News & Updates from WAGLAC
November 23rd 2020
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC WINTER MEETING UPDATE

The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Additional Details to follow.
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.
ENVIRONMENT
Biden Plans to Move Fast With a ‘Climate Administration.’ Here’s How.
The New York Times
November 17, 2020

"President-elect Joseph R. Biden Jr., eager to elevate climate change issues throughout his administration, is already drafting orders to reduce planet-warming pollution and seeking nominees who will embed climate policy not only in environmental agencies but in departments from Defense to Treasury to Transportation.

Top candidates for senior cabinet posts, such as Michèle Flournoy for defense secretary and Lael Brainard for Treasury, have long supported aggressive policies to curb climate change. Mr. Biden’s inner circle routinely asks “is the person climate-ambitious?” of candidates even for lower profile positions like the White House budget and regulatory offices, according to a person advising the transition.

Transition team members have been instructed to identify policies that can improve pollution levels in Black and Latino communities. And one of Mr. Biden’s early executive orders is expected to require that every federal agency, department and program prepare to address climate change."
President Trump Pushes New Environmental Rollbacks On Way Out the Door
AP News
November 18, 2020

"Down to its final weeks, the Trump administration is working to push through dozens of environmental rollbacks that could weaken century-old protections for migratory birds, expand Arctic drilling and hamstring future regulation of public health threats.

The pending changes, which benefit oil and gas and other industries, deepen the challenges for President-elect Joe Biden, who made restoring and advancing protections for the environment, climate and public health a core piece of his campaign."
Federal Water Rule Expected to Stay Murky Through Biden Term (2)
Bloomberg Law
November 20, 2020

"A Biden administration won’t be able to untangle the legal and regulatory “mess” under part of the Clean Water Act that determines which streams, wetlands and other waters get federal protection, legal scholars and litigators say.

Any move the Biden administration takes to clarify the definition of Waters of the United States, known as WOTUS, will continue the decades-long “merry-go-round” of administrative rule changes and litigation, said Larry Liebesman, a former Justice Department environmental lawyer who is now a senior adviser at the environmental and water permitting firm of Dawson & Associates.

A recent U.S. Supreme Court ruling failed to define WOTUS fully. And a bitterly divided Congress in 2021 is unlikely to make headway on the issue, particularly when congressional efforts to address Clean Water Act jurisdiction have failed in the past."
Trump Evisceration of Clean Water Act by Definition of Navigable Waters Argued
Courthouse News Service
November 18, 2020

"The U.S. Environmental Protection Agency asked the 10th Circuit to restore its narrow definition of water protected by the Clean Water Act, struck down at Colorado’s request by a federal judge.

In April, the EPA passed a final definition of water in an attempt to clarify which waters are protected by the Clean Water Act that would require federal permits for the “the discharge of any pollutant by any person.”

The previous rule defined the protected waters as “navigable waters.” The new definition specifies tributaries, lakes and wetlands among other categories, but in doing so cuts the number of federally protected waters in Colorado by half.

Colorado sued the Trump administration this past May. A month later, U.S. District Judge William J. Martinez, appointed by Barak Obama, granted the state a preliminary injunction.

In a remote hearing before a three-judge 10th Circuit panel, U.S. Attorney Jonathan Brightbill argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.

Senior U.S. Circuit judge Bobby Ray Baldock, appointed by Ronald Regan, drilled into the irreparable harm that Colorado would suffer if the panel reversed the stay on enforcing the new rule. 

“It appears to me that Colorado could correct this right quick by the Legislature adopting some provision that gives them permitted requirements to fill wetlands,” Baldock said. “Why should you get a preliminary injunction because of your own creation of this, because Colorado has no laws?”
Wetlands Legal Saga Reaches Ninth Circuit Again, a Decade Later
Bloomberg Law
November 19, 2020

"The EPA faced tough questioning as federal appeals judges weighed the latest phase in a long-running wetlands enforcement clash that once reached the U.S. Supreme Court.

The U.S. Court of Appeals for the Ninth Circuit is considering whether to reverse a lower court’s ruling last year that Chantell and Michael Sackett’s Idaho property contained wetlands protected by the Clean Water Act. The appeals court issued its first decision on related issues in the case a decade ago, only to have the Supreme Court reverse it.

The Environmental Protection Agency has since withdrawn the compliance order that prompted the original legal fight. The EPA says the case is now moot, but the Sacketts pressed the Ninth Circuit to keep their appeal on track so they can get clarity on whether they can build on their Idaho lot without a Clean Water Act permit."
High Court: DEQ Must Reevaluate Cabinet Mountains mine Pollution
KPAX
November 19, 2020

"The state of Montana will have to reassess the potential discharge from the proposed Montanore Mine before granting a permit allowing the mine to pollute the streams of the Cabinet Mountains, according to a court ruling.

After sorting through a bureaucratic jumble of water assessments, pollution permits and law that spanned three decades, the Montana Supreme Court backed a district judge’s ruling that the Department of Environmental Quality was wrong to use a 1992 state board decision to support subsequent pollution permits issued to two different companies."
Voight v. Coyote Creek Mining Co.

The Coyote Creek Mining Company constructed a lignite coal mine in North Dakota that became operational in 2016. The overall project consists of the open face mine connected by a several-mile private hauling road to a coal processing facility. Prior to processing, the coal is placed into an open storage pile with a capacity of 180,000 tons of raw coal and generally maintained at 130,000 to 145,000 tons. A retaining wall separates the storage pile and the processing plant, with an apron feeder located near the wall’s top to place coal into the processing facility for crushing. Coal is transferred from the storage area into the feeder by gravity or bulldozer. 
Historic Deal Reached to Remove 4 Massive Dams on Lower Klamath River
Oregon Live
November 17, 2020

"An agreement announced paves the way for the largest dam demolition in U.S. history, a project that promises to reopen hundreds of miles of waterway along the Oregon-California border to salmon that are critical to tribes but have dwindled to almost nothing in recent years.

If approved, the deal would revive plans to remove four massive hydroelectric dams on the lower Klamath River, creating the foundation for the most ambitious salmon restoration effort in history. The project on California’s second-largest river would be at the vanguard of a trend toward dam demolitions in the U.S. as the structures age and become less economically viable amid growing environmental concerns about the health of native fish."
ENERGY & MINERALS
Biden Vowed to Ban New Drilling on Public Lands. It Won't Be Easy
The Washington Post
November 19, 2020

"One of Joe Biden’s boldest campaign pledges was to ban “new oil and gas permitting on public lands and waters,” part of a sweeping agenda aimed at curbing greenhouse gases that are warming the planet and threatening life on Earth.

Transforming that promise into reality, however, will be tough.

The incoming administration will face several legal and political hurdles if it seeks to halt new oil and gas permits on federal land and waters, given existing laws and the enormous sums that drilling royalties generate for the federal and state governments — including Democratic-leaning states such as New Mexico and Colorado. But failure to do so is sure to become a flash point with environmental and youth activists within the Democratic Party, who helped elect him and have made climate a priority.

Meanwhile, the Trump administration, in a bid to help its allies in the oil and gas business before it leaves office, has embarked on an 11th-hour leasing spree to help those companies lock in rights to drill. It offered up 79 million acres of leases in the Gulf of Mexico, selling nearly 518,000 acres. And it is rushing to auction off rights to drill in the Arctic National Wildlife Refuge by Jan. 20, Inauguration Day."
FISH & WILDLIFE
Trump Administration Pushes Revised Sage Grouse Plans in Final Months
E&E News
November 19, 2020

"The Interior Department is sprinting to convince a federal judge to allow it to implement controversial greater sage grouse plan revisions before President Trump leaves office.

The Bureau of Land Management will publish in tomorrow's Federal Register six final supplemental environmental impact statements (EISs). The documents conclude that BLM used the best scientific information in finalizing the revisions to Obama-era protection plans covering millions of acres of sage grouse habitat in California, Colorado, Idaho, Nevada, Oregon, Utah and Wyoming.

The move is designed to correct problems that prompted Judge B. Lynn Winmill in the U.S. District Court for the District of Idaho to issue last year a preliminary injunction blocking BLM from implementing the revisions (Greenwire, Oct. 17, 2019)."
FEDERALISM
State Attorneys General Have Sued Trump's Administration 138 Times - Nearly Double Those of Obama and Bush
NBC News
November 16, 2020

“A review of litigation against federal agencies during the Trump administration shows that state attorneys general have filed 138 multistate lawsuits since he took office, according to data compiled by Paul Nolette, a political scientist at Marquette University in Milwaukee who studies the office of attorney general.

It's a sharp increase from Trump's predecessors, including Barack Obama, whose administration was sued 78 times during his two presidential terms, and George W. Bush, whose administration was sued 76 times during his two terms.
Meet the Republican AGs Who Could Fight Biden in Court
E&E News
November 18, 2020

"A new cast of Republican attorneys general are ready for their star turn if President-elect Joe Biden tries to make good on his ambitious environmental goals.

They will follow what's become a legal paradigm: attorneys general on one side of the political aisle challenging the environmental policies of a White House held by the opposing party.

The practice ramped up during the Obama administration, as red states challenged EPA's aggressive environmental and climate rules. The trend exploded during the Trump years, with blue states suing over a long list of EPA rollbacks.

After this year's elections, Republicans hold 26 state attorney general offices. And they are preparing to wield their power in court."
FEDERAL TRANSITIONS
Meet the Environmental Law Expert leading Biden's EPA Team
E&E News
November 19, 2020

"Patrice Simms, a prominent environmental lawyer, will help lay the foundation for President-elect Joe Biden's more aggressive regulatory approach at EPA.

Simms is the EPA agency review team's lead as part of the incoming administration's transition effort. Known for his environmental justice expertise, Simms has been a top Justice Department attorney, law professor and career EPA lawyer who has been unafraid to battle in court to fight pollution and protect the environment."
The Next DOE Secretary? 'This Is the Guy You Want'
E&E News
November 19, 2020

"Arun Majumdar is shaping up as the most influential energy adviser in President-elect Joe Biden's transition circle.

He is heading the Department of Energy's transition team and is a leading candidate to be its secretary, giving him a prime perch to guide Biden's energy policy. But who is he and what is his vision for the agency?

An immigrant from India who worked his way into the top echelons of universities, national labs and President Obama's Energy Department, Majumdar is recalled by former colleagues as a talented scientist and administrator who can explain complicated technical matters to a lay audience — and has the acumen to work across the aisle on Capitol Hill."
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 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.
Hardwick v. United States, ___ F. Supp. 3d ___, 2020 WL 6700466 (N.D. Cal. Nov. 13, 2020)1983 stipulated judgment required the Secretary of the Interior to take the Buena Vista Rancheria of the Me-Wuk Indians into trust.
U.S. v. Clark, ___ F.3d ___, 2020 WL 6733473 (10th Cir. Nov. 17, 2020)Where Defendant was convicted of felony child abuse or neglect under the Major Crimes Act that in turn incorporated the relevant Oklahoma statute, the district court properly concluded that no crime identified under the United States Sentencing Guidelines was sufficiently analogous to warrant application of such crime’s sentencing guideline but committed plain error by failing to explain the reasons for the sentence that it imposed.
Alaska Dep’t of Fish and Game v. Federal Subsistence Board, ___ F. Supp. 3d ___, 2020 WL 6786899 (D. Alaska Nov. 18, 2020)Alaska Department of Fish and Game was not entitled to a preliminary injunction for alleged violation of the federal Open Meetings Act, Title VIII of the Alaska National Interest Lands Conservation Act or the Administrative Procedure Act by the Federal Subsistence Board’s delegation of authority to the Organized Village of Kake to conduct an emergency hunt occasioned by the COVID-19 pandemic.
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
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 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.
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.