News & Updates from WAGLAC
December 21st, 2020
UPDATE: The WAGLAC newsletter will resume on January 4th.  On behalf of the entire CWAG team, we wish you and your families a Merry Christmas and a Happy New Year!
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.
TRANSITION UPDATES
With Historic Picks, Biden Puts Environmental Justice Front and Center
The Washington Post
December 17, 2020

"President-elect Joe Biden chose Rep. Deb Haaland (D-N.M.) to serve as the first Native American Cabinet secretary and head the Interior Department, a historic pick that marks a turning point for the U.S. government’s relationship with the nation’s Indigenous peoples.

With that selection and others this week, Biden sent a clear message that top officials charged with confronting the nation’s environmental problems will have a shared experience with the Americans who have disproportionately been affected by toxic air and polluted land."
Biden to Pick Brenda Mallory to Run White House Environment Office
The New York Times
December 16, 2020

"President-elect Joseph R. Biden Jr. has chosen Brenda Mallory, an environmental lawyer who spent more than 15 years working in the federal government under both Republican and Democratic presidents, to lead the Council on Environmental Quality, according to two people close to the Biden transition team.

The council is expected to expand its focus on issues of environmental justice under Ms. Mallory in addition to its traditional role of coordinating environment policy throughout the government, other people close to the presidential transition said.

Ms. Mallory, who currently serves as the director of regulatory policy at the Southern Environmental Law Center, a watchdog group, has worked on both pollution and land conservation issues throughout her career, including helping to create new national monuments under the Obama administration and fighting the dismantlement of those monuments under the Trump administration."
Michael Regan, Biden’s E.P.A. Pick, Faces ‘Massive Reconstruction and Rebuilding’
The New York Times
December 17, 2020

"President-elect Joseph R. Biden Jr. has selected Michael S. Regan, North Carolina’s top environmental regulator, to lead the Environmental Protection Agency, Mr. Biden’s transition team announced. The decision elevates for the first time a Black man to lead the powerful department, which is central to achieving the new administration’s climate change agenda.

Mr. Regan was not the president-elect’s first choice, and he lacks some of the political star power of Mr. Biden’s other cabinet picks. But he will be on the front lines of the incoming administration’s effort to undo one of President Trump’s most sprawling transformations of the federal government: the unraveling of a half-century of pollution and climate regulations, and the diminishment of the science that underpinned them."
Biden to Name Gina McCarthy, Former E.P.A. Chief, as White House Climate Coordinator
The New York Times
December 15, 2020

"President-elect Joseph R. Biden Jr. is expected to pick Gina McCarthy, the former administrator of the Environmental Protection Agency under President Barack Obama and the architect of some of his most far-reaching regulations to limit greenhouse gas emissions, to serve as senior White House adviser on climate change, according to three people close to the Biden transition team.

As White House adviser, Ms. McCarthy will coordinate domestic climate policies across the United States government, playing a central role in helping Mr. Biden make good on his campaign promise of putting the United States on track to reach carbon neutrality before 2050.

Mr. Biden also intends to name Ali Zaidi, the deputy secretary for energy and environment for New York State, who helped write Mr. Biden’s climate plan, as Ms. McCarthy’s deputy.

Ms. McCarthy, who has served since January as president of the Natural Resources Defense Council, an environmental group, joins the ranks of high-profile former Obama administration officials given top positions in the Biden administration. Advocates for stronger action to fight climate change said her nomination would send a signal that the administration was prepared to bypass Congress and enact measures using executive authority to begin bringing down greenhouse gases."
ENVIRONMENT
Administration Resources: Army Corps of Engineers/Nationwide Permits Special Reports
Western States Water Council

"On November 16, comments were due to the U.S. Army Corps of Engineers (Corps) regarding their Proposal to Reissue and Modify Nationwide Permits (NWPs). Western states commented both individually and through the Association of Clean Water Administrators (ACWA). States that individually commented included Colorado, Idaho,
Nevada, New Mexico, Oregon, Texas, Washington and Wyoming.

Three primary concerns were raised by ACWA, as well as almost all of the individual state comments. These include: (1) concern with the removal of the Pre-Construction Notice (PCN) requirements for all federal agencies and federal permittees; (2) concern with the removal of the 300-linear foot (LF) limit for losses of stream bed from ten of the NWPs and replacing it with a half-acre threshold; and (3) requiring the states to provide a blanket Clean Water Act (CWA) Section 401 certification for the proposed nationwide permits, rather than allowing an extension to wait until the new nationwide permits are issued."
Report on the Repeal of the Clean Water Rule and its Replacement with the Navigable Waters Protection Rule to Define Waters of the United States (WOTUS)
External Environmental Economics Advisory Committee (E-EEAC)

"In this report, top environmental economists find that the EPA used dubious methodology to justify weakening the Clean Water Act. The EPA and the Army Corps of Engineers repealed the Clean Water Rule, the Obama-era regulation that defined bodies of water protected from pollution under the Clean Water Act (CWA).

The agencies replaced the Clean Water Rule with the Navigable Waters Protection Rule (NWPR), which strips CWA protection from isolated wetlands and ephemeral and intermittent streams."
Republican AGs Defend EPA Interstate Permit Rule in Court
E&E News
December 17, 2020

"Seven states led by Republican attorneys general joined a federal lawsuit over a new EPA rule that limits states' role in Clean Water Act permitting for federally approved projects such as oil pipelines and hydroelectric dams.

Louisiana, Wyoming and other energy-rich states said they had a vested interest in the U.S. District Court for the District of South Carolina battle over the EPA rule that seeks to eliminate a long-standing practice that allowed blue states to blockade interstate projects.

In response to urging by red states, the Trump administration last year directed EPA to determine whether its Section 401 rules needed clarification. The agency followed up by releasing a rule this year."
WATER
Interior Limits Exercise of Black Canyon Federal Reserved Water Right

Solicitor of Interior Daniel Jorjani issued an opinion finding that Interior is required to exercise its Black Canyon of the Gunnison National Park reserved water right in a manner that does not frustrated the purposes of the Aspinall Unit of the Colorado River Storage Project. Solicitor Opinion M-37058 reviews two memorandums on the subject. In 2009, then-Solicitor David Bernhardt determined in a memorandum that the 1956 Colorado River Storage Project Act required Interior limit the exercise of the reserved water right. In 2009, Solicitor Tompkins withdrew the Bernhardt memorandum finding that it was legally flawed and no longer needed due to an agreement between the Bureau of Reclamation and the National Park Service. Solicitor Dan Jorjani concludes in Opinion M-37058 that Bernhardt “correctly recognize[d] Congress's intent, as expressed in the text of the CRSP and supported by relevant legislative history, that the Park's water right may not be exercised in a manner that frustrates the authorized purposes of the Aspinall Unit. Conversely, the Tompkins Memorandum and the Roth Memorandum misapply[ied] applicable statutes and case law and disregard[ed] Congress's specific direction to proceed with the Aspinall Unit operations notwithstanding potential impacts to the Park.”
FISH & WILDLIFE
A New Trump Rule Could Shrink Protected Habitat for Endangered Wildlife
The Washington Post
December 15, 2020

"The Trump administration adopted a rule that could shrink the historic habitats of plants and animals threatened with extinction, an action that opponents say will make it more difficult for them to recover.

On their way out of office, the directors of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service established a rule that changed the definition of what determines a habitat under the Endangered Species Act. It was the second major rollback the administration has made to the signature wildlife protection law.

Under the new definition, only “critical habitat” that can sustain the species in question can be protected, as opposed to a broader habitat the plant or animal might one day occupy if it is suitable."
In Reversal, Interior Solicitor Bolsters Fisherman Over Wind
E&E News
December 15, 2020

"Interior's top lawyer set a stricter standard for the department to follow when considering whether to permit offshore wind farms where they might "interfere" with fishermen and other ocean users,

Solicitor Daniel Jorjani inked the opinion at the request of Interior Secretary David Bernhardt, essentially adding weight to fishermen's arguments in a long-standing disagreement with offshore wind proponents over how impacts to fisheries should be weighed by the Bureau of Ocean Energy Management. The wind industry has often tangled with fishing groups that argue their nets and equipment could be damaged and fishing grounds disrupted by the new industry.

The opinion reverses the legal office's position from September, when BOEM's renewable shop had sought clarification on how to interpret federal law advising Interior to bar renewable energy development that would interfere with other ocean users."
ENERGY
Judge Orders BLM to Redo NEPA Reviews for Oil Leases
E&E News
December 15, 2020

"In a win for environmentalists, a federal judge said last week the federal government must provide more analysis for lease sales in Utah's Uinta Basin.

The decision could effectively mean the end of leasing 59 parcels for oil and gas exploration if the incoming Biden administration follows through on its campaign promise to end new oil and gas permitting on public lands, environmental challengers said."
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.
Mitchell v. Bailey, ___ F.3d ___, 2020 WL 7329219 (5th Cir. Dec. 14, 2020)Negligence and breach-of-contract claims brought by an injured person against a tribe and a tribal official in federal court was dismissed for lack of subject matter jurisdiction.
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.