News & Updates from WAGLAC
March 1, 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. 
REQUEST FOR COPIES OF STATE-TRIBAL COOPERATIVE AGREEMENTS
 
Clay Smith and Fronda Woods are revising Chapter 14 of the American Indian Law Deskbook. Chapter 14 discusses state-tribal cooperative agreements. As part of the rewrite, Clay and Fronda plan to develop an online library of state-tribal cooperative agreements. Hyperlinks to the agreements will be included in Chapter 14 for ease of access to the agreements. 
 
Clay and Fonda request you send them copies of state-tribal cooperative agreements for inclusion in the online library.  Please email the agreements to:

Clay R. Smith
Chief Editor, AILD

Fronda Woods
Assistant Editor, AILD
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
Big Oil's 'Hail Mary' May Roil U.S. Climate Cases
E&E News
February 23, 2021

"The outcome of a Supreme Court battle between Baltimore officials and Big Oil over climate change impacts could reverberate in courtrooms across the country, legal experts say.

As the high court deliberates its ruling in BP PLC v. Mayor and City Council of Baltimore, a host of other lawsuits aimed at holding the fossil fuel industry liable for the local effects of global warming are slogging through preliminary procedural battles. The Supreme Court's decision has the potential to further delay — or derail — those cases."
High Court’s Superfund Case Poised for Wide-Ranging Consequences
Bloomberg Law
February 23, 2021

"The U.S. Supreme Court’s upcoming decision in a Superfund cost recovery case is likely to influence a range of environmental settlements beyond typical cleanup consent decrees, attorneys said.

The U.S. struck a deal with Guam under the Clean Water Act in 2004 requiring the territory to stop waste in the formerly Navy-owned Ordot Dump from leaching into adjacent rivers.

Guam ended up with a $160 million bill for the dump’s cleanup but waited too long to try to recover those costs from the federal government, the U.S. Court of Appeals for the D.C. Circuit said. That ruling is the crux of the appeal.

The Supreme Court’s decision could provide clarity on whether non-Superfund settlements, like the Clean Water Act deal here, can start the clock on Superfund contribution claims, said Noah Perch-Ahern, partner at Greenburg Glusker Fields Claman & Machtinger LLP in Los Angeles."
CNMI Amicus Brief in Guam v. United States
 
Twenty-six states signed on to the Commonwealth of Northern Mariana Islands amicus is support of Guam’s claim for cleanup costs against the United States under CERCLA.
Congress/Litigation: California/CWA/NWPR/WOTUS
Western States Water Newsletter #2441
February 26, 2021

"On February 17, several Democratic members of Congress filed a motion to submit an amicus brief in California v. Wheeler (3:20-cv-03005, U.S. District Court for Northern California). The arguments support the Plaintiff states’ position in their motion for summary
judgment regarding the inadequacies and violations alleged in the Navigable Waters Protection Rule, defining “Waters of the United States” (WOTUS) under the Clean Water Act (CWA)...

...The brief noted their interest is in providing the Court “…with an understanding of the text, structure, and goals of the [CWA] our predecessors enacted in 1972 – along with its subsequent amendment in 1977, which further confirmed Congress’ intent – and with an understanding of the ways in which the so-called ‘Navigable Waters Protection Rule’ (NWPR) dishonors that intent.” The brief argued that the NPWR decreaseds water protection. “Where Congress called for science-based decision-making, the NWPR largely ignores the science of clean water. And where Congress called for a collaborative, comprehensive, and mandatory federal and state cleanup of the nation’s waters…” the federal agencies based their rule on “fallacious notions about [CWA] federalism.” They also argued that the NPWR undermines statutory mandates and that the Environmental Protection Agency (EPA) and Corps of Engineers (Corps) failed to provide Congress “with basic information about the environmental consequences” of the rule.
CEQ Rescinds 2019 Draft GHG Guidance
 
“The Council on Environmental Quality (CEQ) is rescinding its ‘Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions’ consistent with Executive Order (E.O.) 13990, ‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.’’”
EPA Takes Action to Address PFAS in Drinking Water
U.S. Environmental Protection Agency
February 22, 2021

"The U.S. Environmental Protection Agency (EPA) issued two actions to protect public health by addressing per- and polyfluoroalkyl substances (PFAS) in drinking water, highlighting the agency’s commitment to address these long-lasting “forever chemicals” that can enter drinking water supplies and impact communities across the United States. The Biden-Harris administration is committed to addressing PFAS in the nation’s drinking water and will build on these actions by advancing science and using the agency’s authorities to protect public health and the environment."
PUBLIC LANDS
Tribes Flex Political Muscle in Quest to Co-Manager Parks
E&E News
February 25, 2021

"President Jonathan Nez pleaded with then-Interior Secretary David Bernhardt to keep nearby Grand Canyon National Park in Arizona closed to prevent an influx of tourists from further spreading the coronavirus.

Nez, who leads the nation's largest Native American tribe, said his request was quickly dismissed, with Bernhardt telling him that all national parks would be reopening to comply with an order from then-President Trump.

Nine months later, those type of rebuffs and lack of consultation may be history.

Flexing their newfound political muscle, the nation's 574 federally recognized tribes are gaining momentum in their long drive to co-manage the country's national parks and other public lands — and they've got a new occupant in the White House who may help make it happen.

Throw in a likely new Interior secretary — New Mexico Democratic Rep. Deb Haaland, who would become the first Native American to hold the post since Congress created the department in 1849 — and the conditions could be set for a big-time shift of power to long-ignored tribes."
TRANSITION
Haaland, With a Key Vote in Her Column, Appears Headed for Confirmation
The New York Times
February 24, 2021

"Senator Joe Manchin III, the West Virginia Democrat who heads the Senate Energy Committee, announced that he would vote to confirm Representative Deb Haaland of New Mexico to head the Interior Department, most likely ensuring that one of President Biden’s most embattled cabinet nominees will be confirmed to office, despite escalating opposition to her from Republicans.

The vote of Mr. Manchin, a centrist Democrat from a fossil fuel state who often sides with Republicans on energy issues, could be crucial to Ms. Haaland’s confirmation. Republicans this week sharpened their attacks on the former environmental activist, signaling that the vote to confirm her could come down to party lines in the evenly-divided Senate.

Mr. Manchin’s announcement that he plans to vote for Ms. Haaland also underscores the crucial role he will play in the success or failure of the president’s legislative agenda. (He said last week he would vote against another of Mr. Biden’s nominees, Neera Tanden, who was nominated to head the Office of Management and Budget, casting doubt on her prospects for confirmation.)"
Interior Department Welcomes Newest Members of Leadership Team
U.S. Department of the Interior
February 22, 2021

"The Department of the Interior announced additional members of the agency leadership team working to steward America's natural, cultural and historic resources, and honor our nation-to-nation relationship with Tribes.

The appointees are listed below in alphabetical order along with their new role:

  • Shakiyya Bland, Ed.D. - Albert Einstein Distinguished Educator Fellow, Office of the Secretary
  • Daniel Cordalis - Deputy Solicitor, Water
  • Nada Culver - Deputy Director, Policy and Programs, Bureau of Land Management
  • Bryan Newland - Principal Deputy Assistant Secretary, Indian Affairs"
INDIAN LAW
Justices Asked to Weight How Congress Defined 'Indian Tribe'
E&E News
February 23, 2021

"A Supreme Court fight over the allocation of federal COVID-19 aid is spotlighting Congress' definition of a tribal government.

Alaska Native corporations, or ANCs, are arguing they should be eligible to receive a portion of the $8 billion in emergency aid designated for tribal governments under last year's Coronavirus Aid, Relief and Economic Security (CARES) Act.

Along with the Treasury Department, ANCs are challenging a September ruling by the U.S. Court of Appeals for the District of Columbia Circuit that excluded the private companies from an unspecified portion of aid.

The decision centered on how lawmakers defined "Indian tribe" under the Indian Self-Determination and Education Assistance Act (ISDEAA), which Congress had cited in its explanation of which tribes qualified for CARES Act funding."
WATER
U.S. v. State Water Resources Control Bd.
Ninth Circuit holds that the Colorado River doctrine does not allow partial stays except in rare circumstances

In Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), the Supreme Court held that a federal district may “[i]n the interest of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation,’ a district court can dismiss or stay ‘a federal suit due to the presence of a concurrent state proceeding.’” The district court in United States v. State Water Resources Control Board, 418 F. Supp. 3d 496 (E.D. Cal. 2019), applied the Colorado River doctrine to stay three state law claims brought by the United States in a suit filed concurrently in state court with those claims but not a federal claim alleging violation of intergovernmental immunity principles contained only in the federal action. The state law claims were brought against California State Water Resources Control Board and alleged violation of the California Environmental Quality Control Act in connection with approval of an amended plan for operation of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary system. The United States added the intergovernmental immunity claim through an amended complaint filed three months into the litigation. The district, however, did deny the Board’s request to abstain under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). The United States appealed; the Board did not.
First White House Water Adviser Talks NEPA, Climate
E&E News
February 25, 2021

"Climate change will be a top priority for Sara Gonzalez-Rothi, the White House's first adviser focused solely on water.

As the first senior director for water at the Council on Environmental Quality, Gonzalez-Rothi will tackle everything from permitting and infrastructure to environmental justice, climate change, water quality and ocean health.”
Florida and Georgia Face Off at Supreme Court Over Water Rights
Courthouse News Service
February 22, 2021

"The U.S. Supreme Court heard arguments in a dispute between Florida and Georgia over whether the Peach State’s use of water in the Apalachicola-Chattahoochee-Flint River Basin should be limited, leaving justices weighing the interests of Florida’s oystermen against those of Georgia’s farmers. 

During a hearing conducted virtually due to the coronavirus pandemic, an attorney for Florida told the court that Georgia’s “unrestrained” water usage has caused the collapse of the Apalachicola Bay oyster industry. 

The Sunshine State is asking the Supreme Court to impose water usage limits on Georgia, particularly during drought years, so more freshwater from the basin can flow to Apalachicola."
Oregon Court Affirms Klamath Tribes' Water Rights
Klamath Falls News
February 25, 2021

"On Wednesday, February 24, 2021, in an order from Klamath County Circuit Court Judge Cameron F. Wogan, the Oregon court again affirmed the Klamath Tribes’ water and treaty rights. 

Wednesday’s order rejected attacks on the Tribes’ water rights determined by the Oregon Water Resources Department (OWRD) during the administrative phase of the Klamath Basin Adjudication (KBA), affirmed the senior priority date of the Klamath Tribes’ water rights in the Klamath Basin, and upheld the need to maintain a healthy and productive habitat to meet the Tribes’ treaty right to fish, hunt, trap, and gather."
Arizona Changes 'Use It Or Lose It' Water Law
Arizona Public Media
February 23, 2021

"A change in Arizona water law will let farmers and ranchers conserve water without worrying about losing their rights to it in the future.

Like most western states, Arizona water rights are "use it or lose it," meaning that if farmers or ranchers don't use their full amount for a certain number of years they risk forfeiting their rights forever. Kim Mitchell, senior water policy advisor with Western Resource Advocates, said that disincentivizes conservation at a time when we increasingly need more of it.

A bill signed last week by Governor Doug Ducey allows for water users to enter into a voluntary conservation plan with the Arizona Department of Water Resources that keeps their water right protected. Users can conserve water for up to 10 years without losing their rights."
State Engineer Prevails in Pahrump Water Order Case
Pahrump Valley Times
February 25, 2021

"After 15 months of anxiously awaiting the outcome of the appeal on Pahrump Water Order #1293A, local property and business owners are gritting their teeth in frustration and disappointment, with the Nevada Supreme Court ultimately ruling in favor of the appellant, the Nevada State Engineer’s Office.

As a result, water Order #1293A remains in effect, leaving area developers and property owners with no choice but to obtain two acre-feet of water rights for any new well they wish to drill on land that has not previously had said water rights relinquished in support of the new well.

However, the legal battle may not be over just yet, as the Nevada Supreme Court’s ruling also included instructions dictating that a portion of the case not directly addressed by either the district court or the appeal before the Nevada Supreme Court, that which alleges Order #1293A to be an unconstitutional taking, be remanded back to the district court for resolution."
Acquavella Adjudication Headed Back to Washington Supreme Court

A number of parties appealed Judge F. James Gavin’s final decree for the Yakima River basin. The Washington State Division III Court of Appeals transferred the appeals to the Washington Supreme Court on December 30, 2020. Among the issues on appeal are: “1) whether federal treaties, such as the Treaty of 1855, reserve water for use on a reservation No. 36869-6-111 as a whole, rather than on particular parcels; (2) whether Congress has limited the use of rights reserved by the 1855 Treaty to particular parcels; and (3) whether the superior court's schedule of water rights incorrectly interpreted and applied federal law concerning the use of the surface water rights diverted from the Yakima River through the Wapato-Satus Unit.” 

Briefs are available for review via the link below.
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.
Seneca Nation of Indians v. New York, ___ F.3d ___, 2021 WL 667557 (2d Cir. Feb. 22, 2021)Arbitration award under a class III gaming compact over the obligation of a tribe to continue making payments to a state during the compact’s seven-year renewal period was properly enforced under the Federal Arbitration Act.
Aquinnah/Gay Head Community Ass’n v. Wampanoag Tribe of Gay Head (Aquinnah), ___ F.3d ___, 2021 WL 733081 (1st Cir. Feb. 25, 2021)Law-of-the-case doctrine precluded a tribe from challenging that portion of an amended judgment entered on remand from Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah), 853 F.3d 618 (1st Cir. 2017), that required it to comply with local government permitting regulations with respect to the construction and operation of a class II gaming facility.
Newtok Village v. Patrick, ___ F. Supp. 3d ___, 2021 WL 735644 (D. Alaska Feb. 25, 2021)Motion to set aside default judgment for lack of subject matter jurisdiction was denied where the complaint sufficiently alleged jurisdiction under 28 U.S.C. §§ 1331 and 1362 for interference by the defendants with the plaintiff tribal government’s implementation of Indian Self-Determination and Education Assistance Act contracts.
In Matter of D.E., 2021-Ohio-524, 2021 WL 753628 (Ct. App. Feb. 25, 2021)Juvenile court erred in deeming Indian Child Welfare Act inapplicable without directing county family services agency to conduct inquiry into children’s “Indian status” after mother stated that she possessed Cherokee heritage but was not a tribal member.
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.