News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
March 30, 2020
Letter to WAGLACers:
We are hopeful that the June 2020 WAGLAC Meeting in Bozeman will proceed as scheduled, and therefore, encourage you to make with your travel arrangements. CWAG per its policy will cover attendance costs for one person from each member and affiliate member state. Early registration is encourage because seating on the bus for the field trip is limited. 
CWAG is dedicated to ensuring the health and safety of our members and will advise you if the COVID 19 crisis requires adjustments to the meeting schedule. Do not hesitate to reach out to us with any questions or concerns.
On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support.
WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow.
Trump Administration Eases Environmental Enforcement During Outbreak
The New York Times, Reuters
March 26, 2020

"The Trump administration has decided to ease enforcement of environmental regulations covering polluting industries to help them cope with impacts from the coronavirus outbreak, the U.S. Environmental Protection Agency said on Thursday.

The decision follows requests by the oil lobby and other industry groups for regulatory relief as governments around the world scramble to contain fallout from the pandemic, which has infected nearly a half a million people, decimated travel, and forced massive disruptions in daily life."
Judge Rejects California Challenge to Fracking Rule
March 27, 2020

"A federal judge rejected challenges by California and several environmental groups to the Trump administration’s repeal of restrictions on fracking, a method to extract oil and natural gas, on federal and tribal lands."
Feds to Argue for New Mexico in Pecos River Water Battle
E&E News
March 23, 2020

"The Supreme Court granted the federal government's request to argue alongside New Mexico in the state's fight against Texas over water allocations from the Pecos River.

An attorney for the solicitor general's office will have 10 minutes to argue that the "river master" tasked with calculating delivery credits to Texas correctly determined the amount of water the downstream state received after a bout of heav rains in 2014 and 2015.

The case, Texas v. New Mexico, is scheduled for oral argument April 21."
Federal Court Rejects Water Users Takings Claim Against United States

The United States Court of Federal Claims rejected the City of Fresno and seventeen irrigation districts takings claims against the U.S. Bureau of Reclamation for not delivering water to them in 2014. The Court’s summary judgment opinion stated, “that – as a matter of law – none of the Plaintiffs possesses a property interest in the water supplied to them by or through Reclamation” and therefore dismissed the takings claims for lack of standing.
Plaintiffs receive water under water supply contracts with the Bureau of Reclamation from the Friant Division of the Central Valley Project. Plaintiffs alleged they suffered significant water shortages in 2014 as a result of Reclamation failure to deliver water “stored and otherwise existing within the Friant Division, even though precipitation had been low during the winter. According to Plaintiffs, ‘in breach of their permanent contracts, the United States failed and refused to make that water available to Plaintiffs (with the minor exception of small quantities of ‘health and safety’ and ‘carry over water’), determining instead to release and deliver that water to the Exchange Contractors.’” Plaintiffs sought damages to compensate them for “the cost of purchasing replacement water for the quantities not made available by Reclamation . . ..”
Allen v. Cooper

The Supreme Court holds unconstitutional the abrogation of state immunity from suit under the Copyright Remedy Clarification Act 

In the Copyright Remedy Clarification Act of 1990, Congress provided that a State “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” but, instead, shall be liable for all remedies “in the same manner and to the same extent as” as private parties. 17 U.S.C. § 511(b). A video producer and his company sued North Carolina in 2015 seeking prospective and retroactive relief for unauthorized on-line posting of his work and use of photographs in a newsletter. The State, citing Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), moved to dismiss on the basis of its immunity from unconsented federal court suit as reaffirmed in the Eleventh Amendment. The district court agreed that Congress could not abrogate North Carolina’s immunity under its Article I power but could do so via Section 5 of the Fourteenth Amendment. The Fourth Circuit affirmed as to Article I but reversed the Section 5 holding on interlocutory appeal. Allen v. Cooper, 244 F. Supp. 3d 525 (E.D.N.C. 2017), aff’d in part & rev’d in part, 895 F.3d 337 (2018). The Supreme Court granted certiorari and affirmed the Fourth Circuit’s judgment. Allen v. Cooper, ___ S. Ct. ___, 2020 WL 1325815 (U.S. Mar. 23, 2020). Justice Kagan authored the principal opinion in which five other Justices joined in its entirety. 
Solicitor Memos re Section 19

The Department of the Interior’s Office of the Solicitor withdrew on March 9, 2020 Sol. Op. M-37029 (Mar. 12, 2014) that stated the Office’s views concerning the meaning of the phrase “under federal jurisdiction” as used in the first “Indian” definition in Section 19 of the Indian Reorganization Act, 25 U.S.C. § 5108. The March 10, 2020 Memorandum announcing the withdrawal stated the Solicitor’s conclusion that the 2014 Memorandum “was not consistent with the ordinary meaning, statutory context, legislative history, or contemporary administrative understanding of the phrase “recognized Indian tribe now under federal jurisdiction.” As explained in a March 5, 2020 Deputy Solicitor Memorandum, the principal point of interpretative difference lies in the words “recognized Indian tribe” that immediately precede “now under federal jurisdiction.” The 2014 Memorandum recognized, in light of Carcieri v. Salazar, 555 U.S. 379 (2009), the “now” refers to the date of the IRA’s becoming law in 1934. However, it construed the term “recognized Indian tribe” also to include tribes, although “under federal jurisdiction” in 1934, did not acquire “recognized” status until after that date. The March 5 Deputy Solicitor Memorandum construes the phrase “recognized Indian tribe now under federal jurisdiction” to refer “to tribes previously placed under federal authority through congressional or executive action who remained under federal authority in 1934.” The Memorandum therefore answers the question not addressed in the Carcieri majority opinion and rejects the construction suggested in Justice Breyer’s concurring opinion. See 555 U.S. at 398 (“The statute, after all, imposes no time limit upon recognition.”). The Solicitor’s March 10 Memorandum additionally sets out a four-step procedure for determining eligibility for land-into-trust applications under the first definition of “Indian” in Section 19. 

Links follow to the Solicitor’s March 10, 2020 Memorandum to the Assistant Secretary-Indian Affairs re Determining Eligibility for Land-Into-Trust under the First Definition of “Indian” in Section 19 of the Indian Reorganization Act and to the two Memorandums discussed above.
  • Memo 1: Solicitor’s Memo re Determining Eligibility for Land into Trust under Category 1
  • Memo 2: Solicitor’s Procedures for Determining Eligibility for Land into Trust under Category 1
  • Memo 3: Deputy Solicitor’s Memo re Determining Eligibility for Land into Trust under Category 1
Mexican Farmers Burn Trucks to Protest U.S. Water Transfer
E&E News
March 27, 2020

"Farmers in the northern Mexico border state of Chihuahua burned pickup trucks and blocked roads yesterday to protest releases of water from a Mexican dam to repay a water debt owed to the United States."
  • Managing Attorney - Cheyenne, Wyoming Attorney General's Office
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.
In re N.D.,  ___ Cal. Rptr. ___, 2020 WL 1241881 (2d Dist. Mar. 16, 2020) Juvenile court erred in ordering children to remain in foster care without compliance with Indian Child Welfare Act notice requirements.
Wilhite v. Littlelight , ___ F. Supp. 3d ___, 2020 WL 1332231 (D. Mont. Mar. 23, 2020) Defendant tribal officials could not assert the Federal Tort Claims Act as the exclusive remedy for a claim based on an allegedly retaliatory employment termination absent a request to the Attorney General to certify that they were acting in the course of employment under a “638” contract in connection with the termination.
Cayuga Nation v. Tanner , ___ F. Supp. 3d ___, 2020 WL 143157 (N.D.N.Y. Mar. 24, 2020) The Indian Gaming Regulatory Act preempted a village’s gambling ordinance, and tribal immunity from suit barred prospective relief against tribal officers to enforce the ordinance.
Cherokee Nation v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 1429946 (N.D. Okl. Mar. 24, 2020) The Assistant Secretary of the Interior’s determination under 25 U.S.C.A. § 2719(a)(2)(A)(i), as implemented in 25 C.F.R. § 292.2, that a parcel of land constituted part of a former reservation of the United Keetoowah Band of Cherokee Indians in Oklahoma was arbitrary, capricious, an abuse of discretion and in violation of law.
Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers , ___ F. Supp. 3d ___, 2020 WL 1441923 (D.D.C. Mar. 25, 2020) Army Corps of Engineers is required to prepare an environment impact statement with respect to granting an easement under the Missouri River for the Dakota Access Pipeline.
In re D.S. , ___ Cal. Rptr. 3d ___, 2020 WL 1430104 (4th Dist. Mar. 18, 2020) County agency satisfied its “reason to believe” inquiry duty as to Indian child status under the California counterpart to the Indian Child Welfare Act, and compliance with ICWA notice requirements therefore was not required where “reason to believe” did not exist.
Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt , ___ F. Supp. 3d ___, 2020 WL 1451566 (D.D.C. Mar. 25, 2020) Department of the Interior final rule’s elimination of a provision in proposed amendments to 25 C.F.R. Part 83, which authorized re-petitioning by entities previously denied federal recognition as an Indian tribe, was arbitrary and capricious.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook  is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook  addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
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.
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, searchable database of all previously published WAGLAC newsletters, please follow the link below.