News & Updates from WAGLAC
March 15, 2021
WAGLAC NEWS
UPCOMING MEETINGS

WAGLAC 2021 Summer Meeting

The WAGLAC 2021 summer meeting is tentatively scheduled for June 7-9. The decision on whether the meeting will be in person or virtual will be made later this spring when more information is available on COVID-19 travel restrictions. 
ENVIRONMENT
Sackett Saga Continues
 
A three-judge panel of the U.S. Ninth Circuit Court of Appeals requested supplemental briefing in a long-running dispute between Chantell and Michael Sackett and EPA. In 2007 EPA issued an administrative compliance order that charged the Sacketts with discharging fill material into waters of the United States (WOTUS) without a Clean Water Act permit. Sacketts’ efforts to challenge the order prior to EPA enforcement of the compliance order led to a 2012 Supreme Court opinion by the late Justice Antonin Scalia. The Court held compliance orders before EPA seeks to enforce them. 
 
On remand the US District Court for Idaho held that “substantial evidence” in the administrative record supported EPA’s conclusion that Sacketts’ property contained wetlands. The Sacketts appealed to the Ninth Circuit. While the appeal was pending, EPA issued a letter withdrawing the 2008 compliance order, and then argued the case should be dismissed as moot. At oral argument, EPA also argued the 2020 WOTUS rule, which narrowed the definition of WOTUS, supported dismissal of the case. The Sacketts opposed dismissal of the case arguing the court could still provide relief by vacating EPA’s original jurisdictional order supporting the compliance order. The Ninth Circuit urged the parties to settle. 
 
After apparently unsuccessful settlement discussions, the panel issued an order on March 8th requesting supplemental briefing on the relevance of the 2020 WOTUS rule to the pending appeal. The panel stated: “Assuming we hold that there is still a live controversy surrounding EPA’s authority to regulate Plaintiff’s property, the parties are instructed to address the relevance, if any, of the Navigable Waters Protection Rule . . . to this appeal.”
12 States Sue Biden Over 'Social Cost' Calculation of Greenhouse Gases
The Hill
March 8, 2021

"Twelve states are suing the Biden administration for trying to establish a "social cost" of greenhouse gases to use in agency rulemaking.

In a lawsuit filed recently, the states argued that a January executive order directing officials to figure out the “social cost of greenhouse gases” was an overreach, exercising a “quintessentially legislative power."
STATE LANDS
President Biden Echoes Trump in Supreme Court Eminent Domain Battle
E&E News
March 10, 2021

"The Biden administration is backing a pipeline developer's high court fight to use eminent domain to build a 116-mile natural gas project across state-controlled land in New Jersey.

Acting Solicitor General Elizabeth Prelogar this week reiterated arguments made by her predecessor that PennEast Pipeline Co. LLC had acted within its authority under the Natural Gas Act to take 42 parcels of land in the project's path.

The pipeline company is seeking to overturn a 2019 3rd U.S. Circuit Court of Appeals decision that found that the use of eminent domain against the will of the state violated its constitutionally protected sovereign immunity."
FISH & WILDLIFE
Court OKs Interior Endangered Species Review of Gas Terminal
E&E News
March 12, 2021

"A federal appeals court this week rejected environmentalists' challenge to a Texas liquefied natural gas terminal project that could harm endangered wildcats.

In a unanimous decision, a three-judge panel for the 5th U.S. Circuit Court of Appeals concluded that the Fish and Wildlife Service complied with the Endangered Species Act in its assessment of the project's impact on the endangered ocelot or jaguarundi."
TRANSITION
Senate Confirms Michael Regan to Lead EPA
The Washington Post
March 10, 2021

"The Senate confirmed Michael Regan as the next Environmental Protection Agency administrator, a role that lies at the heart of President Biden’s promises to cut the nation’s greenhouse gas emissions and help poor and minority communities that have long borne the brunt of pollution.

In an era defined by partisan divides, Regan won confirmation by a comfortable margin of 66 to 34. Sixteen Republicans and every Senate Democrat voted in favor of Regan, 44, who since 2017 has served as secretary of North Carolina’s Department of Environmental Quality.

He will be the first Black man to lead the EPA in its half-century of existence. The agency’s first African American chief was Lisa Jackson, who held the role for four years under President Barack Obama."
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.
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.
Hogner v. State, 2021 OK CR 4, ___ P.3d ___ (Crim. App. Mar. 11, 2021)District court lacked subject-matter jurisdiction over criminal action against an Indian with respect to offenses committed within the Cherokee Nation’s reservation.
People in Interest of My.K.M., 2021 COA 33, ___ P.3d ___ (Ct. App. Mar. 11, 2021)District court erred in deeming actual enrollment, not membership, in an Indian tribe as a prerequisite to “Indian child” status under the Indian Child Welfare Act, and the state department erred in failing to provide active efforts as to a critical service—employment assistance.
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.