News & Updates from WAGLAC
February 1, 2021
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC WINTER MEETING: REGISTER TODAY

The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Please find the draft agenda below, additional details to follow.

To register for any/all days of this meeting, please email Paige Stiles at PStiles@AGAlliance.org.
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
Biden Administration Announces Its Climate Policy
 
On January 27th, President Biden issued two executive orders and a memorandum setting forth the administration's climate change policies. The Executive Order on Tackling the Climate Crisis at Home and Abroad among other things “establishes climate considerations as an essential element of U.S., foreign policy and natural security,” orders federal agencies to develop plans to increase the resilience of its facilities and operations, imposes a moratorium on new oil and natural gas leases on public lands or offshore waters, and directs agencies to eliminate fossil fuel subsidies.  The Executive Order on the President’s Council of Advisors on Science and Technology reestablishes the scientific advisory committee. The Presidential Memorandum on scientific integrity protects scientists from political interference.
Biden, Emphasizing Job Creation, Signs Sweeping Climate Actions
The New York Times
January 27, 2021

"President Biden signed a sweeping series of executive actions — ranging from pausing new federal oil leases to electrifying the government’s vast fleet of vehicles — while casting the moves as much about job creation as the climate crisis.

Mr. Biden said his directives would reserve 30 percent of federal land and water for conservation purposes, make climate policy central to national security decisions and build out a network of electric-car charging stations nationwide.

But much of the sales pitch on employment looked intended to counteract longstanding Republican attacks that Mr. Biden’s climate policies would inevitably hurt an economy already weakened by the pandemic.

Mr. Biden argued instead that technological gains and demands for wind and solar infrastructure would create work that would more than make up for job losses even in parts of the country reliant on the fracking boom. Using the government’s purchasing power to buy zero-emissions vehicles, Mr. Biden said, would help speed the transition away from gasoline-powered cars and ultimately lead to “one million new jobs in the American automobile industry.”
President Biden's Climate Plan: Environmental Justice 'Write Large'
E&E News
January 28, 2021

"With the stroke of a pen, President Biden brought nearly half a century of environmental justice activism to its culmination.

Biden signed an executive order that promises a governmentwide approach to the disproportionate pollution burdens faced by many communities of color. But many advocates say Biden's success on confronting environmental justice will be judged on how the order is implemented."
Court Vacates EPA Ozone Regulations

The District of Columbia Circuit Court of Appeals invalidated three provisions of the Environmental Protection Agency’s (EPA) 2015 and 2018 rules implementing the National Ambient Air Quality Standards for ozone. The Court held the “interprecursor trading program” in the 2018 rule and EPA’s interpretation of the Clean Air Act’s contingency measures requirements “contravene the statute’s unambiguous language.” The Court also vacated the milestone compliance demonstration requirement because “it rests on an unreasonable interpretation of the statute.” 
FEDERALISM
Justices Divided in Procedural Battle Between Baltimore, Oil Companies in Climate Fight
SCOTUSblog
January 20, 2021

"In a speech at Harvard Law School in 2015, Justice Elena Kagan told the audience that “we’re all textualists now” – that is, that any effort to interpret a statute begins (and often ends) with the language of the statute. That principle may ultimately prove dispositive in BP v. Mayor and City Council of Baltimore, in which the justices heard oral argument regarding a procedural aspect of a major climate-change lawsuit. Although the justices expressed concerns about the implications of a ruling for the oil and gas companies who are defendants in the lawsuit, several of them also seemed persuaded by the companies’ argument that their interpretation of the federal law at the heart of the dispute was more consistent with the actual text of the law.

The case began in 2018, when the city of Baltimore sued a group of oil and gas companies, including BP, Chevron and Exxon Mobil, seeking to hold the companies responsible for their role in climate change. Chevron transferred – the technical term is “removed” – the case to federal district court in Maryland, a move allowed by federal law. One of the grounds on which Chevron relied to remove the case was a law known as the “federal officer removal statute,” which allows the removal of lawsuits filed in state courts against federal officers or anyone acting as a federal officer: Chevron contended that the city was trying to hold the oil companies liable for actions that they took at the direction of federal officials, such as the production of fossil fuels offshore under leases with the federal government.

After the district court sent the case back to state court, the companies appealed to the U.S. Court of Appeals for the 4th Circuit. Under federal law, most orders remanding a case to state court cannot be appealed, but there are two narrow exceptions, allowing appeals in cases in which removal was based on either the federal-officer removal stature or a different statute that allows for the removal of civil-rights cases. The court of appeals ruled that removal under the federal-officer removal statute was not proper, and it rejected the companies’ argument that it could review the rest of the district court’s order sending the case back to state court."
INDIAN LAW
Biden Administration Issues Tribal Consultation Memorandum

The Biden Administration issued a new Presidential Memorandum regarding Tribal Consultation and Strengthening Nation-To-Nation Relationships on January 26, 2021. 
The memorandum is available below. It incorporates some of the material from President Obama’s Memorandum regarding Tribal Consultation (74 Fed. Reg. 57881) and President Clinton’s Executive Order 13175 (65 Fed. Reg. 67249).
Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs

The Bureau of Indian Affairs’ annual list of federally-recognized Indian tribes is published in the January 29 2021 Federal Register.
WATER
Ninth Circuit Remands Mineral County Public Trust Case

The Ninth Circuit Court of Appeals remanded Walker Lake Working Group v. Walker River Irrigation District to the United States Federal District Court of Nevada “with instructions to consider [Mineral] County’s public trust doctrine claim “to the extent it seeks remedies that would not involve a reallocation of adjudicated water rights.” As reported in the September 21, 2020 WAGLAC newsletter, the issue before the Ninth Circuit was whether the public trust doctrine required previously adjudicated water rights be curtailed to allow minimum flows to reach Walker Lake to sustain the naturally occurring fish population and to preserve recreational opportunities for residents of the County. Mineral County appealed the federal district court’s dismissal of its motion to intervene and holding that the public trust doctrine may only “factor into future allocations of waters,” but may not be used to reallocate adjudicated water rights. The Ninth Circuit certified the public trust question to the Nevada Supreme Court  

Last September, the Nevada Supreme Court in a 4-2 decision ruled that although the “public trust doctrine applies to rights already adjudicated and settled under the doctrine of prior appropriation, . . . the public trust doctrine does not permit reallocating water rights already adjudicated and settled under the doctrine of prior appropriation.” Mineral County v. Lyon County, 473 P.3d 418, 425, 430 (Nev. 2020).  

Before the Ninth Circuit, Mineral County argued that the Nevada Supreme Court’s decision did not preclude remand of the case to the district court for the purpose of considering the County’s claim that “the public trust doctrine imposes a continuing affirmative duty on the Decree Court to manage the resource for the benefit of future generations using remedies other than a reallocation of water rights . . ..” The Ninth Circuit agreed and remanded the case to the district court.
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.
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, ___ F.3d ___, 2021 WL 244862 (D.C. Cir. Jan. 26, 2021): Army Corps of Engineers violated the National Environmental Policy Act by failing to prepare an environmental impact statement in connection with its determination to issue an easement under the Mineral Leasing Act for constructing the Dakota Access Pipeline under Lake Oahe. The district did not err in vacating the easement when it remanded the matter to the Corps for an EIS but did err in ordering the DAPL owner to shut down and empty the pipeline without considering the four-factor test attendant to determining the propriety of injunctive relief.
Treat v. Stitt, 2021 OK 3, ___ P.3d ___ (Okla. Jan. 26, 2021)Governor exceeded his authority under state law by entering into a class III gaming compact under the Indian Gaming Regulatory Act that differed from the statutory-prescribed model compact and, insofar as it differed from the model compact, was not approved by the joint committee on state-tribal relations
Self v. Cher-Ae Heights Indian Community, ___ Cal. Rptr. 3d ___, 2021 WL 248813 (1st Dist. Ct. App. Jan. 26, 2021)Immovable property exception to sovereign immunity did not apply to lands owned by Indian tribe which it had requested be taken into trust under the Indian Reorganization Act.
U.S. v. Hump, ___ F. Supp. 3d ___, 2021 WL 274436 (D.S.D. Jan. 27, 2021)Where jurisdiction existed under 28 U.S.C. § 1345, the United States had no duty to exhaust tribal remedies with respect to a foreclosure claim against tribal members for failure to make loan payments on reservation trust land.
U.S. v. Fowler, ___ F. Supp. 3d ___, 2021 WL 243150 (D. Mont. Jan. 25, 2021)Motion to suppress evidence seized by a state highway patrol officer from an Indian during a reservation stop was denied in view of the former’s authority under a cross-deputization agreement that authorized him to enforce tribal law.
State v. Cummings, 2021 S.D. 4, ___ N.W.2d ___ (Jan. 27, 2021)Voluntary oral communications between a state law enforcement officer and an Indian occurring within Indian country in connection with the investigation of an off-reservation offense were improperly suppressed, overruling in part State v. Spotted Horse, 462 N.W.2d 463 (S.D. 1990), and State v. Cummings, 2004 S.D. 56, 679 N.W.2d 484
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.