News & Updates from WAGLAC
October 5th, 2020
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WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom
In response to COVID-19, 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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WAGLAC WINTER MEETING UPDATE
The WAGLAC winter meeting will be held during the week of February 15, 2021. The decision on whether the meeting will be in person or virtual will be made later this fall in light of COVID-19 health and travel restrictions. The focus area will be water law.
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Water Case Offers a Window into Barrett's Jurisprudence
E&E News
September 28, 2020
"With few clues about how President Trump's Supreme Court nominee Amy Coney Barrett would rule on environmental issues, green groups and industry interests are paging back to a low-profile Clean Water Act case that she helped decide in 2018.
As a judge for the 7th U.S. Circuit Court of Appeals, Barrett joined — but didn't write — the court's decision in Orchard Hill Building Co. v. Army Corps of Engineers, which said the federal government had not provided enough evidence to support its finding that 13 acres of Illinois wetlands slated for development were in fact waters of the U.S., or WOTUS, subject to federal protection.
While it may not be surprising that a conservative judge would rule against a more expansive reading of the Clean Water Act, former Justice Department senior trial attorney Larry Liebesman said what is notable about the decision is that Barrett joined a ruling that dismissed the opinion of her mentor Justice Antonin Scalia in the famously splintered 2006 Supreme Court case Rapanos v. United States.
Since the ruling, the lower courts have favored Justice Anthony Kennedy's competing opinion in the 4-1-4 case that said wetlands and streams are subject to Clean Water Act protections if they have a "significant nexus" to a jurisdictional water."
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Justices Pick Up Major Climate Liability Case
E&E News
October 2, 2020
"The Supreme Court has agreed to hear oil companies' petition in a climate damages case brought by the city of Baltimore, jettisoning the issue of climate liability to the nation's highest court.
The justices will weigh in on a technical jurisdictional question concerning federal officer involvement, which has cropped up as a main Big Oil strategy to kick climate disputes to federal court.
Supreme Court input could change the trajectory of a growing sea of lawsuits from cities, states and counties seeking to hold oil and gas companies financially liable for climate change damages through a combination of public nuisance, trespass, product liability and consumer protection laws."
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Documentation for Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act
The Environmental Protection Agency
October 1, 2020
"On October 1, 2020, EPA finalized regulatory text to implement the plain language of the Clean Air Act that allows major sources of hazardous air pollutants (HAP) to reclassify as area sources at any time provided they reduce hazardous air emissions. This action reduces regulatory burden and provides a level of fairness and flexibility for sources that reduce HAP emissions below major source thresholds and reclassify as area sources."
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Attorney General Becerra takes Action on Trump Administration's New National Environmental Policy Act Rules
September 23, 2020
"California Attorney General Xavier Becerra put the Trump Administration on notice of California’s intent to bring a claim concerning the Administration's ongoing rollback of federal environmental protections that fly in the face of the Endangered Species Act. On July 16, 2020, the Administration’s Council on Environmental Quality (CEQ) issued a rule (Final Rule) that would substantially undermine the National Environmental Policy Act (NEPA), a 1970 federal statute that requires federal agencies to identify and reduce potential environmental harm resulting from major infrastructure and energy projects. "
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Texas Governor Urges Trump to Oppose Nuclear Waste Plans
Courthouse News
October 1, 2020
"Texas Governor Greg Abbott has come out against two rival plans to ship highly radioactive waste from the nation’s nuclear power plants to sites on the Texas-New Mexico border, saying either plan would be unsafe and would threaten the region’s sprawling Permian Basin oilfield."
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Trump Administration Fights Farmers' Multimillion-Dollar Water Claim
E&E News
September 28, 2020
"The Trump administration is urging a federal court to reject a multimillion-dollar claim over water rights from California farmers, in the latest round of a politically sensitive and long-running lawsuit.
At issue is a decadeslong case from major farmers claiming that the Bureau of Reclamation has failed to build a drainage system in the San Joaquin Valley's Westlands Water District.
Farmers in the district claim that the lack of drainage system has amounted to an unconstitutional taking of their property without compensation under the Fifth Amendment because it has reduced their crop yields.
The U.S. Court of Federal Claims put the case on hold in 2013 while the bureau and Westlands worked on a deal, which would have needed congressional approval. But the case was revived this summer at the farmers' request. Reclamation's solution has yet to be ratified by Congress, and there is little to suggest it will be anytime soon (Greenwire, July 21)."
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Court Ruling Aids Pueblo Water Rights
Albuquerque Journal
September 30, 2020
"The 10th Circuit Court of Appeals issued an opinion in United States v. Abousleman, overturning a District Court ruling that Spain and Mexico had extinguished aboriginal water rights for the pueblos of Santa Ana, Zia and Jemez in the Jemez River Basin."
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President Trump’s Promise to Revive Coal Thwarted by Falling Demand, Cheaper Alternatives
The Wall Street Journal
September 16, 2020
"Coal companies and their workers experienced a brief renaissance during the first two years of Mr. Trump’s term despite declining domestic consumption, thanks in part to a surge in demand from countries such as India and South Korea. Exports have since fallen. U.S. coal output and consumption are now on pace to decline at faster annual rates, on average, under President Trump than under President Obama.
The use of coal to generate electricity in the U.S. is expected to fall more than a third during Mr. Trump’s first term, data from the U.S. Energy Information Administration show, as a glut of cheap natural gas unlocked due to fracking and increasingly competitive wind and solar sources gained market share. More than half of that drop happened before the new coronavirus outbreak. That compares with a decline of about 35% in coal consumed for power generation during Mr. Obama’s eight years in office.
Last year, the U.S. consumed more renewable energy than coal for the first time since the 1880s, federal data show. That includes coal and renewables used for electricity, as well as for purposes such as steelmaking and transportation. In the power sector, the EIA expects coal will generate just 20% of U.S. electricity this year, down from 31% in 2016. Another 20% is forecast to come from renewables, up from around 15% four years ago."
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Federal Decision to Keep Snake River Dams in Place is Now Official; Dam Debate is Far From Over
OPB News
September 30, 2020
"Federal agencies have finalized a plan that will keep the Snake River Dams in place. It allows for more springtime spill over dams to help juvenile salmon migrating out to the Pacific Ocean.
After four years of study, the Record of Decision makes the federal agencies' preferred option official. Managers and dam supporters say it will benefit salmon, reliable hydropower and the economy.
BPA, the U.S. Army Corps of Engineers and the Bureau of Reclamation approved the decision."
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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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Adams v. Dodge, ___ F. Supp. 3d ___, 2020 WL 5652341 (W.D. Wash. Sept. 23, 2020): Exhaustion of tribal remedies was required in a habeas corpus proceeding under the Indian Civil Rights Act where the petitioner was arrested pursuant to a tribal court warrant on off-reservation tribal trust land subject to state Public Law 280 jurisdiction.
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State v. Epic Tech, LLC, ___ So. 3d ___, 2020 WL 5742683 (Ala. Sept. 25, 2020): Operators of tribal casinos were not required to be joined in two actions brought by the state alleging that gambling activities by non-tribal entities were public nuisances.
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Scotts Valley Band of Pomo Indians v. U.S. Dep’t of Interior, ___ F. Supp. 3d ___, 2020 WL 5763583 (D.D.C. Sept. 28, 2020): Tribe’s motion to intervene as a defendant in a suit filed by another tribe challenging a DOI Indian land opinion was denied for lack of Article III standing and, alternatively, for failure to establish that the suit’s disposition might as a practical matter impair the proposed intervenor’s ability to protect its interests.
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Holtz v. Oneida Hotel Development Corp., ___ F. Supp. 3d ___, 2020 WL 5770363 (E.D. Wis. Sept. 28, 2020): Tribally-owned hotel employee’s suit alleging discharge in violation of the Americans with Disabilities Act and federal and state anti-discrimination laws was dismissed on sovereign immunity and claim preclusion grounds.
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United States v. Board of Directors of Truckee-Carson Irrigation District, ___ F. Supp. 3d ___, 2020 WL 5847089 (D. Nev. Oct. 1, 2020): District court gives guidance to the water master with respect to the types of water eligible for repayment credits owed by the Truckee-Carson Irrigation District.
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Chemehuevi Indian Tribe v. United States, ___ Fed. Cl. ___, 2020 WL 5807578 (Sept. 29, 2020): Amended complaint containing five counts that sought damages and/or an accounting with respect to the United States’ alleged mismanagement of trust assets or land was dismissed on jurisdictional grounds and, alternatively, for the failure of three counts to state a claim.
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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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