News & Updates from WAGLAC
January 4th, 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
Trump Administration Keeps Existing Smog Limits, Rejecting Calls to Toughen Them
The Washington Post
December 23, 2020

"The Trump administration declined to impose stricter limits on smog-forming pollutants, saying national ozone standards set in 2015 are sufficient. Public-health advocates had pressed for lower levels of ozone, arguing the hazardous gas disproportionately affects the most vulnerable Americans.

Formed when chemicals from power plants, cars and industrial operations are exposed to heat and sunlight, ozone is linked to an array of illnesses including childhood asthma and lung disease.

The Clean Air Act requires the Environmental Protection Agency to set air pollution standards every five years to a level that protects public health. Under the Obama administration in 2015, the EPA lowered the standard from 75 parts per billion to 70 parts per billion, averaged over an eight-hour period."
INDIAN LAW
In Indian Country, Tears, Hope and Defiance Over Nomination of First Native Cabinet Secretary
The Washington Post
December 24, 2020

"President-elect Joe Biden ... selected Rep. Deb Haaland (D-N.M.), ... to become interior secretary...American Indians celebrated in the New Mexican Pueblos where Haaland grew up, in the sprawling Navajo Nation farther to the north, in Dakota country that extends into Canada and on the tiny strip of land where the Wampanoag tribe first greeted Europeans who made the pilgrimage to the Americas centuries ago before they founded a nation that sought to obliterate Indigenous people."
WATER
Tenth Circuit Affirms National Park Service Lacks Legislative Jurisdiction over Wildlife Management on Private Inholding in Teton National Park
 
The question in this case was whether Wyoming or National Park Service wildlife management laws applied to the take of elk on private inholdings within Grand Teton National Park (“Park”). The case turned on the concept of “legislative jurisdiction.” A state generally possesses legislative jurisdiction over all lands within its borders. The federal government, however, may acquire legislative jurisdiction from a state. 

National Park Service (NPS) regulation 36 C.F.R. § 2.2, prohibits the taking of wildlife in national parks “regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States.” (emphasis added). At the heart of the case was whether Wyoming had ceded its legislative jurisdiction over management of wildlife on private inholdings in the Park to the NPS.

NPS determined in 2014 the agency lacked legislative jurisdiction over wildlife management on inholdings within the Park. Defenders of Wildlife and Wyoming Wildlife Advocates (“Appellants”) challenged the agency’s determination arguing that “Wyoming officials had implicitly ceded to the federal government jurisdiction to manage wildlife on all Park lands” during [] 1949-1950 negotiations.”

The Federal District Court upheld the NPS’ jurisdiction determination finding that “in order for a state to cede jurisdiction to the federal government, ‘legislative action is required.’”  The District Court also rejected Defenders’ argument that the Property Clause of the U.S. Constitution provides an independent basis for finding § 2.2 applicable on Park inholdings.” The Tenth Circuit Court of Appeals affirmed the District Court holding “that the only way in which a state may cede its jurisdiction is by act of the state’s legislature, and there is no statutory or record evidence before us showing that the Wyoming Legislature authorized or approved any cession in connection with the 1949–50 negotiations. Thus, Wyoming never ceded its legislative jurisdiction to the federal government . . ..”
FISH & WILDLIFE
Judge: Groups Can't Petition Recovery Plans
Jackson Hole News & Guide
December 30, 2020

"A federal judge has decided environmental advocacy groups don’t have the legal footing to petition the U.S. Fish and Wildlife Service on outdated species recovery plans.

The case at issue sprung from a 2014 petition that asked the service to revise and update its then 21-year-old species recovery plan for federally threatened grizzly bears throughout the Lower 48. Federal wildlife managers declined, and the petitioner, the Center for Biological Diversity, challenged. Then last week a U.S. District Court Judge for Montana, Dana Christensen, sided on behalf of the defendants, ruling that the plans aren’t eligible to be petitioned."
WATER
Omnibus Includes Historic Water Rights Settlement
E&E News
December 23, 2020

"A Montana tribe is having a "once in a lifetime moment" after a water compact with the federal government passed, tucked inside the massive spending and pandemic aid package.

The Confederated Salish and Kootenai Tribes of Montana (CSKT) compact, amounting to $1.9 billion, is the largest tribal water rights settlement in history by total federal cost.

The year-end package also advanced other tribal water rights settlements, including for the Pueblos of Nambé, Pojoaque, Tesuque and San Ildefonso; the Navajo Nation; and the Kickapoo Tribe of Kansas"
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.
Mille Lacs Band of Objibwe v. County of Mille Lacs, Minn., ___ F. Supp. 3d ___, 2020 WL 7489475 (D. Minn. Dec. 21, 2020)Motion to dismiss on lack of subject-matter jurisdiction, justiciability and immunity grounds an action seeking prospective relief over interference by county officials with tribal law enforcement authority was denied.
Pickerel Lake Outlet Association v. Day County, South Dakota, 2020 SD 72, ___ N.W.2d ___ (S.D. Dec. 22, 2020)Ad valorem tax imposed on non-Indians’ improvements located on tribal trust land was not expressly or impliedly preempted.
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.