News & Updates from WAGLAC
April 5, 2021
Supreme Court to Decide If Kentucky Attorney General Can Intervene to Defend Abortion Restrictions
The Washington Post
March 29, 2021

"The Supreme Court will decide whether Kentucky’s Republican attorney general can defend the state’s restrictive abortion law against the wishes of its Democratic governor, the justices announced.

The law would effectively ban after 15 weeks a common procedure used to terminate a pregnancy in the second trimester. A trial court struck down the law as unconstitutional and a divided panel of the U.S. Court of Appeals for the 6th Circuit agreed.

But the case, which the Supreme Court will hear in the term that begins in the fall, does not ask the court to reconsider its abortion jurisprudence.

The question instead is whether the appeals court was right to bar Attorney General Daniel Cameron from taking over the case to further challenge the ruling.”
New Mexico Tribes Sue EPA Over Trump-Era Wetland Rule
E&E News
Friday, April 2, 2021

"Two Indigenous communities in New Mexico have sued EPA over a revised federal rule that lifts protections for many streams, creeks and wetlands across the nation, saying the federal government is violating its trust responsibility to Native American tribes.

The pueblos of Jemez and Laguna are the latest to raise concerns over inadequate protections for local water sources in the desert Southwest. The challenge filed last week in the U.S. District Court for the District of New Mexico follows a similar case brought in 2020 by the Navajo Nation, the nation's largest Native American tribe, and several environmental groups."
New Mexico Sues NRC Over Plans for Spent Fuel Storage
E&E News/Associated Press
March 30, 2021

"New Mexico sued the Nuclear Regulatory Commission over concerns that the federal agency hasn't done enough to vet plans for a multibillion-dollar facility to store spent nuclear fuel in the state, arguing that the project would endanger residents, the environment and the economy.

New Jersey-based Holtec International wants to build a complex in southeastern New Mexico where tons of spent fuel from commercial nuclear power plants around the nation could be stored until the federal government finds a permanent solution. State officials worry that New Mexico will become a permanent dumping ground for the radioactive material.

The complaint filed in federal court contends the commission overstepped its authority regarding Holtec's plans and that granting a license to the company could result in "imminent and substantial endangerment" to New Mexico. The state cited the potential for surface and groundwater contamination, disruption of oil and gas development in one of the nation's most productive basins, and added strain on emergency response resources."
Climate Change Suit Against Big Oil Nixed as Too Ambitious
Courthouse News Service
April 1, 2021

"The Second Circuit affirmed the dismissal of a lawsuit against five of the largest oil companies, writing that New York City tried to bite off more than it could chew with an overly ambitious environmental suit.

The ruling undercuts similar complaints by nearly two dozen other municipalities to hold Big Oil liable for the economic effects of climate change."
Second Circuit Enforces the Clean Water Act Section 401 One-Year Time Limit
JD Supra
April 2, 2021

"On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks."
Secretary Haaland Creates New Missing & Murdered Unit to Pursue Justice for Missing or Murdered American Indians and Alaska Natives
U.S. Department of the Interior
April 1, 2021

"Secretary of the Interior Deb Haaland announced the formation of a new Missing & Murdered Unit (MMU) within the Bureau of Indian Affairs Office of Justice Services (BIA-OJS) to provide leadership and direction for cross-departmental and interagency work involving missing and murdered American Indians and Alaska Natives. The MMU will help put the full weight of the federal government into investigating these cases and marshal law enforcement resources across federal agencies and throughout Indian country. "
No April Fool's Joke for Florida: Water Rights Case is Dismissed
April 1, 2021

"A scant 38 days after oral argument, Florida finds itself at the end of the road in its quest to limit the amount of water that Georgia uses in the Apalachicola-Chattahoochee-Flint River Basin. In a unanimous opinion written by Justice Amy Coney Barrett in Florida v. Georgia, the court agreed with the recommendations of a court-appointed special master, overruled Florida’s “exceptions” to his report, and dismissed the case."
Irrigators Take Aim At Klamath River Flushing Flows in Court
Herald News
April 3, 2021

"As the Klamath Basin approaches one of its driest summers on record, Upper Klamath Lake is already being subjected to a three-way tug-of-war in court. While the Klamath Tribes want water to remain in the lake, irrigators want it diverted to the Klamath Project — and neither party wants to see more water sent down the Klamath River.

Earlier this week, Klamath Irrigation District filed an emergency motion against the Bureau of Reclamation in Klamath County Circuit Court, requesting a judge bar the agency from releasing water from Upper Klamath Lake for flushing flows in the Klamath River this spring.

The motion comes after the Klamath Tribes filed a notice of intent to sue the Bureau of Reclamation earlier this year if the agency allows the lake to drop below 4,142 feet during C’waam and Koptu (Lost River and shortnose sucker) spawning season in April and May. As of April 1, the lake was below 4,141 feet — the lowest it’s been at this time in years."
Federal Judge Blocks Nevada Grazing in Priority Habitat
E&E News
April 1, 2021

"A federal judge has blocked a Nevada project that would expand livestock grazing across 400 squares miles of some of the highest priority sage grouse habitat in the West and accused the government of deliberately misleading the public by underestimating damage the cattle could do to the land.

The ruling comes as scientists continue to document dramatic declines in greater sage grouse populations across 11 Western states — down 65% since 1986 and 37% since 2002, according to a new report by the U.S. Geological Survey."
Judge Sides With Group Seeking E-Bike Ban
E&E News
March 31, 2021

"A federal judge ruled that e-bike opponents can move forward with their legal challenge of a National Park Service policy that allows use of electric bicycles.

Judge Rudolph Contreras of the U.S. District Court for the District of Columbia said that NPS made a "nonsensical" argument in seeking to dismiss the case filed by the advocacy group Public Employees for Environmental Responsibility (PEER).

The lawsuit challenges an August 2019 order signed by then-Interior Secretary David Bernhardt that required NPS to regulate e-bikes in the same way as human-powered bicycles on nonmotorized trails."
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.
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.
In Matter of D.D., 2021 MT 66, ___ P.3d ___ (Mar. 16, 2021)State agency’s failure to file written documentation of a determination received from a tribe that a parent was not eligible for enrollment did not constitute manifest miscarriage of justice or compromise the integrity of judicial process warranting appellate review where the agency notified the court and parties of such communication as part of a temporary custody extension petition.
Citzens Bank, N.A. v. Palermo, ___ A.3d ___, 2021 WL 0180907 (R.I. Mar. 22, 2021)Defendant did not have immunity from suit for a student loan default on the basis of his alleged tribal status.
Antha, Inc. v. State, Dept. of Natural Resources, ___ P.3d ___, 2021 WL 938371 (Alaska Mar. 12, 2021)Alaska Native Claims Settlement Act retroactively abrogated any claim by a Native corporation to aboriginal title over a portion of a right of way established under RS 2477 by a state, but such right of way was limited to ingress and egress.
Moyant v. Petit, 2021 ME 13, ___ A.3d ___ (Mar. 23, 2021)Nonmember’s suit seeking damages against a tribal member for denial of access to camp property constituted an “internal tribal matter” under the Maine Indian Claims Settlement Implementing Act over which the state court lacked subject-matter jurisdiction.
JLLJ Development, LLC v. Kewadin Casinos Gaming Authority, ___ F. Supp. 3d ___, 2021 WL 1186228 (W.D. Mich. Mar. 30, 2021)District court lacked subject-matter jurisdiction over contract disputes between casino developers and a tribal gaming authority that raised only state-law claims for relief.
United States v. Stately, ___ F. Supp. 3d ___, 2021 WL 1187152 (D. Minn. Mar. 30, 2021)Prosecution in federal court of an Indian for robbery after conviction for the same offense in tribal court did not violate the Double Jeopardy Clause of the Fifth Amendment or federal prosecution policy and did not constitute impermissible racial discrimination. Nor did the failure to inform a tribal court defendant that her guilty plea could be used in a subsequent federal prosecution require the plea’s suppression in such prosecution.
Cherokee Nation v. McKesson Corp., ___ F. Supp. 3d ___, 2021 WL 1181176 (E.D. Okla. Mar. 29, 2021)Tribe possessed parens patriae standing to bring suit against drug distributors for failure to combat illegal diversion of prescription opioids that negatively affected a substantial segment of its members.
Chicken Ranch Rancheria of Mewuk Indians v. Newsom, ___ F. Supp. 3d ___, 2021 WL 1212712 (E.D. Cal. Mar. 31, 2021)Although various class III gaming compact proposals by California were encompassed within the catch-all subjects-of-negotiation provision in 25 U.S.C. § 2710(d)(3)(C)(vii), the State failed to establish that it made meaningful concessions as to each such proposal and therefore violated its obligation to bargain in good faith under the Indian Gaming Regulatory Act.
Spears v. State, 2021 OK CR 7, ___ P.3d ___ (Crim. App. Apr. 1, 2021)State court lacked jurisdiction to prosecute an Indian for first degree murder on lands within the boundaries of the Cherokee Nation Reservation as established in various nineteenth century treaties.
Clark J. v. State, Dept. of Health & Social Services, ___ P.3d ___, 2021 WL 1232066 (Alaska Apr. 2, 2021)State agency failed to provide the active efforts to reunify a father with his children required under the Indian Child Welfare Act during the last two years of a child custody proceeding, thereby requiring reversal of a parental termination order, even though the agency had provided such efforts during the first two years of the proceeding.
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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.
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.