News & Updates from WAGLAC
October 11, 2021
UPCOMING WAGLAC MEETINGS
In light of the recent increase in COVID numbers, the October 11th and 12th WAGLAC meeting will be a virtual meeting. An updated calendar invite and Zoom will be sent to those registering for the meeting. The meeting will feature an Endangered Species Seminar keynoted by Idaho Congressman Mike Simpson. See attached agenda for more details.
Click the registration link below to register!
The WAGLAC Winter meeting will be held in San Diego, California this coming year on February 20 - 22, 2022. Meeting details to follow.
PUBLIC LANDS
PRESIDENT BIDEN RESTORES BEARS EARS AND GRAND STAIRS-ESCALANTE NATIONAL MONUMENT

On October 8th President Biden issued a proclamation restoring the boundaries of the Bears Ears and Grand-Escalante National Monuments as previously established by President Clinton and President Obama. “In a move denounced as “unilateral” and as a “midnight” order, President Barack Obama had designated Bears Ears National Monument on 1.35 million acres in San Juan County as he was leaving office in 2016 at the request of five tribes with ancestral ties to these lands. The decision came after Utah leaders failed to propose a conservation plan.”  In response to strong opposition from Utah and development interests, President Trump issued Proclamation 9682 on December 4, 2017, reducing the monuments by over 860,000 acres, which resulted in multiple lawsuits asserting President Trump exceeded his authority under the Antiquities Act.

President Biden’s proclamation states:

“Restoring the Grand Staircase-Escalante National Monument to its size and boundaries as they existed prior to December 4, 2017, will ensure that this exceptional and inimitable landscape filled with an unparalleled diversity of resources will be properly protected and will continue to provide the living laboratory that has produced so many dramatic discoveries in the first quarter-century of its existence. Given the unique nature of the objects identified across the Grand Staircase-Escalante landscape, the threat of damage and destruction to those objects, and the current inadequate protection they are afforded, a reservation of this size is the smallest area compatible with the proper care and management of the objects of historic and scientific interest named in this proclamation and Proclamation 6920.”

“President Biden’s decision to expand the monuments is disappointing, though not surprising. For the past 10 months, we have consistently offered to work with the Biden Administration on a permanent, legislative solution, one that would end the perpetual enlarging and shrinking of these monuments and bring certainty to their management,” read a joint statement issued by Gov. Spencer J. Cox, Lt. Gov. Deidre Henderson, Attorney General Sean Reyes, Senate President J. Stuart Adams, R-Layton, and House Speaker Brad Wilson, R-Kaysville. “Our goal has been to make lasting progress on managing our public lands for the benefit of all those who use them, particularly those who live on and near those lands.”
ENVIRONMENTAL LAW
CEQ TO REVERSE NEPA RULES
 
“The Council on Environmental Quality (CEQ) is proposing to modify certain aspects of its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA) to generally restore regulatory provisions that were in effect for decades before being modified in 2020. CEQ proposes these changes in order to better align the provisions with CEQ’s extensive experience implementing NEPA, in particular its perspective on how NEPA can best inform agency decision making, as well as longstanding Federal agency experience and practice, NEPA’s statutory text and purpose, including making decisions informed by science, and case law interpreting NEPA’s requirements. The proposed rule would restore provisions addressing the purpose and need of a proposed action, agency NEPA procedures for implementing CEQ’s NEPA regulations, and the definition of “effects.” CEQ invites comments on the proposed revisions”
NINTH CIRCUIT PANEL AFFIRMS EPA LESS STRINGENT STANDARDS FOR WASTEWATER TREATMENT PLANTS IN MONTANA
 
The US Ninth Circuit Court of Appeals held that EPA did not violate the Clean Water Act when it gave deference to EPA’s CWA regulations authorizing consideration of compliance costs when approving water quality standards and variance requests for wastewater treatment plants in Montana. Montana requested a variance in 2017 for a term up to 17 years with respect to discharge of nitrogen and phosphorus from 36 water municipal water treatment facilities. The State demonstrated that the cost of technology necessary to achieve compliance with base water quality standards would have a substantial, widespread economic and social impact on surrounding communities. Upper Missouri Waterkeeper challenged the variance arguing principally “that the Clean Water Act prohibits the EPA from considering compliance costs when granting variance requests.” A unanimous Ninth Circuit panel held EPA correctly interpreted the CWA when it approved Montana's variance request.
WSWC CALLS FOR ROBUST CONSULTATION ON WOTUS RULE
Western States Water Council 
October 4, 2021
 
“On October 4, the WSWC sent a letter to the EPA and Army (Civil Works) expressing the need for more robust and ongoing consultation with states on the development of a new rule defining the jurisdictional scope of “waters of the United States.”

The letter said: “The WSWC urges the agencies to provide opportunities for a representative number of states across different regions with diverse perspectives to actively engage in the rule development process with the agencies, to provide direct and effective feedback on the implementability of concepts or language that might be considered in a proposed rule. A one-size-fits-all national approach does not recognize specific conditions and needs in the West, where water can be scarce and a variety of unique waterbodies exist. A rule that is more regional in nature, or that allows flexibility in implementation, appears more appropriate. As co-regulators, the states would like to work together with the agencies to develop and implement a rule that seeks to strike a balance between the critical importance of protecting the quality of the nation’s waters and preserving the sovereignty of states over their land and water resources.”

The letter also noted the importance of (1) ongoing technical and financial assistance to states under existing programs “to address point and non-point source pollution through state regulatory and voluntary programs tailored to fit unique state needs”; (2) joint federal-state efforts to develop geospatial datasets for mapping jurisdictional waters, including the identification of the most up-to-date data and tools, as well as funding for field verification of map accuracy and ongoing map maintenance; (3) involving states in the rulemaking process to help end regulatory whiplash; and (4) establishing a clear process for resolving differences of opinion over federal and non-federal jurisdiction, as well as jurisdictional disputes between different states and tribes.”
WATER
JUSTICES THROW COLD WATER ON MISSISSIPPI’S CLAIM TO GROUNDWATER
Robin Craig, SCOTUS BLOG
October 6, 2021
 
“The first oral argument of the Supreme Court’s new term, Mississippi v. Tennessee, dealt with Mississippi’s claim that Memphis, Tennessee, is stealing Mississippi’s groundwater. The justices seemed skeptical of Mississippi’s claims — but they also displayed considerable concern about the potential breadth of the “equitable apportionment” doctrine and the court’s potential increasing involvement in future interstate disputes over natural resources.” Justice Kavanaugh cited to the amici brief of Colorado, Idaho, Nebraska, North Carolina, North Dakota, Oregon, South Dakota, and Wyoming for the disruptive effect of Mississippi’s proposed rule.
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.

Editions of the Deskbook are published annually by Thomson Reuters, and the 2021 Edition was issued during the week of July 19, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category and in hard copy.

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 Patricia Salazar with any questions.
Mattwaoshshe v. United States, ___ F. Supp. 3d ___, 2021 WL 3633695 (D.D.C. Aug. 17, 2021): Tribal member was not entitled to mandamus relief requiring the Department of Justice to represent him and his tribe in a challenge to the construction of a wind generation project.
Johnson v. Benton, ___ So. 3d ___, 2021 WL 4566494 (Miss. Ct. App. Oct. 5, 2021): Trial court properly granted contempt motion based on trespass and, in so doing, found that the contemnor had not established that he was an Indian or that the trespass occurred within Indian country.
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.