News & Updates from WAGLAC
October 12th, 2020
WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom

In response to COVID-19, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020.

TO REGISTER: email RSVP to Andrea Friedman at, then you will receive full login details.
In addition to the roundtable discussion of natural resource, environmental, and Indian law issues, there will be an Indian Law Seminar. Topics to be covered are:
  1. Larry Echo Hawk, Former United States Assistant Secretary of the Interior for Indian Affairs, Former Idaho Attorney General, and Former Shoshone-Bannock Tribal Attorney will share his Thoughts on State/Tribal Relations in the 21st Century;
  2. Adam Crepelle, Associate Professor, Southern University Law Center, and Managing Fellow of its Native American Law and Policy Institute, will discuss Tribes and Internet Payday Loans;
  3. Fronda Woods, Assistant Editor, American Indian Law Deskbook, will discuss Public Law 280: Fundamentals and Misconceptions;
  4. Clay Smith, Chief Editor, American Indian Law Deskbook, will discuss Tribal Adjudicatory Authority: Exhaustion, Deferral and the Merits; and 
  5.  Bruce Turcott, Managing Assistant Attorney General, and Michelle Carr, Assistant Attorney General, State of Washington will discuss Cannabis and Indian Country.
WAGLAC meetings are limited to CWAG Attorneys General and staff. Subject matter experts are encouraged to participate in the roundtable discussions. 
*Please note the meeting dates, times and duration have changed to accommodate participation by all CWAG member states. 

CWAG is pursing CLE credits for meeting.

The WAGLAC winter meeting will be held during the week of February 15, 2021. The decision on whether the meeting will be in person or virtual will be made later this fall in light of COVID-19 health and travel restrictions. The focus area will be water law.
Lawsuit Challenges DOJ SEP Policy
On October 8th, the Conservation Law Foundation filed a lawsuit in the United States District Court for the District of Massachusetts seeking to vacate the Department of Justice (DOJ) policy barring federal agencies from entering into settlements that allow defendants to fund supplemental environmental projects (SEPs) in lieu of payment of penalties. The DOJ rationale for the SEP policy is set forth in a memorandum, which states:
"The Miscellaneous Receipts Act, 31 U.S.C. § 3302, requires any federal officer receiving funds on behalf of the United States to deposit them in the Treasury. That allows Congress to decide how to appropriate those dollars under its constitutional authority. Civil penalties are "money for the Government" within the meaning of the Miscellaneous Receipts Act. Attempts in consent decrees and settlement agreements to divert cash from the Treasury to third parties have long been deemed improper and inconsistent with the Miscellaneous Receipts Act, absent authorization from Congress. In addition to and distinct from their inconsistency with the law, such practices also constitute improper policy, in that they allocate budgetary discretion to officials who are not specifically designated to make such decisions. Indeed, any payment to non-victim third parties required by a settlement, even without the reduction of penalties, raises concerns."
The Conservation Law Foundation complaint alleges that the DOJ “reading of the Miscellaneous Receipts Act is legally incorrect . . . and contrary to both the plain text of the Act and decades of Department of Justice interpretations . . ..” The Conservation Law Foundation alleges that SEPs are “entirely independent from monies paid” to the Treasury Department and that they actually further congressional goals of federal environmental statutes such as the Clean Water Act.
D.C. Circuit's Newest Judge Takes Aim at Obama Carbon Rule
E&E News
October 8, 2020

"After a round of technical questions on the Clean Power Plan this morning, President Trump's third appointee to the nation's top appeals court opened fire on the landmark Obama-era rule.

The line of questioning by U.S. Court of Appeals for the District of Columbia Circuit Judge Justin Walker came as the bench is in the process of hearing marathon virtual arguments over the Trump administration's decision to eliminate the Clean Power Plan (CPP) and replace it with the more limited Affordable Clean Energy (ACE) rule."
Solicitor’s Views Requested on Interstate CWA Case
The Supreme Court on October 5, 2020, requested the Solicitor General’s view on whether to take up Montana’s and Wyoming’s original action challenging Washington state’s denial of a key Clean Water Act (CWA) certification for a coal export terminal. As previously reported in the WAGLAC Newsletter, Montana and Wyoming are arguing that Washington’s denial of port access to ship coal violates the Constitution’s Dormant Commerce Clause and Foreign Commerce Clause. The January 27th Newsletter contains a link to the complaint. 

Washington state filed a brief arguing the case is meritless and should be dismissed because Montana and Wyoming lack standing.

Meanwhile, Lighthouse Resources Inc. and BNSF Railways Co. legal challenges to the denial of certification remain pending in state and federal courts. The U.S. Court of Appeals for the 9th Circuit heard oral argument October 8th on whether the U.S. District Court for the Western District of Washington properly placed the companies’ Commerce Clause challenges on hold until state court proceedings are resolve.
San Francisco Bay Salt Ponds Are Protected US Waters, Judge Rules
Courthouse News Service
October 5, 2020

"The U.S. Environmental Protection Agency misapplied the law and its own regulations when it determined last year that vast salt ponds slated for redevelopment south of San Francisco are exempt from Clean Water Act protections, a federal judge ruled.

The EPA said it relied on Ninth Circuit precedent to find the Redwood City Salt Ponds are not protected “waters of the United States,” but the agency also argued the case was “unique,” unprecedented and that the court should defer to its expertise.

In a 21-page ruling, U.S. District Judge William Alsup found those two arguments appeared to contradict each other."
Supreme Court Will Hear Georgia-Florida Water Rights Case This Term
The Atlanta Journal-Constitution, Georgia News
October 6, 2020

"The U.S. Supreme Court plans to hear Florida’s long-running water rights case against Georgia in the months ahead after the two states were unable to reach a compromise despite years of mediation.

A 7-year-old suit filed by Florida was included in a 67-page order justices released on the first day of their 2020-2021 term. The court did not set a date for oral arguments but said they would occur “in due course.”"
'Roller Coaster': Judge Axes Obama-Era Methane Rule
E&E News
October 9, 2020

"A federal judge last night found that the Bureau of Land Management under the Obama administration overstepped its authority with its efforts to regulate emissions of methane, a potent greenhouse gas, from oil and gas operations on federal and Indian lands.

The decision from the U.S. District Court for the District of Wyoming comes less than three months after a separate bench struck down the Trump administration's attempt to repeal the Obama-era methane rule, which sought to curb natural gas wasted through practices such as venting and flaring (Energywire, July 24)."
Canada's Supreme Court to Consider Whether Native Americans in U.S. Have Rights North of the Border
The Washington Post
October 7, 2020

"It was a frosty October morning when Richard Desautel aimed his Mauser 98 bolt-action rifle at a cow elk in the Arrow Lakes area of British Columbia, shot the animal dead and phoned wildlife conservation officers to report what he’d done.

That call, made a decade ago this month, set into motion a plan that was years in the making. Authorities charged Desautel, a U.S. citizen and member of the Lakes Tribe of the Colville Confederated Tribes in Washington state, with hunting without a license and hunting big game while not a resident of British Columbia.

It was what Desautel wanted. It gave him the opportunity to argue that he was exercising his right under Canada’s constitution to hunt for ceremonial purposes on the traditional land of his ancestors, the Sinixt, an Indigenous group that Canada declared extinct more than 60 years ago.

Now he’ll argue his case before Canada’s Supreme Court, in a proceeding that could have sweeping implications for Indigenous groups on both sides of the border. A victory could give more Native Americans in the United States the right to use their tribes’ traditional lands in Canada.

The main question before the justices is whether rights afforded to “aboriginal peoples of Canada” by the Constitution Act can extend to groups that don’t live in Canada. But for Desautel, who traveled to Ottawa for the hearing Thursday, it’s about something larger."
Attorney General Becerra Opposes Trump Administration Proposal to Exclude Critical Habitat from Endangered Species Act Protections
October 8, 2020

"California Attorney General Xavier Becerra, co-leading a multistate coalition with Maryland Attorney General Brian Frosh and Massachusetts Attorney General Maura Healey, filed a comment letter opposing the U.S. Fish and Wildlife Service’s (FWS) proposal to establish a new, unlawful process for excluding areas from critical habitat designations under the federal Endangered Species Act. If finalized, the proposal is likely to drastically reduce the areas protected as critical habitat, further endangering the conservation of our nation’s most imperiled species. In the comment letter, the coalition of 17 attorneys general argue that FWS’s proposal is contrary to the plain language of the Endangered Species Act and arbitrarily limits its ability to protect endangered or threatened species as required by the Act."
Long-Delayed Trump Administration Study Finds That Climate Change Threatens Polar Bears
The Washington Post
October 2, 2020

"After stalling for months, a top Trump official released a polar bear study by government scientists that highlights the endangered animals’ vulnerability to climate change and the fact that proposed oil drilling in Alaska would probably encroach on their habitat, causing more stress.

The Washington Post reported that U.S. Geological Survey Director James Reilly had taken the highly unusual step of delaying the new analysis of the population of polar bears living on the coast of the southern Beaufort Sea, despite the fact that it had been reviewed by independent researchers and approved by top agency scientists.

In response to the Post report, Reilly sent an email to his staff the next day, saying his decision to delay was justified because he wanted to be “satisfied” with its underlying science before making it public."
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.
United States v. Washington, ___ F. Supp. 3d ___, 2020 WL 5893377 (W.D. Wash. Oct. 5, 2020): Notwithstanding its likely success on the merits in connection with a fishing dispute with the Sauk-Suiattle Tribe, the Upper Skagit Indian Tribe failed to establish the irreparable harm requisite to entry of a temporary restraining order.
Anthony v. United States, ___ F. Supp. 3d ___, 2020 WL 5974583 (D. Ariz. Oct. 8, 2020)United States’ immunity from suit waived under the Federal Torts Claims Act with respect to claims by employees of a tribal hospital board operating under an Indian Self-Determination and Education Assistance Act contract.
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.