News & Updates from WAGLAC
October 26th, 2020

The WAGLAC winter meeting will be held as a virtual meeting February 16-18, 2021. Additional Details to follow.
California v. USEPA

Under a final rule issued in 2016 under the Clean Air Act, the Environmental Protection Agency required States to submit landfill emission plans for agency review. Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills, 81 Fed. Reg. 59,276 (Aug. 29, 2016). For States that did not submit plans, EPA was obligated to promulgate a federal plan by November 2017. When the agency did not comply with that deadline, eight compliant States sued and secured an injunction requiring issuance of the federal plan by November 2019. However, prior to that judicially imposed deadline, EPA amended its rules to set a deadline for States to submit their plans by August 2019 and to extend the federal deadline for promulgation of a federal plan in noncompliant States for August 2021. See 40 C.F.R. §§ 60.27a(c), 60.30f. In view of the rule change, the agency moved for relief under Fed. R. Civ. P. 60(b)(5) on the ground that the amended rule “[c]onstitute[d] ‘a significant change in facts or law’ that warrants the revision of the Court's Order.” California v. U.S. Envtl. Protection Agency, No. 18-cv-03237-HSG, 2019 WL 5722571 (N.D. Cal. Nov. 5, 2019). The district court denied the motion, reasoning that “the situation presented here, where EPA undisputedly violated the Old Rule, received an unfavorable judgment, and then issued the New Rule only to reset its non-discretionary deadline (rather than to remedy its violation), does not render the judgment inequitable.”
Trump Issues Executive Order Making Some Civil Servants Easier to Hire and Fire
The Wall Street Journal
October 22, 2020

“The Trump administration is taking steps it says will make it easier to hire and manage civil servants in policy-making positions, but which critics say will undercut key job protections for federal workers.

An executive order issued [last] Wednesday by President Trump would exempt some positions across the federal workforce from competitive hiring procedures and civil-service protections.

The move will give agencies more flexibility in hiring “employees in confidential, policy-determining, policy-making, or policy-advocating positions,” President Trump said in the executive order. It will provide “greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency,” according to the order.

Critics, including public-sector unions, say the order could affect a range of federal employees, including attorneys serving in a variety of roles, damping robust internal debate over how to craft federal regulations.”
Vermont Examines Game Warden searches After Gorsuch Weighs In
E&E News
October 21, 2020

"The Vermont Department of Fish and Wildlife is going to be looking at how its game wardens conduct searches after three U.S. Supreme Court justices questioned the actions of some wardens in an illegal hunting case, the department's top official said yesterday.

But Commissioner Louis Porter said yesterday the full Supreme Court declined to hear the case and the illegal hunting conviction of Clyde Bovat of Hinesburg stands.

The issue revolved around whether the wardens could legally rely on what they saw while on Bovat's property in November 2017 while they were investigating a report that he had illegally hunted at night, known in Vermont as "deer jacking."
Presidential Candidates Release Native American Policy Statements

"President Trump and Former Vice-President Biden have issued statements outlining their respective tribal policy platforms. Each platform discusses how the candidate intends to work with tribal governments if elected."
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.
In re Dominic F., ___ Cal. Rptr. 3d ___, 2020 WL 5906142 (2d Dist. Sept. 30, 2020)Where the county family services department’s investigation did not result in a reason to know that the child custody proceeding involved Indian children, no obligation to give notice to various Indian tribes under the Indian Child Welfare Act and its California counterpart statutes existed, and thus the failure to file with the juvenile court the notices that were given to 30 tribes was not error.
Manzanita Band of Kumeyaay Nation v. Wolf, ___ F. Supp. 3d ___, 2020 WL 6118182 (D.D.C. Oct. 16, 2020)Tribe failed to establish the irreparable harm requisite to preliminary injunctive relief with respect to a claim that the construction of two barrier projects along the United States-Mexico border would disturb Native American gravesites.
In re Coughlin, ___ B.R. ___, 2020 WL 6140388 (Bankr. D. Mass. Oct. 19, 2020)Bankruptcy Code did not abrogate tribe’s immunity from suit.
In Matter of M.T., 2020 MT 562, ___ P.3d ___ (Oct. 20, 2020)District court erred in determining that children were ineligible for membership in a tribe that had not been contacted by the state agency concerning such eligibility.
In re N.S., ___ Cal. Rptr. 3d ___, 2020 WL 5988062 (4th Dist. Sept. 17, 2020)Tribe’s selection of guardianship as the best permanent plan option for an Indian child did not preempt under the Indian Child Welfare Act the trial court’s permanent plan preference for termination of parental rights and placement for adoption.
Cayuga Indian Nation of N.Y. v. Seneca County, N.Y., ___ F.3d ___, 2020 WL 6253332 (2d Cir. Oct. 23, 2020)Tribe possessed immunity in state-law proceedings that sought foreclosure on non-reservation real property for tax nonpayment.
ndreau Santee Sioux Tribe v. Terwilliger, ___ F. Supp. 3d ___, 2020 WL 6158920 (D.S.D. Oct. 21, 2020)State gross excise tax imposed on nontribal general contractor supplying services and materials in connection with on-reservation casino renovation, although not expressly preempted by the Indian Gaming Regulatory Act, was impliedly preempted under the Bracker interest-balancing test, expressly prohibited under the Indian Trader Statutes and, alternatively, impliedly preempted under the latter.
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.