News & Updates from WAGLAC
March 8, 2021

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. 
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
Barrett's First Ruling Hands Feds a Win in EPA Records Feud
E&E News
March 4, 2021

"The federal government does not need to disclose draft documents that informed its conclusions about the harm an EPA rule would pose to vulnerable plants and animals, the Supreme Court ruled.

In a 7-2 decision, and the first majority ruling led by Justice Amy Coney Barrett, the court said that the Freedom of Information Act does not require the release of a draft document that would offer the public more detail about what prompted federal regulators to change their conclusions in an Endangered Species Act consultation done in support of an EPA rule."
10th Circuit Revives Trump WOTUS Repeal in Colorado
E&E News
March 3, 2021

"The Trump administration's rule defining what wetlands, streams and bogs qualify for Clean Water Act protections will go into effect in Colorado after a federal appeals court ruling.

Colorado had been the only state where former President Trump's Navigable Waters Protection Rule had been blocked after a federal judge last June granted the state's request to halt its implementation while its legal challenge played out.

Before Trump left office, his EPA and Army Corps of Engineers — supported by a wide array of industry groups — appealed that ruling. And the 10th U.S. Circuit Court of Appeals reversed the decision on narrow grounds, after denying the Biden administration's request to pause the case.

The Denver-based three-judge panel said Colorado did not satisfy a key requirement in seeking an injunction: showing it would suffer irreparable injury if the rule went into effect."
Environmental Rights Push Could Boost Youth Climate Cases
E&E News
March 3, 2021

"In state legislatures across the country, lawmakers are pushing to amend their constitutions to guarantee residents the right to a healthy environment.

The burgeoning movement for a "green amendment" could bolster the legal arguments of young people who are suing state governments over their alleged inaction on climate change, environmental lawyers say."
Western Governors Approve Policy Resolutions on State-Federal Relationship, Utilizing State Data
Western Governors Association
December 10, 2020
"WGA Policy Resolution 2021-01 (1), Strengthening the State-Federal Relationship states that “[i]n the absence of a Constitutional delegation of authority to the federal government, state authority should be presumed sovereign. Each executive department and agency should have a clear and accountable process to provide states with early, meaningful and substantive input in the development of federal regulatory policies. Where authority has been delegated by the federal government to the states, states should be granted the maximum administrative discretion possible and should be treated as partners and co-regulators.”

WGA Policy Resolution 2021-02 (2), Utilizing State Data in Federal Decision Making urges “the federal government to consult with states and state agencies as partners – rather than ordinary stakeholders – in the development and implementation of policies, programs, and strategies to more effectively and consistently incorporate state data into federal decision making. Federal agencies must recognize the existence and limitations of state privacy and data stewardship laws, regulations, and policies. They must also work with states to develop strategies to encourage effective state-federal data sharing while appropriately protecting data under state law.”
Washington Supreme Court To Review State Lands Trust Mandate

“A coalition of conservation organizations and individuals, led by Conservation Northwest, filed litigation challenging the Board of Natural Resources’ Resolutions 1559 and 1560, the December 2019 decisions adopting the long-term conservation strategy for the marbled murrelet (amending the State Upland’s 1997 Habitat Conservation Plan and Endangered Species Act Incidental Take Permit), and setting the 2015-2024 sustainable harvest calculation. The primary focus of this litigation is a challenge to the State’s “trust mandate” for management of its federally granted lands. The Washington Supreme Court granted direct review of the trial court’s decision to dismiss the challenge, and oral argument on the case will likely be in the fall of 2021.

Conservation Northwest is seeking a decision from the Washington Supreme Court that would require Washington’s federally granted lands to be managed for the public as a whole, rather than for the designated beneficiaries, including common schools, universities, and other state institutions identified in Washington’s Enabling Act.”
Interior Department Takes Steps to Strengthen Scientific Integrity and Evidence-Based Policymaking
U.S. Department of the Interior
March 3, 2021

"The Interior Department took steps to recommit to scientific integrity and empower the agency’s scientific and technical experts to use the best available science. Signed on Interior’s 172nd birthday and the 142nd birthday for the U.S. Geological Survey, Secretarial Order 3397 revokes Secretarial Order 3369 – falsely branded the “open science” rule – that imposed improper restrictions on what science and data could be considered in the Department’s policymaking."
Western Governors Approve Policy Resolutions on Species Conservation
Western Governors Association
December 10, 2020

"WGA Policy Resolution 2021-04, Species Conservation and the Endangered Species Act: This resolution updates the Governors’ policy positions on species management and conservation issues. The new policy incorporates language from WGA Policy Resolution 2019-08, Wildlife Migration Corridors and Habitat. The resolution expresses the Governors’ support for increased voluntary and proactive management efforts and use of best available science, while acknowledging the variability in state approaches to wildlife and habitat conservation."
Interior Grounds Trump-Era Migratory Bird Legal Restrictions
E&E News
March 8, 2021

"The Interior Department formally erased a controversial Trump administration legal opinion that concluded the Migratory Bird Treaty Act covered only intentional killing or injuring of birds.

In a significant part of a multistep restoration of migratory bird protections, Interior rescinded the prior solicitor's 2017 opinion restricting the law's reach."
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.
Picard v. Colville Tribal Correctional Facility, ___ F. Supp. 3d ___, 2021 WL 768137 (E.D. Wash. Feb. 26, 2021)Tribal court complied with procedural requirements under the Indian Civil Rights Act prerequisite to issuing consecutive terms of imprisonment for three separate offenses totaling 720 days.
Walker E. v. Department of Health & Social Servs., ___ P.3d ___, 2021 WL 523772 (Alaska Feb. 12, 2021)Superior court did not violate the Indian Child Welfare Act’s requirements in finding that (1) the state agency engaged in active efforts to prevent breakup of an Indian family, (2) the agency’s expert constituted a qualified expert witness, and (3) her testimony and other evidence established that the termination of the father’s parental rights was necessary beyond a reasonable doubt to avoid serious emotional or physical damage to the involved Indian children.
Unkechaug Indian Nation v. Treadwell, ___ N.Y.S. 3d ___, 2021 WL 799811 (App. Div. Mar. 3, 2021)Dispute over right of possession to a parcel within the reservation of a state-recognized tribe was rendered “academic” by a tribal vote designating the defendant as an “undesirable person” and a tribal council order directing her to cease and desist from occupying the parcel.
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 database of all previously published WAGLAC newsletters, please follow the link below.