WAGLAC News & Updates
June 10, 2019
WAGLAC Summer Meeting
June 24 - 25, 2019
Double Tree by Hilton
Park City, Utah
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. 
WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues. 
WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
Please plan to arrive February 16th, the contracted room rate is $209/night.
More details to follow.
EPA Moves to Limit State and Tribal Section 401 Certification Authority
EPA issued revised guidance to state and tribes for water quality certification under CWA Section 401 on June 7th. “[T]his guidance addresses the following topics:

  1. Statutory and regulatory timelines for review and action on Section 401 certifications;
  2. The appropriate scope of Section 401 certification review and conditions; and
  3. Information within the scope of a state or tribe’s Section 401 certification review.”
Timelines: The CWA guidance states that “Section 401 certification begins upon receipt of a certification request.” This is a departure from the 2010 guidance, which provided “that the timeline for action begins upon receipt of a ‘complete application.’” EPA’s new guidance expressly limits the state and tribal review process to “a reasonable timeline” not to exceed one-year, and encourages federal permitting agencies to “establish reasonable timelines for action on Section 401 certification requests.” “If a state or tribe does not grant, deny, or voluntarily waive the Section 401 certification within the established reasonable timeline, or seek an extension of time,’ the appropriate federal agency is “authorized to determine that the Section 401 certification requirement has been waived and issue the federal permit or license.” Finally, the guidance states that “the timeline [for certification] does not pause or stop for any reason before action is taken on the certification request.” (Emphasis added).

Scope: EPA states that conditions in a Section 401 certification should be limited to only “ensuring compliance with the enumerated provisions of the CWA and other appropriate state or tribal water quality requirements.” “If a state or tribe issues a Section 401 certification with conditions beyond the scope of Section 401, i.e., conditions not related to water quality requirements, or has denied a water quality certification for reasons beyond the scope of Section 401, federal permitting agencies” the Office of General Counsel and the EPA are authorized “to determine whether a permit or license should be issued with those conditions or if waiver has occurred.”

Information: The guidance states that states and tribes “should only need the application materials submitted for the federal permit or license” to determine whether to grant a 401 certification. And, any “outstanding or unfulfilled request for information or documents [will] not pause or toll the timeline for action on a certification request.
In addition to issuing the CWA Section 401 guidance, EPA stated it intends to update its 1971 CWA 401 “regulations consistent with the timelines in the [Executive Order]. and may consider adopting some elements of this guidance during the rulemaking process.”
Streams Could 'Come in and Out' of WOTUS With Climate Change
E&E News
June 3, 2019

"The Trump administration's proposed Clean Water Act rollbacks are meant to draw clean lines showing which waterways are protected and which are not.

But climate change could complicate that as extended drought and increased storms change the hydrology of wetlands and streams nationwide.

The proposed Waters of the U.S., or WOTUS, rule would erase federal protections for streams that flow only after rainfall or wetlands without surface water connections to larger waterways."
Attorney General Becerra Denounces EPA Actions to Allow Indirect Water Pollution
June 7, 2019

"California Attorney General Xavier Becerra, as part of an 11 state coalition, filed a comment letter denouncing the U.S. Environmental Protection Agency’s (EPA) actions to abandon protections of rivers, creeks and lakes under the Clean Water Act (CWA). On April 23, 2019, the EPA issued new guidance that would exclude any discharge of pollutants that reach waters of the United States through groundwater from CWA permitting requirements. The new guidance contradicts EPA’s prior long-standing position regarding indirect discharges to waters of the United States and is in conflict with the CWA and Supreme Court case law. EPA’s guidance would give polluters free rein to direct pollutants such as wastewater, sewage, and industrial runoff into groundwater that is connected to a river, creek or a lake and avoid CWA liability for polluting these waterways.

Attorney General Becerra filed the letter along with the Attorneys General of Maryland, Colorado, Connecticut, the District of Columbia, Maine, Massachusetts, Michigan, Oregon, Rhode Island, and Vermont."
States Take Up PFAS Fight: 'Is This the Next Asbestos?'
E&E News
June 3, 2019

"State lawyers are lining up in court to fight PFAS, the vexing group of chemicals linked to cancer but used broadly in cookware, firefighting foam and other materials.
Litigation has increased as research and public awareness of potential impacts of per- and polyfluoroalkyl substances has grown in recent years. Now, state lawsuits against chemical manufacturers are piling up, raising the stakes for all involved."
Mills, Tribes Take Step Toward Ending Years-Long Dispute Over Sustenance Fishing
The Portland Press Herald
May 30, 2019

"The Mills administration and leaders of Maine’s Native American tribes are hoping to set aside long-standing legal disputes over sustenance fishing rights by proposing more protective water quality standards in waterways important to tribal members.

A bill presented to lawmakers would create a “sustenance fishing” designation within Maine’s water quality standards with the long-term aim of reducing pollution levels so tribal members could safely subsist on fish from those waterways."
Department of Transportation Has a Duty to Inspect Pipelines On Federal Lands
Wildearth Guardians sued the U.S. Department of Transportation, and its director, Elaine Chao in U.S. District Court of Montana alleging DOT “ that in the last six years “defendants have chronically failed” to examine “pipelines and associated facilities on federal lands in the United States.” Wildearth Guardians alleged that the Department of Transportation (“DOT”) and the Pipeline Hazardous Material Safety Administration (“PHMSA”) failed “to comply with the Mineral Leasing Act’s (“MLA”) directive that all oil and gas pipelines on federal lands receive at least one inspection annually.”
On May 23rd, District Judge Brian Morris denied the United States motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. Judge Morris held that the MLA requires the DOT to conduct an inspection at least annually of pipelines located on federal land, and therefore, Wildearth Guardians had properly alleged failure to act claim pursuant to 5 U.S.C. § 706(1) of the APA. Although Court of Appeals have jurisdiction to review actions under the Pipeline Safety Act of 1979 (“PSA”), 49 U.S.C. § 60101, et seq., the Judge Morris found he had jurisdiction to review a failure to act claim under the APA and that a “writ of mandamus that directed Federal Defendants [to] comply with its duty under the MLA could redress Wildearth’s alleged injuury."
Natural Resource Damages Conference
Law Seminars International is presenting its 12th Annual Natural Resource Damages Conference in Sante Fe, New Mexico on July 18th and 19th. The brochure is attached and there is more information available at:

At the request of Bill Jackson of KellyDrye, LSI has agreed to reduce the registration fee of members of CWAG attorneys general offices to $497.50, one-half of the normal registration fee.
Supreme Court Grants Certiorari to Review Whether CERCLA Preempts State Common Law Restoration Claims

The United States Supreme Court granted certiorari in Atlantic Richfield Co. v. Christian. The questions presented in the petition are : (1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
USDA Forest Service and State of Utah Sign Shared Stewardship Agreement
USDA Forest Service
May 22, 2019

"Secretary of Agriculture, Sonny Perdue, joined Utah State Governor, Gary R. Herbert, U.S. Department of Agriculture Forest Service Chief, Vicki Christiansen, and Intermountain Regional Forester, Nora Rasure, to sign an agreement between the Forest Service and the State of Utah focused on shared stewardship."
Dakota Access Pipeline Was Justified in Using Eminent Domain, Iowa Supreme Court Rules
Des Moines Register
June 1, 2019

"Iowa had the right to use eminent domain to seize private land for the controversial Dakota Access pipeline, the Iowa Supreme Court ruled, putting to rest a yearslong challenge from landowners and environmental groups who sought to stop the flow of oil through the state."
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
Recent Indian Law Case Summaries
Fleming v. Cherokee Nation , ___ F. Supp. 3d ___, 2019 WL 2327814 (D.D.C. May 31, 2019) Cherokee Nation Freedmen lacked standing to challenge 270-day domicile requirement for eligibility to run for Principal Chief.
Pauma Band of Luiseno Mission Indians of Pauma and Yuima Reservation v. UNITE HERE International Union , ___ F. Supp. 3d ___, 2019 WL 2358756 (S.D. Cal. June 4, 2019) Leave to file third amended complaint denied where jurisdictional defects inhering in previously dismissed complaint were not cured
Sault Ste. Marie Tribe of Chippewa Indians v. Bernhardt , ___ F.R.D. ___, 2019 WL 1789458 (D.D.C. Apr. 24, 2019) Two tribes and three nontribal casinos were entitled to intervene as a matter of right in an Administrative Procedure Act judicial review action by a third tribe challenging the Department of the Interior’s refusal to take parcels into trust for gaming purposes.
Flandreau Santee Sioux Tribe v. United States Dept. of Agriculture , ___ F. Supp. 3d ___, 2019 WL 2394256 (D.S.D. June 6, 2019) Tribe’s motion for preliminary injunction seeking implementation of its unapproved plan to produce industrial hemp during the 2019 season denied.
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.