News & Updates from WAGLAC
May 24th, 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.
ENVIRONMENT
Supreme Court Revives Guam's Cercla Article Against The Navy
May 24, 2021

The United States Supreme Court unanimously held that “[a] settlement of environmental liabilities must resolve a CERCLA-specific liability to give rise to a contribution action under [CERCLA] §113(f)(3)(B). The ruling reversed the United States Court of Appeals for the District of Columbia decision holding that Guam was precluded from bringing a cost recovery action under §107(a) and a contribution action under §113(f) against the Navy for the cleanup of the Ordot Dump. “The court determined that although Guam had once possessed a CERCLA contribution claim [against the United States] based on [a] 2004 [Clean Water Act] consent decree that sufficiently “resolved Guam’s liability” for the dump, that claim was time barred. The court further held that a party eligible to pursue a contribution claim under §113(f) cannot assert a cost-recovery claim under §107(a), leaving Guam no CERCLA remedy.
 
The Supreme Court, in reversing the Court of Appeals decision, stated §113(f)(3)(B)does “not exist in a vacuum, but rather is a tool for apportioning the burdens of a predicate ‘common liability’ among the responsible parties.” Section 113(f)(3)(B) “is best ‘understood only with reference’ to the CERCLA regime.”  “A settlement must resolve a CERCLA liability to trigger a contribution action.”  Since the 2004 Clean Water Act consent decree did not resolve Guam’s CERCLA liability, Guam may proceed with its CERCLA lawsuit against the Navy."
EPA Digs Into WOTUS Talks With Enviros, Ag
E&E News
May 19, 2021

"EPA's Office of Water is kicking off quarterly meetings ... with agricultural and environmental groups to discuss the thorny issue of which waterways and wetlands qualify for federal protections.

The agency is likely to get an earful on exactly how - and how fast - it should address the fate of a controversial Trump-era Clean Water Act rule, the Navigable Waters Protection Rule.

Some farmers have hit the airwaves in recent weeks vowing to try to keep the regulation in place. The rule, which took effect last summer, significantly narrowed the scope of which waterways and wetlands fall under the Clean Water Act's jurisdiction. The American Farm Bureau Federation in an email confirmed the group will be represented at ...today's [last Wednesday's]... meeting"
Inslee Signs Climate Change Legislative Package
Washington's Governors Office
May 17, 2021

"Gov. Jay Inslee signed a historic climate change legislative package ...on May 17th during a three-stop tour through King County.

The governor signed the Climate Commitment Act, environmental justice legislation, a clean fuels standard and bills related to reducing Washington’s single-use plastic waste and hydrofluorocarbon pollution.

Inslee was joined by legislators, tribal members, community members and organizations, and other stakeholders as he signed legislation that made Washington the nation’s leader in battling the climate change crisis."
ENERGY
Land Commissioner Takes Aim At Oil, Gas Bond Requirements
E&E News
May 21, 2021

"New Mexico's financial assurance requirements for oil and gas wells, pipelines, and related infrastructure fall far short of what would be needed to offset closure and cleanup costs, according to the findings of an independent study released ..friday.

The researcher was commissioned by the state after concerns were raised last year about taxpayers being left on the hook if companies go bankrupt or abandon their operations without plugging wells, decommissioning pipelines or cleaning up."
Hackers And Climate Change Threaten U.S. Energy Independence
The New York Times
May 18, 2021

"When Arab producers barred oil exports to the United States in 1973, creating long gasoline lines, President Richard Nixon pledged an effort that would combine the spirit of the Apollo program and the determination of the Manhattan Project.

His timing was off — it took more than 40 years — but the country has come pretty close to energy independence in recent years thanks to a surge in domestic shale oil and natural gas production and the harnessing of solar and wind energy.

That independence, however, is fragile. Last week, cars lined up at gas stations across much of the Southeast after the Colonial Pipeline was paralyzed by a cyberattack by a criminal group seeking a ransom. The electric grid is also coming under greater stress because of climate change. In the last year, a heat wave in California and a deep freeze in Texas forced rolling blackouts as demand for power outstripped supply."
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.
Grondal v. Mill Bay Members Ass’n, 471 F. Supp. 3d 1095 (2020) & ___ F. Supp. 3d ___, 2021 WL 1962563 (E.D. Wash. May 17, 2021)United States holds Moses Allotment No. 8 in trust and was entitled to summary judgment as to ejectment and trespass counterclaims against Plaintiffs with camping memberships on MA-8 lands subject to an expired lease. Following trial, $1,411,702 in trespass damages were awarded.
Little Traverse Bay Bands of Odawa Indians v. Whitmer, ___ F.3d ___, 2021 WL 1976623 (6th Cir. May 18, 2021)Tribe’s 1855 treaty provided for allotment of lands, not a set-aside of land for Indian purposes under federal supervision, and therefore did not establish a reservation.
State v. Towessnute, ___ P.3d ___, 2021 WL 1842835 (Wash. S. Ct. Apr. 26, 2021)Any conviction of a Yakama Nation member in remand proceedings from a 1916 Washington Supreme Court opinion for fishing without a license in a treaty-protected usual and accustomed fishing place was vacated pursuant Wash. Rev. Code § 9.96.060(4).
Mendenhall v. United States, ___ F. Supp. 3d ___, 2021 WL 2004780 (D. Alaska May 19, 2021)Federal Tort Claims Act negligence claim based on alleged assault by an ISDEAA contractor’s guards was dismissed as barred by the intentional torts exception, and an accompanying claim alleging negligent training and supervision by the contractor was dismissed as barred by the discretionary function exception.
Great Plains Lending, LLC v. Dept. of Banking, ___ A.3d ___, 2021 WL 2021823 (Conn. S. Ct. May 20, 2021)(1) Entity claiming arm-of-the-tribe status bears the burden of establishing such status. (2) The six-factor test for determining such status adopted in Breakthrough Management Group by the Tenth Circuit applies, not the alternative tests adopted by New York and California state courts. (3) Application of the Breakthrough Management Group test establishes that one entity is an arm of the Otoe-Missouria Tribe but leaves unresolved the arm-of-the-tribe status of a second entity. (4) The Tribe and the two entities, not a tribal officer who also serves as the two entities’ president, are the real parties in interest in the administrative proceeding initiated by the state department, and the tribal officer therefore bears no individual responsibility for civil fines in his capacity as president of the entity held an arm of the Tribe given that his actions were within the scope of his duties for the Tribe and the entity. (5) Injunctive relief for violation of state law can be awarded against the officer notwithstanding the existence of arm-of-the-tribe status for one or both entities.
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.
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.