News & Updates from WAGLAC
May 3rd, 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.
NATIVE AMERICAN AFFAIRS
Interior Reverses Trump's Land-Into-Trust Actions
E&E News
April 27, 2021

"The Interior Department ... reversed several Trump administration actions that officials say impeded the department's ability to take American Indian land into trust.

Taken together, the administrative directives put muscle behind Interior Secretary Deb Haaland's oft-stated intention to improve tribal relations with the federal government. Haaland is the first Native American leader of the Interior Department."
ENVIRONMENT
Biden Races Courts For Chance To Torpedo Trump Water Rule
E&E News
April 28, 2021

"President Biden has gone full throttle in his first 100 days seeking to reverse Trump-era environmental rollbacks. But on one controversial rule, the president's team may not be able to outpace the judicial system.

Key lawsuits that could define the reach of the Clean Water Act are working their way through federal courts — despite Biden administration attempts to stop them so it can craft its own regulations.

The cases concern what waterways and wetlands qualify for federal protections, a question that has befuddled judges for two decades."
Rio Hondo Land & Cattle Co., L.P. v. U.S. E.P.A.—Tenth Circuit rejects anti-backsliding challenge to NPDES permit
Clay R. Smith
Chief Editor, AILD
CWAG & AG Alliance
April 30, 2021

"The Clean Water Act prohibits the Environmental Protection Agency from issuing a National Pollutant Discharge Elimination System permit containing less stringent pollutant limitations than a prior permit. 33 U.S.C. § 1342(o). The general prohibition states that “‘a permit may not be renewed, reissued, or modified ... to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit ... except [for permits issued] in compliance with section 1313(d)(4) of this title.’” Id. § 1342(o)(1). Section 1313(d)(4)(A) states in part that for waters “where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard[.]” The proper application of the anti-backsliding exclusion was the central issue in Rio Hondo Land & Cattle Co., L.P. v. U.S. E.P.A, No. 19-9531, 2021 WL 1681733 (10th Cir. Apr. 29, 2021), a case before the Court of Appeals on petition for review from a decision by the Environmental Appeals Board rejecting a challenge to a 2017 NPDES permit issued with respect to discharges into the Rio Ruidoso River from a waste water treatment facility."
Senate Reinstates Obama-Era Controls On Climate-Warming Methane
The New York Times
April 28, 2021

"The Senate voted on Wednesday to effectively reinstate an Obama-era regulation designed to clamp down on emissions of methane, a powerful, climate-warming pollutant that will have to be controlled to meet President Biden’s ambitious climate change promises.

Taking a page from congressional Republicans who in 2017 made liberal use of a once-obscure law to roll back Obama-era regulations, Democrats invoked the law to turn back a Trump methane rule enacted late last summer. That rule had eliminated Obama-era controls on leaks of methane, which seeps from oil and gas wells."
Court Wrestles With Superfund Contribution Puzzle
SCOTUSblog
April 28, 2021

"Guam ...appeal[ed] a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that the territory is time-barred from seeking contribution from the U.S. Navy for the cost of cleaning up the Ordot Dump. The Navy created the dump during the 1940s, disposing of chemical waste and munitions there until the 1970s. Guam used it as a municipal waste dump after taking over responsibility for it in 1950.

In 1983, the Environmental Protection Agency added the dump to Superfund’s National Priorities List for cleanup, and in 1988, EPA named the Navy as a potentially responsible party for the cost of remediating the contamination. But the U.S. argues that Guam’s 2004 settlement of a Clean Water Act action by EPA to stop water pollution from the dump triggered a three-year statute of limitations for Guam to bring contribution claims under Section 113(f)(3)(B) of CERCLA."
19 States Make 'Long-Shot Bid' To Curb EPA Climate Authority
E&E News
April 30, 2021

"The Supreme Court is unlikely to grant a petition from red states asking the justices to review EPA's authority to regulate carbon emissions, environmental lawyers say.

But the petition — filed ... by 19 Republican-led states — offers a preview of the legal challenges awaiting President Biden's EPA once it proposes a new greenhouse gas rule for power plants.

Led by West Virginia Attorney General Patrick Morrisey (R), the states' petition ...urge[d] the nation's highest bench to overturn a January ruling by the U.S. Court of Appeals for the District of Columbia Circuit." 
Federal Court Rules EPA Must Ban Pesticide Linked To Harm In Children — Or Prove It Is Safe
The Washington Post
April 29, 2021

"A federal appeals court on Thursday ruled that the Environmental Protection Agency must ban a widely used pesticide linked to neurological damage in children from being sprayed on food crops, unless the agency can demonstrate safe uses for the chemical.

The 2-to-1 ruling by judges on the U.S. Court of Appeals for the 9th Circuit comes nearly two years after the Trump administration’s decision to keep chlorpyrifos on the market despite appeals by environmental and public health groups."
STATE LANDS
Justices Weigh Pipeline Company’s Right to Grab State Land
Bloomberg Law
April 28, 2021

"U.S. Supreme Court justices appeared conflicted as they weighed state sovereignty and property rights concerns against natural gas pipeline development.

The court heard oral arguments on Wednesday over whether builders of the PennEast pipeline can use federal eminent domain to seize state-owned lands along the $1 billion project’s route in New Jersey. The case, which could affect pipeline siting nationwide, is the latest high-stakes energy infrastructure conflict to reach the justices in recent years."
WATER
Court Breathes Life Into Navajo Fight For Colorado River
E&E News
April 29, 2021

"A panel of judges ... revived a critical bid from the Navajo Nation to force the federal government to meet its treaty obligations and address the tribe's well-documented water woes.

The decision from the 9th U.S. Circuit Court of Appeals could have far-reaching implications as the federal government, states and tribes begin renegotiating Colorado River water allocations while the waterway's basin suffers through a relentless drought.

The Navajo Nation sued federal regulators in 2003, arguing that the government's operations guidelines for the Colorado River didn't consider the tribe's water rights or the amount needed to meet the government's treaty obligations to the reservation.

A federal district court dismissed the claim, but the 9th Circuit disagreed. The appeals court found that the Navajo Nation has major water problems, and Judge Ronald Gould raised questions about whether the government is fulfilling its treaty with the tribe."
FEDERALISM
Supreme Court To Hear Gun-Control Case Next Term On Carrying Weapons Outside Home
The Washington Post
April 26, 2021

"The legal battle over gun control opened a new front Monday at the Supreme Court, as the justices announced they will consider an important National Rifle Association-backed lawsuit asserting the constitutional right to carry a weapon outside the home.

The court will hear the challenge to a century-old New York law in the term that begins in October. The restriction requires those who seek a permit to carry a concealed weapon to show a special need for self-defense and is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.

It has been more than a decade since the court last issued a major opinion on gun control. A change in the court’s membership is probably the reason for the about-face from last June, when the court passed up nearly a dozen gun-control challenges."
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.
South Point Energy Center LLC v. Arizona Dept. of Revenue, ___ P.3d ___, 2021 WL 1623343 (Ariz. Ct. App. Apr. 27, 2021)25 U.S.C. § 5108 categorically preempts state taxation on permanent improvements made to Indian trust land even when the tax is paid by a non-Indian entity. Whether the taxed property is a permanent improvement or personal property must be determined with reference to federal law standards.
Navajo Nation v. U.S. Dept. of Interior, ___ F.3d ___, 2021 WL 1655885 (9th Cir. Apr. 28, 2021)Tribe’s proposed third amended complaint alleging breach of trust from the United States’ failure to determine the scope of and to protect its Wintersrights was not barred jurisdictionally under the 1964 Arizona v. California decree and stated a claim.
In re A.T., ___ Cal. Rptr. 3d ___, 2021 WL 1541007 (Ct. App. Div. 3 Apr. 20, 2021)Dependency action in which an Indian child was removed from his mother’s custody and placed into the custody of his father pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and then dismissed was not a child custody proceeding under the Indian Child Welfare Act.
On January 20, 2021, President Biden issued Executive Order 13990 directing all executive1 Consistent with the Executive Order the White House issued a non-exclusive list of agency actions taken by the Department of the Interior (Department) that should be reviewed. Included on the list was Sol. Op. M-37055, Withdrawal of Solicitor’s Opinion M-37029,The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act (M-37029),
Withdrawal of M-37064, ___On the last day of the previous administration, the Solicitor issued M-370641 “Permanent Withdrawal of Solicitor Opinion M-37043, ‘Authority to Acquire Land into Trust in Alaska’” concluding that an irreconcilable conflict exists between the Alaska Native Claims Settlement Act (ANCSA) and the Secretary’s land into trust authority under Section 5 of the Indian Reorganization Act (IRA). However, M-37064 did not address the conflict with existing Departmental regulations. Specifically, M-37064 contradicts the Department’s 2014 rulemaking that eliminated the Alaska Exception from 25 C.F.R. § 151.1, which is the general regulation governing Indian trust land acquisitions
n Matter of M.L.B., 2021-NCSC-51, ___ S.E.2d ___ (Apr. 23, 2021): Parental termination order was remanded in part for compliance with the requirement under the Indian Child Welfare Act that the district court inquire whether any participant in the proceeding knows or has reason to know that the involved child is an Indian child and, if so, for further compliance with the statute.
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.