News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
August 24th, 2020
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WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom
In response to the Covid-19 pandemic, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020.
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:
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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;
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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;
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Fronda Woods, Assistant Editor, American Indian Law Deskbook, will discuss Public Law 280: Fundamentals and Misconceptions;
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Clay Smith, Chief Editor, American Indian Law Deskbook, will discuss Tribal Adjudicatory Authority: Exhaustion, Deferral and the Merits; and
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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.
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Federal Agencies Issue WOTUS Implementation Memoranda
The Army Corps of Engineers and EPA issued the following four implementation memorandum to assist field staff with the implementation of the 2020 WOTUS Rule. EPA summarizes the purpose of the memorandum as follows:
“Elevation and Coordination Procedures for Certain Determinations under the Clean Water Act (“TNW Memo”)
The purpose of the TNW Memo is to ensure the consistent implementation of the Navigable Waters Protection Rule by establishing a process for EPA, the Army, and the Corps to elevate to their headquarters for coordination certain determinations under paragraph (a)(1) of the Rule.
Memorandum to the Field on Exemptions from Regulation under Section 404(f)(1)(C) of the CWA for the Construction or Maintenance of Irrigation Ditches and for the Maintenance of Drainage Ditches (“Ditch Exemptions Memo”)
The purpose of the Ditch Exemptions Memo is to provide a clear, consistent approach regarding the application of the exemptions from regulation under section 404(f)(1)(C) of the CWA for the construction or maintenance of irrigation ditches and for the maintenance of drainage ditches (“ditch exemptions”).
Memorandum to the Field Concerning Implementation of the Navigable Waters Protection Rule, Section 404 of the Clean Water Act and the Food Security Act (FSA) of 1985 ("Ag Memo")
The purpose of this memo is to minimize duplication of efforts pursuant to the CWA section 404 program and the FSA Wetland Conservation Provisions and to facilitate the agencies’ efforts to ensure that federal wetland programs, including those that identify prior converted cropland, are administered in an efficient and effective manner.
Memorandum to the Field on Coordination to Ensure Consistent Implementation of the Navigable Waters Protection Rule (“Coordination Memo”)
The purpose of this memo is to facilitate consistent implementation of the Navigable Waters Protection Rule and to continue strong coordination between the agencies.”
EPA also announced its intent to issue a guidance memorandum regarding the Maui decision. No timeline has been established for the release of the Maui guidance memorandum
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Judge Allows North Dakota to Pursue Protest Reimbursements
ABC News
August 19, 2020
"North Dakota may move forward with efforts to recoup the money it spent policing protests against the Dakota Access oil pipeline, a federal judge ruled Wednesday.
U.S. District Court Judge Daniel Traynor denied the federal government’s motion to dismiss North Dakota’s lawsuit seeking to recover more than $38 million in damages the state claimed from the monthslong pipeline protests almost four years ago.
The state filed a lawsuit against the U.S. Army Corps of Engineers in 2019, and a hearing on the government’s request to dismiss it was held last month in U.S. District Court in Bismarck."
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BLM Sued Over Climate, Sage Grouse Risks in Drilling Plan
E&E News
August 20, 2020
"Six Western environmental groups sued the Trump administration yesterday over an expansion of oil, gas and mining opportunities on Colorado's Western Slope that they say threatens the imperiled Gunnison sage grouse and ignores climate threats.
The Bureau of Land Management recently rewrote, and combined, two 30-year-old management plans to create the Uncompahgre Field Office Resource Management Plan (RMP), which dictates how oil and gas development and mining can take place for roughly 1 million acres of subsurface minerals in southwest Colorado and nearly three-quarters of a million surface acres.
The plan could provide $2.5 billion in annual economic activity via mineral development, ranching and recreation opportunities for communities in a long trunk of public lands and mineral ownership in western Colorado, from the south of Grand Junction down to Telluride and west to the Utah border."
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Judge Slams Army Corps' 'Failed' Management of NW Dams
E&E News
August 18, 2020
"Federal agencies illegally delayed — and in some cases just didn't take — required measures to protect threatened salmon and steelhead at a series of dams in the Pacific Northwest, putting the species in further peril, a federal judge ruled yesterday.
Conservationists had challenged the Army Corps of Engineers' management of dams in the Willamette River Basin and its impact on wild spring chinook salmon and winter steelhead.
They alleged that the Army Corps violated the Endangered Species Act and other laws by failing to implement mitigation requirements in a 2008 biological opinion, including passage for migrating fish at multiple dams."
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Trump Administration Finalizes Plan to Open Arctic Refuge to Drilling
The New York Times
August 17, 2020
"The Trump administration finalized its plan to open up part of the Arctic National Wildlife Refuge in Alaska to oil and gas development, a move that overturns six decades of protections for the largest remaining stretch of wilderness in the United States.
The decision sets the stage for what is expected to be a fierce legal battle over the fate of the refuge’s vast, remote coastal plain, which is believed to sit atop billions of barrels of oil but is also home to polar bears and migrating herds of caribou."
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Solicitor Upholds Pre-Claim Mining operations
E&E News
August 19, 2020
"The Interior Department's top lawyer has reaffirmed a 15-year-old finding that a mining claim does not need to be deemed valid before the Bureau of Land Management allows "reasonably incident mining uses" on public lands.
In an opinion published without fanfare, Interior Solicitor Daniel Jorjani essentially sustained and updated a 2005 opinion from the George W. Bush administration that gives mining companies leeway in developing a mine."
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Spokane River flow rule was properly set, state Supreme Court says
The Spokesman-Review
August 6, 2020
"A state rule for the minimum amount of water that must flow in the Spokane River was properly set, a unanimous Supreme Court ruled.
The state Department of Ecology had the authority to set that standard at 850 cubic feet per second during the summer and wasn’t acting arbitrarily by doing it, said a decision written by Justice Barbara Madsen.
The decision was a balance of two statutes and the way they describe the different interests the department must consider, Madsen wrote.
‘Ecology has the authority to balance competing interests and values when setting instream flow rates,’ she wrote.
The law gives the agency the power to exercise its discretion, and an administrative record of some 19,000 pages “supports that Ecology appropriately did.”
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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
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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.
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In Matter of E.J.B., ___ S.E.2d ___, 2020 WL 4726567 (N.C. Aug. 14, 2020): Failure of a tribe to respond to a defective notice under the Indian Child Welfare Act required remand for compliant re-noticing.
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Rosas v. AMG Services, Inc., ___ Cal. Rptr. 3d ___, 2020 WL 4745994 (1st Dist. Aug. 17, 2020): Arm-of-the-tribe status for purposes of immunity from suit must be determined as of the time a motion to dismiss is heard, not the time of the lawsuit’s filing, and the superior court correctly concluded that a entity wholly owned by a federally recognized tribe possessed such status.
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Mendoza v. First Santa Fe Insurance Services, Inc., ___ F. Supp. 3d ___, 2020 WL 4784806 (D.N.M. Aug. 18, 2020): Action by present and former tribal casino employees alleging various state-law claims against workers’ compensation carrier and related entities for coverage denial was remanded to state court because defendants provided no valid basis for the exercise of federal question jurisdiction.
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Shawnee Tribe v. Mnuchin, ___ F. Supp. 3d ___, 2020 WL 4816461 (D.D.C. Aug. 19, 2020): Title V of the CARES Act invested unreviewable discretion in the Secretary of the Treasury with respect to the allocation of funding to Indian tribes, and the plaintiff tribe therefore failed to establish a likelihood of success for preliminary injunction purposes in a suit challenging the Secretary’s reliance on population data developed by the Department of Housing and Urban Development in making such allocation.
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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
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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 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.
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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. |
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