News & Updates from WAGLAC
November 30th, 2020
AGA/CWAG Thomson Reuters’ Indian Law Webinar

The AGA/CWAG-sponsored annual Thomson Reuters Indian Law webinar will be on Monday, December 7, 2020 beginning at 11:00 am CT and ending at 12:30 pm CT, moderated by TIm Fox, Montana Attorney General.

The program covers two distinct but important Indian law topics: Public Law 280 jurisdiction (Fronda Woods) and tribal internet loan activity (Adam Crepelle). Few federal Indian law statutes have produced more controversy than Public Law 280. Now approaching its seventieth year, this statute continues to confound courts and practitioners in both criminal and civil contexts and to provoke debate over its efficacy. The entry into the online lending space by Indian tribes is a more recent phenomenon but has generated no less complex litigation over tribal sovereign immunity, forum selection, arbitration and consumer protection issues.

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
Trump Admin Aligns With Big Oil in Climate Fight
E&E News
November 25, 2020

"The federal government this week threw its weight behind oil companies fighting to end a major legal battle over climate liability.

Energy trade groups, legal organizations and the Trump administration filed a flurry of Supreme Court briefs in support of fossil fuel firms embroiled in a highly technical dispute that could pack a punch for a slew of climate damages cases across the country.

Government attorneys asked the high court to rule in favor of BP PLC, Exxon Mobil Corp. and other companies that say a climate lawsuit filed by Baltimore officials should be fully reexamined by a federal appeals court and moved to a federal venue, where it may face a greater chance of dismissal.

'In cases like this one, where defendants have advanced multiple plausible grounds for removal and the court of appeals plainly has jurisdiction over a remand order, there is no reason to blinker the court's field of view,' the Justice Department wrote in its friend of the court brief."
Attorney General Becerra Files Motion for Summary Judgment in Lawsuit Challenging Trump Administration Assault on Clean Water Act Protections
November 23, 2020

"California Attorney General Xavier Becerra and New York Attorney General Letitia James, leading a multistate coalition, filed a motion for summary judgment in their lawsuit challenging the Trump Administration’s unlawful final rule redefining “waters of the United States” under the Clean Water Act. Under the new rule, more than half of all wetlands and at least 18 percent of all streams are left without federal protections. Western states like California are even harder hit, with 35 percent of all streams deprived of federal protections as a result of the region’s dry climate. In the filing, the coalition argues that the rule is arbitrary and capricious, contrary to the text and primary objective of the Clean Water Act, and should be vacated."
Attorney General Becerra Adds Endangered Species Act Claim to Lawsuit Challenging Trump Administration's Revisions to the National Environmental Policy Act
November 23, 2020

"California Attorney General Xavier Becerra and Washington Attorney General Bob Ferguson, leading a multistate coalition, amended their complaint challenging the Trump Administration’s unlawful revised regulations implementing the National Environmental Policy Act (NEPA) to allege the regulations also violated the federal Endangered Species Act (ESA). On July 15, 2020, the Trump Administration’s Council on Environmental Quality announced a final rule upending NEPA's requirement that federal agencies comprehensively evaluate the impacts of their actions on the environment and public health. Shortly after, the coalition filed a lawsuit arguing that the rule abandoned informed decision making, public participation, and environmental and public health protections in violation of the Administrative Procedure Act and NEPA. The coalition argues that the Trump Administration also violated the ESA by failing to consult with federal wildlife agencies to assess impacts to listed species during the rulemaking process.  "
Final Actions: Financial Responsibility Requirements Under CERCLA Section 108(b) for the Electric Power Generation, Transmission and Distribution; Petroleum and Coal Products Manufacturing; and Chemical Manufacturing Industries
The Environmental Protection Agency
November 24, 2020

"On November 24, 2020, the EPA Administrator signed final rulemaking actions to not impose financial responsibility requirements for the following classes:

  • Electric Power Generation, Transmission, and Distribution industry.
  • Petroleum and Coal Products Manufacturing industry.
  • Chemical Manufacturing industry

Consistent with EPA's interpretation of the statute, which was unanimously upheld by the D.C. Circuit Court of Appeals in litigation challenging the Agency's hardrock mining final action, EPA evaluated the financial risk to the federal Superfund associated with the production, transportation, treatment, storage, or disposal of hazardous substances in these industries. EPA has found that the degree and duration of risk to the Superfund posed by these industries does not warrant financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund), as modern industry practices and existing federal and state regulations are effective at preventing risk. As required by CERCLA Section 108(b), EPA assessed the need for financial responsibility requirements for these three industries. These final rules are based on EPA's interpretation of the statute and its analysis of the record developed for the proposed rulemakings for all three of these industries, and the public comments received by EPA on each proposed rule, which are described in the Federal Resister notice."
Biden Names John Kerry As Presidential Climate Envoy
The Washington Post
November 23, 2020

"John F. Kerry, a former secretary of state, senator and Democratic presidential nominee, will lead the country’s reentry into global climate politics in a new role that will elevate climate change as a priority of President-elect Joe Biden.

As the presidential envoy for climate, Kerry will report directly to Biden as part the White House’s National Security Council, underscoring how the incoming administration views the warming planet as an issue with implications for both national defense and foreign policy."
Army Corps Denies Permit for Massive Gold Mine Proposed Near Bristol Bay in Alaska
The Washington Post
November 25, 2020

"The Trump administration denied a key permit for a massive gold and copper mine in Alaska, striking a devastating blow to a project opposed by an unlikely coalition that includes the president’s son and other prominent Republicans, as well as conservationists, commercial fishermen and Alaska Natives.

In a statement, U.S. Army Corps of Engineers Alaska Commander Col. Damon Delarosa said that a plan to deal with waste from the Pebble Mine “does not comply with Clean Water Act guidelines,” and that “the proposed project is contrary to the public interest.”

While the Trump administration has pressed ahead to weaken environmental protections and expand energy development before the president’s term ends in January, the decision to torpedo the long-disputed mine represents a major win for environmentalists, fishing enthusiasts and tribal rights."
E.P.A.’s Final Deregulatory Rush Runs Into Open Staff Resistance
The New York Times
November 27, 2020

"President Trump’s Environmental Protection Agency was rushing to complete one of its last regulatory priorities, aiming to obstruct the creation of air- and water-pollution controls far into the future, when a senior career scientist moved to hobble it.

Thomas Sinks directed the E.P.A.’s science advisory office and later managed the agency’s rules and data around research that involved people. Before his retirement in September, he decided to issue a blistering official opinion that the pending rule — which would require the agency to ignore or downgrade any medical research that does not expose its raw data — will compromise American public health."
Judge Voids Permits for Columbia River Methanol Plant
E&E News
November 24, 2020

"A judge voided permits needed for a massive methanol plant on the Columbia River in southwestern Washington state, agreeing with conservation groups that the project needs a more thorough environmental review.

The Army Corps of Engineers had granted the permits for the construction of an export facility that is part of a $2 billion NW Innovation Works plant proposed in Kalama, Wash. The plant would take natural gas from Canada and convert it into methanol, which would be shipped to China to make olefins — compounds used in everything from fabrics and contact lenses to iPhones and medical equipment.

Conservation groups including Columbia Riverkeeper, the Sierra Club and the Washington Environmental Council challenged the permits in U.S. District Court in Tacoma, Wash., saying the Army Corps conducted only a summary review that failed to account for the project's full environmental effects.

U.S. District Judge Robert Bryan in Tacoma agreed, ordering the agency to conduct a full environmental impact statement as required by federal law. He also told the Army Corps to assess whether the project is in the public interest, but he rejected their argument that further review was needed under the Endangered Species Act."
Colorado passes Landmark Flaring Ban, Sets Up Permian Fight
E&E News
November 24, 2020

"Colorado oil and gas regulators barred most gas flaring and venting and established the nation's most stringent setback requirements for drilling near homes and schools.

It was a landmark rule and a win for environmental groups, and advocates for Colorado's approach to regulating the industry hope to make similar inroads in Texas and New Mexico, where natural gas flaring is a major challenge.

Colorado's rules were set in motion by S.B. 181, which the Legislature passed and Gov. Jared Polis (D) signed in 2019. The law requires the Colorado Oil and Gas Conservation Commission to prioritize public health and safety, instead of balancing those concerns against the need to produce oil and gas.

In addition to restrictions ending routine flaring and venting, the COGCC voted 5-0 to approve a 2,000-foot setback between newly drilled wells and surrounding homes, and separate rules providing setbacks from water bodies and wildlife habitat."
Judges Grill Oregon Ranchers on Tribal Rights
E&E News
November 24, 2020

"Federal judges questioned Oregon ranchers' claims that the process for local tribes to exercise their water rights is threatening agriculture and lacks any "political accountability."

The complicated case at the U.S. Court of Appeals for the District of Columbia Circuit concerns a long-running dispute between tribes in southern Oregon and irrigators over water that is in increasingly short supply.

The ranchers have run into legal hurdles, however. A lower court dismissed their lawsuit, arguing that the ranchers lacked standing to sue because their injury was unclear."
Judge Rules Idaho Can Create Management Area to Maintain Eastern Snake Plain Aquifer Groundwater
Idaho State Journal
November 23, 2020

"A district judge has ruled the Idaho Department of Water Resources can forge ahead with creating a large groundwater management area to prevent water users from mining the Eastern Snake Plain Aquifer. 

The Nov. 6 ruling by Fifth District Judge Eric Wildman, who handles the state's water rights cases, also affirms the department has the right to create other groundwater management areas and to continue operating several that already exist. 

A groundwater management area is a designation afforded under state statute for aquifers in which groundwater levels are becoming insufficient to meet the needs of existing groundwater rights. Affected water users must agree upon management plans with special requirements intended to reverse the declines."
Idaho Files Petition to Launch Bear River Basin Adjudication
Idaho Department of Water Resources
November 24, 2020

"The State of Idaho filed a petition on Nov. 20 requesting the 5th District Court to commence the Bear River Basin Adjudication, a legal process in which a court reviews and confirms all existing water rights in the Bear River Basin, the Malad River Valley and the Curlew Valley.

A water rights adjudication allows older undocumented water rights to be documented, reaffirms existing permits and licenses, removes unused water rights from water right records, and helps the state and its residents manage Idaho’s water resources, officials with the Idaho Department of Water Resources said.

The Bear River follows an arch-shaped course from Utah, into Wyoming and Idaho, and then back into Utah, terminating in the Great Salt Lake. It enters Idaho from Wyoming, supplying water to Mud Lake and Bear Lake, then flows north past Montpelier, Georgetown and Soda Springs, then south past Grace and Preston, and flows into Utah near the town of Cornish."
Trump Officials Move to Relax Rules on Killing Birds
The Washington Post
November 27, 2020

"A rule change easing companies’ liability for killing birds would not cause unacceptable environmental harm, the Trump administration said in an analysis published recently, clearing the way for it to finalize a major rollback before the president’s term ends on Jan. 20.

The administration, which is racing to lock in a series of regulatory changes before President-elect Joe Biden takes office, can now publish a final rule modifying the U.S. Fish and Wildlife Service’s interpretation of the 1918 Migratory Bird Treaty Act,

The act prohibits unauthorized “take” of protected bird species — regulatory-speak for hunting, killing, capturing, selling or otherwise hurting the animals. For three years, officials at the Interior Department have sought to exclude accidental deaths from the “take” definition, shielding energy companies, construction firms and land developers from prosecution if their operations “incidentally” kill birds."
Arizona Supreme Court Rejects Attorney General's Attempt to Expand Power
AZ Central
November 25, 2020

“The Arizona Attorney General filed a lawsuit against the Arizona Board of Regents (“ABOR” or the “Board”) alleging that (1) its tuition setting policies violate article 11, section 6 of the Arizona Constitution and (2) subsidizing in-state tuition for students who are not “lawfully present” constitutes an unlawful expenditure of public funds. The trial court dismissed the action, holding that the Attorney General lacked constitutional or statutory authority to litigate it, and the court of appeals affirmed. We agree with those courts that the Attorney General is not authorized to proceed with the first set of claims, but we hold that the trial court erred by granting the motion to dismiss the latter challenge.”
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.
Williams v. Big Picture Loans, LLC, ___ F. Supp. 3d ___, 2020 WL 6784352 (E.D. Va. Nov. 18, 2020)Non-tribal defendant misrepresented various facts concerning operation of a payday loan enterprise, and although the misrepresentations would not affect a court of appeals’ determination that the tribal defendants were entitled to dismissal on immunity-from-suit grounds, they would be taken into account in resolving future motions.
Kansas v. U.S. Dep’t of Interior, ___ F. Supp. 3d ___, 2020 WL 6868776 (D. Kan. Nov. 23, 2020)Kansas and other governmental entities denied a preliminary injunction with respect to the operation of a class II gaming facility on trust land purchased with funds provided under a 1984 statute resolving a claim over 18th and 19th century land cessions.
Navajo Nation v. U.S. Dep’t of Interior, ___ F. Supp. 3d ___, 2020 WL 6869449 (D. Ariz. Nov. 23, 2020)Navajo Nation and its tribally owned enterprise failed to establish Article III standing with respect to a claim that the Bureau of Indian Affairs allegedly failed to provide the written notice required under 25 C.F.R. § 151.12(d)(2)(ii)(A) in a decision letter taking land into trust for the Hopi Tribe.
Oneida Indian Nation v. Phillips, ___ F.3d ___, 2020 WL 6878441 (2d Cir. Nov. 24, 2020)Tribal member’s claim to ownership in trust of a 19.4-acre parcel on the Oneida Reservation properly rejected by the district court on the merits and on immunity-from-suit grounds.
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
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.