News & Updates from WAGLAC
February 1, 2021
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Virtual Winter Meeting
February 16 - 18, 2021
Platform: Zoom

We look forward to hosting state attorney general staff for the WAGLAC Virtual Winter Meeting on February 16 - 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 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 features the drafters of the Trump and Obama WOTUS rules and California’s lead attorney on challenges to the current WOTUS rule. 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. 
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
Judge Throws Out Trump Rule Limiting What Science EPA Can Use
The Washington Post
February 1, 2021

"A federal judge vacated the Trump administration rule limiting which scientific studies the Environmental Protection Agency can use in crafting public health protections, overturning one of the last major actions taken by the agency before President Biden took office.

The ruling by Judge Brian Morris, chief judge for the U.S. District Court for the District of Montana, Great Falls, marked a victory for environmental groups and public health advocates. Just two weeks before Biden’s inauguration, EPA finalized a rule requiring researchers to disclose the raw data involved in their public health studies before the agency could rely upon their conclusions.

The rule, which was made effective immediately, would assign less weight to studies built on medical histories and other confidential data from human subjects where the underlying information was not revealed. That sort of research — including dose-response studies, which evaluate how much a person’s exposure to a substance increases the risk of harm — have been used for decades to justify EPA regulations."
DOJ Withdraws Nine Environmental Policy Memorandums

The Department of Justice withdrew nine Trump Administration policies on environmental law enforcement, including a memorandum that precluded use of supplemental environmental projects in lieu of penalties. Deputy Assistant Attorney General Jean Williams wrote that the policies were “inconsistent with longstanding Division policy and practice" and "may impede the full exercise of enforcement discretion in the Division’s cases.” Jonathan Brightbill, acting head of DOJ’s Environment & Natural Resources (ENRD) division at the end of the Trump administration, however, told “Inside EPA that the department cannot simply scrap the policies, which were established through memoranda as well as a formal DOJ rulemaking that also bans payments to third parties and includes SEPs. For example, he said in an exit interview that Biden would not be too easily reinstate SEPs because they had been enshrined in DOJ internal rules.”
EPA Nominee Offers Congress A Peek At Plans For WOTUS
E&E News
February 4, 2021

"EPA administrator nominee Michael Regan appeared to somewhat ease Republican anxiety over the fate of President Trump's controversial rule that rolled back federal protections for streams and wetlands by vowing to listen to farmers at the center of the fight.

Citing his experience at North Carolina's Department of Environmental Quality, which he has led since 2017,Regan told the Senate Environment and Public Works Committee during his confirmation hearing that he has had to respond to both the Obama-era Clean Water Rule released in 2015 and the Trump administration's replacement Navigable Waters Protection Rule, which took effect in June.

The Biden administration has already moved away from defending Trump's rule in court and has said it will review the regulation.

Regan said that, if confirmed, he plans to hear from all stakeholders to ensure any final "Waters of the U.S.," or WOTUS, regulation is clear and understandable, not overly burdensome. But he also took a shot at the currentTrump regulation and its effect on vulnerable wetlands like North Carolina's bays, small depression wetlands thatwere left unprotected under the most recent Trump revisions."
Justice Requesting Stay of Litigation in WOTUS Cases

The Department of Justice has asked for a six-month stay in the following WOTUS cases:  Murray v. Nishida, pending in the U.S. District Court for the Northern District of New York, Chesapeake Bay Foundation v. Nishida, pending in the U.S. District Court for the District of Maryland, Environmental Integrity Project, et al. v. Nishida, pending in the U.S. District Court for the District of Columbia, and Colorado v. EPA, pending in the Tenth Circuit Court of Appeals. 

Plaintiffs in Murray are opposing DOJ’s request, arguing they “were required to expend substantial time and resources” responding to DOJ’s defense of the rule, and the case should be decided on the previously submitted briefs.
ENERGY
White House: More Pipelines Under Review
E&E News
February 5, 2021

"The Biden administration said it is reviewing a broad range of oil and gas pipelines, weeks after canceling a permit for the controversial Keystone XL pipeline.

White House press secretary Jen Psaki discussed the review during a press briefing in response to a question about the president's views of Enbridge Line 5 in Michigan, which Gov. Gretchen Whitmer (D) has been pushing to shut down, and a separate oil project in Alaska."
President Biden Expected to Back Pipeline in Supreme Court Battle
E&E News
February 4, 2021

"The Biden administration's Justice Department may keep supporting a pipeline company's eminent domain power in the latest energy battle to land before the Supreme Court, legal experts say.

The justices agreed to review a 2019 ruling from the 3rd U.S. Circuit Court of Appeals that allowedPennEast Pipeline Co. LLC to sue New Jersey to seize 42 parcels of state-owned land for the company's 116-mile natural gas project.

Former President Trump's acting Solicitor General Jeffrey Wall had backed PennEast's call for the 3rd Circuit ruling to be overturned, noting in a "friend of the court" brief that the decision upended a long-standing interpretation of the Natural Gas Act and violated the Garden State's constitutionally protected sovereign immunity. He also warned that the 3rd Circuit did not have jurisdiction to hear the case.

Wall's jurisdictional claim will now become a part of the core argument in
PennEast v. New Jersey, according to the Supreme Court's order agreeing to hear the pipeline company's plea."
TRANSITIONS
Interior Department Announces Additional Members of Leadership Team
U.S. Department of the Interior 
February 3, 2021

"The Department of the Interior announced additional members of agency leadership who will work to address the climate and nature crises and advance President Biden’s vision to build a clean energy future that creates good-paying jobs and powers our nation."
FISH & WILDLIFE
GOP Congressman Pitches $34 Billion Plan to breach Lower Snake river Dams In New Vision For Northwest
The Seattle Times
February 7, 2021

"For nearly three decades, the region has been stuck in unending litigation and spiraling costs as salmon in the Columbia and Snake rivers decline toward extinction. But in a sweeping $34 billion proposal from an unlikely source, at an auspicious moment, comes a chance for a fresh start.

Could Congressman Mike Simpson, a Republican from a conservative district in eastern Idaho, have launched a concept that will forever alter life on the Columbia and Snake — and finally honor tribal treaty fishing rights in the Columbia Basin?

His proposal includes removing the earthen berms adjacent to all four Lower Snake River hydroelectric dams to let the river run free, to help save salmon from extinction, while spending billions of dollars to replace the benefits of the dams for agriculture, energy and transportation."
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.
Warehouse Market Inc. v. State ex rel. Oklahoma Tax Comm’n, 2021 OK 6, ___ P.3d ___ (Okla. Feb. 2, 2021)Interpleader action filed by a shopping center retailer over whether the state or a tribe possessed authority to impose sales tax was deemed a tax protest and dismissed for failure to exhaust administrative remedies after the tribal tax commission asserted immunity from suit and was dismissed from the proceeding.
Grondal v. U.S., ___ F. Supp. 3d ___, 2021 WL 354414 (E.D. Wash. Feb. 2, 2021)Limited liability company holding an undivided life estate interest in a trust allotment did not constitute an “allottee.” Discovery requests against a defendant tribe that had not waived its more general immunity from suit in connection with the litigation were barred.
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.