News & Updates from WAGLAC
June 21st, 2021
CWAG Natural Resources and Environment Meeting and
WAGLAC Summer Meeting

The WAGLAC summer meeting held on June 15th featured panels on environmental justice, water marketing, the Colorado River water management, state/tribal consultation, and emerging environmental issues. You can view the presentations here.
UPCOMING WAGLAC MEETINGS
The WAGLAC Fall meeting will be held in Seattle, WA in early October 2021.
The WAGLAC Winter meeting will be held in San Diego, CA during the week of President's Day. Meeting details will follow.
ENVIRONMENT
PETITION TO REVIVE SEPs 

The Conservation Law Foundation, the Surfrider Foundation and the Sierra Club filed a petition with the Department of Justice (DOJ) on June 14, 2021, asking DOJ to “to initiate a rulemaking proceeding to clarify that the Department can use Supplemental Environmental Projects (“SEPs”) when settling civil enforcement actions brought under environmental statutes .” The Biden Administration is currently reviewing the Trump Administration’s rule banning the use of SEPs, but has given no indication of how it will address the issue. Deborah Harris, chief of DOJ’s Environmental Crimes Section said earlier this month, however, it is unclear to what extent SEPs will be revived.
Trout Unlimited v. Pirzadeh
Clay R. Smith
Chief Editor, AILD
CWAG & AG Alliance
June 18, 2021

Ninth Circuit held EPA’s decision to withdraw proposed determination to exercise its authority under CWA section 404, although an unreviewable discretionary action under that provision, reviewable under the agency’s implementing regulations.
CONSTITUTIONAL LAW
Fitisemanu v. United States
Clay R. Smith
Chief Editor, AILD
CWAG & AG Alliance
June 18, 2021

Divided Tenth Circuit panel rejects claim of three American Samoans to citizenship under section 1 of the Fourteenth Amendment.

"The first sentence in the Fourteenth Amendment, known as the Citizenship Clause, provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The United States possesses several unincorporated territories, e.g., the Virgin Islands and Guam, and Congress has granted birthright citizenship to their residents with the exception of American Samoa. See 8 U.S.C. § 1408(1). In 2018, three American Samoans and a Utah-based nonprofit corporation filed suit alleging that the Citizenship Clause applied to that territory and that § 1408(1) was unconstitutional. The American Samoan government intervened as a defendant in support of the statute’s validity. The district court agreed with the plaintiffs and granted their summary judgment motion. Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019). A Tenth Circuit three-judge panel reversed in a splintered opinion. Fitisemanu v. United States, Nos. 20-4017 & 20-4019, 2021 WL 2431536 (10th Cir. June 15, 2021). The reversal was consistent with other Circuit courts that have ruled on application of the Citizenship Clause to an unincorporated territory, including one case involving American Samoa. Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015). "
OIL AND GAS
Louisiana Judge Blocks Biden Administration’s Oil And Gas Leasing Pause
The Washington Post
June 15, 2021

"A federal judge in Louisiana on Tuesday issued a preliminary injunction to block the Biden administration’s policy of pausing the sale of new oil and gas leases on federal land while reviewing how to reform the program.

The ruling by U.S. District Judge Terry A. Doughty, a Trump appointee, was a blow to the Biden administration because reforming the oil leasing program is a key part of its fight against climate change and to try to get more for taxpayers from fossil-fuel development on public lands. The president and his aides had moved swiftly to curb oil and gas development in the past six month, rescinding a permit for the Keystone XL pipeline and suspending drilling leases in Alaska’s Arctic National Wildlife Refuge."
WATER
Will History Repeat In A Dry Klamath Basin This Summer?
High Country News
June 14, 2021

"In mid-May, Klamath Tribal members and supporters stood at Sugarman’s Corner in downtown Klamath Falls, Oregon, holding signs like “Ecocide is Cultural Genocide,” “Save the Klamath” and “Honor the Treaty” as part of a caravan rally. The goal was to highlight Indigenous voices and priorities for the Klamath River basin, like protecting culturally important c’wam (Lost River suckers) and koptu (shortnose suckers) endemic to shallow Upper Klamath Lake.

Tensions were high in the basin, which spans the Oregon-California border. Just a day before the rally, the U.S. Bureau of Reclamation had announced that it wouldn’t release water in the basin to irrigators or national wildlife refuges because of dire drought forecasts."
Lake Mead's Decline Points To Scary Water Future In West
The Hill
June 18, 2021

"The Hoover Dam is seeing record-low water levels, a significant and scary development with major implications for water and climate in the entire American Southwest.

Amid drought conditions, Lake Mead’s level last week reached an all-time low of 1,071.56 feet above sea level, leaving it just 37 percent full.

The body of water’s level has been declining since 2000, and has fallen about 140 feet over the past two decades. It comes amid a drought in the Southwest that is the worst in two decades, according to a New York Times analysis."
WSWC Stock Water Rights Report
Western States Water
June 18, 2021

"On June 15, the Western States Water Council published its report on Stock Water Rights for Grazing Livestock on Federal Lands. The report compiles information and lessons learned from a series of workshops and presentations hosted by WSWC and the Western Federal Agency Support Team (WestFAST) since 2018.”
States' Feud Delivers Supreme Court's First Groundwater Test
E&E News
June 17, 2021

"The Supreme Court may hear its first groundwater battle later this year — and the case could force the justices to
consider an unusual claim.

Unlike other interstate water wars that reach the high court, Mississippi has argued that it has sole legal rights to groundwater in an aquifer that straddles the Tennessee border.

The claim is a novel departure from the Supreme Court's traditional approach of dividing water supplies equitably and has set off alarm bells for other states that share water with their neighbors.

Mississippi's argument: For decades, Memphis Light, Gas and Water Division has unlawfully sucked up billions of gallons of groundwater in a sub-unit of the Middle Claiborne Aquifer that is exclusively owned by the Magnolia State.

The result is a massive drawdown in the aquifer — known as a "cone of depression" — that makes it so Mississippi has to dig deeper and more expensive wells to bring the water it needs to the surface. Because the resource has already been unfairly developed, Mississippi argues, the remainder of the aquifer's water can't now be fairly divided. The state is seeking more than $600 million in damages."
FEDERAL LANDS
Haaland Urges Biden To Fully Protect Three National Monuments Weakened By Donald Trump
The Washington Post
June 14, 2021

"Interior Secretary Deb Haaland has recommended in a confidential report that President Biden restore full protections to three national monuments diminished by President Donald Trump, including Utah’s Bears Ears, Grand Staircase-Escalante and a huge marine reserve off New England. The move, described by two people who spoke on the condition of anonymity because it was not yet public, would preserve about 5 million acres of federal land and water.

A broad coalition of conservationists, scientists and tribal activists has urged Biden to expand the Bears Ears and Grand Staircase-Escalante national monuments, which were established by Presidents Barack Obama and Bill Clinton, respectively, to their original boundaries. Trump cut Bears Ears by nearly 85 percent, and Grand Staircase-Escalante almost in half, in December 2017. A year ago, he permitted commercial fishing on the Northeast Canyons and Seamounts Marine National Monument, which removed most of the monument’s protections."
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.
United States v. Martinez, ___ F.3d ___, 2021 WL 2409396 (10th Cir. June 14, 2021): Sentencing for state-law crime assimilated into the Indian Country Crimes Act incorporates the permissible maximum and minimum incarceration periods under such law for the offense but does not extend to state sentencing schemes. 
In re Application of Enbridge Energy, LP, ___ N.W. ___, 2021 WL 2407855 (Minn. Ct. App. June 14, 2021): Minnesota Public Utility Commission order approving a revised final environmental impact statement, granting a certificate of need, and issuing a routing permit for construction of new oil pipeline was upheld under the judicial review standard prescribed by the state administrative procedure act. 
Big Sandy Rancheria Enterprises v. Bonta, ___ F.3d ___, 2021 WL 248226 (9th Cir. June 16, 2021): Tribal corporation chartered under IRA section 17 did not constitute an “Indian tribe or band with a governing body duly recognized by the Secretary of the Interior” under 28 U.S.C. § 1362 and thereby was subject to the Tax Injunction Act’s prohibition against challenges to the validity of a state cigarette excise tax. The corporation also failed to state a claim with respect to several other state tobacco regulatory statutes under federal common law standards or the Indian Trader Statutes.
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.