News & Updates from WAGLAC
August 9, 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
EPA Received Almost 3,000 Comments on CWA Section 401 Rule

EPA received 2,969 comments in response to its Notice of Intention to Reconsider and Revise the Clean Water Act Section 401 Certification Rule. Among the comments EPA received were three state attorneys general sign on letters. State attorneys general for Louisiana, Alaska, Arkansas, Indiana, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina and West Virginia “provided extensive comments in support of the proposed rule.” The attorneys general of California, Colorado, Connecticut, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, the Commonwealths of Massachusetts, Pennsylvania, and Virginia, and the District of Columbia comments asserted the “2020 Rule is illegal, detrimental to water quality, and an affront to the cooperative federalism at the heart of the Clean Water Act” and should be repealed. The attorneys general of Idaho, Washington State, Colorado, Hawaii, Nevada, New Mexico, South Dakota, and Northern Marianas Island comments recommended “improvements to the 2020 Rule [to] promote better, more efficient permitting of certification requests by states while at the same time respecting Congress’ clear and unambiguous intent that states have the primary responsibility to ensure discharges from federally authorized projects comply ‘with applicable water quality requirements.’”

"The Western Governors Association’s comment urged EPA to consider recommendations that it and other state associations submitted during the rulemaking process for the 2020 Clean Water Act Section 401 Certification Rule (2020 Rule). The National Conference of State Legislatures’ comment urged EPA “to ensure that any upcoming regulatory changes to the Section 401 certification process be informed, developed and refined through genuine consultation with state and local governments and that it not come at the expense of state authority.”
Federal Judge Orders USMC to Pay State Fine for Excessive Air Pollution at Cherry Point
ABC News
August 3, 2021

"A federal appeals court has ruled that the U.S. Marine Corps must pay a fine to the state of North Carolina for emitting excessive levels of air pollutants at MCAS Cherry Point; the ruling reverses a United States District Court for the Eastern District of North Carolina federal court ruling that declared the Corps had sovereign immunity and is immune from criminal or civil prosecution.

A panel of the 4th U.S. Circuit Court of Appeals partially reversed the lower court ruling, which threw out a North Carolina Department of Environmental Quality lawsuit seeking to collect an $8,000 fine for releasing levels of metallic pollutants at the facility in Craven County that were higher than permitted."
Oregon Has Failed to Create Clean-Up Plan for Polluted Waters for Over a Decade, Lawsuit Says
Oregon Live
August 5, 2021

"An environmental advocacy group is suing Oregon and the federal government for failing to make plans to clean up the state’s most polluted waterways, a requirement of federal law.

The lawsuit, filed by Northwest Environmental Advocates, alleges the state and federal governments have failed to comply with the Clean Water Act, which mandates states submit to the Environmental Protection Agency a list of water bodies that need cleanup every two years."
San Francisco Bay Conservation and Development Comm’n v. U.S. Army Corps of Engineers
Ninth Circuit rejects CZMA and CWA challenges to Corps’ dredging course of action in San Francisco Bay
Justia US Law

"The Army Corps of Engineers proposed the dredging of San Francisco Bay’s 11 navigational channels during and after 2017. The San Francisco Bay Conservation and Development Commission and the San Francisco Regional Water Control Board both approved the proposals subject to certain conditions. The Commission alleged that the Corps’ failure to comply with certain conditions violated the Coastal Zone Management Act (CZMA), 16 U.S.C. 1452(1). An environmental nonprofit organization intervened, contending that the Corps also violated the Clean Water Act, 33 U.S.C. 1311(a), 1341(a)(1). The Commission sought a commitment from the Corps regarding what to do with the dredged material; in order to protect imperiled native fish, the Commission and Board sought to limit the Corps’ use of a certain dredging method (hydraulic dredging) in two specific Bay Channels.

The Ninth Circuit affirmed the district court in favor of the Corps. The condition about where to dispose of dredged material was not itself an enforceable policy under the CZMA and its implementing regulations, nor was it tied to any enforceable policy as contemplated by those regulations. The Corps was therefore not obligated to comply with that regulation. The Corps’ final 2017 plan complied with the express terms of the condition limiting the Corps’ hydraulic dredging in two particular channels."
Southern California Alliance of Publicly Owned Treatment Works v. U.S. E.P.A.
Ninth Circuit holds that 2010 EPA Test-of-Significant-Toxicity guidance document is not final agency action
Justia US Law

"The Ninth Circuit affirmed the district court's dismissal of an action brought by SCAP challenging nonbinding guidance that the EPA issued to recommend a statistical method for assessing water toxicity. Plaintiffs alleged that the EPA had violated the Administrative Procedure Act (APA) by issuing the Test of Significant Toxicity (TST) guidance without following notice-and-comment rulemaking procedures, and that the EPA had violated its own regulations by requiring and using the TST in discharge permits.

After determining that it can consider both of the district court's dismissal orders, the panel explained that the APA allows a plaintiff to challenge only final agency action, and an agency's action is final only if it imposes legal consequences. In this case, the guidance at issue imposes no such consequences, and thus the APA does not permit this challenge."
Biden Admin Urges Supreme Court to Reject Challenge to EPA Authority
E&E News
August 6, 2021

"The Biden administration called on the Supreme Court to reject petitions from Republican-led states and coal companies asking the justices to review EPA's authority to regulate greenhouse gases from power plants."
WATER
Major California Hydroelectric Plant Forced to Shut Down As Severe Drought Continues
The Washington Post
August 6, 2021

"California said it has shut down a large hydroelectric power plant as water levels at a nearby reservoir fell close to the minimum needed to generate electricity, underscoring the challenges faced by the nation’s most populous state as it grapples with climate change."
The Purposeful Tension Within the Doctrine of Beneficial Use
The National Law Review
August 4, 2021

"In the western United States, water law developed around two main principles: (l) the goal of full beneficial use of water, and (2) the need to afford vested water right holders certainty as to their rights. At the time western water codes developed, these goals were seemingly in harmony—rewarding those who needed the water and invested in infrastructure for water use with rights that were enforceable against subsequent appropriators. Over the decades, as water needs and demands were reshaped by changing land use priorities, economics, and technology, these principles began to conflict with each other. Water right holders who had initially beneficially used water, and thus were afforded certainty regarding their future water use through water rights, no longer consistently used the water to which they were entitled. Thus, state water regimes were adjusted to enforce beneficial use requirements through abandonment and forfeiture laws that strive to return to the available “pool” the water rights of those that failed to timely make the investments needed to make or maintain their water use. The obligation to show continuing beneficial use of water to avoid relinquishment and abandonment of water rights slowly undermined the certainty of vested water right holders in their water rights and water infrastructure investments."
JOB ANNOUNCEMENTS
Idaho Attorney General Office - Deputy Attorney General, Natural Resources Division
Date Posted: August 3, 2021

Primary Duties: The Natural Resources Division of the Idaho Attorney General’s Office is seeking applications for an attorney to provide representation and counsel to the State of Idaho and its natural resource agencies. This position is located in the central office in Boise. Practice areas can include public lands, endangered species, adjudication of state, federal and tribal water rights, and advising natural resource agencies on contracting, rulemaking and other administrative matters. This is a unique opportunity to represent the state in pivotal natural resource cases in Idaho.

Applications: E-mail resumes to victoria.wigle@ag.idaho.gov
You may also mail or fax your resume to:
Idaho Office of the Attorney General
Attn: Victoria Wigle
PO Box 83720
Boise, ID 83720-0010
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.
State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021-NMCA-023, ___ P.3d ___ (Mar. 3, 2021): (1) District court violated NMSA 1978, § 32A-4-10(B) by conducting a portion of a mother’s parental-rights-termination proceeding without appointed counsel; (2) NMSA 1978, § 32A-4-29(I) requires that all grounds to terminate parental rights in ICWA cases, including determinations of abuse and neglect under NMSA 1978, § 32A-4-28(B)(2), be proven beyond a reasonable doubt; (3) in cases subject to ICWA, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient to meet the requirements of § 32A-4-29(I); and (4) as a matter of New Mexico law under § 32A-4-29(I), the active efforts requirement of 25 U.S.C. § 1912(d) must be proven beyond a reasonable doubt.
State ex rel. Children, Youth & Families Dep’t v. Ruben C., ___ P.3d ___, 2021 WL 3240372 (N.M. Ct. App. Jul. 29, 2021)(1) Holdings in State ex rel. Children, Youth & Families Department v. Maisie Y., 2021-NMCA-023, ___ P.3d ___, were given retroactive application to parental-rights-termination proceedings subject to the Indian Child Welfare Act; and (2) the failure of the father of the Indian children involved in that case to preserve the issues decided there did not preclude such retroactive application.
In re Charles W., ___ Cal. Rptr. 3d ___, 2021 WL 2905518 (4th Dist. June 17, 2021)Where mother’s counsel denied Indian heritage in her presence, no reason to believe that such heritage existed in an appeal from a custody-removal order by a father who contended that an adequate inquiry into the children’s possible Indian heritage through the mother had not been conducted
Becker v. Ute Indian Tribe of Uintah and Ouray Reservation, ___ F.4th ___, 2021 WL 3361545 (10th Cir. Aug. 3, 2021)District court was ordered to dismiss without prejudice on exhaustion grounds a suit brought by a non-Indian independent contractor seeking to enjoin an ongoing tribal court proceeding brought by a tribe.
Sanders v. Pettigrew, ___ F. Supp. 3d ___, 2021 WL 2391792 (E.D. Okla. Jul. 2, 2021)Habeas corpus petition claiming state court lack of jurisdiction on the basis of McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), over a prosecution for crimes committed in 2000 was denied as a successive petition barred by 28 U.S.C. § 2244.
Sisto v. United States, ___ F.4th ___, 2021 WL 3379036 (9th Cir. Aug. 4, 2021)Medical provider supplied by an independent contractor providing emergency room services to a tribal corporation that had entered into an ISDEAA agreement with the Indian Health Service to operate a hospital was not a federal employee under the FTCA.
Lavallie v. Jay, 2021 ND 140, ___ N.W.2d ___ (Aug. 5, 2021)State court lacked jurisdiction over a personal injury claim brought against a tribal member for an accident occurring on off-reservation land held in trust for the alleged tortfeasor’s tribe.
Stand Up for California! v. U.S. Dep’t of Interior, ___ F. Supp. 3d ___, 2021 WL 3418729 (E.D. Cal. Aug. 5, 2021)Issuance of Secretarial Procedures under the Indian Gaming Regulatory Act constituted a non-discretionary, ministerial act that was not subject to NEPA review, and Clean Air Act-compliance review prior to issuing the Procedures in this case was not required where, inter alia, the Secretary of the Interior conducted such review when determining whether to take into trust the land on which the involved class III gaming would occur.
L.B. v. United States, ___ F.4th ___, 2021 WL 3439701 (9th Cir. Aug. 6, 2021)Court certifies to the Montana Supreme Court in a Federal Tort Claims Act case the following question: Under Montana law, do law-enforcement officers act within the course and scope of their employment when they use their authority as on-duty officers to sexually assault members of the public?
Snoqualmie Indian Tribe v. Washington, ___ F.4th ___, 2021 WL 3439659 (9th Cir. Aug. 6, 2021)Tribe’s claim of entitlement to hunting and gathering rights under the Treaty of Point Elliott was barred by issue preclusion based on a treaty status determination in United States v. Washington and subsequent litigation.
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.