News & Updates from WAGLAC
January 25th, 2021

The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Please find the draft agenda below, additional details to follow.

To register for any/all days of this meeting, please email Paige Stiles at
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
Restoring Environmental Rules Rolled Back by Trump Could Take Years
The New York Times
January 22, 2021

"President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor.

But legal experts warn that it could take two to three years — and in some cases, most of Mr. Biden’s term — to put many of the old rules back in place."
EPA Request DOJ to Stay Pending Regulatory Challenges
EPA Acting General Counsel requested that the Department of Justice seek a stay of proceedings in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017, and January 20, 2021 or seeking to establish a deadline for EPA to promulgate a regulation in connection with the subject of any regulation.
President Biden Cancels Keystone XL Pipeline and Rejoins Paris Climate Agreement
The New York Times
January 20, 2021

"President Joseph R. Biden Jr. recommitted the United States to the Paris climate agreement, the international accord designed to avert catastrophic global warming, and ordered federal agencies to start reviewing and reinstating more than 100 environmental regulations that were weakened or rolled back by former President Donald J. Trump.

The moves represent a first step in healing one of the deepest rifts between the United States and the rest of the world after Mr. Trump defiantly rejected the Paris pact and seemed to relish his administration’s push to weaken or undo major domestic climate policies.

Mr. Biden has elevated tackling the climate crisis among his highest priorities. In addition to curbing global warming, he has vowed that ending the coronavirus pandemic, restoring the economy and addressing racial injustice will be the central causes of his administration."
Court Weighs Challenge to Trump NEPA Overhaul
E&E News
January 19, 2021

"Environmental groups are urging a federal court not to dismiss a challenge to a Trump administration regulation for how agencies analyze the impacts of major projects like highways and pipelines.

Alaska Community Action on Toxics and other groups say it is not too early to sue over the White House Council on Environmental Quality's overhaul last year of the decades-old National Environmental Policy Act.

The NEPA rule, which is currently in effect, changed the federal government's guidance on the types of analyses federal agencies have to conduct to comply with the landmark environmental law.

The Trump administration had said litigation was premature because federal agencies had yet to finalize their own regulations based on the new standards. The rule hasn't caused "actual harm," since it hasn't yet been applied to any projects, according to the administration."
WATER QUALITY - Arizona/Waters of the State
Western States Water Council Newsletter
December 31, 2020

"On December 15, the Arizona Department of Environmental Quality (ADEQ) Water Quality Division hosted a stakeholder webinar to obtain feedback on draft legislation and the proposed ADEQ program to ensure that waters of the state will be protected following changes to the definition of “waters of the United States” under the recent federal Navigable Waters Protection Rule. Over 550 stakeholders attended the webinar.
ADEQ proposed a list of protected waters that includes 787 of the 912 perennial and intermittent waters, but does not include ephemeral tributaries. The meeting minutes noted: “In instances where the ephemeral is a channelized conveyance to a protected water, the discharge would need to be permitted. In instances where it is uncertain whether the discharge would reach the protected water, ADEQ can issue a permit.” ADEQ sought feedback on: (1) waters that should be added or removed from the list; (2) what refinements are needed to ensure legislation reflects the program intent; and (3) whether best management practices should be used for construction activities in protected waters. A variety of existing state programs will be used to continue to protect the state’s water quality, and the program is designed to not be duplicative of federal programs. The agency also noted that Arizona is no longer seeking CWA §404 authority."
Federal Circuit Court Scraps Trump Administration's Power Plant Rule
The Washington Post
January 19, 2021

"A federal appellate court on scrapped a Trump administration rule that eased limits on carbon dioxide emissions from coal- and natural-gas-fired power plants, and it effectively revived the Obama administration’s tougher Clean Power Plan.

In sweeping away the Trump administration’s regulation, dubbed the Affordable Clean Energy rule, the decision by the D.C. Court of Appeals raised hopes among environmental groups that the new Biden administration might be able to replace some Trump administration rules more easily than it feared."
Supreme Court Case Could Limit Future Lawsuits Against Fossil Fuel Industry
The New York Times
January 19, 2021

"The Supreme Court heard a case on climate change that could help shape the fate of dozens of similar lawsuits across the country.

The oral argument in BP P.L.C. v. Mayor and City Council of Baltimore, No. 19-1189, was not about whether climate change is real or caused by greenhouse gases generated by humans. The hearing was not even about whether fossil fuel companies should pay Baltimore for the costs of climate change, which is the point of the underlying lawsuit.

Instead, the justices decided to hear the case on a single, highly technical legal question: What happens when a federal court sends a case to be heard in state courts? That is what has occurred in the Baltimore case, which began its life in state court, and which the fossil fuel companies are trying to move to federal court, where they expect a more favorable outcome. The question before the Supreme Court is whether, in hearing the appeal of a decision to send a case back to state court, a federal appeals court must limit its review to the two very specific and narrow reasons that the law allows, or whether it can look more broadly at the lower court’s decision."
State 401 Certification Authority Not Waived By Denial Of Certification Without Prejudice
The California Water Resources Control Board (Board) twice denied Turlock Irrigation District and Modesto Irrigation District (Districts) request for state certification of its project under Section 401 of the Clean Water Act. In its petition before the Federal Energy Regulatory Commission, the Districts argued “that, by twice denying certification without prejudice and encouraging application resubmittal, the California Board relied on a tactic that is not only indistinguishable from the withdrawal-and-resubmission scheme rejected by the [District of Columbia Circuit Court of Appeals in Hoopa Valley v. FERC, 913 F.3d 1099 (2019)], but also inconsistent with section 401(a) of the CWA. “ FERC found that because “the Board, by denying the applications without prejudice, indeed acted on them, . . . the holding of Hoopa Valley is not dispositive here.” FERC concluded that “[u]nlike the cases where the Commission found that the state certifying agency had waived its authority under section 401, here, there is no record evidence that the Districts and the California Board engaged in actions amounting to an agreement, formal or functional, to circumvent in which we found waiver where applicants engaged in serial withdrawal and resubmittal of their applications do not dictate a finding of waiver in this case.”
Biden Administration Signs Executive Orders First Week in Office

President Biden signed the following two executive orders:
  1. Executive Order on Protection Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (order 1)
  2. Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation (order 2)
FACT SHEET: Interior Department Welcomes Day One Executive Orders to Restore Public Lands and Waters, Combat Coronavirus
U.S. Department of the Interior
January 21, 2021

"Immediately following his inauguration, President Joe Biden signed Executive Orders that take critical first steps to address the climate crisis, create good union jobs, and advance environmental justice, while reversing the previous administration’s harmful policies.

One of President Biden’s Executive Orders requires the Interior Department to conduct a review of the monument boundaries and conditions of the Grand Staircase-Escalante, Bears Ears, Northeast Canyons, and Seamounts Marine National Monuments. The order directs Interior, in consultation with other agencies and Tribal governments, to determine whether restoration of the monument boundaries and conditions would be appropriate."
Interior Department Announces Members of Biden-Harris Leadership Team
U.S. Department of the Interior
January 20, 2021

"The Department of the Interior announced key members of agency leadership who will advance the Biden-Harris administration’s agenda to build back better and address the four intersecting challenges of our time: COVID-19, economic recovery, racial equity, and climate change."
Interior Solicitor: Treaties Don't Exempt Tribes From ESA
E&E News
January 19, 2021

"Native Americans can still be charged with violating the Endangered Species Act regardless of treaty protections, under a departing declaration by the Interior Department's top political lawyer.

But environmental prosecutors may also lose a little sway under the latest last-minute opinion by Interior Solicitor Daniel Jorjani.

In what amounts to a complicated legal two-step as his term ends, Jorjani upheld the reach of the landmark 1973 law."
Audubon Sues Over Water Rights at Kan. Wildlife Refuge
E&E News
January 19, 2021

"Audubon of Kansas has sued over water rights at a wildlife refuge in central Kansas.
The federal lawsuit filed by the environmental group against the Interior Department and various federal and state officials alleges they have failed to protect the senior water rights belonging to the Quivira National Wildlife Refuge.

The lawsuit filed in the U.S. District Court for the District of Kansas contends the 22,135-acre refuge is a wetland of international importance that provides sanctuary to a wide variety of waterfowl, shorebirds and other wetland species, several of which are listed as threatened or endangered. Migratory waterfowl, including the endangered whooping crane, rely on the refuge as a key stopover in the Central Flyway."
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.
Grondal v. U.S., ___ F. Supp. 3d ___, 2021 WL 183408 (E.D. Wash. Jan. 19, 2021)Limited liability company with a life estate in a deceased tribal member’s allotment interest (1) could not maintain an action against the Confederated Tribes of the Colville Reservation because of the latter’s immunity from suit; (2) was not entitled to transfer of the proceeding to the federal court of claims under 28 U.S.C. § 1631 with respect claims for monetary damages against the United States for breach of a lease because no privity of contract existed, for breach of trust because any trust duty arising from the Bureau of Indian Affairs’ administration of the lease pursuant to 25 C.F.R. § 162.108(a) was owed to the involved Indian landowners, not the lessee, and because even if a money-mandating duty existed, it ran to the deceased tribal member lessee, not the LLC; (3) could not maintain an breach-of-contract or violation-of-trust-duty action against the United States for the same reasons as warranting denial of the transfer motion; and (4) was not entitled to declaratory relief as to the validity of a replacement lease.
Chinook Indian Nation v. Zinke, ___ F. Supp. 3d ___, 2021 WL 211534 (W.D. Wash. Jan. 21, 2021)Suit over the distribution of an Indian Claims Commission judgment was stayed under the primary jurisdiction doctrine pending determination by the Department of the Interior of whether the plaintiffs are the successor in interest to and a beneficiary of the judgment.
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
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.
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.