News & Updates from WAGLAC
April 26, 2021
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CWAG Natural Resources and Environment Meeting and
WAGLAC Summer Meeting
June 15, 2021
The WAGLAC summer meeting will be held in conjunction with the AGA 2021 Annual Meeting. The CWAG Agenda scheduled for the morning of June 15th will feature panels on environmental justice, water marketing, the Colorado River water management, state/tribal consultation, and emerging environmental issues. The in person panel discussions will be broadcast live. Watch for the link in future WAGLAC newsletters. CLE accreditation will be available for those who attend in person or remotely.
There will be a short WAGLAC meeting on Wednesday June 16th from 7:30am - 9:00am HST for WAGLAC members in attendance.
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CARES Act Title V Oral Argument
SCOTUSblog
April 20, 2021
“With over $500 million of COVID-19 relief funding at stake, the Supreme Court began its week by grappling with whether the CARES Act’s definition of “Indian tribe” — a definition included in over 150 other federal laws — encompasses Alaska Native corporations. During nearly two hours of oral argument in Yellen v. Confederated Tribes of the Chehalis Reservation, the justices expressed doubts about the textual arguments advanced by both sides even as they seemed wary of the consequences of a ruling against the corporations.
Though most of the questioning of Guarnieri focused on the provision’s textual meaning, a sub-theme focused on practical stakes. Justices Sonia Sotomayor and Stephen Breyer expressed concern about the implications for other statutes that use the same definition, while Justice Brett Kavanaugh asked whether ruling against the corporations would destabilize tribal health and social services in Alaska."
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Canada’s Supreme Court Says Some Native Americans Can Hunt In British Columbia
Clay Smith, Chief Editor AILD
CWAG & AG Alliance
April 20, 2021
"American Indian non-citizen and non-resident held entitled to exercise aboriginal rights protected under the Canadian constitution
Richard Lee Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes and resides in Washington State. That tribe is a successor group of the Sinixt people that historically hunted, fished and gathered in an area encompassing parts of Canada and Washington State. Desautel was charged in 2010 with hunting within the Canadian portion of that territory without a license. The trial court held his conduct protected by Section 35(1) of Canada’s 1982 Constitution Act. The provision states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The Crown’s appeals were dismissed by intermediate appellate courts. On further appeal, the Supreme Court of Canada held on April 23, 2021 that the Wildlife Act under which the prosecution was brought was “of no force and effect with respect to [Desautel], by reason of an Aboriginal right within meaning of” Section 35(1). R. v. Desautel, 2021 SCC 17. Two members of the nine-Justice court dissented."
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About-Face: Army Corps To Consult With Tribes on WOTUS
E&E News
April 21, 2021
"The Biden administration is ditching an Army Corps of Engineers policy that barred early consultation with Native American tribes over the fate of wetlands and streams — a move fueling calls to halt a massive and controversial copper mine in Arizona.
The Army Corps, which falls under the umbrella of the Department of Defense, must consult with tribes when any proposed action may significantly affect American Indian lands, treaty rights or other tribal interests protected by statute, regulation or executive order."
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What Biden's 2030 Climate Target Means For Energy
E&E News
April 22, 2021
"President Biden ...pledge[d] to cut U.S. greenhouse gas emissions in half by the end of the decade, an aggressive goal that comes as the administration is striving to buck the nation's reliance on fossil fuels and decarbonize its power sector by 2035.
At a virtual White House ... summit aimed at signaling to the world that the U.S. government is committed to tackling climate change, Biden ...announce[d] a new target to achieve a 50% to 52% reduction in climate pollutants from 2005 levels, economy wide, White House officials said last night."
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Judge Grapples With Next Steps on Trump NEPA Overhaul
E&E News
April 22, 2021
"A federal judge ... appeared puzzled by environmental groups' request to scrap former President Trump's changes to implementing regulations for the National Environmental Policy Act.
At virtual oral arguments, Judge James Jones of the U.S. District Court for the Western District of Virginia questioned why the green groups hadn't reached an agreement with the Biden administration outside the courtroom to nix Trump's NEPA rule."
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Is It Too Late For Guam To Sue The Navy To Pay For The Cleanup Of Its Dumpsite?
SCOTUSblog
April 23, 2021
"On Monday April 26th, the Supreme Court heard a dispute between the U.S. Navy and the territory of Guam that turns on interpretation of the Comprehensive Environmental Response, Compensation and Liability Act, also known as CERCLA or the Superfund statute.
Attorneys general from 24 states, the District of Columbia and the Northern Mariana Islands filed an amicus brief in support of Guam. They argue “that only settlements that conclusively resolve CERCLA liability can trigger Section 113(f)(3)(B)’s statute of limitations. [They also argue] that the D.C. Circuit’s decision ‘disincentivizes settlement and makes for slower, pricier cleanup contrary to CERCLA’s purpose and antithetical to States’ interests.’ They maintain that the United States, which operates military bases often associated with toxic contaminants, should not be able to saddle states and territories with a disproportionate financial burden by evading CERCLA liability. They also maintain that the decision below conflicts with ‘fundamental principles of federalism’ because it could restrict states’ ability to use state law to facilitate cleanup of contaminated sites.”
See the January 18, 2021 WAGLAC newsletter for background on the case.
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White House Announces Additional Interior Leadership Nominations
The U.S. Department of Interior
April 22, 2021
"The White House announced the intent to nominate the following officials to serve at the Department of the Interior:
- Bryan Newland – Assistant Secretary for Indian Affairs
- Tracy Stone-Manning – Director of Bureau of Land Management
The nominations will now be considered by the U.S. Senate.
Bryan Newland is a citizen of the Bay Mills Indian Community (Ojibwe), where he recently completed his tenure as Tribal President. Prior to that, Bryan served as Chief Judge of the Bay Mills Tribal Court. From 2009 to 2012, he served as a Counselor and Policy Advisor to the Assistant Secretary of the Interior – Indian Affairs. He is a graduate of Michigan State University and the Michigan State University College of Law. Bryan enjoys hiking and kayaking the shores of Lake Superior, and is a nature photography enthusiast.
Tracy Stone-Manning was most recently senior advisor for conservation policy at the National Wildlife Federation. Before joining the Federation, she served as Montana Governor Bullock’s chief of staff, where she oversaw day-to-day operations of his cabinet and the state’s 11,000 employees. She stepped into that post after serving as the Director of the state’s Department of Environmental Quality and as a regional director and senior advisor to Senator Jon Tester. Tracy lives in Missoula, Montana and holds a master's in Environmental Studies from the University of Montana and an bachelor's from the University of Maryland."
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Drought Turns Klamath Basin Into A Political Tinderbox
E&E News
Apri 21, 2021
"President Biden's first major water supply crisis is unfolding in southern Oregon, testing how the administration will balance the needs of farmers, tribes and endangered fish in the parched West.
At least one irrigation district in the Klamath River Basin is keeping its canals open, directly disobeying Bureau of Reclamation orders to halt water deliveries.
Irrigators say they have a state right to that water, a contention that recently received some support in a state order."
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There Are No Clear Winners In The West's Water Wars
High Country News
April 24, 2021
"Interstate water disputes are as American as apple pie. States often think a neighboring state is using more than its fair share from a river, lake or aquifer that crosses borders.
Currently the U.S. Supreme Court has on its docket a case between Texas, New Mexico and Colorado and another one between Mississippi and Tennessee. The court has already ruled this term on cases pitting Texas against New Mexico and Florida against Georgia."
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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 reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
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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.
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Eastern Band of Cherokee Indians v. U.S. Dept. of Interior, ___ F. Supp. 3d ___, 2021 WL 1518379 (D.D.C. Apr. 16, 2021): Department of the Interior’s determination under the Indian Reorganization Act to take land into trust for gaming purposes in North Carolina was not foreclosed by a provision in the Catawba Indian Tribe of South Carolina Land Claims Settlement Act, and the Department properly applied the Indian Gaming Regulatory Act’s restored lands section in so doing. Plaintiffs lacked Article III standing to challenge the determination under the National Historic Preservation Act, and the Department did not violate the National Environmental Policy Act by failing to issue an environmental impact statement or to examine an additional casino site alternative.
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Jensen v. Budreau, ___ F. Supp. 3d ___, 2021 WL 1546055 (W.D. Wis. Apr. 20, 2021): Arrestee’s claim against tribe under 42 U.S.C. § 1983 for improper conduct by tribal officers during her arrest was dismissed on sovereign immunity grounds because any waiver of such immunity was limited to state court suit, but her claim against one of the arresting tribal officers in his individual capacity was sufficient for Fed. R. Civ. P. 12(b)(6) purposes.
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n Matter of M.L.B., 2021-NCSC-51, ___ S.E.2d ___ (Apr. 23, 2021): Parental termination order was remanded in part for compliance with the requirement under the Indian Child Welfare Act that the district court inquire whether any participant in the proceeding knows or has reason to know that the involved child is an Indian child and, if so, for further compliance with the statute.
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AG Alliance Cannabis Newsletter
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. |
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Rob Bonta Is Confirmed As California Attorney General — The First Filipino American To Fill The Role
Los Angeles Times
April 22, 2021
"The state Legislature confirmed Democratic Assemblyman Rob Bonta as California attorney general on Thursday.
Bonta, 49, will be the first Filipino American to serve as the state’s top cop when he takes the oath of office to head the Department of Justice at a ceremony as early as Friday. He was previously the first Filipino American to serve in the state Assembly when he was elected in 2012 to represent an east Bay Area district that includes Oakland and San Leandro."
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Job Announcement: Boise, Idaho
Attorney to represent the Idaho Department of Water Resources (IDWR) on water law and administration issues shaping water law in the West. Attorneys representing IDWR provide advice on water rights administration and adjudications, appear before the Idaho Water Adjudication Court, argue cases before the Idaho Supreme Court and assist IDWR with contracting, rulemaking and other administrative matters. Admission to the Idaho State Bar and at least 2 years relevant legal and technical work experience or coursework preferred. Strong academic qualifications are required. This description is only a summary. For complete job description, please visit our website. No telephone calls please. The Idaho Office of the Attorney General is an equal opportunity employer. This position is exempt from state classified service, and the rules of the Division of Human Resources and the Idaho Personnel Commission. This is an at-will position.
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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 40 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. For a complete database of all previously published WAGLAC newsletters, please follow the link below. |
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