News & Updates from WAGLAC
October 19th, 2020

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.
Executive Order on Modernizing America’s Water Resource Management and Water Infrastructure
The White House
October 13th, 2020

"President Trump signed an executive order on “Modernizing America’s Water Resource Management and Water Infrastructure” that establishes a Water Subcabinet, consisting of members from six agencies that collectively manage and direct our Nation’s water resources, including the Department of the Interior. The Water Subcabinet will coordinate on cross-cutting issues impacting water supply, quality, infrastructure, forecasting, flood control and financing."
Nearly Half of the U.S. Is in Drought. It May Get Worse
The New York Times
October 15th, 2020

"Nearly half of the continental United States is gripped by drought, government forecasters said Thursday, and conditions are expected to worsen this winter across much of the Southwest and South.

Mike Halpert, deputy director of the Climate Prediction Center, a part of the National Oceanic and Atmospheric Administration, said a lack of late-summer rain in the Southwest had expanded “extreme and exceptional” dry conditions from West Texas into Colorado and Utah, “with significant drought also prevailing westward through Nevada, Northern California and the Pacific Northwest.”

Much of the Western half of the country is now experiencing drought conditions and parts of the Ohio Valley and the Northeast are as well, Mr. Halpert said during a teleconference announcing NOAA’s weather outlook for this winter.

This is the most widespread drought in the continental United States since 2013, he said, covering more than 45 percent of the Lower 48 states."
Supreme Court Seems Skeptical of Texas’ Arguments
October 5th, 2020

"On the opening day of its new term, an eight-member Supreme Court – with one vacancy following the death of Justice Ruth Bader Ginsburg – heard argument Monday in Texas v. New Mexico, a new dispute in a long-dormant Supreme Court case over the waters of the Pecos River. The Pecos River Compact, approved by Congress in 1949, apportions these waters between upstream New Mexico and downstream Texas. Legal and technical disputes over New Mexico’s obligations led to landmark Supreme Court decisions in the 1980s and a decree requiring New Mexico to increase its deliveries of water to the Texas state line. The court also appointed a “river master” to perform the calculations needed to determine New Mexico’s ongoing compliance."
Purcell v. Parker
Justia US Law
October 6th, 2020

"Petitioners and respondents owned real property in McClain County, Oklahoma, containing and abutting Colbert Lake (the Lake). Petitioners also owned real property containing Colbert Creek, which was the sole source of water that fed the Lake. Respondents sought a permit from the Oklahoma Water Resources Board (OWRB), to sell water from the Lake to oil companies for use in fracking operations. The only notice that the OWRB provided to petitioners of the respondents' permit application was by publication in newspapers. The permits were issued, and petitioners subsequently filed suit at the district court, arguing that they were not given proper and sufficient notice of the permit proceedings. The district court dismissed the lawsuit in a certified interlocutory order, and petitioners appealed. The Oklahoma Supreme Court granted certiorari to address the proper, constitutionally required notice to landowners in such proceedings. The Court held that the notice given was inadequate, therefore judgment was reversed and the matter remanded for for further proceedings."
Court Rules in Favor of Klamath irrigation District, State Water Rights
Herald News
August 11th, 2020

"A win for state water rights came earlier this month after the Marion County Circuit Court ruled that the Bureau of Reclamation cannot release water from Upper Klamath Lake for flows down the Klamath River.

The Oregon Water Resources Department manages the water in Upper Klamath Lake and grants permits and licenses to various users of that water. Reclamation has been periodically releasing water from Upper Klamath Lake through the Link River Dam to increase downstream flows in the Klamath River, intending to improve habitat conditions for endangered Coho salmon."
Update on Utah’s RS 2477 Bellwether Case
Utah Attorney General's Office
"On July 31, 2015, and on its own initiative, the Federal District Court for the District of Utah entered an order establishing a process designed to ultimately result in a more efficient way of processing the 12,500 right‐of‐way claims throughout the state. The order creates a “Bellwether” process by which the parties stipulated to, and the Court approved, fifteen (15) rights‐of‐way in Kane County that exemplify remaining legal issues regarding the determination of R.S. 2477 rights‐of‐way. These fifteen (15) rights of way were the subject of a three‐week trial before the Honorable Judge Waddoups in the Utah Federal District Court at a trial in February 2020. Utah, Kane County, and the federal defendants now are engaged in post‐trial briefing and the preparation and submission of Findings of Fact and Conclusions of Law. After these are filed, Judge Waddoups will render a decision on each of the 15 fifteen (15) rights‐of‐way and whether each factually and legally qualifies as an R.S. 2477 right‐of‐way.

The current dispute originated with a tropical storm that dumped heavy rains on the Pecos Basin in September 2014. That water was stored in a federal reservoir, Brantley, located on the Pecos in New Mexico and operated by the U.S. Bureau of Reclamation. The bureau originally retained the high flows in Brantley for flood control purposes, but soon Texas asked that they be held in the reservoir and released later so that Texas could use them during the next irrigation season. Weather conditions in Texas did not cooperate, however, and in the end the bureau released the water the following summer at a time when Texas was unable to use it. During the months the water was held in Brantley, however, over 20,000 acre-feet of water evaporated. (An acre-foot is a measure of water volume, slightly less than one-third of a million gallons.)

After initially seeming close to an agreement on the accounting treatment of these losses, the two states reached an impasse, and the river master was forced to decide how to allocate them. He eventually decided that Texas should bear most of the evaporation losses, and all of them after March 1, 2015, when there was no longer a flood-control reason to keep the water in Brantley. He based this decision on a provision of the “River Master’s Manual,” which is incorporated by reference in the Supreme Court’s decree that resolved the earlier litigation.”
Judge Leaps to Defense of Jumping Mouse Critical Habitat
E&E News
October 14th, 2020

"A federal judge rejected Southwestern ranchers' challenge yesterday to critical habitat designated by the Fish and Wildlife Service for the bouncy little New Mexico meadow jumping mouse.

In an extraordinarily detailed, 241-page opinion, U.S. District Judge James Browning dismissed a lawsuit filed in 2018 by the Northern New Mexico Stockman's Association and the Otero County Cattleman's Association."
Pacific Northwest States Bypass Feds for Salmon Recovery
E&E News
October 13th, 2020

"Governors of four Pacific Northwest states announced a new commitment to recover the region's iconic salmon and steelhead, an implicit acknowledgement that federal efforts appear to have hit an impasse.

The agreement by Oregon, Idaho, Montana and Washington late last week commits to an "ongoing collaboration to help achieve" fish recovery, as numbers of the threatened runs continue to decline due to several factors, including climate change, predators and many dams on the Columbia River and its tributaries.

Separately, the National Hydropower Association and some environmental groups released a "joint statement of collaboration" signaling more willingness to work together to boost carbon-free hydropower production at some dams to help address climate change while also working to remediate the devastating effect the impoundments have on fish runs.

The governors' statement authorized their administrations to come up with a new "collaborative framework" for the basin, which includes some of the most controversial dams in the country, the four Lower Snake River impoundments in eastern Washington."
Yazzie v. Hobbs
Ninth Circuit affirms district court denial of preliminary injunction in suit by Navajo Nation members to require Arizona election officials to count mail-in ballots postmarked but not received by November 3, 2020

Six members of the Navajo Nation filed a non-class action suit against Arizona election officials in late August 2020 alleging violation of the Voting Rights Act of 1967 over burdens experienced by on-reservation members in voting by mail. The complaint alleged, in part, that “[m]any on-reservation members do not have home mail service; to receive or send mail, they must travel to a post office. This trip is often long and requires traversing rough terrain and stretches of unpaved roads. Added to this challenge are the socioeconomic factors, educational disadvantages, and language barriers that make both the travel to the post office— which requires access to a car—and the completion of mail ballots difficult.” The plaintiffs sought a mandatory injunction shortly after filing to require the defendants “to count mail ballots from on-reservation Navajo Nation tribal members that are postmarked—rather than received—by election day, November 3, 2020, and received on or before November 13, 2020.” Arizona law has required since 1997 actual receipt of mail-in ballots by 7 pm on election day. The district court denied the motion, concluding that the plaintiffs failed to establish a likelihood of success on the merits. Yazzie v. Hobbs, No. CV-20-08222-PCT-GMS, 2020 WL 5834757 (D. Ariz. Sept. 25, 2020). On appeal, the Ninth Circuit affirmed the motion’s denial but did so on Article III standing grounds. Yazzie v. Hobbs, No. 20-16890, 2020 WL 6072861 (9th Cir. Oct. 15, 2020).
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.
No new case summaries this week.
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.