WAGLAC News & Updates
July 9, 2019
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WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues.
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WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
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Please plan to arrive February 16th, the contracted room rate is $209/night.
More details to follow.
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New Lawsuit Targets Pipeline's Water Permit
E&E News
July 2, 2019
"A coalition of landowner and environmental groups yesterday launched a new legal battle over a federal approval for the Keystone XL pipeline.
The Army Corps of Engineers flouted the law when it authorized the project under a nationwide water permit without evaluating its environmental impacts, the groups argued in their lawsuit, filed in the U.S. District Court for the District of Montana."
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Owyhee River General Stream Adjudication Order of Determination
On May 3, 2019, the Fourth Judicial District Court of Nevada affirmed the State Engineers Order of Determination that the United States Forest Service is not entitled to federal reserved rights for stock watering on National Forests. Findings of Fact, Conclusions of Law and Decree Modifying Order of Determination in Part at 31.
Stockmen and the Forest Service filed competing claims for stock watering rights on federal lands. Prior to 1906, stock water rights could be established by “an . . . intent to apply [water] to beneficial use, followed by an application to such use in a reasonable time.” The State Engineer held the stockmen not the Forest Service are the owners of the stock water rights by virtue of grazing cattle upon the federal land. The Forest Service challenged the State Engineer’s Order of Determination arguing that “the pre-1905 stockmen were akin to its ‘agent[s], lessee[s or] and maintain[ed] that it ‘showed its intent to appropriate water for stock watering purposes by [doing nothing more than] allowing stockmen to use federal rangelands for livestock grazing, as well as use the waters on those lands for stock watering purposes.’” The Court found “[t]here is no evidence that pre-1905 stockmen were the ‘agents’ of the United States who could secure a vested water right for a governmental principal.” Although the district court held pre-1905 stockmen had established vested water rights on federal lands, the case was remanded to the State Engineer to determine whether the non-federal claimants are successors in interest to vested pre-1905 stock watering rights.
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Nevada's Anti-Speculation Doctrine Applies to Requests for Extension of Time
The Nevada Supreme Court reversed the State Engineer’s decision granting Intermountain Water Supply Ltd. an extension of time in which to apply water to beneficial use. The Court held Nevada’s anti-speculation doctrine applies to requests for extensions of time to apply water to beneficial use, and a generic option contract does not save an applicant from the anti-speculation doctrine. The Court found there was insufficient evidence in the record to demonstrate Intermountain Water Supply exercised reasonable diligence in developing the municipal water right permits.
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Congress/Water Resources: House Hearing/Indian Water Rights
Western States Water Newsletter
June 28, 2019
"On June 26, the House Natural Resources Subcommittee on Water, Oceans, and Wildlife held a hearing on the Navajo Utah Water Rights Settlement Act (H.R. 644), the Hualapai Tribe Water Rights Settlement Act (H.R. 2459), and the Aamodt Litigation Settlement Act (H.R. 3292). Witnesses included: Alan Mikkelsen, Senior Advisor to the Secretary of the Interior (DOI) on Water and Western Resource Issues; Chairman Damon Clarke, Hualapai Tribe; Director Thomas Buschatzke, Arizona Department of Water Resources; Norman Johnson, Natural Resources Division Chief, Utah Attorney General's Office; and President Jonathan Nez, Navajo Nation."
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NEPA Analysis Not Required for Designation of Lands Under HFRA
The Ninth Circuit affirmed the Federal District Court for the Eastern District of California’s grant of summary judgment for the Forest Service “in an action challenging the agency's designation of at-risk forest lands and its approval of the Sunny South Project, which aimed to address spreading pine-beetle infestation in previously designated at-risk areas within the Tahoe National Forest.” “In 2014, Congress amended the Healthy Forests Restoration Act (“HFRA”) to allow the Forest Service greater flexibility in managing the health of forest lands threatened by insect and disease infestation. Large areas of forest land that face a heightened risk of harms are designated as “landscape-scale areas.” 16 U.S.C. §§ 6591a, 6591b.”
“The panel held that the Forest Service’s designation of 5.3 million acres as a landscape-scale area in the Tahoe National Forest in California did not violate the National Environmental Policy Act (“NEPA”). Specifically, the panel held that here the designation of landscape-scale areas under HFRA did not change the status quo, and did not trigger a NEPA analysis.” The panel concluded no EA or EIS was required. The panel also held the Forest Service “decision was not arbitrary or capricious.”
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Court Upholds Utah's Efforts to Relocate Nonnative Goats in the La Sal Mountains, But Environmentalists Worry About Damage The Animals Do
The Salt Lake Tribune
May 9, 2019
"Environmentalists’ efforts to rid Utah’s La Sal Mountains of nonnative mountain goats derailed this week after the 10th U.S. Circuit Court of Appeals affirmed the U.S. Forest Service’s decision to allow the state’s controversial translocation program putting goats into fragile alpine areas."
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Public Easement Rights Subject to Legislative Change
The Utah Supreme Court, in
Conaster v. Johnson, 194 P.3d 897 (2008), “recognized a public easement right ‘to touch privately owned beds of state waters in ways incidental to all recreational rights’ to those waters.” In response to the Court’s decision, the Utah Legislature enacted the Public Waters Access Act (PWAA), which limited the easement to incidental touching and portage, without any recognition of a right to wade in the stream for hunting, fishing, swimming and other recreational use. Utah Stream Access Coalition brought an action in the Fourth District Court of Utah challenging the PWAA. The district court struck down the statute, under “public trust” principles. The Utah Supreme Court reversed the district court clarifying that its Conaster decision was based on common-law easement principles; accordingly, the Court held it was within the power of the legislature to define the scope of the easement.
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INDIAN LAW SUMMARY UPDATES
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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
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Recent Indian Law Case Summaries
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Bell v. City of Lacey
, ___ F. Supp. 3d ___, 2019 WL 2578582 (W.D. Wash. June 24, 2019)
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Tribe’s CEO and CFO were immune from suit for damages by a former prisoner in connection with operating a tribal detention facility pursuant to a contract with a city.
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Sam M. v. Alaska Dept. of Health & Social Services
, ___ P.3d ___, 2399594 (Alaska June 7, 2019)
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State agency engaged in the Indian Child Welfare Act’s required active efforts to provide remedial services and rehabilitative programs to a father of an Indian child prior to petitioning to terminate his parental rights.
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People ex rel. Becerra v. Native Wholesale Supply Co.
, ___ Cal. Rptr. 3d ___, 2019 WL 2762926 (3d Dist. July 2, 2019)
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California’s Tobacco Directory Statute and Fire Safety Act apply to cigarettes sold and sent to California tribe by an Indian-owned corporation headquartered on the Seneca Reservation in New York State.
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Williams v. Big Picture Loans, LLC
, ___ F.3d ___, 2019 WL 2864341 (4th Cir. July 3, 2019)
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Tribal on-line payday lending entities possessed immunity from suit by debtors for violation of state usury laws.
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Oliver N. v. State, Dept. of Health & Social Servs.
, ___ P.3d ___, 2019 WL 2896647 (Alaska July 5, 2019)
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In Indian Child Welfare Act proceedings where only one qualified expert witness testifies, the witness must possess not only expertise as to the relevant tribe’s social and cultural customs but also the expertise to establish the likelihood that continued custody by the parent will result in serious emotional or physical damage to the Indian child.
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Wilson v. Alaska Native Tribal Health Consortium
, ___ F. Supp. 3d ___, 2019 WL 2870080 (D. Alaska July 3, 2019)
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Consortium co-managing a medical center was an arm of its constituent Alaska Native regional entities. It thus did not constitute a “person” under the False Claims Act and was immune from suit as to state law claims.
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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.
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2019 NAAG/NAGTRI Bankruptcy Seminar
September 9-12, 2019
Santa Fe, NM
The National Association of Attorneys General (NAAG) will be joining the States’ Association of Bankruptcy Attorneys (SABA) to present the 2019 Bankruptcy Seminar under the auspices of the National Attorneys General Training and Research Institute (NAGTRI) at the Eldorado Hotel & Spa, from Monday, September 9 to Friday, September 12
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State of Alaska Department of Law Recruitment
The Civil Division of the Department of Law is the State of Alaska’s chief legal office in civil matters. The Civil Division has thirteen sections in offices throughout the state and is considered the “largest law firm” in Alaska. The Department is looking for multiple talented, energetic, and hard-working full-time attorneys to become members of our dynamic legal team. If you want to be a part of a collegial, collaborative, and professionally inspiring workplace, we hope you will consider joining us. The Department will begin evaluating and hiring for these positions on the closing dates listed in each job opening. Applications received after that date will be considered if the position remains available. Applicants with questions about the position should contact the section supervisor identified below.
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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
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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.
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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.
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