Corps of Engineers’ easement for the Dakota Access Project that was issued without preparation of an environmental impact statement in violation of the National Environmental Protection Act.
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
Western Attorneys General Litigation Action Committee
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. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.