The WAGLAC summer meeting will be held in conjunction with the AGA 2021 Annual Meeting. On June 15th,  CWAG Attorneys General will host a series of panels on water, environmental and Native American issues. This in-person convening will be broadcast live, link to be shared in the coming months. 

Please email Andrea Friedman at AFriedman@AGAlliance.org for more information.

April 8, 2021

"As an academic, Robert Anderson advocated giving sharper "teeth" to policies requiring outreach to Native Americans and called "intriguing" a move to enhance the clout of the Interior Department's top American Indian affairs official.

Now, as the Biden administration's newly named nominee to serve as Interior solicitor, the law school professor could be much closer to putting his tribe-empowering ideas into practice."

April 7, 2021

"The Environmental Protection Agency (EPA) said it would boost enforcement of environmental laws in areas that face disproportionate impacts from pollution as part of several actions the Biden administration plans to take to advance equity.

The EPA also said it would look at the impacts of potential regulations on underserved, overburdened and tribal communities and consider options that most benefit them, as well as engaging with these communities.

Officials said they will further prioritize benefits to underserved communities in the grant process “to the extent allowed by law.”

April 4, 2021

"A panel of federal appeals judges Washington, D.C., nixed a Trump administration rule that would have prevented the Environmental Protection Agency (EPA) from setting greenhouse gas limits on multiple polluting industries. 

The rule, finalized just before President Trump left office, only allows greenhouse gas limits on power plants, exempting activities like such as oil and gas production and iron and steel manufacturing. 

The regulation says that only sectors whose pollution makes up more than 3 percent of the country’s greenhouse gas emissions are “considered to contribute significantly to dangerous air pollution.”

The Fifth Circuit, sitting en banc, issued a 325-page set of opinions in litigation brought by seven individuals and three States (Texas, Louisiana and Indiana) challenging various provisions of the Indian Child Welfare Act and the “Final Rule” promulgated in 2016 by the Bureau of Indian Affairs to implement the Act. The principal opinions were issued by Judges Dennis and Duncan. Separate concurrences and dissents were filed by Chief Judge Owen and Judges Wiener, Haynes, Higginson (joined by Costa, J.), and Costa (joined in part by Owen, C.J., and Wiener, Higginson, Dennis and Southwick, JJ.). Sixteen judges participated on the en banc court. Majorities of the en banc court rejected many of the plaintiffs’ challenges, upheld other challenges, and left in place various components of the district court’s judgment on the basis of an equally divided en banc court. Brackeen v. Haaland, No. 18-11479, 2021 WL 1263721 (5th Cir. Apr. 6, 2021). The lower court opinion appears as Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).

Links to the slip opinions, an ABA Journal Weekly Newsletter article concerning the decision, and a more detailed summary of the decision are below.

The Bureau of Land Management promulgated 43 C.F.R. § 8341.2(a) to implement its responsibility under the Federal Land Policy and Management Act to “take any action necessary to prevent unnecessary or undue degradation of the lands.” The regulation states in part:

[W]here the authorized officer determines that off-road vehicles are causing or will cause considerable adverse effects upon soil, vegetation, wildlife, wildlife habitat, cultural resources, historical resources, threatened or endangered species, wilderness suitability, other authorized uses, or other resources, the authorized officer shall immediately close the areas affected to the type(s) of vehicle causing the adverse effect until the adverse effects are eliminated and measures implemented to prevent recurrence.

The Tenth Circuit held in Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125 (10th Cir. 2006), that § 8341.2(a) imposes a mandatory duty to close areas where off-highway vehicle use causes such “considerable adverse effects” and that such closure, as a non discretionary federal action, does not require environmental analysis under the National Environmental Policy Act. 

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 reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.

If you are interested in following cannabis law developments, please sign up for the AG Alliance cannabis newsletter by emailing Cole White at CWhite@AGAlliance.org.

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.