News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
August 17th, 2020
WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom

In response to the Covid-19 pandemic, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020. Please look for registration details in the coming weeks and hold space on your calendar.
In addition to the roundtable discussion of natural resource, environmental, and Indian law issues, there will be an Indian Law Seminar. Topics to be covered are:
  1. Larry Echo Hawk, Former United States Assistant Secretary of the Interior for Indian Affairs, Former Idaho Attorney General, and Former Shoshone-Bannock Tribal Attorney will share his Thoughts on State/Tribal Relations in the 21st Century;
  2. Adam Crepelle, Associate Professor, Southern University Law Center, and Managing Fellow of its Native American Law and Policy Institute, will discuss Tribes and Internet Payday Loans;
  3. Fronda Woods, Assistant Editor, American Indian Law Deskbook, will discuss Public Law 280: Fundamentals and Misconceptions;
  4. Clay Smith, Chief Editor, American Indian Law Deskbook, will discuss Tribal Adjudicatory Authority: Exhaustion, Deferral and the Merits; and 
  5.  Bruce Turcott, Managing Assistant Attorney General, and Michelle Carr, Assistant Attorney General, State of Washington will discuss Cannabis and Indian Country.
WAGLAC meetings are limited to CWAG Attorneys General and staff. Subject matter experts are encouraged to participate in the roundtable discussions. 
*Please note the meeting dates, times and duration have changed to accommodate participation by all CWAG member states. 

CWAG is pursing CLE credits for meeting.
Email Andrea Friedman at with questions.
Trump Administration Scraps Limits on Methane Leaks at Oil and Gas Sites
The Washington Post
August 13, 2020

"The Trump administration is scrapping limits on methane leaks, allowing oil and gas companies to decide how much of the potent greenhouse gas can escape into the atmosphere from wells, pipelines and storage tanks.

The new rules, issued by the Office of Management and Budget, effectively rescind the Environmental Protection Agency’s authority to regulate methane, the largest component of natural gas. Although it dissipates faster than carbon dioxide, methane is estimated to be at least 25 times and as much as 80 times more potent in terms of trapping heat in the atmosphere.

The administration said methane would now be regulated under the Clean Air Act like other volatile compounds, but the rules governing those smog-forming compounds are comparatively weak."
Arconic, Inc. v. APC Investment Co.
Ninth Circuit holds complaint seeking CERCLA contribution timely filed

The Comprehensive Environmental Response, Compensation, and Liability Act establishes a right of contribution in environmental cleanup actions for parties “to recover expenses paid under a settlement agreement or judgment” against non-parties whose actions were also responsible for the site contamination. 42 U.S.C. § 9613(f)(3)(B). Any action brought seeking contribution must be commenced within three years of the settlement agreement approval or judgment. Id. § 9613(g). In 1999, the Environmental Protection Agency placed a facility that Omega Chemical Corporation had operated for 15 years in Whittier, California on its National Priorities List. It then began developing a long-term environmental response plan directed at soil and groundwater contamination in the facility’s immediate vicinity denominated as Operable Unit 1 (OU-1). The agency later entered into a consent decree with the Omega Potentially Responsible Parties Organized Group (OPOG) to carry out the OU-1 cleanup. The decree received judicial approval in 2001. OPOG then sued other so-called de minimis entities in 2004 seeking contribution with respect to the OU-1 consent decree. The latter contributed $1.7 million in return for OPOG “assum[ing] their ‘responsibilities’ for the site, including their cleanup costs. This assumption was not limited to costs associated with OU-1; it included any Omega-site claims that the United States or another party might, in the future, assert against the de minimis parties.” This settlement also received court approval. 
Groups Launch Legal Fight Against Environmental Review Rules (2)
Bloomberg Law
July 29, 2020

"Two coalitions of environmental groups took the first legal shots at the Trump administration’s rewrite of federal environmental review regulations.

Wild Virginia, the Congaree Riverkeeper, and 15 other groups with roots in the Southeast sued the Council on Environmental Quality in federal court in Virginia for rewriting Nixon-era rules for how agencies conduct reviews under the National Environmental Policy Act.

A few hours later, a large coalition represented by Earthjustice and the Western Environmental Law Center filed suit in California.

The Trump administration finalized the changes earlier this month, seeking to speed up the permitting process for oil and gas development, road building, mining, and other projects."
Refugio Beach Oil Spill Natural Resource Damage Assessment Update

"On May 19, 2015, a pipeline owned and operated by Plains All America Pipeline, Inc. ruptured near Refugio State Beach in Santa Barbara County, California, sending oil into the ocean. In response, state and federal natural resource trustee agencies are conducting a Natural Resource Damage Assessment (NRDA). This process is compensatory, not punitive; it is separate and independent from the criminal trial currently
underway. An NRDA assesses exposure to spilled oil, documents spill-related injuries to the environment and its public uses, and provides compensation through environmental restoration projects. The spiller, Plains, is responsible to pay the NRDA costs, known as damages, for assessment work and restoration projects. "
WOTUS Update

On August 7th, Judge Michael W. Mosman of the U.S. District Court for the District of Oregon denied the Oregon Cattlemen’s Association’s request for stay of the 2020 WOTUS rule. Judge Mosman stated “Plaintiffs Motion is DENIED without prejudice due to lack of standing. The Oregon Cattlemen, like the cattlemen associations in New Mexico and Washington State, contend the 2020 WOTUS rule seeks to regulate waterbodies that are not directly connected to waters of the United States in contravention of Supreme Court precedent.  Oregon Cattlemen’s Association v. USEPA, Case No. 3:19-cv-00564-AC.
Climate Concerns Preclude Dam Breaching — Trump Admin
E&E News
August 11, 2020

"The Trump administration has a new argument for opposing the breach of salmon-killing dams in the Pacific Northwest: climate change.

In a highly anticipated environmental analysis of the Columbia River's hydropower system, the administration justifies keeping the dams by arguing that taking their hydropower offline would require the region to turn to more carbon-intensive energy, such as gas or coal.

That switch, the agencies say, would make it harder to comply with states' efforts to fight climate change. Washington state's law, for example, requires 100% carbon-free power by 2045.

Taking out the dams would make those climate change-related goals "more difficult to achieve," they wrote.

Conservationists said the justification is galling coming from the Trump administration, which exited the Paris climate agreement, has undone numerous federal climate-related policies and is set this week to dismantle EPA regulations for limiting emissions of heat-trapping methane (see related story). The administration, they say, is pitting climate change against fish."
U.S. Court Blocks Trump Administration’s Relaxation of Migratory Bird Safeguards
August 11, 2020

"A federal judge in New York sided with environmental groups in striking down a Trump administration decision to roll back U.S. government protections for migratory birds that made it illegal for nearly 50 years to inadvertently kill them.

In a 31-page ruling that began by invoking the famed novel “To Kill a Mockingbird,” U.S. District Judge Valerie Caproni of Manhattan upheld a longstanding interpretation of the century-old Migratory Bird Treaty Act that energy companies and other businesses have opposed as too broad.

It marked the latest in a series of court rulings against numerous moves by President Donald Trump’s administration to weaken environmental safeguards viewed as burdensome to industry."
ND Supreme Court Sides With State in $200M Mineral Rights Case
Inforum Bismarck
July 30, 2020

"The North Dakota Supreme Court ruled in favor of the state, in a major dispute over oil and gas mineral rights beneath Lake Sakakawea, unlocking more than $200 million in disputed royalties.

The case, Sorum v. North Dakota, arose out of a dispute over the constitutionality of a 2017 law permitting the state to refund royalties it said it had incorrectly earned off land beneath the lake. The court's opinion, written by Justice Jerod E. Tufte, ruled that the state could assess these royalties and distribute them to private mineral operators.

The case was a complicated hashing of land rights law, hinging on a contested definition of Lake Sakakawea's borders. The implications of the case are significant, since $200 million in royalties have accumulated from that land in just the last few years. The North Dakota Supreme Court's decision will set a precedent for distribution of money accumulated off the land going forward."
Pierce v. Ducey, No. 19-17071 (9th Cir. 2020)
Justia US Law

"Arizona's Governor appealed the district court's declaratory judgment interpreting the New Mexico-Arizona Enabling Act of 1910. The district court declared that even after a 1999 amendment, the Enabling Act continues to require congressional consent to any changes to the state constitution affecting the investment or distribution of assets in Arizona's land trust for public schools.

The Ninth Circuit vacated, holding that the district court lacked jurisdiction to enter this judgment. The panel held that plaintiff lacked standing to challenge either past or future changes to the distribution formula. In this case, plaintiff stipulated that the only injury particular to him is his individual belief that the state is not obeying federal law, but such an injury is not concrete for Article III standing. The panel also held that, even if this case had initially presented a justiciable controversy, that controversy ended when Congress consented to the distribution formula in Proposition 123."
Tribe Sues Over Interior Contract With Ex-Bernhardt Client
E&E News
August 14, 2020

"A Northern California tribe sued to block the Interior Department from executing a permanent water contract with the Westlands Water District, a former client of Secretary David Bernhardt.

The Hoopa Valley Tribe, whose reservation sits on the Trinity River, said the delivery contract would irreparably harm the river's salmon runs, upon which it has relied for millennia."
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.
Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan, ___ F. Supp. 3d ___, 2020 WL 4569558 (E.D. Mich. Aug. 7, 2020): Defendant health plan administrator did not breach its fiduciary responsibilities under the Employee Retirement Income Security Act by not paying for medical services at Medicare-Like Rates.
Perkins v. Commissioner, ___ F.3d ___, 2020 WL 4644984 (2d Cir. Aug. 12, 2020)Neither the 1794 Treaty of Canandaigua nor the 1842 Treaty with the Seneca contains an exemption from federal taxation for income earned from the sale of gravel derived from tribal fee land.
Alegre v. United States, ___ F. Supp. 3d ___, 2020 WL 4673099 (S.D. Cal. Aug. 12, 2020)Federal defendants possessed immunity from claims seeking monetary relief for violation of the Fifth Amendment’s equal protection component.
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.