News & Updates from WAGLAC
June 28th, 2021
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.
Judge Scraps Lawsuit Over Trump NEPA Overhaul
E&E News
June 22, 2021

"A federal court ...tossed out a legal challenge to former President Trump's overhaul of National Environmental Policy Act rules.

The decision by the U.S. District Court for the Western District of Virginia comes as the Biden administration looks to revamp the NEPA implementing regulations with an eye toward climate change and environmental justice.

"I am mindful that courts must not set the bar of justiciability unnecessarily high," Judge James Jones wrote in the opinion dismissing the case, Wild Virginia v. Council on Environmental Quality."
EPA Will Seek Remand Of CWA 401 Rule Without Vacatur 

EPA announced its intend to ask three federal district courts to remand without vacatur the Trump CWA 401 rule that changed how states review whether federal permits comply with state water quality standards.   EPA’s status report filed in the United States District Court for the Northern District of California states that EPA will file its motion to remand no later than July 1, 2021.

EPA’s status report says the plaintiffs in all three cases -- which include a total of 13 environmental groups, a coalition of 20 Democratic state attorney generals led by California, and three Native American tribes - oppose the remand without vacatur. They “contend that substantial harms will continue to flow from portions of the Certification Rule while it is being reconsidered and intend to oppose EPA’s motion for remand without vacatur.” Intervenor-defendants, which include the states of Louisiana, Montana, Arkansas, Mississippi, Missouri, Texas, West Virginia and Wyoming, the National Hydropower Association, the American Petroleum Institute and the Interstate Natural Gas Association of America do not oppose EPA’s motion.
Upcoming Outreach And Engagement On CWA Section 401 Certification
Environmental Protection Agency
June 23, 2021

"On May 27, 2021, EPA announced its intent to revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule to strengthen the authority of states and Tribes to protect their vital water resources.

The Agency’s process of reconsidering and revising the 2020 CWA Section 401 Certification Rule will provide opportunity for public and stakeholder input to inform the development of a proposed regulation, and will include sustained dialogue with state and tribal co-regulator partners and local governments around these issues.

The Agency intends to have multiple virtual listening sessions to gain input on potential approaches to revise the 401 Certification Rule. Persons or organizations wishing to provide input during a listening session will be selected on a first-come, first-served basis, with consideration given to hearing from a variety of stakeholder groups. Participants should limit their presentation to three minutes. During these listening sessions, the EPA will provide background information on the 2020 CWA Section 401 Certification Rule."
As Democrats Spar Over Advancing Biden’s Climate Agenda, They Move To Cut Methane
The Washington Post
June 25, 2021

"The House voted Friday to restore a rule targeting leaks of methane from oil and gas operations, reinstating Obama-era standards for limiting the potent greenhouse gas that had been dismantled under President Donald Trump.

The 229-to-191 vote marked a rare bipartisan step in the fight against climate change, but it comes amid growing tensions among Democrats over whether broader and more ambitious action is being sacrificed in the push for a bipartisan infrastructure deal. Twelve House Republicans sided with 217 Democrats to push through the measure.

The vote to reestablish more stringent oversight of methane, whose emissions have surged at a startling rate in recent years, focuses on the oil and gas sector, which ranks as the nation’s largest industrial source of methane emissions."
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."
Governor Petitions EPA For PFAS Hazardous Designation
E&E News
June 24, 2021

"New Mexico Gov. Michelle Lujan Grisham is among those calling on the U.S. government to list "forever chemicals" as hazardous waste under federal law, saying the move would provide a regulatory path for states across the nation that are dealing with contamination at military bases and other locations. The governor filed her brief petition with EPA yesterday.

It follows recent congressional testimony given by New Mexico Environment Secretary James Kenney and others in which they made the same request to list as hazardous per- and polyfluoroalkyl substances, which are known collectively as PFAS. The class of highly toxic chemicals is used in products like nonstick cookware, carpets, firefighting foam and fast-food wrappers."
Appeals Court Upholds Expansive Interpretation of Clean Air Act Exemption from CERCLA Release Reporting
June 25, 2021

"The Third Circuit Court of Appeals issued a ruling June 21 that certain releases of air pollutants “subject to” Clean Air Act (CAA) requirements, even if not in compliance or specifically named in a permit, are exempt from release reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Clean Air Council v. United States Steel Corporation, No. 20-221 (3rd Cir. filed June 21, 2021). This ruling undercuts a longstanding EPA interpretation of the CERCLA reporting requirement that limited the exemption to only those releases actually in compliance with a federal CAA permit."
Court Holds That Regulation Guaranteeing Union Access To Employees Is Unconstitutional
June 23, 2021

"The Supreme Court on Wednesday ruled that a California regulation that permits union organizers to enter the property of agricultural businesses to talk with employees about supporting a union is unconstitutional. By a vote of 6-3, the court agreed with the two businesses challenging the regulation that the rule violates the Fifth Amendment, which bars the government from taking private property without compensation. The ruling was a major victory for property-rights advocates and a setback for unions."
How Bad Is The Drought? These Maps Tell The Story.
The New York Times
June 16, 2021

"You may have heard: Drought is gripping the American West, again, and it’s looking bad.

The maps above show that current drought conditions in the West are the most widespread and severe than at any point in at least 20 years. That’s based on data from the U.S. Drought Monitor, the government’s official drought-tracking service, which has published weekly maps since 2000.

Record-low precipitation and much-higher-than-normal temperatures over the past year have both contributed to the extreme dryness. Now, reservoirs are running low and snowpack, which slowly releases water in the spring and summer, is depleted. That bodes poorly for agriculture, wildlife and plants, but well for fire.

The situation is especially concerning because the hottest months of summer are still ahead."
Idaho Commences Adjudications of the Bear River Basin and Clark Fork/Pend Oreille River Basin

Idaho District Court Judge Eric Wildman issued orders on June 14, 2021 commencing general stream adjudications of the Bear River Basin and the Clark Fork/Pend Oreille River Basin. The Bear River Basin is located in the southeastern corner of the State of Idaho, and the Clark Fork/Pend Oreille Basin is located in Idaho’s northern panhandle.  

Both commencement petitions requested that the United States be joined in the state court proceedings under the McCarran Amendment, 43 U.S.C. § 666, which waives the United States sovereign immunity to suits for adjudication all water rights in a water system. The United States opposed joinder arguing the State’s proposal to defer adjudication of de minimis domestic and stock water rights deprived the court of jurisdiction over the United States. In rejecting the United States argument, Judge Wildman found the “optional deferral process does not alter the comprehensive nature” of the adjudications.  “A review of the process establishes that it does not exclude the holders of de minimis rights from the [adjudications]. Holders of de minimis rights will be joined as parties to the adjudication and will be bound by any orders or decrees entered in the adjudication. Further, they will be required to claim and have their rights adjudicated prior to seeking any priority administration of such rights and/or before an application for change of the water right may be filed with [the Idaho Department of Water Resources].“ Judge Wildman further noted that the United States had agreed to the deferral process in the Snake River Basin and Coeur d’Alene/Spokane River Basin Adjudications.
Justices Argue Over Text (and ceviche) In Ruling That Alaska Native Corporations Are “Indian Tribes”
June 27, 2021

"The Supreme Court on Friday ruled that Alaska Native corporations constitute “Indian tribes” under the Indian Self-Determination and Education Assistance Act, making them eligible for $500 million in federal coronavirus relief. Though the court focused almost exclusively on the statutory text, the decision will likely have broader implications for Alaska Natives.

The case, Yellen v. Confederated Tribes of the Chehalis Reservation, centered on the 2020 CARES Act, which set aside $8 billion in COVID-19 relief for “Indian tribes.” The act incorporated the definition of “Indian tribe” from the 1975 Indian Self-Determination and Education Assistance Act, which defined tribe as:

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."
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.
JW Gaming Development, LLC v. James, ___ F. Supp. 3d ___, 2021 WL 2531087 (N.D. Cal. June 21, 2021)Gaming development company was granted preliminary injunction against tribal court action seeking to nullify district court’s determination that a tribe breached a loan agreement but was required to file a separate action to contest tribal court jurisdiction over claim alleging misrepresentations and unfair business practices in connection with entry into such agreement.
In Matter of I.T.S., 2021 OK 38, ___ P.3d ___ (S. Ct. June 22, 2021)Failure to provide an indigent mother with appointed counsel during the 26-month period between entry of a foster care dispositional order and the filing of a parental rights termination petition violated the Indian Child Welfare Act’s requirement for such counsel.
In Matter of Dependency of G.J.A., ___ P.3d ___, 2021 WL 2584117 (Wash. S. Ct. June 24, 2021)State department failed to provide active efforts under the Indian Child Welfare Act and the Washington Indian Child Welfare Act during a six-month period after parental rights termination petitions were filed, and the proceeding was remanded with instructions for such efforts to be made before hearing the petitions.
Yellen v. Confederated Tribes of Chehalis Reservation, ___ S. Ct. ___, 2021 WL 2599432 (June 25, 2021): Alaska Native Corporations are an “Indian tribe” under the definition of that term in the Indian Self-Determination and Education Assistance Act and incorporated into Title V of the CARES Act for funding eligibility purposes.
Deschutes River Alliance v. Portland General Electric Co., ___ F.3d ___, 2021 WL 2559477 (9th Cir. June 23, 2021)” Clean Water Act does not abrogate tribal immunity for suit, and dismissal pursuant to Fed. R. Civ. P. 19(b) was required where an absent tribe’s interests would not be adequately protected by a non-sovereign defendant.
In re A.C., ___ Cal. Rptr. 3d ___, 2021 WL 2621359 (4th Dist. June 25, 2021)Conditional remand was not required under the Indian Child Welfare Act or its state counterpart when the county department and juvenile court failed to inquire as to father’s Indian ancestry but where father never contended that he possessed such ancestry.
AG Alliance Cannabis Newsletter

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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.
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.