News & Updates from WAGLAC
December 14th, 2020
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC WINTER MEETING UPDATE

The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Additional Details to follow.
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.
ENVIRONMENT
Center for Biological Diversity v. Bernhardt
Clay Smith, Chief Editor, AILD, CWAG & AG Alliance

An energy management company, Hilcorp Alaska, LLC—sought and received approval under the Outer Continental Shelf Lands Act from the Bureau of Ocean Energy Management to extract crude oil from Foggy Island Bay in the Beaufort Sea off Alaska’s northern coast. The project has an anticipated duration of 15 to 20 years. BOEM’s approval involved consideration and compliance with the National Environmental Policy Act, the Endangered Species Act and the Marine Mammal Protection Act. Five environmental organizations challenged BOEM’s environment impact statement issued under NEPA and the Fish and Wildlife Service’s biological opinion issued to comply with ESA and MMPA in light of the project’s potential impact on the resident polar bear population. In a quite detailed opinion, the Ninth Circuit invalidated both documents. Ctr. for Biological Diversity v. Bernhardt, No. 18-73400, 2020 WL 7135484 (9th Cir. Dec. 7, 2020).
National Defense Authorization Act/PFAS
Western States Water Council Newsletter Issue # 2430

“On December 3, a House-Senate conference committee released the 2021 National Defense Authorization Act conference report to accompany H.R. 6395, which includes several provisions on per- and polyfluoroalkyl substances (PFAS). These include: (1) establishing an interagency body to research PFAS with $15M in additional funding for the Centers for Disease Control and Prevention (CDC) to conduct a health assessment; (2) prohibiting certain military uses of PFAS; (3) funding for additional research and development on protective firefighting equipment and firefighting foams; (4) a requirement that the Departments of Defense and Agriculture work together to warn farmers about any potential water contamination due to nearby military activities; and (5) $1.4B for military site remediation and cleanup, which includes PFAS. The conference report was passed by the House (335-78) on December 8, and by the Senate (84-13) on December 11, a prerequisite before final passage of the bill."
New Trump Rule Aims to Limit Tough Clean Air Measures Under Biden
The New York Times
December 9, 2020

"The Trump administration ... completed a rule that could weaken federal authority to issue clean air and climate change rules by changing the way the costs of pollution to human health and safety are tallied — and the way benefits of controlling that pollution are tabulated.

The new rule is the latest in a flurry of final Trump administration policies from the Environmental Protection Agency, as agency political appointees seek to wrap up four years of rolling back or weakening more than 100 environmental rules and policies.

But the cost-benefit rule, which changes the way the E.P.A. is required to report economic analyses of Clean Air Act regulations, is not expected to survive the incoming Biden administration, which could quickly reverse it."
Trump Administration Rejects Tougher Standards On Soot, A Deadly Air Pollutant
The Washington Post
December 7, 2020

"The Trump administration ... rejected setting tougher standards on soot, the nation’s most widespread deadly air pollutant, saying the existing regulations remain sufficient even though some public health experts and environmental justice organizations had pleaded for stricter limits.

The Environmental Protection Agency retained the current thresholds for fine-particle pollution for another five years, despite mounting evidence linking air pollution to lethal outcomes in respiratory illnesses, including covid-19, the disease caused by the coronavirus. Documents obtained by The Washington Post show that the EPA has disregarded concerns raised by some administration officials that several of its air policy rollbacks would disproportionately affect minority and low-income communities.

In its decision, the EPA maintained that the Obama-era levels, set in 2012, are adequately protective of human health. Agency scientists had recommended lowering the annual particulate matter standard to between 8 and 10 micrograms per cubic meter in a draft report last year, citing estimates that reducing the limit to 9 could save between 9,050 and 34,600 lives a year."
Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit
Program
United States Environmental Protection Agency

"This draft memorandum provides focused guidance to the regulated community and permitting authorities, including the U.S. Environmental Protection Agency (EPA), on applying the recent decision of the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (“Maui”), on a case by case basis, in the Clean Water Act (CWA or the Act) Section 402 National Pollutant Discharge Elimination System (NPDES) permit program.2 The Maui decision outlines seven non-exclusive factors for the regulated community and permitting authorities to consider when
evaluating whether a discharge of a pollutant from a point source that travels through groundwater to a water of the United States is the “functional equivalent” of a direct discharge from a point source to a water of the United States. This draft guidance places the functional equivalent analysis into context within the existing NDPES permitting framework and identifies an additional factor for the regulated community and permitting authorities to consider when evaluating whether and how to perform a “functional equivalent” analysis."
WATER
Supreme Court Takes Sides In Interstate River Flow Fight
E&E News
December 14, 2020

"The Supreme Court today sided with New Mexico in its battle with Texas over floodwaters stored along the Pecos River after a 2014 storm — the first of a new wave of interstate water wars that are making their way to the nation's highest bench.

Led by Justice Brett Kavanaugh, the court found that the "river master" charged with overseeing a 1949 water-sharing compact between Texas and New Mexico correctly calculated that the Land of Enchantment should receive a credit for floodwaters that evaporated while the state was storing the flows at the request of its southern neighbor."
California Water Futures Begin Trading Amid Fear of Scarcity
Bloomberg Green
December 6, 2020

"Water joined gold, oil and other commodities traded on Wall Street, highlighting worries that the life-sustaining natural resource may become scarce across more of the world.

Farmers, hedge funds and municipalities alike are now able to hedge against -- or bet on -- future water availability in California, the biggest U.S. agriculture market and world’s fifth-largest economy. CME Group Inc.’s January 2021 contract, linked to California’s $1.1 billion spot water market, last traded at 496 index points, equal to $496 per acre-foot.

The contracts, a first of their kind in the U.S., were announced in September as heat and wildfires ravaged the U.S. West Coast and as California was emerging from an eight-year drought. They are meant to serve both as a hedge for big water consumers, such as almond farmers and electric utilities, against water prices fluctuations as well a scarcity gauge for investors worldwide."
STATE LANDS
Justice Department Urges Overturn of PennEast Pipeline Ruling
Pennsylvania Business Report

"The court decision that derailed the PennEast natural-gas pipeline project last year should be overturned to maintain the efficient flow of energy in the United States, the U.S. Department of Justice said in a brief filed this week with the U.S. Supreme Court.

The U.S. Solicitor General, which represents the federal government before the high court, urged the justices to set aside the 2019 ruling that the State of New Jersey was within its rights to effectively block the construction of PennEast by refusing to allow the seizure of public lands as right-of-way for the project, which was supposed to supply Appalachian gas to customers in Pennsylvania and New Jersey."
FEDERALISM
Western Governors host Winter Meeting, Approve New Policy Resolutions
Western Governors Association
December 10, 2020

The Western Governors adopted the following two federalism resolutions. 
 
  • WGA Policy Resolution 2021-01, Strengthening the State-Federal Relationship: In the absence of a Constitutional delegation of authority to the federal government, state authority should be presumed sovereign.

  • WGA Policy Resolution 2021–02, Utilizing State Data in Federal Decision Making: Western Governors recognize the crucial role that state data can serve to inform the decision-making processes of federal agencies."
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.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
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 re T.G., ___ Cal. Rptr. 3d ___, 2020 WL 7222728 (Div. 7 Dec. 8, 2020)Juvenile court had reason to know under California counterpart to the Indian Child Welfare Act that four children were Indian children based upon statements by mother and maternal grandmother that they possessed Indian heritage, disagreeing with In re Austin J., 47 Cal. App. 5th 870, 261 Cal. Rptr. 3d 297 (2d Dist. 2020).
Fletcher v. United States, ___ Fed. Cl. ___, 2020 WL 722751 (Dec. 7, 2020)Suit seeking monetary damages for alleged mismanagement of the Osage Headright Trust Fund was dismissed on standing, subject-matter jurisdiction and claim-preclusion grounds.
Cheyenne & Arapaho Tribes v. United States, ___ Fed. Cl. ___, 2020 WL 7251080 (Dec. 9, 2020)Tribe could not assert a claim under two treaties’ “bad men” provisions for damages suffered by individual members from the wrongful conduct of opioid manufacturers and distributors.
Dunn v. Global Trust Management, LLC, ___ F. Supp. 3d ___, 2020 WL 7260771 (M.D. Fla. Dec. 10, 2020)Arbitration provision in payday loan contract, which authorized application of federal consumer protection and tribal—but not state—law, was procedurally and substantively unconscionable and therefore unenforceable. Plaintiffs further stated a claim for relief under two sections of the Fair Debt Collection Practices Act and under the Florida Consumer Collection Practices Act.
In Matter of N.K., ___ S.E.2d ___, 2020 WL 7295242 (N.C. Dec. 11, 2020)District court erred in terminating parental rights without ensuring that Indian Child Welfare Act notice requirements were satisfied as to all tribes from which the mother claimed Indian ancestry.
Updated American Indian Law Deskbook Is Now Available

The American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
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 30 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.