News & Updates from WAGLAC
September 13, 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.
The WAGLAC Winter meeting will be held in San Diego, CA on February 20 - 22, 2022. Meeting details to follow.
ENVIRONMENT
Epic Battle Looms As EPA Prepares To Revive Air Toxics Rule
E&E News
September 10, 2021

"Last year, attorney Robert Cheren was representing a coal company seeking to void EPA’s limits on releases of mercury and other toxic air pollutants from coal-fired power plants.

Now employed by the West Virginia attorney general’s office, Cheren was first in line to formally weigh in with the Biden White House regulations office on an EPA proposal likely aimed at restoring the legal footing for those landmark regulations, records show.

In what resembles a film run backwards, he’s among the players returning to the fray engulfing a particularly contested Trump administration rollback: the scrapping last year of the statutorily required determination that it is “appropriate and necessary” to regulate hazardous power plant emissions.

Under a fast-track timetable set as soon as President Biden took office, EPA is now moving forward with a draft rule expected to reinstate that determination."
EPA Announces Plans for New Wastewater Regulations, Including First Limits for PFAS, Updated Limits for Nutrients
United States Environmental Protection Agency
September 8, 2021

"[...Wednesday] the U.S. Environmental Protection Agency (EPA) released Preliminary Effluent Guidelines Program Plan 15(Preliminary Plan 15), which identifies opportunities to better protect public health and the environment through regulation of wastewater pollution. Preliminary Plan 15 announces that EPA will undertake three new rulemakings to reduce contaminants including PFAS and nutrients—from key industries. 

“To protect drinking water supplies, recreational waters, and aquatic ecosystems, it is essential that we utilize the latest scientific and technological breakthroughs in wastewater treatment,” said Assistant Administrator for Water Radhika Fox. “This plan illustrates one way that EPA is following science to better protect public health and the environment. Importantly and for the first time, EPA is committing to limit PFAS in wastewater discharges.”
EPA To Protect Alaska’s Bristol Bay, Blocking Major Gold Mine
The Washington Post
September 9, 2021

"The Environmental Protection Agency said Thursday that it would restore protections for Alaska’s Bristol Bay, blocking the construction of a massive and controversial gold mine near the world’s largest sockeye salmon run.

The policy shift, indicated in a court filing Thursday in response to a lawsuit filed by the mine’s opponents, deals a serious blow to a project that has been in the works for more than a decade and would have transformed southwest Alaska’s landscape.
ENERGY AND MINING
Judge Deals Blow To Obama Fossil Fuel Royalty Rule
Energy Wire
September 9, 2021

"A federal judge [...] struck down Obama-era regulations on royalty valuations for coal mined from public lands but kept parts of the rule related to oil and gas payments.

The 2016 rule by the Interior Department’s Office of Natural Resources Revenue aimed to rein in mining companies’ practice of selling coal at a discounted rate to their own subsidiaries, deflating the royalty fees owed to taxpayers for developing publicly owned fossil fuels.

The rule placed the royalty valuation on the first "arm’s length" sale of coal, or when the mining company sells it to an unaffiliated organization."
WATER LAW
Colorado/Anti-Speculation Law
Water Resources/Water Rights
September 3, 2021

"On August 13, the Interim Water Resources Review Committee of the Colorado General Assembly received a work group report intended to Explore Ways to Strengthen Current Water Anti-Speculation Law (as required by Colo. Rev. Stat. § 37-98-103). The work group included 22 members with diverse perspectives including people affiliated with the agricultural community, environmental and recreational interests, and municipal water providers, as well as attorneys with a variety of backgrounds in water law. In addition, it included members of the State Engineer's Office, Colorado Water Conservation Board, Attorney General’s Office, and the Judicial Department."
Federal Judge Blocks Ban On Water Deliveries For Asian Pot Farmers In Northern California
The Sacramento Bee
September 7, 2021

"A federal judge has blocked a Northern California county’s ban on trucks delivering water to Hmong cannabis farmers, saying it raises “serious questions” about racial discrimination and leaves the growers without a source of water for basic sanitation, vegetable gardens and livestock.

On Friday, Chief U.S. District Judge Kimberly J. Mueller issued a temporary injunction against Siskiyou County’s prohibition on trucked-in water deliveries to Hmong farmers growing marijuana in the Mount Shasta Vista subdivision in the Big Springs area north of Weed."
Recreational Cannabis Industry Sparks Struggle For Water Rights In Parched New Mexico
NM Political Report
September 10, 2021

"When New Mexico’s recreational cannabis bill was signed into law in April, Mike Hinkle and Ryan Timmermans jumped at the chance to get into the industry. The two business partners, both recent transplants from the South, bought portable buildings, seeds, grow lights and a property in the village of Carson, with a domestic well they thought they could use to irrigate their plants. In total, they invested more than $50,000."
FISH & WILDLIFE
BLM To Reconsider Sage Grouse Plans This Fall
E&E News
September 8, 2021

"The Interior Department this fall intends to formally reopen sweeping Obama-era greater sage grouse management plans that have become the focus of intense political fights and court battles in Western states. 

In a new status report filed this week in the U.S. District Court for the District of Idaho, the Justice Department reported that the Bureau of Land Management within the next 60 days will reopen the plans originally approved by the Obama administration in 2015 and later revised by the Trump administration in 2019."
TRIBAL LAW
Indian Child Welfare Act
Petitions for writ of certiorari filed by both sides from Fifth Circuit Brackeen decision

The United States, four Tribes led by the Cherokee Nation, the State of Texas, and the individual plaintiffs filed petitions for writ of certiorari on September 3, 2021 seeking review of the Fifth Circuit’s closely-divided en banc opinion in Brackeen v. Haaland, 994 F.3d 249 (2021). In complex and multi-pronged constitutional challenges to various provisions of the Indian Child Welfare Act and Administrative Procedure Act-based challenges to regulations issued by the Secretary of the Interior to implement ICWA, the court of appeals affirmed in part, reversed in part, and affirmed in part by an equally divided court without a precedential opinion a district court judgment that had accepted most of the challenges. Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). 
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 Andrea Friedman with any questions.
Minnesota Dep’t of Natural Resources v. White Earth Band of Ojibwe, ___ F. Supp. 3d ___, 2021 WL 4034582 (D. Minn. Sept. 3, 2021)State agency’s motion for preliminary injunction against maintenance of a tribal court suit was denied on the basis of the tribal defendants’ immunity from suit, and the federal action was dismissed without prejudice sua sponte.
In Matter of D.A., ___ P.3d ___, 2021 WL 4097154 (Or. Ct. App. Sept. 9, 2021)Juvenile court’s order changing the permanency plans for three Indian children from reunification to a durable guardianship with a maternal relative residing in Texas did not violate ICWA’s requirement that in a foster care proceeding an Indian child must be placed within reasonable proximity to his or her home.
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.