WAGLAC News & Updates
September 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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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.
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WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana
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In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Natural Resource Damages. Announcement and agenda to follow.
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OMB Completes Review of WOTUS Withdrawal Rule
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EPA Announces Proposed Revisions to Section 404(c) Regulations
On September 4
th
, EPA hosted an informational webinar for state and local governments to explain proposed revisions to its regulations under Clean Water Act (CWA) §404(c), also referred to as EPA’s “veto authority,” contained in 40 CFR Part 231. “Section 404(c) authorizes the EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material at any time the EPA Administrator determines, after notice and opportunity for public comment, that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.” EPA’s notice says: “Although this action does not trigger pre-proposal consultation requirements under the EPA’s policy for implementing Executive Order13132, entitled ‘Federalism,’ the EPA is reaching out to ensure that intergovernmental associations and their members are aware of this forthcoming proposal, and to provide an opportunity for input during the pre-proposal period.” The proposed changes are detailed in the attached power point.
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Trump Admin Says Calif. Deal With Automakers Broke Law
E&E News
September 6, 2019
"The Trump administration warned a top California air regulator that she may have violated federal law by brokering a landmark deal with four automakers.
In a sharply worded letter, EPA and the Department of Transportation warned California Air Resources Board Chairwoman Mary Nichols that she may be on shaky legal ground."
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Maryland Attorney General Brian Frosh Defeats Pipeline Company’s Takings Claim Over State Land
Legally Speaking
August 21, 2019
"A federal court granted Maryland Attorney General Brian Frosh’s
motion to dismiss
a
complaint
filed by Columbia Gas Transmission, LLC, seeking to condemn Maryland state land to construct a natural gas pipeline. Judge George L. Russell III of the U.S. District Court for the District of Maryland found that although Federal Energy Regulatory Commission approval conferred eminent domain authority to Columbia Gas to condemn land for its project pursuant to the Natural Gas Act, the statute does not abrogate state sovereign immunity or allow a private company to exercise the federal government’s state sovereign exemption to sue Maryland for condemnation without Maryland’s consent. AG Frosh stated in his motion to dismiss that the Eleventh Amendment to the Constitution prevents states from being sued in federal court by private citizens and was thus a jurisdictional bar to Columbia Gas’s suit.
A case raising similar issues remains pending before the U.S. Court of Appeals for the Third Circuit. In that case, New Jersey Attorney General Gurbir Grewal appealed the district court’s grant of an order of condemnation to PennEast Pipeline Company for state land. The Third Circuit
agreed
with AG Grewal that PennEast’s activities on state land should be stayed pending appeal and is currently considering the merits of the case."
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Court Reverses Ruling On Calif. Agricultural Drainage Permit
E&E News
September 9, 2019
A federal appeals court breathed new life into a long-running dispute concerning agricultural drainage in California's Central Valley.
The 9th U.S. Circuit Court of Appeals reversed a lower court ruling, saying it erred in its interpretation of a Clean Water Act permitting exception for agricultural discharges.
The case concerns a complex system in the San Joaquin Valley that captures agricultural wastewater that is rich in pollutants, like selenium, before it contaminates the area's groundwater aquifer.
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Coeur d’Alene Tribe v. State of Idaho Docket No. 45383
In 2008, a general adjudication began in state court for a comprehensive determination of the nature, extent, and priority of all surface and ground water rights in the Coeur d’Alene-Spokane River Basin water system in Idaho. The United States filed 353 claims on the Coeur d’Alene Tribe’s behalf seeking federal reserved water rights. The Tribe’s reservation was established by President Grant in an 1873 executive order following an agreement between the Tribe and the United States. The agreement was not Congressionally ratified, and subsequent negotiations resulted in 1887 and 1889 agreements ceding the reservation’s northern part, including two-thirds of Lake Coeur d’Alene. Congress ratified the latter agreements in 1891. The reservation was eventually allotted and then opened to nonmember homesteading through a 1906 statute.
The parties filed cross-summary judgment motions directed to determining the basic incidents of the Tribe’s reserved rights. The district court decided those motions in 2017 from which appeals were taken. The Idaho Supreme Court issued its opinion on September 6, 2019 that affirmed in part and reversed in part the district court. The Supreme Court’s principal holdings follow.
- Reservation’s purposes for reserved water right entitlements. The Court held that “the Reservation and any implied water rights were created in 1873 by the executive order.” It found the reservation’s “general purpose” to be “provid[ing] a homeland for the Tribe” and held that this purpose supported “the following water rights: consumptive uses for both domestic (including groundwater) and agriculture; and nonconsumptive uses for hunting (wildlife habitat), fishing (fish habitat), plant gathering (including seeps and springs), and cultural activities—so long as they can be established as aboriginal uses (i.e., uses of water predating the creation of the Reservation).”
- Control of Lake Coeur d’Alene’s level. The Tribe’s reserved rights do not encompass an entitlement to control the level of Lake Coeur d’Alene.
- Groundwater. Following Agua Caliente of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262 (9th Cir. 2017), the Court held that the Tribe’s reserved rights encompass groundwater sources.
- Industrial, commercial and aesthetic uses. The reservation’s homeland purpose do not include industrial, commercial or aesthetic purposes.
- Instream flows. The Tribe possesses on-reservation instream flow (i.e., non-consumptive) reserved rights but not off-reservation instream flow reserved rights. Two Justices of the five-member Court dissented from the latter holding.
- Priority dates. The Tribe’s non-consumptive reserved rights have a time immemorial priority date regardless of on-reservation location and are not subject to loss through non-use. Consumptive water rights for lands originally allotted to individual Indians under the 1906 Act and later sold to non-Indian purchasers and lands opened for homesteading but never claimed by nonmembers carry an 1873 priority date. Consumptive water rights for lands homesteaded by nonmembers and later acquired by the Tribe or tribal members have the priority dates established under state law by the nonmembers or the date of acquisition if a nonmember did not have a perfected water right.
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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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In Matter of Dependency of Z.L.G. and M.E.J.G.
, ___ P.3d ___, 2019 WL 4164880 (Wash. Ct. App. Sept. 3, 2019)”: Where parents claimed only Indian heritage, not tribal membership, and the state agency’s investigation failed to establish that either the parents or their two children were tribal members, reason to know that the children were “Indian children” did not exist. Shelter care, or emergency, hearings under Washington statutes are exempt from the ten-day notice and active efforts requirement of the Indian Child Welfare Act.
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U.S. v. Antonio
, ___ F.3d ___, 2019 WL 4180406 (10th Cir. Sept. 4, 2019): Land on which motor vehicle accident occurred was within the 1748 Spanish land grant to the Sandia Pueblo confirmed by Congress in 1858 and constituted Indian country under 18 U.S.C. § 1151 for purposes of a second-degree murder prosecution in federal court.
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Cherokee Nation v. Bernhardt
, ___ F.3d ___, 2019 WL 4197483 (10th Cir. Sept. 5, 2019): Bureau of Indian Affairs did not violate applicable law by taking a tract of land within the former reservation of the Cherokee Nation into trust for another federal acknowledged tribe.
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Flandreau Santee Sioux Tribe v. Noem
, ___ F.3d ___, 2019 WL 4229068 (8th Cir. Sept. 6, 2019): State may not impose its use tax on the sale of “amenities” in a tribal casino to nonmembers but may condition the renewal of an alcoholic beverage license on the Tribe’s remittance of the tax for sales to nonmembers at a reservation convenience store where its application is not preempted.
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Flandreau Santee Sioux Tribe v. Haeder
, ___ F.3d ___, 2019 WL 4231360 (8th Cir. Sept. 6, 2019): State excise tax on the gross proceeds received by a nonmember contractor in connection with renovating and expanding an on-reservation casino was not preempted.
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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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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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