News & Updates from WAGLAC
June 1st, 2021
UPCOMING EVENTS
CWAG Natural Resources and Environment Meeting and
WAGLAC Summer Meeting
June 15, 2021

The WAGLAC summer meeting will be held in conjunction with the AGA 2021 Annual Meeting. The CWAG Agenda scheduled for the morning of June 15th will feature panels on environmental justice, water marketing, the Colorado River water management, state/tribal consultation, and emerging environmental issues. The in person panel discussions will be broadcast live here.

There will be a short WAGLAC meeting on Wednesday June 16th from 7:30am - 9:00am HST for WAGLAC members in attendance.


Please email Andrea Friedman at AFriedman@AGAlliance.org for more information.
ENVIRONMENT
EPA Announces Intent To Reconsider CWA 401 Certification Rule
Environmental Protection Agency
May 27, 2021

On May 27, 2021, EPA issued a notice of intent to reconsider and revise the Trump Administration’s Clean Water Act Section 401 Certification Rule. EPA will be conducting stakeholder outreach sessions and is inviting “written feedback on how to revise the requirements for [state and tribal] water quality certifications. “EPA intends to revise the Clean Water Act Section 401 Certification Rule in a manner that is well informed by stakeholder input on the rule’s substantive and procedural components; is better aligned with the cooperative federalism principles that have been central to the effective implementation of the Clean Water Act; and is responsive to the national objectives outlined in President Biden’s Executive Order 13990.”
Judge: High Court Ruling Calls For More Info On Maui Fight
E&E News
May 28, 2021

"A federal judge said ...Friday that she needed more information to decide whether discharges from a Hawaii wastewater treatment plant meet the Supreme Court's test for a Clean Water Act permit.

The Hawaii Wildlife Fund and other green groups had asked Senior Judge Susan Oki Mollway of the U.S. District Court for the District of Hawaii to block releases from Maui County's Lahaina Wastewater Reclamation Facility (LWRF), in a legal challenge that made its way to the nation's highest bench last year.

The county likewise asked the judge to find that the environmental challengers had not provided sufficient evidence to support their claims."
FISH AND WILDLIFE
D.C. Circuit: Greens Don't Have Grounds To File ESA Suit
E&E News
May 25, 2021

"An environmental group lacks sufficient grounds to challenge the Fish and Wildlife Service's process for assessing vulnerable species, a federal appeals court ruled...

In an unsigned, unpublished decision this morning, the U.S. Court of Appeals for the District of Columbia Circuit said the Central for Biological Diversity could not show how it was harmed by lack of information related to the agency's framework for deciding whether to list plants and animals as endangered or threatened.

The court rejected the groups arguments that it suffered informational injury after FWS failed to provide notice and comment on its framework for "species status assessments" (SSAs) and that it sustained a distinct organizational injury"
Ongoing Fish Kill On The Klamath River Is An ‘Absolute Worst-Case Scenario’
HighCountry News
May 27, 2021

"This spring, the Klamath Basin is already in extreme and exceptional drought — one of the worst drought years in four decades. Irrigators upriver from the fish kill were told in mid-May that for the first time since “A” Canal in the Klamath Project began operating in 1907, they would not receive any water from it. The irrigators say they need 400,000 acre-feet of water but this year, they will receive just 33,000 acre-feet from the Klamath Project — a historic low. The situation has put pressure on an embattled region already caught in a cyclical mode of crisis due to a drying climate. “For salmon people, a juvenile fish kill is an absolute worst-case scenario,” Myers said in a statement."
New Wolf-Killing Laws Prompt Push To Revive Protections
E&E News
May 26, 2021

"Wildlife advocates pressed the Biden administration today to revive federal protections for gray wolves across the Northern Rockies after Republican lawmakers in Idaho and Montana made it much easier to kill the predators.

The Center for Biological Diversity, Humane Society of the United States and Sierra Club filed a petition asking Interior Secretary Deb Haaland to use her emergency authority to return thousands of wolves in the region to the endangered species list.

Republican state lawmakers pushed through legislation in recent weeks that would allow hunters and trappers to kill unlimited numbers of wolves using aggressive tactics such as shooting them from all-terrain vehicles and helicopters, using night-vision scopes and setting lethal snares that some consider inhumane.
Wolves in the region lost federal endangered protections in 2011 under an act of Congress after the species had rebounded from widespread extermination last century.

Hundreds of wolves are now killed annually by hunters and trappers. Yet their population has remained strong because the animals breed so successfully and can roam huge areas of wild land in the sparsely populated Northern Rockies."
NATIVE AMERICAN LAW
United States v. Cooley—Supreme Court upholds tribal officer’s authority to stop and detain a non-Indian motorist and to conduct a pat-down search under the second Montana exception
Clay R. Smith
Chief Editor, AILD
CWAG & AG Alliance
June 1, 2021

"In February 2016, a Crow Indian Tribe law enforcement officer (Saylor) encountered a truck parked along a highway with the Crow Reservation. He approached the truck, spoke with the driver (Cooley) and observed two rifles lying on the front seat. Concerned with possible violence, the officer ordered the driver to exit the vehicle and conducted a pat-down search. Believing the driver to be non-Indian, he called for tribal and county law enforcement assistance. Saylor then observed a glass pipe and plastic bag later determined to contain methamphetamine. The assisting officers, who included a Bureau of Indian Affairs officer, directed him to seize the items in plain view—a seizure that resulted in discovery of additional methamphetamine. Cooley was indicted later on drug and gun offenses in federal court. The district court, however, suppressed the seized evidence because, given Cooley’s non-Indian status, “Officer Saylor had the authority to detain Cooley only if it was ‘apparent’ Cooley had violated state or federal law” and because “Officer Saylor's observations up to that point fell considerably below an ‘apparent’ state or federal law violation.” United States v. Cooley, CR 16-42-BLG-SPW, 2017 WL 499896, at *4 (D. Mont. Feb. 7, 2017). The Ninth Circuit affirmed. United States v. Cooley, 919 F.3d 1135 (9th Cir. 2019), reh’g and reh’g en banc denied, 947 F.3d 1215 (2020).

The Supreme Court granted the United States’ petition for writ of certiorari and reversed in an opinion by Justice Breyer. United States v. Cooley, No. 19-1414, 2021 WL 2194835 (U.S. June 1, 2021). Absent any treaty or statute explicitly divesting the Crow Tribe “of the policing authority at issue[,]” the Court “turn[ed] to precedent to determine whether a tribe has retained inherent sovereign authority to exercise that power” over nonmembers under the exceptions identified in Montana v. United States, 450 U. S. 544 (1981). It found the second Montana exception—i.e., a “tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe”—to fit “almost like a glove”:
The phrase speaks of the protection of the “health or welfare of the tribe.” To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats. Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.

The Court added it had “reserved a tribe’s inherent sovereign authority to engage in policing of the kind before us” (through dicta) in several prior decisions, including Duro v. Reina, 495 U. S. 676 (1990), Strate v. A–1 Contractors, 520 U. S. 438 (1997), and Atkinson Trading Co. v. Shirley, 532 U. S. 645 (2001). It further noted that this case did not implicate the question whether to apply “tribal laws to non-Indians who do not belong to the tribe and consequently had no say in creating the laws that would be applied to them” because “Saylor’s search and detention ... d[id] not subsequently subject Cooley to tribal law, but rather only to state and federal laws that apply whether an individual is outside a reservation or on a state or federal highway within it.” Finally, it rejected Cooley’s contention that federal cross-deputization statutes, e.g., 25 U.S.C. §§ 2803(5), (7) and 2805, narrowed tribal inherent authority. Not only did the Court “see nothing in these provisions that shows that Congress sought to deny tribes the authority at issue, authority that rests upon a tribe’s retention of sovereignty as interpreted by Montana, and in particular its second exception[,]” but also, “[t]o the contrary, ... existing legislation and executive action appear to operate on the assumption that tribes have retained this authority.”

Justice Alito filed a brief concurrence stating his understanding that the Court’s opinion held only that [o]n a public right-of-way that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal police officer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene."
Court Puts Relief For Oklahoma Inmate On Hold Amid Uncertainty About Scope Of McGirt
SCOTUSblog
May 26, 2021

"The Supreme Court on Wednesday granted a request by Oklahoma to allow the state to retain custody of a death-row inmate while the court considers whether to clarify the implications of last year’s decision holding that Oklahoma lacks jurisdiction over certain crimes committed on land reserved for Native Americans.

The inmate, Shaun Bosse, was convicted and sentenced to death for the 2010 murders of Katrina Griffin and her two young children. He now claims that his conviction is invalid under McGirt v. Oklahoma because Griffin and her children were members of the Chickasaw Nation and the crime occurred within the boundaries of a Native American reservation. An Oklahoma appeals court agreed and threw out his conviction and sentence. If that ruling is allowed to take effect, Oklahoma will have to hand Bosse over to federal authorities (who have filed separate criminal charges against him). But the Supreme Court – over the objections of the court’s three liberal justices – granted the state’s request to put the Oklahoma court’s ruling on hold while the state files a petition asking the justices to take up the case on the merits."
WATER
Governor Fights Federal Plan To Release Water For Fish
E&E News
May 28, 2021

"Montana Gov. Greg Gianforte (R) is objecting to a U.S. government proposal to alter water releases from a huge reservoir in northeastern Montana to help an ancient and endangered fish species: the dinosaur-like pallid sturgeon.

With two-thirds of the state in drought, the governor said the U.S. Army Corps of Engineers proposal risks damaging croplands and irrigation systems downstream of Fort Peck Dam on the Missouri River.

The plan to manipulate river levels "could flood water users in late spring and deprive water users during the hot summer months when moisture is most critical," Gianforte told Army Corps officials in a Tuesday letter provided to the Associated Press.

The proposal would alter the Missouri's flows on a test basis between Fort Peck and North Dakota's Lake Sakakawea. More water would be released in the spring to attract fish to move upstream and spawn, with reduced releases later in the year after new sturgeon hatch."
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 reach out to Clay for questions regarding obtaining a copy of the American Indian Law Deskbook.
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.
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, ___ F. Supp. 3d ___, 2021 WL 2036662 (D.D.C. May 21, 2021)Tribes failed to establish the irreparable harm requisite to a preliminary injunction against cessation of further oil flow in the Dakota Access Pipeline transit under Lake Oahe.
People in Interest of K.C., 2021 CO 33, ___ P.3d ___ (Colo. S. Ct. May 24, 2021)State court of appeals erred in directing district court to conduct a hearing as to whether tribal enrollment would be in the involved children’s best interests, and the county department of human services did not have an obligation to assist the children in securing such enrollment.
Loring v. Daly, ___ F. Supp. 3d ___, 2021 WL 2105571 (D. Ariz. May 25, 2021)Claim by formerly jailed tribal member under the Religious Land Use and Incarcerated Persons Act against tribal correctional facility officials was barred by sovereign immunity because it sought relief against them in their official capacities, while a claim under 42 U.S.C. § 1983 against the officials was dismissed because the complaint did not allege any basis upon which to find that they acted under state authority.
Chicken Ranch Rancheria of Mewuk Indians v. Newsom, ___ F. Supp. 3d ___, 2021 WL 1212712 (E.D. Cal. Mar. 31, 2021), limited stay pending appeal granted, 2021 WL 2168148 (May 27, 2021)Although various class III gaming compact proposals by California were encompassed within the catch-all subjects-of-negotiation provision in 25 U.S.C. § 2710(d)(3)(C)(vii), the State failed to establish that it made meaningful concessions as to each such proposal and therefore violated its obligation to bargain in good faith under the Indian Gaming Regulatory Act. Stay pending appeal granted to August 31, 2021 to allow state Defendants to seek stay from the Ninth Circuit.
Confederated Tribes and Bands of Yakama Nation v. United States, ___ Fed. Cl. ___, 2021 WL 2177675 (May 28, 2021)Tribe’s complaint for damages under the Indian Tucker and the Tucker Acts for breach of the fiduciary duty to manage its forest resources satisfied the jurisdictional requirements of those statutes and stated a claim for relief.
Chemehuevi Indian Tribe v. United States, ___ F. Supp. 3d ___, 2021 WL 2159621 (D. Ariz. May 27, 2021)To avoid an action’s dismissal on mootness grounds, Plaintiff tribe was granted leave to amend its complaint to allege a claim for damages against the United States for failure to timely submit an executed ISDEAA contract and/or a claim for injunctive relief alleging that the Bureau of Indian Affairs is engaging in a pattern or practice of such failures.
United States v. Cooley, ___ S. Ct. ____, 2021 WL 2194835 (U.S. June 1, 2021)Tribal officer possessed inherent authority under the second Montana exception to stop and detain and to conduct a pat-down search of a non-Indian motorist.
Kalispel Tribe of Indians v. U.S. Dept. of Interior, ___ F.3d ___, 2021 WL 2197718 (9th Cir. June 1, 2021)The phrase “detrimental to the surrounding community” in 25 U.S.C. § 2719(b)(1)(A) refers the surrounding community as a whole, not to any individual community entity including a nearby tribe.
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.
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 40 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.