In response to the Covid-19 pandemic, the WAGLAC Summer Meeting will be held as a virtual meeting on August 10-11, 2020. Please click each link below to register. After registration and approval, you will receive a confirmation and option to add each session to your calendar.
California, New York, other states sue U.S. over Trump clean-water rollback
July 21, 2020
"California Attorney General Xavier Becerra, New York Attorney General Letitia James and Washington Attorney General Bob Ferguson filed a lawsuit in the Northern District court of California against the Environmental Protection Agency (EPA), which last month finalized a rule limiting state powers to block energy infrastructure projects by curtailing their authority under the Clean Water Act.
The EPA altered section 401 of the federal water law to make it impossible for a state to block a water permit for a project for any reason other than direct pollution into state waters. States have previously weighed broader factors, such as climate change, to make decisions on projects."
Trump administration says massive Alaska gold mine won’t cause major environmental harm, reversing Obama
The Washington Post
July 24, 2020
"Trump officials concluded Friday that a proposed gold and copper mine in Alaska — which would be the largest in North America — would not pose serious environmental risks, a sharp reversal from a finding by the Obama administration that it would permanently harm the region’s prized sockeye salmon.
The official about-face regarding the bitterly contested project epitomizes the whiplash that has come to define environmental policy under President Trump, who has methodically dismantled many of his predecessor’s actions on climate change, conservation and pollution.
A final environmental analysis issued Friday by the U.S. Army Corps of Engineers found that Pebble Mine — which targets a deposit of gold, copper and other minerals worth up to $500 billion — “would not be expected to have a measurable effect on fish numbers” in the Bristol Bay watershed, which supports the world’s largest sockeye salmon fishery."
Judge Ends White House War on California Cap-and-Trade Deal With Quebec
Courthouse Service News
July 17, 2020
"A federal court judge nixed the Trump administration’s remaining claims against California’s cap-and-trade policy’s link to a program in Quebec, Canada, in a Friday ruling.
U.S. District Court Judge William Shubb granted summary judgment to California, finding the Trump administration failed to provide sufficient evidence that California’s carbon credit trading system — a tool the state says it needs to combat climate change — undermines the federal government’s ability to conduct foreign policy. "
"The agencies submit their draft rules to OMB for review before releasing them to the public. So knowing what's at OMB gives us an insight into what's in the pipeline. Here are two that are of interest to CWA practitioners.
Corps' Nationwide 404 Permits. The current NWPs don't expire until 2022, but the Trump Administration has ordered an early review. The Corps is looking at nine specific NWPs related to the energy sector. This is consistent with the current administration's priorities, and should surprise no one. This could be quite controversial depending on how far they go, especially as related to pipelines, which have been aggressively challenged by some states and enviro groups in the last few years. The Corps also states that will "take a holistic look at" all of the existing 52 NWPs. "
AG, tribes reach agreement on jurisdictional issues
July 17, 2020
"State and tribal leaders announced that an agreement-in-principle had been reached regarding a proposed federal law that one tribal law expert said would, in part, provide for the state to resume jurisdiction in most criminal cases now under federal control.
The agreement comes in response to a June 9 U.S. Supreme Court decision that said Congress never disestablished the historic 11-county boundary of the Muscogee (Creek) Nation established by treaty in the 1860s. The ruling meant much of eastern Oklahoma switched seemingly overnight from state to federal jurisdiction regarding major crimes that involved an American Indian.
The agreement was presented as a framework endorsed by all members of the Five Tribes — Creeks, Cherokees, Chickasaws, Choctaws and Seminoles — and was expected to be used as the basis for federal legislation.
The ruling also tossed the sex abuse convictions in Wagoner County District Court of Jimcy McGirt, an enrolled member of the Seminole and Muscogee (Creek) nations."
"California farmers frustrated by Congress' failure to greenlight a politically sensitive irrigation drainage plan have revived a major legal challenge.
At the farmers' request, a federal judge yesterday lifted a long-running stay on a lawsuit filed in 2011. Millions of dollars, a major environmental cleanup and more could all once again hang in the balance.
The case filed in the U.S. Court of Federal Claims centers on the government's failure to complete a drainage system for the Westlands Water District, although the suits were not filed by the district."
"EPA has agreed to limit its authority to regulate uranium mining practices that environmentalists say pollute groundwater.
In a memorandum of understanding with the Nuclear Regulatory Commission signed by Administrator Andrew Wheeler while visiting Wyoming yesterday, EPA agreed to limited authority over a process called in situ leach (ISL) recovery of uranium, in which minerals are first dissolved underground before being pumped to the surface, where they are processed."
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. Many White Horses, ___ F.3d ___, 2020 WL 3636363 (9th Cir. July 6, 2020): Federal court’s supervised release condition precluding a Blackfeet Nation member from residing within Browning, Montana or entering that town without prior approval of the supervising probation officer was neither an illegal banishment from the Blackfeet Reservation nor an impermissible infringement of the Tribe’s self-governance.
United States v. Walker River Irrigation District, ___ F. Supp. 3d ___, 2020 WL 4050689 (D. Nev. July 20, 2020): Defendants’ affirmative defenses of (1) laches, (2) estoppel and waivers, (3) no reserved rights to groundwater, (4) the United States lacks the power to reserve water rights after Nevada’s statehood, and (5) claim and issue preclusion to the United States’ counterclaims for federal reserved water rights of the Walker River Paiute Tribe were dismissed under Fed. R. Civ. P. 12(c).
Treat v. Stitt, ___ P.3d ___, 2020 WL 4185827 (Okla. S. Ct. July 21, 2020): Governor lacked authority to enter into a class III gaming compact that included house-banked card and table games and event wagering not authorized as “covered games” under the state gaming statute.
Hanson v. Parisien, ___ F. Supp. 3d ___, 2020 WL 4117997 (D.N.D. July 20, 2020): Challenge by a non-Indian contractor to a fee imposed under a tribal employment rights ordinance was dismissed without prejudice for failure to exhaust tribal remedies.
Narragansett Indian Tribe v. Nason, ___ F. Supp. 3d ___, 2020 WL 4201633 (D.D.C. July 22, 2020): Tribe’s complaint alleging that the Federal Highway Administration violated the National Historic Preservation Act by terminating a programmatic agreement concerning a bridge replacement project stated a claim under Fed. R. Civ. P. 12(b)(6).
McCormick, Inc. v. Fredericks, 2020 ND 161, ___ N.W.2d ___ (N.D. July 22, 2020): State court possessed subject matter jurisdiction over breach-of-fiduciary-duty counterclaim brought by tribal member with respect to a management fee received by a plaintiff corporation from a state-chartered limited liability company.
In re E.C., 2020-Ohio-3807, ___ N.E.3d ___ (Ct. App. July 23, 2020): Mother failed to carry the burden of establishing the “Indian child” status of her children through an allegation that their great-grandmother was a Blackfoot member
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.
Definitions of Indians and Indian tribes
Criminal, civil regulatory, and civil adjudicatory jurisdiction
Indian water rights
Fish and wildlife
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.
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, searchable database of all previously published WAGLAC newsletters, please follow the link below.