This is the WAGLAC newsletter for September 27th
Disregard a prior draft version of the newsletter that was sent in error.
News & Updates from WAGLAC
September 27, 2021
The Fall WAGLAC meeting will be a virtual meeting on October 11th and 12th. 

The October 11th session will be devoted to a roundtable discussion of natural resource, environment and Native American law issues. 

The October 12th session will feature an Endangered Species Seminar keynoted by Idaho Congressman Mike Simpson. Congressman Simpson will discuss his proposed plan for restoring Columbia River salmon and steelhead. 
There will be presentations on wolves, sage grouse, polar bears, habitat conservation plans, safe harbor agreements and the intersection between the Endangered Species Act and tribal rights. CLE certification is being sought for the meeting.

The meeting is open to staff of state attorney general offices. 

Please click link below to register for the meeting. 
Upon registration you will be provided a link for the meeting. 
The WAGLAC Winter meeting will be held in
San Diego, CA on February 20 - 22, 2022.
Meeting details to follow.
Biden Administration Tackles Hydrofluorocarbons

New York Times
September 22, 2021

“The Biden administration [last week] finalized its first major regulation to directly limit greenhouse gases, part of an effort to show America’s progress on global warming before a crucial climate summit in Glasgow in November. The measure would curb the production and use of potent planet-warming chemicals called hydrofluorocarbons, or HFCs, which are used in air-conditioners and refrigerators.”
9th Circuit resets water pollution ruling
in light of SCOTUS Maui case

Reuters News Agency
September 21, 2021
“A split panel of the 9th U.S. Circuit Court of Appeals vacated a judgment by a Santa Ana, California federal judge who found that Corona Clay Co failed to adopt best practices and was in violation of its Clean Water Act (CWA) permit for years when discharging contaminated stormwater. The judgment also absolved the company of other claims, tried by jurors, alleging discharges into CWA-protected waters.

The California-based company had admitted to ‘indirect’ discharges of stormwater. But the majority reasoned that the lower court must consider anew whether they are illegal in light of the Supreme Court's ruling in County of Maui, Hawaii v. Hawaii Wildlife Fund, which devised a test that says permits are required under the CWA when indirect discharges are the ‘functional equivalent’ of a discharge from a pipe or other ‘point source.’"
Tribes Sue to Stop State-Sanctioned Gray Wolf Hunt

Reuters News Agency
September 21, 2021

"Six tribes in northern Wisconsin sued the state in Madison federal court . . . to stop a state-sanctioned November gray wolf hunt.
The Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin and the other tribes claim the Wisconsin Department of Natural Resources' planned hunting season for the predator, whose endangered species protections were lifted in January, violates treaties signed with the U.S. government in the 19th century by nullifying their guaranteed share of natural resources.”
Court Allows Waterwatch of Oregon ESA Take Action Against Winchester Water Control District to Proceed

The Oregon Federal District Court denied Winchester Water Control District’s FCRP 12(b)(1) motion to dismiss plaintiffs action alleging that the District has violated the salmon 4(d) rule, 50 C.F.R. § 223.203, and the Endangered Species Act, 16 U.S. C. § 1538(a)(1)(G) and 1538(1)*B), by “failing to provide adequate fish passage at the Winchester Dam and/or failing to remove the Winchester Dam.” The District’s motion to dismiss argued the case should be dismissed under the doctrine of primary jurisdiction, or because the claims are barred by the statute of limitations. Defendant argued that the Oregon Water Resource Department and the Oregon Department of Fish and Wildlife “have primary jurisdiction over the regulation of water rights and fish passage in Oregon” and therefore the Court should abstain from interfering with the jurisdiction and core functions of these state agencies. In rejecting the District’s motion, the Court found that while the Complaint arguably alleges ESA violation based on the failure of the District to comply with state laws, “the Complaint also alleges facts “that plausibly suggest a take has occurred or is occurring without reliance on the work of Oregon agencies or Oregon law.” The also declined to dismiss the Complaint as time barred finding that “there is no staleness concern because the take of Coast coho continues to occur.”
Addressing Water Needs and Strategies for a Sustainable Future

Western States Water
September 24, 2021

“On September 7, the California Department of Water Resources received notice of the commencement of the comprehensive groundwater adjudication in IndianWells Valley Water District v. All Persons Who Claim a Right to Extract Groundwater in the Indian Wells Valley Groundwater Basin, etc., et al. (Orange County Superior Court, Case No. 30-2021-01187275-CU-OR-CJC). The original complaint was filed by Mojave Pistachios, LLC. The cross-complaint bythe Indian Wells Valley Water District (IWVWD) seeks “a judgment to comprehensively determine and adjudicate all groundwater rights in the Basin and to provide a physical solution for the perpetual and continuous management of the Basin.”
Federal Judge Rejects Utes Water Right Suit

The Salt Lake Tribune
September 22, 2021

“A federal judge has dismissed much of the Ute Indian Tribe’s lawsuit over the federal government’s handling of the tribal water rights, ruling that many of the tribe’s claims were raised too late or are barred for other reasons. Dating back a century, the allegations concern the state and federal government’s alleged mishandling of tribal lands and various water development projects that were to benefit the northeastern Utah tribe.”

Supreme Court to Consider Four Petitions Regarding Constitutionality of Indian Child Welfare Act

September 24, 2021

This term the Supreme Court will consider whether the Indian Child Welfare Act of 1978 violates equal protection under the Fifth Amendment. "Four petitions involve a decision by the en banc U.S. Court of Appeals for the 5th Circuit striking down some provisions of the Indian Child Welfare Act"
The Civil Division of the Department of Law is the State of Alaska is looking for a talented, energetic, and hard-working full-time attorneys to become a members of our dynamic legal team.

Recruiter: ANNE NELSON 
Phone: 775 684-0126 

Position Description

Alaska’s history, culture, and economy are inextricably bound to the State’s natural resources. Natural Resources section attorneys work closely with client program managers in a variety of capacities, including litigation in administrative, state, and federal forums, complex litigation, administrative appeals, major infrastructure development projects and program initiatives, legislation and regulation drafting, and daily operational advice. Working in the Natural Resources section offers a unique opportunity to participate in development of Alaska natural resource management law, support dynamic resource management programs, and witness real-world application of the legal advice provided.

To learn more about this job please click below:
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Editions of the Deskbook are published annually by Thomson Reuters, and the 2021 Edition was issued during the week of July 19, 2021. It is available on Westlaw in the Secondary Sources/Texts & Treatises category and in hard copy.

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 Ricardo Balderrama with any questions.
United States v. Walker River Irrigation District, ___ F. Supp. 3d ___, 2021 WL 4295748 (D. Nev. Sept. 21, 2021): Plaintiffs’ motion for summary judgment on four affirmative defenses asserted against a counterclaim seeking to reopen a 1936 decree for the purpose of adding a groundwater reserved water right and a storage water right was granted.
Roth v. State, 2021 OK CR 27, ___ P.3d ___ (Ct. Crim. App. Sept. 16, 2021): State did not have concurrent jurisdiction over an offense committed by a non-Indian against an Indian within the boundaries of the Creek Nation Reservation.
In Interest of J.S., ___ S.W.3d ___, 2021 WL 4238486 (Tex. Ct. App.—Amarillo Sept. 17, 2021): Trial court did not err in not sending notice to the Zuni Tribe where the father testified that he was affiliated with the Apache Tribe and had mistakenly referred to the Zuni Tribe.
Stathis v. Marty Indian School Board, Inc., ___ F. Supp. 3d ___, 2021 WL 4255644 (D.S.D. Sept. 17, 2021): Tribal school possessed arm-of-the-tribe immunity from a suit by its discharged principal, but, alternatively, the principal failed to state a claim under 42 U.S.C. § 1981 or viable state-common-law claims.
Navajo Nation v. U.S. Dept. of Interior, ___ F. Supp. 3d ___, 2021 WL 4243405 (D.D.C. Sept. 16, 2021): Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act by denying a tribe’s proposed successor funding agreement proposal for reasons later rejected by a secretarial representative in an informal conference provided for by regulations.
United States v. Washington, ___ F. Supp. 3d ___, 2021 WL 4264340 (W.D. Wash. Sept. 20, 2021): Lummi Nation’s usual-and-accustomed fishing places did not include waters east of Whidbey Island.
Evans Energy Partners, LLC v. Seminole Tribe of Florida, Inc., ___ F. Supp. 3d ___, 2021 WL 4244128 (M.D. Fla. Sept. 17, 2021): Complaint against a tribe seeking to compel arbitration under commercial contract dismissed because the dispute resolution provision did not unambiguously waive the tribe’s immunity from suit.
Native Village of Eklutna v. U.S. Dep’t of Interior, ___ F. Supp. 3d ___, 2021 WL 4306110 (D.D.C. Sept. 22, 2021): Administrative Procedure Act challenge to the Department of the Interior’s rejection of a Native Village’s application for an “Indian lands” determination under the Indian Gaming Regulatory Act was denied.
Whalen v. Oglala Sioux Tribe Executive Officers, ___ F. Supp. 3d ___, 2021 WL 4267654 (D.S.D. Sept. 20, 2021): Tribal member’s suit against the tribal council, the tribal election commission and their members was dismissed for lack of subject-matter jurisdiction and the defendants’ immunity from suit.
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
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.