News & Updates from WAGLAC
March 22, 2021
2020 WOTUS Rule Imperils More than 40,000 Waterways
E&E News
March 19, 2021

"More than 70% of U.S. waterways reviewed under a controversial Trump-era rule could be permanently damaged after they were not afforded federal protection, according to Army Corps of Engineers data obtained and reviewed by E&E News.

The agency reviewed 55,519 waters and water features since the Navigable Waters Protection Rule took effect in June under the Trump administration. Of those, more than 40,000 did not qualify for federal protection under the Clean Water Act.

In a brief filed in the U.S. District Court for the District of South Carolina, the Southern Environmental Law Center cited an EPA database that shows 91% of waters EPA reviewed under the Navigable Waters Protection Rule didn't qualify for federal protection."
Biden Officials Rethinking 2020 NEPA Rule
Bloomberg Law
March 17, 2021

"The Biden administration has identified “numerous concerns” with a Trump-era environmental review regulation and wants a federal court to remand the rule rather than carry on with litigation.

Government lawyers laid out their position in a brief in the U.S. District Court for the Western District of Virginia, marking the Biden administration’s first public effort to backtrack from the divisive rule finalized last year by the White House’s Council on Environmental Quality."
Court to Consider Clash Between Property Rights Advocates, Union Organizers
March 19, 2021

"Over the past few years, the Roberts court has issued decisions that have expanded the rights of property owners who want to challenge government action and made it more difficult for public-employee unions to fund their operations. Property rights and union interests collide when the justices hear oral argument in Cedar Point Nursery v. Hassid, a challenge to the constitutionality of a California regulation that allows union organizers to enter the grounds of an agricultural employer to speak with employees about supporting a union. Two California growers contend that the regulation violates the Fifth Amendment, which prohibits the government from taking property without compensation. Defenders of the regulation caution that a ruling for the growers could have sweeping repercussions – potentially jeopardizing not only union organizing but also a wide range of government health and safety oversight."
8 States Are Tweaking the Weather (And It Might Not Work)
E&E News
March 16, 2021

"The mountaintops rumble to life unnaturally each year as snow clouds darken the sky across the West.

Open flames burst from the throats of metal chimneys, mounted on squat towers nestled among the peaks. With a low hiss, puffs of particles belch from their mouths into the air, where the wind catches them and whisks them away.

These aren't ordinary particles. They're tiny bits of crushed-up silver iodide, a crystal-like photosensitive substance once used in photography.

But it's not used to take pictures out in the mountains. It's meant to make snow.

As the wind whips the particles across the mountaintops, drafts of air sweep them higher into the sky — so high that some of them eventually touch the clouds. There, an elegant transformation takes place.

The crystalline silver iodide particles have a structure similar to ice — and inside a cloud, like attracts like. Water droplets begin to cluster around the particles, freezing solid as they gather together.

These frozen clusters eventually grow too heavy to stay in the air. They fall from the cloud and drift gently toward the Earth, dusting the mountaintops with fresh snow.

This is not a page from a science fiction novel. "Cloud seeding" is a real practice — in fact, it's been around for decades. It's used today to boost precipitation in at least eight states across the western U.S. and dozens of countries around the world."
Judge Nix Oregon Ranchers' Bid for Water in Tribal Dispute
E&E News
March 19, 2021

"Federal judges rejected a bid from Oregon ranchers to secure more water from the increasingly drought-stricken Klamath River Basin.

A group of ranchers filed the lawsuit over a complicated regime in which the federally recognized Klamath Tribes exercise their senior water rights.

The ranchers claimed that the process deprived them of irrigation water and improperly abdicated federal regulators' role in managing the river's flows.

The U.S. Court of Appeals for the District of Columbia Circuit dismissed those claims, upholding a lower court ruling that also went against the ranchers.

A three-judge panel unanimously held that the ranchers did not establish standing to sue, mainly because the requirement that they challenged — essentially that the federal government must approve the tribes' "call" for water — doesn't exist."
Nevada Supreme Court Creates Commission to Study Water Right Adjudications

On March 9, 2021, the Nevada Supreme Court issued an Order Creating Commission to Study the Adjudication of Water Law Cases. The Order was issued in response to a Petition filed by the Chief Justice on February 8 , 2021. The Petition stated that “Water law is a unique and complex area of the law and judicial review of water cases frequently involves, among other matters, an assessment of lengthy records, geologic and hydrologic concepts, conflicting expert testimony, and years of relevant Nevada history. And just as frequently, water cases take years to adjudicate, which adversely delays water law decisions in our state.” The Petition concluded that “a study by the Nevada Supreme Court is warranted to improve the education, training, specialization, timeliness, and efficiency of Nevada’s district courts in the judicial review of water cases.”
The commission will include representatives from a broad group of entities with interests in water, including municipal, agricultural, mining, environmental, and tribal interests as well as the Nevada Department of Conservation, local governments and Natural Resources Division of Water Resources.
Haaland Confirmed by Senate As First Native American to Lead Interior
The Washington Post
March 15, 2021

"As thousands of Native Americans watched online, Rep. Deb Haaland (D-N.M.) was confirmed as secretary of the Interior Department by a 51-to-40 vote in the Senate, making her the first American Indian to lead an agency that manages a vast portfolio of federal land and the oil and mineral wealth that lies beneath it.

Haaland, a member of the Laguna Pueblo Nation in New Mexico and whose family ties in the country can be traced back 35 generations, will take control of a department that also oversees Indian Country, 574 federally recognized Native American and Alaska Native communities."
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
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 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.
Bosse v. State, 2021 OK CR 3, ___ P.3d ___ (Crim. Ct. App. Mar. 11, 2021)State court lacked subject-matter jurisdiction over non-Indian convicted under Oklahoma statutes for murdering three Indian women where the offenses occurred within the boundaries of the Chickasaw Nation Reservation as identified in 1855 and 1866 treaties.
Muscogee (Creek) Nation v. Poarch Band of Creek Indians, ___ F. Supp. 3d ___, 2021 WL 961743 (M.D. Ala. Mar. 15, 2021)Ex parte Young-like relief was not available against tribal officials where it would effectively divest a tribe of the use of its land, and dismissal of the suit against the remaining defendants was required under Fed. R. Civ. P. 12(b)(7).
Clay v. Commissioner, ___ F.3d ___, 2021 WL 968621 (11th Cir. Mar. 16, 2021)Per capita distributions to tribal members from the operation of their tribe’s casino were federally taxable income.
Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Razaghi Development Co., LLC, ___ F. Supp. 3d ___ (D. Nev. Mar. 15, 2021)Predicate acts affecting interstate or foreign commerce for purposes of a claim under the Racketeer Influenced and Corrupt Organizations Act do not include telephone calls between off-reservation locations within a state and on-reservation locations also in the same state.
Weaver v. Gregory, ___ F. Supp. 3d ___, 2021 WL 1010947 (D. Or. Mar. 16, 2021)Suit under 42 U.S.C. § 1983 by terminated tribal police officer was barred against a tribe and tribal supervisory personnel in their official, but not personal, capacities and otherwise failed to state a claim in the absence of state action, and the exercise of supplemental jurisdiction over state-law claims was not warranted.
Garris v. Arkansas Dept. of Human Servs., 2021 Ark. App. 118, ___ S.W.3d ___ (Ct. App. Mar. 10, 2021)Nonmember of an Indian child’s tribe could serve as a qualified expert witness in a parental rights termination proceeding subject to the Indian Child Welfare Act, and the ICWA active-efforts requirement did not require the involved state department to work with a father incarcerated for sexual abuse for the purpose of preserving the family unit where it provided extensive services and support to the mother.
State, In Interest of A.R.F., 2021 UT App 31, ___ P.3d ___ (Ct. App. Mar. 18, 2021)Placement with a non-Indian foster-care family of two Indian children did not violate the Indian Child Welfare Act preference provisions, and active efforts directed at family reunification were provided.
Hawkins v. Haaland, ___ F.3d ___, 2021 WL 1044979 (D.C. Cir. Mar. 19, 2021)Ranchers in the Upper Klamath Basin lacked standing to enforce a protocol agreement between the United States and the Klamath Tribes related to making water right calls for instream flow purposes.
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.