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

In response to COVID-19, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020.

TO REGISTER: email RSVP to Andrea Friedman at AFriedman@AGAlliance.org, then you will receive full login details.
 
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.
WAGLAC WINTER MEETING UPDATE

The WAGLAC winter meeting will be held during the week of February 15, 2021. The decision on whether the meeting will be in person or virtual will be made later this fall in light of COVID-19 health and travel restrictions. The meeting will be conducted during the week of Presidents’ Day. The focus area will be water law.
ENVIRONMENT
Federal District Court Denies Motion to Enjoin NEPA Rules
 
On September 11th, Federal District Court Judge James P. Jones declined to enjoin the Council of Environmental Quality’s changes to the long-standing NEPA rules. The rules will take effect on September 14th. 

Judge Jones found the environmental groups failed to make the required showing to obtain a preliminary injunction.  “While the movants need not show a certainty of success, they must make a “clear showing” that they are likely to succeed on the merits as a prerequisite to a preliminary injunction. Pashby v. Delia, 709 F.3d at 321. The plaintiffs here may ultimately succeed in this case, but at this point they have not made that clear showing. While the Rule and its relevant documents speak for themselves, it is not unlikely that interpretative testimony and expert opinion would be required for the proper determination of the validity of the Rule. Moreover, the jurisdictional standing and ripeness issues raised in opposition to the request for an injunction and in the pending Rule 12(b)(1) motions to dismiss may very well require evidence. See Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 506 (4th Cir. 2015). “
These Changes Are Needed Amid Worsening Wildfires, Experts Say
The New York Times
September 10, 2020

"Wildfires are ravaging the West — in California alone, five of the largest blazes on record have all struck in just the past four years — offering a deadly reminder that the nation is far behind in adopting policies widely known to protect lives and property, even though worsening fires have become a predictable consequence of climate change.

Millions of Americans are moving into wildfire-prone areas outside of cities, and communities often resist restrictions on development. A century of federal policy to aggressively extinguish all wildfires rather than letting some burn at low levels, an approach now seen as misguided, has left forests with plenty of fuel for especially destructive blazes. This is all in an era when global warming is creating a hotter, drier environment, loading the dice for more extensive fires.

Some cities and states have taken important steps, such as imposing tougher regulations on homes built in fire-prone areas. And there has been movement toward using prescribed fires to scour away excess vegetation that can fuel runaway blazes in forests and grasslands.

But these changes are still happening too slowly, experts say, and have been overtaken by the rapid increase in wildfires."
EPA Chief Criticizes Democratic Governors, Vows to Concentrate on Cleaning Up Vulnerable Communities in a Second Trump Term
The Washington Post
September 3, 2020

"The head of the Environmental Protection Agency argued that the Trump administration, which has aggressively rolled back environmental regulations in recent years, has done more to help vulnerable communities deal with pollution than the “misdirected policies” and “misused resources” of its predecessors.

Fifty years after President Richard M. Nixon created the EPA, its current leader, Andrew Wheeler, traveled to his presidential library in California to outline a vision for the future that emphasizes economic development instead of tackling climate change."
New Mexico Approves Settlement Over Violations at Air Base
E&E News
September 11, 2020

"State water quality officials announced that they approved a settlement agreement with the U.S. Defense Department over groundwater violations at Cannon Air Force Base in eastern New Mexico.

The agreement addresses a compliance order that was issued over Cannon's lack of a groundwater discharge permit. The base also was accused of not providing state environmental regulators with information about chemicals left behind by past military firefighting activities."
In Rare Bipartisan Climate Agreement, Senators Forge Plan to Slash Use of Potent Greenhouse Gas
The Washington Post
September 10, 2020

"In a rare show of defiance of the Trump administration, key Senate Republicans joined Democrats in agreeing to phase out chemicals widely used in air conditioners and refrigeration that are warming the planet.

Despite the Trump administration’s refusal to join a global agreement to reduce hydrofluorocarbons, which are among the world’s most potent drivers of climate change, a push by U.S. firms and environmentalists appears to have swayed lawmakers."
ENERGY
In Reversal, Trump to Ban Oil Drilling Off Coasts of Florida, Georgia and South Carolina
The Washington Post
September 8, 2020

"President Trump made clear there is at least part of the nation’s coastline he is eager to protect: the crucial electoral battleground of Florida.

Trump announced plans to extend a moratorium on oil drilling in the eastern Gulf of Mexico, an area that includes the Sunshine State’s west coast, as well as expanding it to include the Atlantic coasts of Florida, Georgia and South Carolina."
WATER
Nevada Officials Raise Concerns About Proposed Utah Pipeline to Tap into More Colorado River Water
The Nevada Independent
September 9, 2020

"Nevada officials raised numerous concerns about permitting a proposed project to pipe large quantities of Colorado River water roughly 140 miles from Lake Powell to southern Utah, a controversial plan that would place new demands on the river. 

Six of the seven states that use the Colorado River also sent a letter to federal water managers asking them to refrain from completing project permitting until a consensus among the states could be reached on “outstanding legal and operational concerns.”

The U.S. Bureau of Reclamation, an Interior Department agency that is charged with managing reservoirs and watersheds across the West, released a draft environmental review of the project this year, as required by the National Environmental Policy Act, known as NEPA. Typically, the next steps in that process include releasing a final environmental review and a final decision. 

But the six states are asking that the process be put on hold."
U.S. Supreme Court to Resolve Dispute Between Mississippi and Tennessee Over Groundwater Rights
Mississippi Clarion Ledger
September 8, 2020

"Mississippi lawyers argue Memphis and the state of Tennessee since 1985 have wrongfully taken more than 252 billion gallons — approximately 15% to 20% of Memphis’ total water supply — from within Mississippi.

Mississippi is seeking declaratory and injunctive relief, as well as over $600 million in damages in its federal lawsuit against Memphis and the state of Tennessee.

Mississippi's amended lawsuit was filed in 2014 naming Memphis and the state of Tennessee as defendants.With closing arguments earlier this year, it appears a ruling could come soon in the case. An earlier lawsuit was lawsuit was dismissed because the state of Tennessee wasn't named as a defendant.
 
The special judge will make his decision to the U.S. Supreme Court on whether the aquifer is Mississippi property or an interstate resource. The high court will then decide whether to accept the recommendation.”
INDIAN LAW DESKBOOK
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.
Jamul Action Committee v. Simermeyer, ___ F.3d ___, 2020 WL 5361652 (9th Cir. Sept. 8, 2020)Tribal village composed of California Indians federally recognized in 1981 and chartered under the Indian Reorganization Act possessed in which various tribal officials shared when sued as “stand-ins” for the tribe in a suit challenging continued casino construction and operation, and dismissal under Fed. R. Civ. P. 19 was proper as to the remaining federal defendants.
U.S. v. Begay, ___ F.3d ___, 2020 WL _______ (10th Cir. Sept. 11, 2020)Law of the circuit prevented a three-judge panel from considering federal/state sentencing disparities under 18 U.S.C. § 3553(a)(6) arising from application of the Major Crimes Act to an Indian defendant.
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
About WAGLAC
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.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
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 database of all previously published WAGLAC newsletters, please follow the link below.