News & Updates from WAGLAC
February 22, 2021

WAGLAC 2021 Summer Meeting
The WAGLAC 2021 summer meeting is tentatively scheduled for June 7-9. The decision on whether the meeting will be in person or virtual will be made later this spring when more information is available on COVID-19 travel restrictions. 
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
Supreme Court Loads Up On Environment Cases
E&E News
February 18, 2021

"When the Supreme Court returns from its winter recess, the justices will have an unusually heavy load of environmental cases to sift through — and potentially more to come.

What began as a sleepy term on environmental issues — with only an interstate water fight and an EPA records dispute on deck — has blossomed into a term filled with prominent pipeline, climate and biofuels battles. And theSupreme Court could soon choose to weigh in on a number of other pending matters, including the high-stakes kids' climate case, Juliana v. United States."
New Mexico Petitions U.S. Court of Appeals Over PFAS Water Contamination By Department of Defense
February 1, 2021

"The New Mexico Environment Department (NMED) and the New Mexico Attorney General (NMAG) filed a writ of mandamus requesting that the Fourth Circuit Court vacate its decision to transfer New Mexico’s PFAS litigation into multi-district litigation in South Carolina and remand the matter back to the District of New Mexico. The State argues the action was an unconstitutional violation of New Mexico’s sovereignty and will result in extreme delays in the case’s movement, putting public health and the environment at further risk."
Texas Blackouts Point to Coast-to-Coast Crises Waiting to Happen
The New York Times
February 21, 2021

"Even as Texas struggled to restore electricity and water over the past week, signs of the risks posed by increasingly extreme weather to America’s aging infrastructure were cropping up across the country.

The week’s continent-spanning winter storms triggered blackouts in Texas, Oklahoma, Mississippi and several other states. One-third of oil production in the nation was halted. Drinking-water systems in Ohio were knocked offline. Road networks nationwide were paralyzed and vaccination efforts in 20 states were disrupted.

The crisis carries a profound warning. As climate change brings more frequent and intense storms, floods, heat waves, wildfires and other extreme events, it is placing growing stress on the foundations of the country’s economy: Its network of roads and railways, drinking-water systems, power plants, electrical grids, industrial waste sites and even homes. Failures in just one sector can set off a domino effect of breakdowns in hard-to-predict ways.

Much of this infrastructure was built decades ago, under the expectation that the environment around it would remain stable, or at least fluctuate within predictable bounds. Now climate change is upending that assumption."
Montana High Court Upholds Permit for Proposed Silver Project
E&E News
February 18, 2021

"Montana officials conducted an appropriate review before granting a water permit for a proposed silver and copper mine that would run beneath a wilderness area near the Idaho border, the Montana Supreme Court ruled.

The 5-2 ruling reversed a lower court decision from 2019 that said officials had failed to adequately consider potential damage to nearby streams from Hecla Mining Co.'s proposed Rock Creek mine.

The mine beneath the Cabinet Mountains Wilderness near Noxon would employ about 300 people and cover almost 500 acres.

The state Department of Natural Resources and Conservation was sued by the Clark Fork Coalition, Earthworks and other environmental groups after granting the water permit in 2018.

A spokesperson for the natural resources department said in a statement that the decision was important for water users who rely on its interpretation of state law."
Florida and Georgia Face Off Again In Long-Running Fight Over Water Rights
February 19, 2021

"The Supreme Court is scheduled to hear Florida v. Georgia, round two. At issue is whether the court will require Georgia to cap its water use in the Apalachicola River system and allow more water to flow downstream into Florida. Georgia says its water use is reasonable and insists that a cap would severely harm the Atlanta metropolitan area and the state’s agricultural industry. Florida says that Georgia is using far more than its fair share of the water, depleting flows into the Apalachicola Basin and wreaking havoc on Florida’s oyster fisheries."
Water Stored In Reclamation Reservoir Not Available To Satisfy Federal Reserved Water Right

On January 14, 2021, Solicitor of Interior Daniel Jorjani issued a memorandum that concluded water previously stored in priority in the Klamath Project is not available for satisfaction of downstream tribal instream reserved water rights. The memorandum states that the Department of Interior’s trust obligation to the Yurok and Hoopa Tribes is satisfied by “providing water that would be available in the tribal fishery, absent the project.” The memorandum concludes that the Yurok and Hoopa Tribes are not entitled to call “for water previously stored in priority—water that would not exist absent the Project—to supplement natural flow.”
Water Quality Standards In Indian Country
Catherine O’Neill, Jane Steadman and James Grijalva spoke at the University of Washing Law School webinar on water quality standards in Indian County. Below are links to their power point presentations.
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.
Apache Stronghold v. U.S., ___ F. Supp. 3d ___, 2021 WL 535525 (D. Ariz. Feb. 12, 2021)Motion to preliminarily enjoin the United States Department of Agriculture from issuing a final environmental impact statement with respect to the conveyance of land deemed by Western Apaches to have cultural and religious significance was denied.
Allegany Capital Enterprises, LLC v. Cox, ___ F. Supp. 3d ___, 2021 WL 534803 (W.D.N.Y. Feb. 12, 2021)Motion to dismiss a complaint against three corporate officers, who claimed arm-of-the-tribe status, that alleged four state law-based claims arising from misstatements over the existence of a valid tribal waiver of sovereign immunity was denied except as to the absence of personal jurisdiction over two of the officers.
Fond du Lac Band of Lake Superior Chippewa v. Wheeler, ___ F. Supp. 3d ___, 2021 WL 603754 (D. Minn. Feb. 16, 2021)Environmental Protection Agency’s failure to object to a state agency’s proposed issuance of a NPDES permit under the Clean Water Act was not subject to judicial review, but its failure to provide notice under 33 U.S.C. § 1341(a)(2) to a tribe, which had approved CWA water-quality standards, of a state agency CWA section 404 certification concerning whether the involved project may affect the environment was subject to review. The tribe also stated a claim under 5 U.S.C. § 555(e) against EPA for failing to respond to requests for a notice and hearing under § 1341(a)(2).
In re Kameron N., ___ A.3d ___, 2021 WL 609020 (Conn. App. Ct. Feb. 16, 2021)State agency did not violate Indian Child Welfare Act notice requirements under the involved facts when it failed to send a notice of the child custody proceeding including all the information specified in the Department of the Interior ICWA regulations or a letter by registered mail advising the tribe of its right to intervene as required under 25 U.S.C. § 1912(a).
North Dakota ex rel. Workforce Safety and Insurance v. Cherokee Services Group, LLC, 2021 ND 36, ___ N.W.2d ___ (Feb. 18, 2021)Case was remanded to an administrative law judge to determine whether various entities are an arm of the Cherokee Nation and therefore entitled to immunity from suit for failure to maintain workers’ compensation insurance.
Metlakatla Indian Community v. Dunleavy, ___ F. Supp. 3d ___, 2021 WL ______ (D. Alaska Feb. 17, 2021)Metlakatla Indian Community did not have implied fishing rights beyond the waters neighboring the Annette Islands Reserve identified as an exclusive fishing zone for its benefit in Proclamation No. 64 (1916) and Alaska Pacific Fisheries v. United States (1918).
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
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.
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.