News & Updates from WAGLAC
January 12th, 2021
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.
ENVIRONMENT
Senate Democrats Eye Quick Repeal of Trump Rules
E&E News
January 6, 2021

"The impending power shift in the Senate means Congress will once again turn to the Congressional Review Act to scrap a bevy of regulations.

The law will allow the Democratic House and Senate and President-elect Joe Biden to rapidly repeal regulations finalized roughly within the past six months.

Hill Republicans and President Trump used the CRA to kill 16 Obama-era rules in 2017. Democrats, in contrast have never deployed the CRA. They're wary of the law's blunt, deregulatory nature.

But recent elections in Georgia, which appear to give Democrats a narrow majority in the Senate, have reignited the debate among lawmakers and advocates."
EPA Finalizes Rule to Limit Science Behind Public Health Safeguards
The Washington Post
January 5, 2021

"The Environmental Protection Agency has finalized a rule to limit what research it can use to craft public health protections, a move opponents argue is aimed at crippling the agency’s ability to more aggressively regulate the nation’s air and water.

The “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” rule, which the administration began pursuing early in President Trump’s term, would require researchers to disclose the raw data involved in their public health studies before the agency could rely upon their conclusions. It will apply this new set of standards to “dose-response studies,” which evaluate how much a person’s exposure to a substance increases the risk of harm."
Section 401/Clean Water Act: Federal Court Addresses EPA Dismissal Motion Related to Challenge to Certification Rule
JD Supra
January 6, 2021

"The United States District Court (Eastern District of Pennsylvania) (“Court”) addressed in a December 18th Opinion and Order (collectively “Order”) the United States Environmental Protection Agency’s (“EPA”) Motion to Dismiss a Complaint filed by the Delaware Riverkeeper Network (“Riverkeeper”). See Delaware Riverkeeper Network, et al. v. United States Environmental Protection Agency, et al. Civil Action No. 20-3412.

The Motion responded to Riverkeeper’s challenging EPA’s issuance of a rule it recently promulgated addressing Clean Water Act Section 401 certification procedures.

The Court in holding for Riverkeeper states: Plaintiffs’ alleged harm here occurs as a result of the implementation of the Certification Rule. If the Court were to make a judgment in Plaintiffs’ favor, and the previous certification program were reinstated, the harm against Plaintiffs would be resolved in its entirety. Therefore, this result would be “of some practical help” to Plaintiffs.

The Court also lists the elements to prove Article III standing, which include:

  • An injury in fact;
  • A sufficient causal connection between the injury and the conduct complained of; and
  • A likelihood that the injury will be redressed by a favorable decision.”
Water Quality - Montana §401 Certification
Western States Water Council Newsletter, Issue #2434
January 8, 2021

"On January 4, the Montana Department of Environmental Quality (MDEQ) issued a Clean Water Act (CWA) §401 Water Quality Certification for the U.S. Army Corps of Engineers (Corps) approval of the Keystone XL Pipeline project. The pipeline would run through the eastern part of the state and requires a §401 certification due to crossing 201 wetland and water features that are regulated under the CWA.

Due to strict deadlines set by the Corps, MDEQ acknowledged they were not able to fully complete their public review process. After receiving a complete application from the applicant in June and issuing a 67-day public comment period, MDEQ received 650 comments. They requested multiple deadline extensions in order to meaningfully respond to and consider all of the comments as required by state law prior to issuing the certification. However, after receiving extensions only until Jan 5, 2021 and Jan 11, 2021, MDEQ realized they were at risk of waiving certification if they completed their public process, and decided to issue a certification.”
SUPREME COURT
Supreme Court Grants Petitions for Writ of Certiorari in Related Cases—Mnuchin v. Confederated Tribes of Chehalis Reservation, No. 20-543, and Alaska Native Village Corporation Association, Inc. v. Confederated Tribes of Chehalis Reservation, No. 20-544.

On January 7, 2021 the United States Supreme Court granted petitions for writ of certiorari in related cases—Mnuchin v. Confederated Tribes of Chehalis Reservation, No. 20-543, and Alaska Native Village Corporation Association, Inc. v. Confederated Tribes of Chehalis Reservation, No. 20-544. The Secretary of the Treasury’s petition states the following Question Presented:

In the Coronavirus Aid, Relief, and Economic Security or CARES Act, Congress directed the Secretary of the Treasury to disburse $8 billion of relief funds “to Tribal governments.” Pub. L. No. 116-136, Div. A, Tit. V, § 5001(a), 134 Stat. 501-502 (42 U.S.C. 801(a)(2)(B)). The CARES Act defines a “Tribal government” as “the recognized governing body of an Indian Tribe,” 42 U.S.C. 801(g)(5), and provides that “[t]he term ‘Indian Tribe’ has the meaning given that term in” the Indian Self-Determination and Education Assistance Act (ISDA), 25 U.S.C. 5301 et seq. 42 U.S.C. 801(g)(1), ISDA, in turn, defines “Indian tribe” to mean “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act * * * , which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. 5304(e). The question presented is as follows:
Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act, 42 U.S.C. 801(g)(1).

The underlying decision is Confederated Tribes of Chehalis Reservation v. Mnuchin, 976 F.3d 15 (D.C. Cir. 2020). A summary of this decision is linked below.The State of Alaska filed an amicus brief in support of the petitions.
ENERGY
Sale of Drilling Leases in Arctic Refuge Fails to Yield a Windfall
The New York Times
January 6, 2021

"In a blow to the Trump administration’s efforts to open the Arctic National Wildlife Refuge to fossil fuel development, only half of the oil and gas leases offered for sale received bids, and all but two of those came from the state of Alaska itself.

Only two companies, neither of them major oil producers, made bids to acquire 10-year rights to explore and drill for oil on two tracts totaling about 75,000 acres. A state-owned economic development corporation, offering the minimum of $25 an acre, was the sole bidder on the other tracts, totaling about half a million acres. The rights to another 400,000 acres remained unsold.

Once billed as a potential windfall that, over time, could bring in close to a billion dollars for the federal Treasury, in all the sale netted less than $15 million, with half of that going to the state.

Both the financial results, and the lack of interest from major companies, are quite likely a disappointment to the Trump administration, and to Alaska officials who have long favored oil development for the jobs and revenue it could bring."
FISH & WILDLIFE
A New Trump Rule Says It's Okay To Unintentionally Kill Scores of Birds. Biden Can Overturn It
The Washington Post
January 5, 2021

"In a last-gasp effort before departing the White House, the Trump administration took another swipe at weakening enforcement of a 100-year-old law that protects migrating birds.

With only two weeks left in office, the administration published a rule that spares industries and individuals from prosecution or penalties under the Migratory Bird Treaty Act if their actions, such as development or failure to cover tar pits, results in bird deaths. If the deaths were unintentional, the U.S. Fish and Wildlife Service says in the rule, there will be no enforcement."
STATE LANDS
Parking Fee Does Not Waive State Parks Recreational Immunity
 
At issue in this case was Oregon State Parks entitlement to recreational immunity under ORS 105.682 in a negligence action for injuries sustained by plaintiff while visiting The Cove Palisades State Park. On remand from the Oregon Supreme Court, the issue before the Oregon Court of Appeals was whether the $5.00 fee the state charged plaintiff when he entered the park by car was a fee for the recreational use of the park or a parking fee. Plaintiff sought further discovery on whether the fee was a recreational use fee, thereby depriving Oregon Parks of recreational immunity. The Oregon Court of Appeals upheld the trial court’s determination “that there were no disputes of material fact as to whether, the state’s $5 fee was a charge for the recreational use of The Cove Palisades State Park, and correctly granted summary judgment to the state.”
WATER
Wall Street Eyes Billions in the Colorado’s Water
The New York Times
January 3, 2021

"There is a myth about water in the Western United States, which is that there is not enough of it. But those who deal closely with water will tell you this is false. There is plenty. It is just in the wrong places.

Cibola, Ariz., is one of the wrong places. Home to about 300 people, depending on what time of year you’re counting, the town sits on the California border, in a stretch of the Sonoran Desert encircled by fanglike mountains and seemingly dead rocky terrain. Driving across the expanse, where the temperature often hovers near 115 degrees, I found myself comforted by the sight of an oncoming eighteen-wheeler carrying bales of hay, which at least implied the existence of something living where I was headed.

Thanks to the Colorado River, which meanders through town, Cibola is a verdant oasis that chatters at dusk with swooping birds. Along both banks, a few hundred acres produce lush alfalfa and cotton, amid one of the more arid and menacing environments in North America.

This scene is unlikely to last, though. A few years ago a firm called Greenstone, a subsidiary of a subsidiary of the financial-services conglomerate MassMutual, quietly bought the rights to most of Cibola’s water. Greenstone then moved to sell the water to one of the right places: Queen Creek, a fast-growing suburb of Phoenix 175 miles away, full of tract houses and backyard pools.

Transferring water from agricultural communities to cities, though often contentious, is not a new practice. Much of the West, including Los Angeles and Las Vegas, was made by moving water. What is new is for private investors — in this case an investment fund in Phoenix, with owners on the East Coast — to exert that power."
Phelan Piñon Hills Community Services District v. California Water Service Co.
Justia US Law

"The Antelope Valley Groundwater Cases (AVGC) proceeding litigated whether the water supply from natural and imported sources, which replenishes an alluvial basin from which numerous parties pumped water, was inadequate to meet the competing annual demands of those water producers, thereby creating an "overdraft" condition. Phelan, which provides water to its customers who are located outside the Antelope Valley Adjudication Area (AVAA) boundaries, became subject to the AVGC litigation because a significant source of its water is pumping from a well (Well 14) located in the AVAA basin. The trial court's judgment and adopted Physical Solution concluded that, while Phelan held no water rights in the AVAA basin, Phelan could continue operating Well 14 to draw up to 1,200 afy to distribute to its customers outside the AVAA, on condition that Phelan's pumping causes no material harm to the AVAA basin and that Phelan pays a "Replacement Water Assessment" for any water it pumped for use outside the AVAA."
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.
Shawnee Tribe v. Mnuchin, ___ F.3d ___, 2021 WL 28207 (D.C. Cir. Jan. 5, 2021)Application of the distribution formula under Title V of the CARES Act is not committed to the unreviewable discretion of the Secretary of the Treasury, and the plaintiff tribe established a likelihood of success on its claim that the use of a geographical “formula area” based on Indian Housing Block Grant program tribal population data to determine its funding entitlement was erroneous.
In Matter of Dependency of A.L.K., ___ P.3d ___, 2020 WL 765054 (Wash. S. Ct. Dec. 24, 2020)The active efforts to avoid breakup of an Indian family required under the Indian Child Welfare Act and its Washington counterpart were not provided where the trial court record did not indicate that the responsible social worker went beyond recommending services to assist the mother with her chemical dependency notwithstanding the latter’s refusal to engage in such services.
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.