News & Updates from WAGLAC
October 4, 2021
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.
Please click registration link below to register.
The WAGLAC Winter meeting will be held in San Diego, CA on February 20 - 22, 2022. Meeting details to follow.
California River Watch sued the City of Vacaville under the Resource and Conservation Recovery Act claiming the city’s wells were contaminated by a hexavalent chromium, which was transported to residents through the city’s water distribution system. The district court granted summary judgment in favor of Vacaville finding that hexavalent chromium was not a solid waste under RCRA. The Ninth Circuit “panel held that River Watch created a triable issue on whether the hexavalent chromium was ‘discarded material’ by presenting evidence that when the hexavalent chromium was discharged into the environment after the wood treatment process, it was not serving its intended use as a preservative, and it was not the result of natural wear and tear. Instead, the hexavalent chromium was leftover waste, abandoned and cast aside by the facilities’ operators."
Federal Court Lacked Jurisdiction Over Suit Alleging Multiple Claims Under Hawaii Law Against Operator of Military Housing Project
“Military servicemember families sued Ohana Military Communities, LLC, and Forest City Residential Management, Inc., in Hawaii state court, alleging state law claims based on defendants’ failure to provide residential tenants with notice of pesticide contamination and remediation efforts on Marine Corps Base Hawaii. Defendants removed the action to federal court based on federal jurisdiction. 

The panel held that federal jurisdiction did not exist because, first, under the Hawaii Admission Act, the State of Hawaii had concurrent legislative or political jurisdiction over Marine Corps Base Hawaii, and so state law had not been assimilated into federal law. Second, the panel rejected a rule that, regardless of any concurrent state jurisdiction, federal jurisdiction exists where federally owned or controlled land is involved, and a substantial federal interest exists. Third, the panel held that there was no federal officer or agency jurisdiction because there was no causal nexus between the Navy and Ohana under 28 U.S.C. § 1442, and Ohana was not a federal agency for purposes of federal jurisdiction. Finally, under the Gunn test, no federal issue was “necessarily raised.”
Anderson Confirmed As Solicitor of Interior 
E&E News, Michael Doyle
September 30, 2021
Last week, the Senate confirmed Robert Anderson as Solicitor of Interior on a 53-44 vote. Prior to becoming Solicitor of Interior, Anderson was a law professor at the University of Washington and directed its Native American Law Center. Anderson also taught classes at Harvard Law School as the Oneida Nation Law visiting professor for the past twelve years.
EPA tossed Trump-era memo that cuffed watchdog
E&E News, Greenwire
September 27, 2021

“EPA withdrew a controversial memo drafted during the Trump administration that had diminished its internal watchdog and stemmed from a high-profile tussle with the agency’s former chief of staff.

The move is seen as an attempt to bolster the authority of the inspector general. Administrator Michael Regan has also urged staff to provide "full cooperation" with EPA’s Office of Inspector General.

Pulling back the memo could also help repair relations between EPA and the inspector general’s office. The two often battled over access to documents and personnel when investigations into Trump political appointees at the agency grew intense and exploded into public view.
In term-opener, justices will hear Mississippi’s complaint that Tennessee is stealing its groundwater
Robin Craig, Scotus Blog
October 1, 2021
The first case on the Supreme Court’s 2021-22 term oral argument schedule is Mississippi v. Tennessee.  The primary issue in this original action is whether the equitable apportionment doctrine used to resolve interstate surface water disputes applies to groundwater. Mississippi is arguing that the equitable apportionment rules used by the Supreme Court to resolve interstate water disputes should not apply to groundwater. Robin Craig concludes in a Scotus Blog article that “The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades — or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action.”

Department of Interior Reverses Trump Administration Migratory Bird Rule 
Maxine Joselow, New York Times 
September 29, 2021
The Department of Interior “finalized a rule Wednesday revoking a Trump administration policy that eased penalties for killing birds, restoring federal protections that had been in place for a century.

The Trump administration’s reinterpretation of the 1918 Migratory Bird Treaty Act ranked as one of its most contentious wildlife policies. It relaxed legal penalties for energy companies, construction firms and land developers that unintentionally killed birds through activities such as construction and oil drilling.

The new U.S. Fish and Wildlife Service rule would restore protections under the bedrock environmental law, which prohibits the “take” of migratory bird species — regulatory-speak for hunting, killing, capturing, selling or otherwise hurting them. Under President Donald Trump, officials had sought to exclude accidental deaths from the “take” definition, a move backed by the oil and gas industry.” 
Environmentalists Seek to Eliminate States’ Funding Over Hunting Laws 
Global Indigenous Council and approximately two dozen other groups petitioned the US Department of Fish and Wildlife Service to deny federal funding to states that “excessively” target wolves and other predator species.  The petition is targeted at stopping the use of conservation funds to support controversial “predator control programs . . . specifically designed to artificially suppress predator populations and to increase prey populations beyond natural levels.”
U.S. Fish and Wildlife Service Proposes Delisting 23 Species from Endangered Species Act Due to Extinction

“The U.S. Fish and Wildlife Service is proposing to remove 23 species from the Endangered Species Act (ESA) due to extinction. Based on rigorous reviews of the best available science for each of these species, the Service has determined these species are extinct, and thus no longer require listing under the ESA.”
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.
In Matter of D.J., 2021-NCSC-105, ___ S.E.2d ___ (N.C. Sept. 24, 2021): District court‘s post-parental rights termination compliance with the notice requirements under 25 U.S.C. § 1912(a), although belated, was permissible.
Albrecht v. County of Riverside, ___ Cal. Rptr. ___, 2021 WL 4099572 (Ct. App. 4th Dist. Aug. 13, 2021): Preemption challenge to possessory interest and voter-approved taxes on leaseholds of lands held in trust was rejected.
In Interest of K.B., 2021 ND 106, 961 N.W.2d 293 (2021), after remand, 2021 ND 163, ___ N.W.2d ___ (Sept. 9, 2021): Parental-rights-termination proceeding was remanded for the juvenile court to make detailed findings, as required by the Indian Child Welfare Act, that a mother’s continued custody of two Indian children would likely result, beyond a reasonable doubt, in their serious emotional or physical harm. On further appeal following the remand decision, the juvenile court’s determination that insufficient evidence existed to terminate parental rights was affirmed.
Findleton v. Coyote Valley Band of Pomo Indians, ___ Cal. Rptr. 3d ___, 2021 WL 4452323 (Ct. App. 1st Dist. Sept. 29, 2021): Tribe’s appeals from various superior court orders were dismissed without prejudice under the disentitlement doctrine because of its repeated and continuing disobedience of the superior court’s orders and its obstruction of efforts to enforce them.
Sifferman v. Chelan County, ___ P.3d ___, 2021 WL 4436230 (Wash. Ct. App. Div. 2 Sept. 28, 2021): Real estate excise tax imposed on land-and-improvements transfers between nonmembers pursuant to subleases of lands allotted under an 1884 agreement was not preempted.

Flandreau Santee Sioux Tribe v. United States, ___ F. Supp. 3d ___, 2021 WL 4482602 (D.V.D. Sept. 30, 2021): Tribe’s claims for unpaid sums due under ISDEAA contracts with the Indian Health Service were jurisdictionally barred in part for failure to comply with, inter alia, the sum-certain certification requirements in the Contract Disputes Act.
AG Alliance Cannabis Newsletter

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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.
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.