News & Updates from WAGLAC
May 10th, 2021
UPCOMING EVENTS
CWAG Natural Resources and Environment Meeting and
WAGLAC Summer Meeting
June 15, 2021

The WAGLAC summer meeting will be held in conjunction with the AGA 2021 Annual Meeting. The CWAG Agenda scheduled for the morning of June 15th will feature panels on environmental justice, water marketing, the Colorado River water management, state/tribal consultation, and emerging environmental issues. The in person panel discussions will be broadcast live. Watch for the link in future WAGLAC newsletters. CLE accreditation will be available for those who attend in person or remotely.

There will be a short WAGLAC meeting on Wednesday June 16th from 7:30am - 9:00am HST for WAGLAC members in attendance.

Please email Andrea Friedman at AFriedman@AGAlliance.org for more information.
FEDERAL LANDS
2-Bar Ranch Limited Partnership v. U.S. Forest Service
Clay Smith
Chief Editor, AILD
CWAG & AG Alliance
May 7, 2021

"Several ranching enterprises acquired ten-year grazing permits from the Forest Service beginning in 1996 for the Dry Cottonwood Allotment situated in the Beaverhead-Deerlodge National Forest. Following a site-specific environmental assessment under the National Environmental Policy Act, the first permit incorporated 1995 riparian mitigation measures to determine the appropriate levels of grazing under four metrics. These mitigation measures were also applied to other grazing allotments on a case-by-case basis. The ranches’ subsequent permits incorporated a 1997 version of the measures that, however, did not alter use levels allowable under the 1995 measures. The Service issued a new forest plan for the Forest in 2009. The plan modified the 1995 riparian measures somewhat and provided that the allowable use levels prescribed in the relevant interim grazing standard applied to “‘[a]ny allotment management plan lacking riparian management objectives and guides designed specifically for that allotment.’” [Emphasis added.] The ranches were issued notices of noncompliance in 2017 and eventually a decision by the district ranger suspending grazing privileges by 20% for 2018 and 2019 on the allotment. In reaching that determination, the ranger applied the 1995 mitigation measures’ allowable use standards; the ranches contended, in contrast, that 2009 interim standards controlled. On administrative appeal, the forest supervisor reversed the suspension but confirmed that the 2009 interim standards did not apply to the allotment because “‘[s]ite specific [allowable use levels] have been in place for the Dry Cottonwood Allotment since 1996’ and ‘clarified that the 1996 NEPA process ‘clearly selected’ the allowable use levels described in the 1995 Riparian Mitigation Measures.” Having succeeded in their appeal as to the suspension reversal, the ranches requested attorney’s fees under the Equal Access to Justice Act, but the forest supervisor denied the request in part on the ground that the appeal proceeding was not an “adjudication” under 5 U.S.C. § 554—a condition precedent to presumptive EAJA fee entitlement."
Biden-Harris Administration Outlines “America the Beautiful” Initiative
Department of Interior
May 6, 2021

"The Biden-Harris administration outlined a vision for how the United States can work collaboratively to conserve and restore the lands, waters, and wildlife that support and sustain the nation. The recommendations are contained in a report released..., outlining a locally led and voluntary nationwide conservation goal to conserve 30 percent of U.S. lands and waters by 2030.

The report calls for a decade-long effort to support locally led and voluntary conservation and restoration efforts across public, private, and Tribal lands and waters in order to create jobs and strengthen the economy’s foundation; tackle the climate and nature crises; and address inequitable access to the outdoors."
Western Governors Request Close Consultation On National Climate Task Force Review Of “30 by 30” Conservation Proposal
Western Governors' Association
May 6, 2021

"Western Governors ...request[ed] close consultation during the National Climate Task Force review of reports by the Departments of Interior and Agriculture as described in Section 216 of Executive Order (EO) 14008, Tackling the Climate Crisis at Home and Abroad. The Governors' outreach of May 6, 2021, to National Climate Advisor Gina McCarthy acknowledges the Task Force's goals of recommending steps to achieve conservation of "at least 30 percent of our lands and waters by 2030.”

They will accomplish that by reviewing reports by the Department of the Interior on conserving land and water, and the Department of Agriculture's “recommendations for an agricultural and forestry climate strategy” encouraging voluntary adoption of climate-smart agricultural and forestry practices that decrease wildfire risk and results in verifiable carbon reductions and sequestration.” The Governors note that defining “conserved" will be a critical factor, as many lands in the region already enjoy robust conservation protections."
FISH AND WILDLIFE
Regulations Governing Take Of Migratory Birds; Proposed Rule
Federal Register
May 7, 2021

"On January 7, 2021, we, the U.S. Fish and Wildlife Service (we, the Service, or USFWS), published a final rule defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. We are now proposing to revoke that rule. . ..The effect of this proposed rule would be to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent."
Department Of Natural Resources v. 5 Star Feedlot, Inc.
Justia
May 3, 2021

"In the spring of 2015, a severe three-day storm deluged an eastern Colorado area with over six inches of rain. Two inches of water fell within thirty minutes on the first day, “a once-in-a-half-century occurrence.” During the storm, a mixture of wastewater and rainwater overflowed from one of the wastewater containment ponds in a cattle feedlot operated by 5 Star Feedlot, Inc. (“5 Star”). That water crossed several miles of land and ultimately found its way to the South Fork of the Republican River, killing an estimated 15,000 fish and giving rise to this litigation. Pursuant to section 33-6-110(1), C.R.S. (2020), the State initiated a civil action against 5 Star seeking to recover the value of the deceased fish based on 5 Star’s alleged violation of three predicate statutory provisions (“taking statutory provisions”) which, with some exceptions not pertinent here, made it unlawful for any person to “take” (i.e., to kill or otherwise acquire possession of or control over) certain wildlife. The parties filed cross-motions for summary judgment on the issue of liability. The district court denied 5 Star’s motion, granted the State’s motion, and, following a bench trial on damages, ordered 5 Star to pay the State $625,755. 5 Star then appealed. The court of appeals reversed, holding that the taking statutory provisions required the State to prove that 5 Star acted knowingly or, at minimum, performed an unlawful voluntary act. To this, the Colorado Supreme Court concurred, finding the district court erred both in entering summary judgment against 5 Star and in denying 5 Star’s cross- motion. “Since the State failed to formally allege, never mind present proof, that 5 Star’s lawful, years-long operation of wastewater containment ponds killed or otherwise acquired possession of or control over the fish, it could not satisfy the voluntary act or actus reus requirement of the taking statutory provisions.”
WATER
Senators Introduce Legislation to Protect Private Water Rights
U.S. Senate Press Release
March 18, 2021

"U.S. Senators Jim Risch and Mike Crapo (both R-Idaho) joined U.S. Senator John Barrasso (R-Wyo.) in introducing S. 855., the Water Rights Protection Act. This legislation will protect privately-owned waters from being seized by the federal government.

“In Idaho, we’ve been managing water longer than we’ve been a state,” said Risch. “It’s ingrained in everything from our industries to Idaho’s constitution. Private water rights and states’ ability to regulate them have been recognized since the West was settled. I’m proud to cosponsor this legislation to protect Idaho’s right to Idaho water.”
Judge Nixes Reduced Klamath River Flows For Sucker Fish
E&E News
May 10, 2021

"A judge has ruled against the Klamath Tribes in a lawsuit that accuses federal regulators of violating the Endangered Species Act by letting water levels fall too low for sucker fish to spawn in a lake that also feeds an elaborate irrigation system along the Oregon-California border.

The ruling, [last} Thursday reported by the Herald and News in Klamath Falls, comes as the region confronts one of the driest years in memory. The U.S. Bureau of Reclamation last month announced that farmers who irrigate from its Klamath Project water-management area will get so little water that farming may not even be worthwhile this summer.

At the same time, the drought has brought to a head a conflict between the water needs of two protected fish species in the region after decades of instability. The Klamath Tribes consider the federally endangered sucker fish central to their creation story and culture, while the Yurok hold the federally threatened coho salmon in the lower Klamath River sacred and rely on them as a critical food source."
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 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.
Kansas v. U.S. Dept. of Interior, ___ F. Supp. 3d ___, 2021 WL 1784557 (D. Kan. May 5, 2021)Secretary of the Interior did not abuse its discretion in (1) taking land into trust on behalf of the Wyandotte Nation as mandatory under Public Law 98-602 and (2) deeming the “settlement of a land claim” exception in Section 19 of the Indian Gaming Regulatory Act applicable to such land in reliance on prior precedent involving a different tract taken into trust for gaming purposes for the Nation pursuant to that public law.
Dutchover v. Moapa Band of Paiute Indians, ___ F. Supp. 3d ___, 2021 WL 1738869 (D. Nev. May 3, 2021)Former tribal police officer’s suit under Title VII of the Equal Employment Opportunity Act, 42 U.S.C. §§ 1981 and 1983, and two state law claims against a tribe, tribal police department and eight tribal members was dismissed on various grounds, including tribal immunity from suit, failure to state a claim, inadequate service, and refusal to exercise supplemental jurisdiction.
In Matter of N.C.H., ___ P.3d ___, 2021 WL 1774500 (Or. Ct. App. May 5, 2021)Child whose mother is a “descendancy member” of the Karuk Tribe and who is eligible for such membership is an “Indian child” for Indian Child Welfare Act purposes.
Hinton v. United States, ___ F. Supp. 3d ___, 2021 WL 1783190 (D. Ariz. May 5, 2021)Indian defendant convicted in tribal and then federal court for offenses arising from a sexual assault was not entitled to vacatur of his federal sentence under 28 U.S.C. § 2255 on ineffective assistance of counsel grounds because his attorney did not argue violation of the Double Jeopardy Clause.
Ryder v. State, 2021 OK CR 11, ___ P.3d ___ (Ct. Crim. App. Apr. 29, 2021)The General Crimes Act, 18 U.S.C. § 1152, vests exclusive criminal jurisdiction in federal courts where the defendant is a non-Indian and the victim is an Indian.
United States v. Haggerty, ___ F.3d ___, 2021 WL 1827316 (5th Cir. May 7, 2021)When the victim is an Indian or Indian property, the defendant’s Indian status for purposes of establishing inapplicability of 18 U.S.C. § 1152 via the Indian-against-Indian exception is an affirmative defense for which the defendant bears the burden of pleading and production, although the ultimate burden of proof remains on the prosecution once the issue is raised.
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.
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 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.
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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.