News & Updates from WAGLAC
August 16, 2021
UPCOMING WAGLAC MEETINGS
The WAGLAC Fall meeting will be held on October 10 - 12 at the Westin in Seattle, WA.
There will be an Endangered Species Act seminar in addition to the traditional roundtable.

To register, please fill out the attached registration form at the bottom of the below meeting announcement and email directly to Joy Orr at Joy.Orr@cwagweb.org if you plan to attend the meeting in person or via Zoom. 
The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day, 2022. Meeting details to follow.
ENVIRONMENT
Biden Administration Proposes a Reset on Defining “Waters of the U.S.”
The National Law Review
August 4, 2021

"Over the past week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced plans to undo the Trump administration’s Navigable Waters Protection Rule, and take the Biden administration’s next steps toward promulgating an “enduring definition” of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). If completed, this effort would mark the third rewrite of the WOTUS definition in as many administrations."
Sackett v. U.S. EPA
Justia US Law

"The Sacketts purchased a soggy residential lot near Idaho’s Priest Lake in 2004, planning to build a home. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an Environmental Protection Agency (EPA) administrative compliance order, indicating that the property contained wetlands subject to protection under the Clean Water Act (CWA), 33 U.S.C. 1251(a), and that the Sacketts had to remove the fill and restore the property to its natural state.

The Sacketts sued EPA in 2008, challenging the agency’s jurisdiction over their property. During this appeal, EPA withdrew its compliance order. The Ninth Circuit affirmed summary judgment in EPA’s favor. EPA’s withdrawal of the order did not moot the case. EPA’s stated intention not to enforce the order or issue a similar order in the future did not bind the agency. EPA could potentially change positions under new leadership. The court upheld the district court’s refusal to strike from the record a 2008 Memo by an EPA wetlands ecologist, containing observations and photographs from his visit to the property. The court applied the “significant nexus” analysis for determining when wetlands are regulated under the CWA. The record plainly supported EPA’s conclusion that the wetlands on the property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA."
EPA Sanctioned for Spoliation of Evidence

In the Gold King Mine case, U.S.Federal District Court Chief Judge William P. Johnson for the District of New Mexico granted New Mexico’s and the Navajo Nation’s (Sovereign Plaintiffs) motions for sanctions against EPA for spoliation of evidence. Judge Johnson found the Sovereign Plaintiffs had been prejudiced by EPA’s failure to preserve data electronically stored on an employee’s iPhones. The August 8th Order, granted the Sovereign Plaintiffs’ request to introduce evidence of EPA’s loss of data at trial, but delayed ruling on whether the court should instruct the jury that the lost evidence would have been unfavorable to EPA. .Judge Johnson said, “The Court cannot, at this time, determine whether the Federal Parties ‘acted with the intent to deprive another party of the information's use in the litigation,’” Judge Johnson denied Sovereign Plaintiffs’ request to preclude EPA from putting on evidence from the employee regarding the lost data on his iPhones..
Infrastructure Bill Aims to Ease Federal Environmental Permitting
E&E News
August 13, 2021

"In a bipartisan vote, the Senate on Aug. 10 passed the Infrastructure Investment and Jobs Act, a wide-ranging effort to address many aspects of the nation’s infrastructure needs. Significant attention has been paid to the provisions that address climate change, but less noted have been provisions addressing federal environmental permitting processes.

These provisions have the apparent goal of making permit processing more efficient and facilitating construction of infrastructure projects, including renewable energy projects.
They build on prior efforts to address longstanding frustrations with the time and expense associated with obtaining approvals needed under various federal environmental and wildlife statutes to construct and operate infrastructure and associated facilities."
TRIBAL LAW
Oklahoma Wants a Supreme Court Do-Over on Tribal Sovereignty
New Republic
August 12, 2021

"At the far end of the Trail of Tears was a promise,” Justice Neil Gorsuch wrote two years ago in McGirt v. Oklahoma. His majority ruling recognized that the Muscogee (Creek) Nation’s reservation still existed because Congress, implicitly keeping that promise, had not explicitly disestablished it when Oklahoma became a state in 1907. The 5–4 decision effectively turned half of the state back into Indian country.

State officials filed a petition last week in Bosse v. Oklahoma that asked the Supreme Court to take an extraordinary step: reverse its decision in McGirt and declare that the tribes’ reservations no longer exist. The high court’s ruling had created widespread issues in the state’s criminal justice system, Oklahoma officials argued, because only the federal government can try certain crimes committed on tribal lands."
FEDERAL AGENCIES
Biden Nominates Prelogar as Solicitor General
SCOTUSblog
August 11, 2021

"Nearly seven months after his inauguration, President Joe Biden announced on that he has nominated Elizabeth Prelogar to serve as the U.S. solicitor general, the federal government’s top lawyer at the Supreme Court. Prelogar, who has served as the acting solicitor general since January, is widely respected in the legal community, but the Biden administration took an unusually long time to make the nomination – reportedly because of a dispute between the Department of Justice and the White House over whom to name. If confirmed by the Senate, Prelogar will be only the second woman to hold the job on a permanent basis; the first was now-Justice Elena Kagan, for whom Prelogar clerked."
ENERGY
Red States Ask Judge to Compel Biden to Hold Offshore Lease Sale
Politico Pro
August 9, 2021

"A coalition of red states led by Louisiana asked a federal judge to compel the Biden administration give up its freeze and hold on oil and gas lease sale in the near future."
FISH & WILDLIFE
BLM Considers Banning Mining in Sensitive Sage Grouse Areas
E&E News
August 11, 2021

"The Biden administration is reconsidering an Obama-era greater sage grouse
conservation proposal to ban new mining and mineral claims on millions of acres of sensitive grouse habitat.

The proposed mineral withdrawal was part of the sweeping sage grouse management plans finalized in 2015. The Trump administration later eliminated the withdrawal, but a federal judge in February invalidated that action and ordered the Bureau of Land Management to restart the process."
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.

Editions of the Deskbook are published annually by Thomson Reuters, and the 2021 Edition was issued during the week of July 19, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category and in hard copy.

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.
Ray v. United States, ___ F. Supp. 3d ___, 2021 WL 3472630 (D.N.M. Aug. 6, 2021)“Law of the place” in 28 U.S.C. § 1346(b)(1) of the Federal Tort Claims Act refers to the state where the alleged tortious conduct occurred even if within Indian country.
Carney v. Washington, ___ F. Supp. 3d ___, 2021 WL 3491744 (W.D. Wash. Aug. 9, 2021)Suit over on-reservation easement rights by a non-Indian landowner was dismissed under Fed. R. Civ. P. 12(b)(6) because the resident tribe and the United States were necessary parties that could not be joined as defendants in equity and good conscience.
In Matter of L.H., 2021 MT 199, ___ P.3d ___ (Aug. 10, 2021)Reason to know of “Indian child” status for notice purposes under 25 U.S.C. § 1912(a) did not exist where a father claimed possible affiliation with the “Lakota Sioux Tribe”—an entity not federally recognized as an Indian tribe.
United States v. Billey, ___ F. Supp. 3d ___, 2021 WL 3519279 (N.D. Okl. Aug. 10, 2021)McGirt v. Oklahoma did not provide grounds to excuse defendant’s failure to file a petition for post-conviction relief under 28 U.S.C. § 2255 within one year of his conviction becoming final.
State ex rel. District Attorney v. Wallace, 2021 OK CR 21, ___ P.3d ___ (Aug. 12, 2021)McGirt v. Oklahoma constituted a new procedural rule that would not be applied retroactively in state post-conviction relief proceedings.
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.
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 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.
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.