News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
September 28th, 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
New Mexico Objects to License for Fuel Storage Plan
E&E News
September 24, 2020

"The state of New Mexico is strongly objecting to federal nuclear regulators' preliminary recommendation that a license be granted to build a multibillion-dollar storage facility for spent nuclear fuel from commercial power plants around the U.S.

State officials, in a letter submitted to the Nuclear Regulatory Commission, said the site is geologically unsuitable and technical analysis has been inadequate so far. They also say regulators have failed to consider environmental justice concerns and have therefore fallen short of requirements spelled out by federal environmental laws.

The letter also reiterates the state's concerns that the storage facility would become a permanent dumping ground for the spent fuel, as the federal government has no permanent plan for dealing with the waste that has been piling up at nuclear power plants."
Election and Supreme Court Fight Will Decide Trump’s Environmental Legacy
The New York Times
September 23, 2020

"President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly.

Those losses have actually heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bader Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks."
SUPREME COURT
What a Kavanaugh Court Means for Environmental Law
E&E News
September 22, 2020

"With President Trump appearing likely to have the Senate votes to pick Supreme Court Justice Ruth Bader Ginsburg's successor, court watchers are quickly zeroing in on the court's likely new swing vote: Justice Brett Kavanaugh.

Trump's new appointee would undoubtedly move the court further right, installing a sixth conservative on the bench.

Since Justice Anthony Kennedy retired in 2018, the court's fulcrum has been Chief Justice John Roberts, who has sometimes sided with his liberal colleagues to provide the critical fifth vote in several close decisions."
Could Barrett 'Shut the Courthouse Doors' on Enviros?
E&E News
September 26, 2020

"President Trump today selected Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg on the nation's highest bench.

If confirmed, Barrett, 48, will become the Supreme Court's sixth Republican-appointed justice, replacing one of the court's most liberal members and deepening a conservative majority on the bench that could affect the outcome of environmental litigation for decades."
PUBLIC LANDS
Judge Rules Pendley Illegally Leading BLM
E&E News
September 25, 2020

"A federal judge in Montana has handed the Trump administration a stunning rebuke, ruling that William Perry Pendley is illegally heading the Bureau of Land Management.

The order by Chief Judge Brian Morris of the U.S. District Court for the District of Montana bars Pendley from continuing to perform the duties of the BLM director. Unless President Trump designates a formal acting BLM director, Morris wrote, only Interior Secretary David Bernhardt "can perform functions or duties of the BLM Director."

Any "function or duty" of BLM director performed by Pendley since July 2019, when Bernhardt added "exercising the authority of director," would in essence "have no force and effect and must be set aside as arbitrary and capricious," the order said."
FISH & WILDLIFE
Pacific Choice Seafood Co. v. Ross

The National Marine Fisheries Service implements the Magnuson-Stevens Fishery Conservation and Management Act in the Pacific Ocean. In 2010, the Service issued a final rule (75 Fed. Reg. 78,344 (Dec. 15, 2010)) that set catch quotas for a fishery permit holder with respect to 90 species of groundfish, excluding Pacific whiting, off the Pacific Coast of California, Oregon and Washington. The quota is 2.7 percent of the aggregate catch limit. The Service interpreted the relevant provision of the Magnuson-Stevens Act, 16 U.S.C. § 1853a(c)(5)(D)(i), “as authorizing it to prohibit permit holders from ‘own[ing] or control[ling]’ quota share above the maximum.” The regulations further defined “control” to include “the ‘ability through any means whatsoever to control or have a controlling influence’ over an entity holding quota share.” Pacific Choice Seafood Co. operates a processing facility and “indirectly controls several vessels that participate in the fishery” whose take quotas totaled 3.8 percent of the aggregate take limit. After the Service issued a final rule ordering divestiture of the excess 1.1 percent, Pacific Seafood sought judicial review under the Administrative Procedure Act. The district court granted summary judgment to the federal defendants. Pacific Choice Seafood Co. v. Ross, 309 F. Supp. 3d 787 (N.D. Cal. 2018). The Ninth Circuit affirmed. Pacific Choice Seafood Co. v. Ross, No. 19-15455, 2020 WL 5742046 (9th Cir. Sept. 25, 2020).
WATER
Walker Lake Group to Take Water Suit Back to Federal Court
Associated Press
September 26, 2020

"Lawyers representing Mineral County and the Walker Lake Working Group announced they intend to take a water rights case with broad implications back to federal appeals court to ask whether Nevada can adjust already allocated water rights to sustain rivers and lakes long-term.

The decades-long legal battle concerns Walker Lake in rural western Nevada. Tourists once flocked to the lake to fish Lahontan cutthroat trout and observe thousands of migrating loons taking a pit-stop en route northward. But flows from the Walker River needed to sustain lake levels have gradually dwindled due to natural environmental patterns, drought and human activity."
ENERGY & MINING
Alaska Mining Executive Resigns a Day After Being Caught on Tape Boasting of His Ties to GOP Politicians
The Washington Post
September 23, 2020

"Mining executive Tom Collier, who boasted in secretly taped conversations that he had leveraged his ties to Republican officials to advance a controversial project in Alaska, resigned.

Collier, CEO of the Pebble Limited Partnership, offered his resignation a day after the group Environmental Investigation Agency (EIA) released recordings of Zoom calls in which he talked of currying favor with the White House and Alaska lawmakers to win federal approval for a massive gold and copper mine.

Collier and Ronald Thiessen, CEO of the Canadian parent company, Northern Dynasty Minerals, were recorded separately suggesting that GOP politicians would not block Pebble Mine even though some had raised concerns about its environmental impact."
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.
Confederated Tribes of Chehalis Reservation v. Mnuchen, ___ F.3d ___, 2020 WL 5742075 (D.C. Cir. Sept. 25, 2020)Alaska Native Corporations are not “Indian Tribes” eligible for funding under Title V of the CARES Act.
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.