News & Updates from WAGLAC
September 20, 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.
The WAGLAC Winter meeting will be held in San Diego, CA on February 20 - 22, 2022. Meeting details to follow.
EPA Rescinds Previous Administration’s Guidance on Clean Water Act Permit Requirements
U.S. Environmental Protection Agency
September 16, 2021

"The U.S. Environmental Protection Agency (EPA) is rescinding a guidance document entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” that was issued by the Trump administration on January 14, 2021."
Food & Water Watch v. USEPA

A Ninth Circuit panel granted a petition for review of EPA’s 2020 General NPDES Permit for CAFOs in Idaho, finding the permit arbitrary and capricious because it lacked sufficient monitoring provisions to ensure permittees comply with the permit’s “zero discharge” requirements for production and land application areas. With regard to production areas, the panel specifically noted the potential for “underground discharges” from waste containment structures such as manure lagoons.
Interior Reverses Trump, Moves BML Headquarters Back to DC
The Hill
September 17, 2021

"The Interior Department will restore the Washington, D.C., headquarters for the Bureau of Land Management, which was moved to Colorado during the Trump administration, while maintaining the Colorado office as its "Western headquarters."

The department announced its decision on the controversial move in a statement from Interior Secretary Deb Haaland saying that it was important for the bureau to have a D.C. presence but also said that its presence in Colorado would "continue to grow."
Center for Biological Diversity et al v. Bernhardt et al, No. 9:2020cv00181 - Document 32 (D. Mont. 2021)
Justia US Law

Various snowmobile groups sought to intervene as defendants in a challenge to the United States Fish and Wildlife 2020 decision to withdraw its proposed rule to list the Northern American distinct population segment as a threatened species under the Endangered Species Act. The groups sought to intervene as a matter of right or alternatively permissive intervention or leave to appear as an amicus curiae. The United States opposed intervention as a matter or right, but took no position on permissive intervention or an amicus appearance. Although, plaintiffs did not oppose intervention, the federal district court nonetheless denied the snowmobile groups’ motion. The court found the groups’ alleged interest in “’preservation of public lands for recreational use” fell short of the “direct, non-contingent, substantial and legally protectable’ interest required for intervention as a matter of right.” And, the court denied permissive intervention based on the groups failure to show the federal agencies were “incapable or unwilling to make all available arguments in support of their common objectives, or that the applicants will contribute some element necessary to the adjudication of this case . . ..” The court found the groups participation as an amicus was not warranted in a record review case.
Secretary of Interior Signs CSKT Water Rights Compact
Helena Independent
September 17, 2021

"The decades-long effort to finalize the Confederated Salish and Kootenai-Montana Water Compact concluded with Interior Secretary Deb Haaland signing the deal.

The compact and accompanying Montana Water Rights Protection Act passed by Congress in December authorize $1.9 billion to improve water services on the Flathead Indian Reservation. That work includes rehabilitating the century-old Flathead Irrigation Project along with improving community water and wastewater facilities."
Service to Initiate Status Review of Gray Wolf in the Western U.S.
U.S. Fish & Wildlife Service
September 15, 2021

"The U.S. Fish and Wildlife Service (Service) has completed the initial review of two petitions filed to list gray wolves (Canis lupus) in the western U.S. as threatened or endangered under the Endangered Species Act (ESA). The Service finds that the petitions present substantial, credible information indicating that a listing action may be warranted and will initiate a comprehensive status review of the gray wolf in the western U.S.  

On June 1, 2021, the Service received a petition (dated May 26, 2021) to list the gray wolf Northern Rocky Mountain Distinct Population Segment (DPS) or a new western U.S. DPS as a threatened or endangered species under the ESA. The Service received a second, similar petition on July 29, 2021 (addendum). The Federal Register notice will serve as the 90-day finding for both petitions."
The Nevada Division of Water Resources is currently recruiting for a Deputy Administrator. This position is open to anyone who qualifies. 

Phone: 775 684-0126 

Position Description

Under general administrative direction, the incumbent serves as Deputy Administrator to the Administrator of the Division of Water Resources in the Department of Conservation and Natural Resources. Duties include management of professional, technical and administrative support staff; budget development and monitoring; development of policies and regulations; engaging in the state legislative process on agency budget and policy priorities; and ensuring compliance with applicable State and federal regulations and statutes.

Under the direction of the State Engineer, this position administers the activities and programs under major sections within the Division of Water Resources. The position will assist the State Engineer on a nearly daily basis with decisions related to the responsibilities of the Division. The position responsibilities may include a review of water rights applications, rulings, extensions of time, hydrologic analyses, relinquishments, withdrawals, domestic well credit requests, and other duties described below.
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.
Jarvis v. United States, ___ Fed. Cl. ___, 2021 WL 3672165 (Aug. 19, 2021)Federal claims court lacked subject-matter jurisdiction over claims by alleged Cherokee Freedman seeking damages for treatment of enslaved Native Americans whose descendants suffer from systemic racism
Chase v. Andeavor Logistics, L.P., ___ F.4th ___, 2021 WL 4142413 (8th Cir. Sept. 13, 2021)Primary jurisdiction doctrine warranted stay of allottees’ trespass suit against a pipeline company with respect to continued use of a right-of-way after a 1993 lease expired.
Holguin v. Ysleta del Sur Pueblo, ___ F. Supp. 3d ___, 2021 WL 4126908 (W.D. Tex. Sept. 9, 2021)Suit alleging that actions by a tribe, its tribal court, police department and police officers exceeded tribal authority was dismissed against the tribe, the court and the department on exhaustion grounds, while the claims against the officers under 42 U.S.C. § 1983 were dismissed for lack of state action.
Ute Indian Tribe of Uintah and Ouray Reservation v. U.S. Dept. of Interior, ___ F. Supp. 3d ___, 2021 WL 4189936 (D.D.C. Sept. 15, 2021)Claims alleging brought by tribe under a 1965 deferral agreement and a 1967 exchange agreement against the federal and state defendants were barred by the six-year limitation period in 28 U.S.C. § 2401(a); the District of Columbia’s long-arm statute did not confer personal jurisdiction over a state water conservancy because the tribe’s claims arose out uniquely governmental activities; claims alleging breach of trust against the federal defendants based on three statutes failed as a matter of law because the government did not expressly accept the specific trust duties relied upon by the tribe; a claim alleging unconstitutional discrimination on behalf of tribal members could not be maintained against the federal defendants in a parens patriae capacity or, alternatively, because it alleged only disparate impact; a discrimination claim could not be maintained against the state defendants because it either was barred by the applicable limitation period or failed on the merits as a matter of law. The remaining claims were transferred to the United States District Court for the District of Utah. 
Brice v. Plain Green, LLC, ___ F.4th ___, 2021 WL 4203337 (9th Cir. Sept. 16, 2021)District court’s denial on prospective waiver grounds of a motion to compel arbitration was reversed where the arbitration provision delegated to the arbitrator the authority to determine the provision’s validity and did not foreclose the arbitrator from considering a prospective waiver challenge.
Easley v. WLCC II, ___ F. Supp. 3d ___, 2021 WL 4228876 (S.D. Ala. Sept. 16, 2021)Plaintiff consumer was entitled to confirmation under the Federal Arbitration Act of an award determining that a tribal payday loan contract was void ab initio, but the tribal lender was entitled to compel arbitration of a claim brought on behalf of Alabama consumers alleging that the lender violated state law by making loans without a license.
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
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.