News & Updates from WAGLAC
February 15, 2021
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Virtual Winter Meeting
THIS WEEK: February 16 - 18, 2021
Platform: Zoom

We look forward to hosting state attorneys general staff for the WAGLAC Virtual Winter Meeting this week from Tuesday, February 16 to Thursday, February 18, 2021. Please click the button below to download our latest agenda.

The meeting will kick off on February 16th with a keynote address by James Ogsbury entitled Recalibrating the Federal-State Relationship. Mr. Ogsbury is the Executive Director of the Western Governors Association and is a leading authority on federalism. A free CLE will be held on the afternoon of February 16th focused on WOTUS, CWA Section 401 and President Biden’s climate change policy. These topics are featured prominently in the Biden Administration’s environmental agenda. The WOTUS panel includes two speakers involved in the drafting of the Trump and Obama WOTUS rules. The CWA Section 401 panel features state attorneys representing Idaho and Washington State in cases challenging the Trump Section 401 rule. John Putnam, Acting General Counsel/Deputy General Counsel , U.S. Department of Transportation will provide an overview of the Biden Administration’s climate change policy. February 17th and 18 are devoted to a round table discussion of natural resource, environmental and Indian law issues. Participation in the roundtable discussion is limited to staff of state attorneys general offices.

CLE accreditation has been requested from member state bars.  Accreditation hours are expect to range from 10-15 hours.

REGISTRATION: Please email Paige Stiles at PStiles@AGAlliance.org to register, or with any general inquiries/ tech questions.

Upon confirmation, you will receive the below items. You will need all three to join our live programs:
  1. Zoom access link
  2. Passcode
  3. Password

CWAG Attorneys General and staff are invited to participate in the meeting. Subject matter experts are encouraged to participate in the roundtable discussions. 
REQUEST FOR COPIES OF STATE-TRIBAL COOPERATIVE AGREEMENTS
 
Clay Smith and Fronda Woods are revising Chapter 14 of the American Indian Law Deskbook. Chapter 14 discusses state-tribal cooperative agreements. As part of the rewrite, Clay and Fronda plan to develop an online library of state-tribal cooperative agreements. Hyperlinks to the agreements will be included in Chapter 14 for ease of access to the agreements. 
 
Clay and Fonda request you send them copies of state-tribal cooperative agreements for inclusion in the online library.  Please email the agreements to:

Clay R. Smith
Chief Editor, AILD

Fronda Woods
Assistant Editor, AILD
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
Juliana Lawyers Eye 'High-Risk' Supreme Court Gambit
E&E News
February 11, 2021

"Young challengers in the historic kids' climate case suffered a setback yesterday, but they face even greater legal risk if their case reaches the Supreme Court, environmental lawyers say.

The 21 young plaintiffs in Juliana v. United States, who are calling on the federal government to phase out fossil fuels, were dealt a blow yesterday when the 9th U.S. Circuit Court of Appeals declined to reconsider its decision to scrap their case (Greenwire, Feb. 10).

Our Children's Trust, the Oregon-based nonprofit group representing the youths, said it plans to ask the Supreme Court to overturn the 9th Circuit's ruling."
State Court Nixes Climate Cases in Juliana Mold
E&E News
February 10, 2021

"A state appeals court this week dealt another blow to 13 young people who sued Washington state over its alleged failure to protect them from climate change, finding that the challengers had raised questions for the political branches of government to resolve.

Yet the three-judge panel on the Washington Court of Appeals appeared sympathetic to the claims of the youths, who argued that the right to a safe climate is inherently enshrined in the Constitution."
Gina McCarthy: Expect More Climate Executive Orders
E&E News
February 11, 2021

"President Biden is likely to issue more executive orders on global warming, said White House climate adviser Gina McCarthy in an interview with E&E News.

The former EPA administrator was circumspect yesterday about when those orders might come or what they might entail. But she hinted that Biden isn't done — even after he launched his presidency with a raft of climate related orders and actions.
WOTUS Encore: The Fate of the Navigable Waters Protection Rule and Implications for Groundwater
JD Supra
February 8, 2021

"It seems like yesterday, but it was actually last summer when the United States Environmental Protection Agency and Army Corps of Engineers published the Navigable Waters Protection Rule, effective June 22, 2020 (the "Rule").

President Biden signed Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis “revokes former President Trump's 2017 Executive Order leading to the Rule. It also directs the heads of all agencies, including the EPA, to immediately review existing regulations, orders, guidance documents, policies, and other agency actions promulgated, issued, or adopted between January 20, 2017 and January 20, 2021 that may be inconsistent or present obstacles to the policy set forth in the Order. For any actions so identified, the agency heads are to consider suspending, revising, or rescinding the agency actions. President Biden's nominee to head the EPA, North Carolina Department of Environmental Quality Secretary Michael Regan . . . testified before the Senate on February 3, 2021. When asked if he would rescind the Rule, he responded that, if confirmed, he would review the Rule and look for a legal remedy that would allow a path forward on WOTUS.”
ENERGY
Attorney General Knudsen Leads Coalition Calling On Biden To Reinstate Keystone XL Permit
February 9, 2021

"Montana’s Attorney General Austin Knudsen led a coalition of 14 attorneys general calling on President Joe Biden to reconsider his unilateral revocation of the 2019 Presidential Permit for the Keystone XL pipeline and advised him that states are reviewing available legal options to protect their citizens and interests.

In letter to Biden, Knudsen and the attorneys general coalition reiterate the harms Biden’s decision will inflict on Americans: thousands of displaced workers, increased reliance on energy produced in Russia and the Middle East, and lost economic activity and opportunity."
WATER
Tribune Editorial: Utah's Water Wars Must Be Fought in the Open
The Salt Lake Tribune
February 4, 2021

"If the state of Utah is going to get into a protracted, expensive and, most likely, futile battle with six states, two nations, many Native American tribes and Mother Nature herself, all over a treasure chest that may soon be empty, the least that should happen is that it all take place in public.

But House Bill 297, a measure that would create what Utah legislative leaders are calling the Colorado River Authority of Utah, includes some frightening provisions that would exempt the body’s meetings and records from the state laws that generally demand that government business be conducted in the open.

The perceived need for such secrecy in government is almost always a bad idea. And, when it comes to something as important a our state’s use of a diminishing resource, it is even worse."
Months Before A Company Lobbied the Legislature to Create Its Own County, It Purchased Faraway Water Rights That Could Fuel Future Growth
The Nevada Independent
February 12, 2021

"Near the edge of the Black Rock Desert, where thousands of visitors travel to the Burning Man Festival each fall, irrigation systems stand idle on a fallow field in February.

The land looks like many other agricultural operations in the state — but looks can be deceiving.

The titles to the water underneath farmland in this rural area are now held by Blockchains LLC, a company touted by Democratic Gov. Steve Sisolak and lobbying lawmakers for a new statute that could effectively give the private cryptocurrency business the sovereign powers of a county.

Blockchains, which bought about 67,000 acres in and around the Tahoe Reno Industrial Center in 2018, briefed lawmakers this week on plans to develop “Painted Rock Smart City.” To do so, Blockchains wants Nevada to create “Innovation Zones,” a pathway for large-scale developers focused on technology to break away from existing counties if they make major investments.

Sisolak backed the concept in his State of the State speech earlier this year, singling out the company, which has donated thousands to the governor and other politicians (Blockchains and its CEO Jeffrey Berns also have donated to The Nevada Independent, which discloses all donors)."
As Sisolak Administration Abandons Move To Upend Legal System For Water Rights Cases, Supreme Court May Study New Specialty Court
Elko Daily
February 8, 2021

"On the first day of the legislative session, the state’s top water regulator sent a letter to the chair of the Senate Judiciary Committee Melanie Scheible: Gov. Steve Sisolak’s administration was backing away from a request that state lawmakers, then the voters, change the Constitution and alter the judicial branch’s system for how often-complex water cases are litigated in court.

As the state moves away from the proposal, Supreme Court Chief Justice James Hardesty said he plans to petition his colleagues to empanel a commission that will examine the creation of speciality courts, known as water courts, to bring more water law expertise to the judiciary.

The Senate joint resolution aimed to kickstart a long process to amend the Nevada Constitution, giving the Court of Appeals, rather than locally elected District Court judges, the first chance to hear cases challenging the way state officials decide to adjudicate, permit or manage water."
Search for Water in Kansas Pits Farmers Against Cities
U.S. News and World Report
February 12, 2021

"In the late 1980s, drought left the wells that supply water to the city of Hays and Russell in western Kansas precariously low. The near-catastrophe sent city leaders on the hunt for more water.

The cities researched their options, including looking into purchasing water from several nearby reservoirs.

But ultimately in 1995, they bought the R9 Ranch in Edwards County about 70 miles south of Hays.

It looked like foresight. The two cities had locked in water rights that would allow them to grow in a relatively parched part of the world. It may yet prove to be just that — if years of fighting with the farming neighbors of the R9 end in a win.

Standing atop one of the sandy hills on the property, Hays City Manager Toby Dougherty pointed to the fading circle outlines of irrigated crop fields and explained how those fields are now being turned into native prairie."
Water Wars Heat Up in California
Courthouse News Service
February 10, 2021

"Water makes the world go ‘round, and a major player in California’s breadbasket doesn’t want to part with more than they have already.

The Kern River has played a serious role in summer adventures for generations. Fed by Sierra Nevada snowmelt near Mount Whitney, people flock to the river for everything aquatic from fly fishing to whitewater rafting.

It’s the closest whitewater run to Southern California and the river frequently appears on lists of the best rapids in the state. It’s also a crucial source of drinking water for Kern County.

And it’s dangerous. Nicknamed ‘Killer Kern” by locals, as of May 2020 the river has claimed 307 lives and nearly ended countless others. It’s dangerous enough that local country music legend Merle Haggard wrote a famous song about it.

The river is bone dry at the moment though, with not so much as a damp patch of soil in sight. Local environmental group Keepers of the Kern released a snow report in January finding the southern Sierra snowpack’s water content is currently 45% of where it would normally be this time of year and water volume for the year is forecast to be a paltry 49% of normal."
FISH & WILDLIFE
Migratory Bird Protection Fight Takes Off, Again
E&E News
February 8, 2021

"The Fish and Wildlife Service tomorrow will formally reopen public debate on migratory bird protections, signaling a likely move toward reversal of controversial Trump administration-imposed restrictions.

Citing multiple potential problems, the federal agency's new leadership is pushing off until at least March 8 theTrump-era Migratory Bird Treaty Act rule that restricted the law's coverage to intentional actions.

And although comments from all quarters are being invited, the solicitation conveys deep skepticism about theTrump administration's legally contested, and now-frozen,
rule stating that the MBTA excluded incidental take of more than 1,000 covered migratory bird species."
Interior Announces Plans to Strengthen LWCF
U.S. Department of the Interior
February 11, 2021

"The Interior Department took steps to strengthen the Land and Water Conservation Fund (LWCF) by rescinding Trump administration policies that significantly undermined the landmark conservation program. Secretarial Order 3396 revokes an order signed on November 9, 2020 (Secretarial Order 3388) that unilaterally imposed new restrictions to inhibit the availability of LWCF funding for federal land and water acquisitions."
Federal Permits for Shellfish Farms Missed the Mark, 9th Circuit Rules
Courthouse News
February 11, 2021

"The U.S. Army Corps of Engineers green lighted a massive expansion of aquaculture farms across the country without evaluating the environmental effect of the plan, the Ninth Circuit ruled.

Commercial aquaculture, such as oyster and geoduck farms, can decimate the native eelgrass beds many ocean species depend on for habitat and as a nursery for their young. Eelgrass beds offer a protective resting place for salmon and other migrating fish. And they are home to numerous smaller species that form the base of the oceanic food chain.

The U.S. Army Corps of Engineers released a nationwide plan in 2017 that allowed cultivation of non-indigenous shellfish species, and the dredging and installation of walls, nets and tubes necessary to farm them, without requiring farm operators to mitigate, or make up for, native habitat destroyed in the process.

The Center for Food Safety sued, claiming the 900 aquaculture farms the Corps permitted under its plan would allow wide scale destruction of eelgrass beds and would dump pesticides and plastics into the ocean."
Judge Overturns Trump Action That Lifted Mining Ban in U.S. West
PBS
February 11, 2021

"A federal judge overturned a Trump administration action that allowed mining and other development on 10 million acres (4 million hectares) in parts of six western states that are considered important for the survival of a struggling bird species.

U.S. District Judge Lynn Winmill said the decision under Trump to cancel a prior effort to ban mining failed to fully consider how the move would affect greater sage grouse, a wide-ranging, chicken-sized bird that has seen a dramatic population drop in recent decades.

Winmill said the 2017 cancellation was arbitrary. He ordered the U.S. Interior Department’s Bureau of Land Management to reconsider whether mining should be allowed.

The Idaho-based judge’s ruling does not revive a temporary mining ban imposed under Democratic President Barack Obama, which expired while the issue was in dispute.

Whether that happens will be up to the administration of President Joe Biden, said attorney Michael Saul of the Center for Biological Diversity, one of the environmental groups that sued over the Trump administration’s actions.

Saul said he was not aware of any major mining projects that moved forward in the affected areas under Trump."
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.
Jumping Eagle v. Warren, ___ F. Supp. 3d ___, 2021 WL 462644 (D.S.D. Feb. 9, 2021)Under 25 U.S.C. § 1914, claims alleging violation of 25 U.S.C. § 1911, 1912 or 1913 of the Indian Child Welfare Act are not precluded by a party’s prior litigation of them in state court.
People v. Caswell, ___ N.W.2d ___, 2021 WL 519712 (Mich. Ct. App. Feb. 11, 2021)Member of a non-federally recognized tribe could establish a treaty-protected right to take fish in violation of otherwise applicable state law by establishing through a preponderance of the evidence that the tribe is descended from a treaty signatory and maintained some defining political characteristics to the present.
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.