WAGLAC News & Updates
March 25, 2019
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.
WAGLAC meeting dates and locations are under development.
Please check the next coming newsletters for related News and Updates.
Teck Metals Ltd. Seeks Supreme Court Review of Extraterritorial Application of CERCLA
On March 4, 2019, Teck Metals Ltd. filed a petition for certiorari seeking review of the U.S. Ninth Circuit’s decision holding the Canadian Company liable for payment of cleanup response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Teck Metals Ltd. (Teck) owns a smelter that has operated in British Columbia, Canada for over a century. Teck and its predecessors discharged pollutants from the smelter into the Columbia River in Canada that were carried into and ultimately settled in Washington State. The Confederated Tribes of the Colville Reservation and Washington State brought private suits under CERCLA for declaratory relief, response costs, and natural-resource damages for smelter discharges into the Columbia River. In its September 14, 2018 decision upholding the trial court’s decision, the Ninth Circuit held the trial court properly found personal jurisdiction over the company under the so-called “effects” test of Calder v. Jones, 465 U.S. 783 (1984). The Court also upheld the trial court’s award of $3.39 million in investigation expenses plus $4.86 million in attorney’s fees and costs.
This is the second time Teck has sought Supreme Court review of the extraterritorial application of CERCLA. In 2008, the Supreme Court rejected a similar petition from the Company. The petition asserts the Ninth Circuit’s 2018 decision in Pakootas, et al. v. Teck “cannot be squared” with prior Supreme Court cases. The questions presented in the petition are:

  1. Whether the Ninth Circuit, in conflict with Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), correctly concluded that holding Teck liable for its discharges in Canada was not an impermissible extraterritorial application of CERCLA.
  2. Whether the Ninth Circuit, in conflict with this Court’s decision in Walden v. Fiore, 571 U.S. 277 (2014), and the Second, Fifth, and Seventh Circuits, correctly held that a State may exercise specific personal jurisdiction over a defendant because the defendant knew its conduct would have in-state effects, where the defendant’s relevant conduct occurred elsewhere.
  3. Whether the Ninth Circuit, in conflict with the First Circuit and in tension with the opinions of this Court and several other circuits, correctly held that a defendant can be an “arranger” under CERCLA even if the defendant did not arrange for anyone else to dispose of or treat the waste.
EPA Head Says Drinking Water a Larger Threat Than Climate Change
EPA Administrator Andrew Wheeler said that drinking water, not climate change, is the largest global threat. Some experts disagree.
U.S. News & World Report
March 20, 2019

"The head of the agency tasked with protecting public health and the environment said Wednesday that he believes unsafe drinking water is a bigger threat than climate change.

Environmental Protection Agency Administrator Andrew Wheeler told CBS News in an interview that aired Wednesday morning that "most of the threats from climate change are 50 to 75 years out," but people are dying from contaminated drinking water now."
Governor Signs Landmark Energy Legislation, Establishing New Mexico As A National Leader In Renewable Transition Efforts
Mar 22, 2019

"Surrounded by dozens of advocates and statewide leaders, Gov. Michelle Lujan Grisham on Friday signed Senate Bill 489, the Energy Transition Act, landmark legislation that sets bold statewide renewable energy standards and establishes a pathway for a low-carbon energy transition away from coal while providing workforce training and transition assistance to affected communities.

Developed over the course of a year with collaboration by community organizations, unions, energy groups and advocates, the Energy Transition Act establishes New Mexico as a national leader in clean energy. The ETA sets a statewide renewable energy standard of 50 percent by 2030 for New Mexico investor-owned utilities and rural electric cooperatives and a goal of 80 percent by 2040, in addition to setting zero-carbon resources standards for investor-owned utilities by 2045 and rural electric cooperatives by 2050. The law transitions New Mexico away from coal and toward clean energy, ensuring greater renewable energy production and reducing costs for consumers, and provides tens of millions of dollars of economic and workforce support for communities impacted by coal plant closures, as well as the development of renewable replacement power in San Juan County."
Oregon Governor Signs Landmark Anti-Coal Bill Into Law
The Seattle Times
March 11, 2019

"With the stroke of Gov. Kate Brown’s signature Friday, Oregon became the first state to eradicate coal from its power supply through legislation and now boasts some of the most stringent demands for renewable energy among its state peers.

The new law will wipe out coal-generated energy in phases through 2030 and requires utilities to provide half of customers’ power with renewable sources by 2040, doubling the state’s previous standard."
Department of the Interior Statement on Transmittal of Drought Contingency Plans by the Seven Colorado River Basin States and Key Water Districts to Congress for Implementation
March 19, 2019

"Since 2000, the Colorado River Basin has experienced historic drought and dry conditions. Currently, the combined storage in Lakes Powell and Mead are at their lowest levels since Lake Powell initially began filling in the 1960s.

On February 6, 2019, the Department of the Interior published a notice in the Federal Register, 84 Fed. Reg. 2244, requesting input from the Governors, or designated Governors representatives, of the Colorado River Basin States regarding recommendations for potential actions by the Department of the Interior that: (a) would be appropriate to take to reduce the risks the Colorado River Basin is facing, and (b) could be adopted prior to the August 2019 determinations of operations for Lake Powell and Lake Mead in 2020, in the event that the Drought Contingency Plans (DCPs) could not be completed and promptly adopted.

On March 19, 2019, the Governor’s representatives of the seven Colorado River Basin States and key water districts formally submitted Drought Contingency Plans to Congress for immediate implementation. The Department of the Interior commends the Basin States and key water contractors on this important milestone. Given their successful efforts to reach consensus on the DCPs, the Department, by this statement, terminates its request for input from the Colorado River Basin States, as the immediate completion and implementation of the DCPs demonstrates the best path forward to: a) reduce the risks the Colorado River Basin is facing, and that b) can be adopted prior to the August 2019 determinations of operations for Lake Powell and Lake Mead in 2020."
Federal Judge Demands Trump Administration Reveal How Its Drilling Plans Will Fuel Climate Change
The Washington Post
March 20, 2019

"A federal judge ruled that the Interior Department violated federal law by failing to take into account the climate impact of its oil and gas leasing in the West.

The decision by U.S. District Judge Rudolph Contreras of Washington could force the Trump administration to account for the full climate impact of its energy-dominance agenda, and it could signal trouble for the president’s plan to boost fossil fuel production across the country. Contreras concluded that the Interior Department’s Bureau of Land Management “did not sufficiently consider climate change” when making decisions to auction off federal land in Wyoming to oil and gas drilling under President Barack Obama in 2015 and 2016. The judge temporarily blocked drilling on about 300,000 acres of land in the state."
Acting Secretary Bernhardt Signs Order to Ensure Public Access is Considered in Land Transactions
U.S. Department of the Interior
March 21, 2019

"Acting Secretary of the Interior David Bernhardt signed a secretarial order directing that the Bureau of Land Management (BLM) adequately weigh public access for outdoor recreation – including hunting and fishing – when determining the appropriateness of the disposal or exchange of public lands. Identifying lands as available for disposal or exchange is required under federal law."
Opinion Analysis: Washington State Motor-Fuel Tax Violates Yakama Treaty
March 20, 2019

"With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents,  Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreement about the rules of tribal treaty interpretation."
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
Washington State Dept. of Licensing v. Cougar Den, Inc. , ___ S. Ct. ___, 2019 WL 1245535 (U.S. Mar. 19, 2019): The right-to-travel provision in the 1855 Treaty with the Yakama Nation preempts application of Washington State’s fuel tax when imposed on tribal member importers who use highways to transport fuel to the Yakama Reservation
United States v. Cooley , ___ F.3d ___, 2019 WL 1285055 (9th Cir. Mar. 21, 2019): Evidence seized from non-Indian by tribal officer during roadside stop was subject to exclusion in federal court criminal proceeding because (1) the officer lacked jurisdiction to make the seizure under federal common law standards, (2) the seizure violated the Fourth Amendment counterpart in the Indian Civil Rights Act, and (3) the exclusionary rule applies to such violations.
Chemehuevi Indian Tribe v. Newsom , ___ F.3d ___, 2019 WL 1285060 (9th Cir. Mar. 21, 2019): The “catch-all” provision in 25 U.S.C.A. §2710(d)(3)(C)(vii) of the Indian Gaming Regulation authorizes negotiation over the duration of tribal-state compacts.
United States v. Turtle , ___ F. Supp. 3d ___, 2019 WL 423346 (M.D. Fla. Feb. 4, 2019): Tribal member is subject to criminal liability for violation of the Lacey Act for selling American alligator eggs where the species conservation necessity test is satisfied.
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.