News & Updates from WAGLAC
January 18th, 2021
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC WINTER MEETING UPDATE

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
Supreme Court Grants Certiorari to Review Guam's CERCLA Claim Against the United States

"The United States Supreme Court granted certiorari in Guam v. United States, 950 F.3d 104 (2020) rejecting Guam’s CERCLA cost recovery claim. The D.C. Circuit held Guam’s claim was “precluded by CERCLA Section 113(f)(3)(B), in a decision that deepens two acknowledged circuit conflicts. Section 113(f)(3)(B) establishes a contribution remedy for any party that ‘has resolved its liability to the United States or a State for some or all of a response action’ in a “judicially approved settlement,” subject to a three-year statute of limitations. Id. § 9613 (f)(3)(B). [T]he D.C. Circuit held that Section 113(f)(3)(B) was triggered by a decade old consent decree settling claims under the Clean Water Act (CWA)—even though that decree did not mention CERCLA, explicitly disclaimed any finding of liability, and left Guam exposed to future liability. And given that Guam filed suit more than three years after the consent decree was entered, the court held that Guam’s action is barred. The questions presented are: 1. Whether a non-CERCLA settlement can trigger a contribution claim under CERCLA Section 113(f)(3)(B). 2. Whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).” Order Granting Cert."

Guam is seeking amicus support. If your state is interested in writing or signing on to an amicus brief, contact Attorney General Leevin Camacho or his staff at: 

Office of the Attorney General
590 S. Marine Corps. Drive
Suite 901 Tamuning, GU 96913
Tel. (671) 475-3324 ext. 5015

The deadline to file an amicus is February 22nd.
Attorney General Becerra Joins Multistate Effort to Hold Polluters Accountable Under the Clean Water Act
January 11, 2021

"California Attorney General Xavier Becerra, as part of a 12-state coalition, submitted comments to the Environmental Protection Agency (EPA) arguing that its new draft guidance misinterprets the U.S. Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund. In County of Maui, the Supreme Court established a new standard to determine if the indirect discharge of wastewater through groundwater or another similar conduit into waters of the United States is subject to a Clean Water Act permit. In the comment letter, the coalition argues that the EPA’s draft guidance tips the scales in favor of polluters by providing them with additional arguments to avoid regulation under the Clean Water Act, contravenes the purpose of the Act, and conflicts with the Court's decision in County of Maui."

Please view the full press release to access the comment letter.
Lawsuit Targets 'Secret Science' Rule
E&E News
January 12, 2021

"A coalition of environmental groups launched the first legal attack against the Trump administration's efforts to limit the use of science that supports pollution regulation.

Attorneys for the Environmental Defense Fund (EDF) and other organizations argued that EPA's StrengtheningTransparency in Regulatory Science regulation, announced last week, violates rulemaking protocols under theAdministrative Procedure Act and should be scrapped.

The complaint, filed in the U.S. District Court for the District of Montana, targets a newly finalized EPA rule that requires the agency to give less weight to nonpublic scientific research and to emphasize studies in which the amount of a pollutant's harm to public health — or the "dose-response" data — is disclosed."
Trump EPA Aims to Tie Biden's Hands WIth Rulemaking Surprise
E&E News
January 12, 2021

"EPA has finalized a rule that leaves untouched an Obama-era requirement that new coal plants partially capture their carbon dioxide emissions — walking away from its proposal more than two years ago to scrap that mandate in favor of laxer standards.

Instead, the rule, which was posted on the Federal Register website this morning and will be published officially tomorrow, seeks to erect fresh barriers to a future administration's promulgating rules for sectors like oil refineries or steel manufacturing under a key section of the Clean Air Act.

EPA's gambit, played eight days before the start of the Biden administration, classifies any industrial sector as not a significant contributor of a greenhouse gas pollutant unless it is responsible for fully 3% of total U.S. emissions."
Outlook for Environmental Issues in the Biden Administration
Beveridge & Diamond
December 29, 2020

"Following our post-election Alert outlining major anticipated themes for environmental and natural resource law and policy in the Biden Administration, B&D's Election Task Force and leaders from several of our subject-specific practice areas highlight in this article some of the likely priorities of the Biden Administration."
TRANSITIONS
Biden Swells the Ranks of His White House Climate Team
The Washington Post
January 14, 2020

"President-elect Joe Biden added more than a half-dozen climate staffers to his White House team, drawing from the ranks of green groups, environmental justice advocates and former Democratic administration officials to grow an inner circle that will help him try to slash the nation’s greenhouse gas emissions.

The new hires include David J. Hayes, who served as Interior deputy secretary under Presidents Bill Clinton and Barack Obama; Cecilia Martinez, a prominent environmental justice advocate based in Minneapolis who advised the transition team; and Stef Feldman, a top Biden campaign aide who helped craft his climate plan. They will work with several incoming Cabinet officials new to Biden’s orbit, including North Carolina environmental regulator Michael S. Regan, picked to run the Environmental Protection Agency, and Rep. Deb Haaland (D-N.M.), set to serve as interior secretary."
FISH & WILDLIFE
Trump Opens Habitat of a Threatened Owl to Timber Harvesting
The New York Times
January 13, 2021

"The Trump administration on removed more than 3 million acres of Pacific Northwest land from the protected habitat of the northern spotted owl, 15 times the amount it had previously proposed opening to the timber industry.

The plan, issued by the United States Fish and Wildlife Service, grew out of a legal settlement with a lumber association that had sued the government in 2013 over 9.5 million acres that the agency designated as essential to the survival of the northern spotted owl. The federal protections restricted much of the land from timber harvesting, which companies claimed would lead to calamitous economic losses.

But rather than trim about 200,000 acres of critical habitat in Oregon, as the agency initially proposed in August, the new plan will eliminate protections from 3.4 million acres across Washington, California and Oregon. What is left will mostly be land that is protected for reasons beyond the spotted owl."
Interior Finalizes Revisions to Obama's Sage Grouse Plans
E&E News
January 13, 2021

"The Trump administration will go out insisting that its controversial revised greater sage grouse protection plans were done correctly and should be implemented, even as a federal judge's order blocking the Bureau of Land Management from doing so remains in place.

The latest is a series of records of decision (RODs) the bureau will publish tomorrow in the
Federal Register that, while not new planning documents, attempt to set in stone the Interior Department's position that the 2019revisions to Obama-era sage grouse protection plans should be implemented without any changes.

The six RODs — covering the seven states affected by the revisions — conclude a more than yearlong effort byBLM to convince Judge B. Lynn Winmill in the U.S. District Court for the District of Idaho to lift his preliminary injunction blocking the bureau from implementing the revisions (Greenwire, Oct. 17, 2019).
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.
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.
U.S. v. Smith, ___ F. Supp. 3d ___, 2021 WL 136126 (D. Or. Jan. 13, 2021)Post-conviction relief motion was denied with respect to a claim that the Supreme Court’s decision in McGirt v. Oklahoma overruled the Ninth Circuit decision that rejected Defendant’s challenge to his indictment for lack of jurisdiction.
Olson v. U.S., ___ Fed. Cl. ___, 2021 WL 137911 (Jan. 14, 2021)Federal claims court lacked subject-matter jurisdiction over claims under the Tucker Act for monetary relief based upon contracts entered into by the United States on behalf the Yakama Nation or its members with respect to the delivery of water to leased trust lands, and Plaintiffs further failed to allege a money-mandating statute or regulation that would support exercise of Tucker Act jurisdiction.
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.