News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
September 8th, 2020
WAGLAC Fall Virtual Meeting
October 12th - 14th
Platform: Zoom

In response to COVID-19, the WAGLAC Fall Meeting will be held as a virtual meeting on October 12-14, 2020.

TO REGISTER: email RSVP to Andrea Friedman at, then you will receive full login details.
In addition to the roundtable discussion of natural resource, environmental, and Indian law issues, there will be an Indian Law Seminar. Topics to be covered are:
  1. Larry Echo Hawk, Former United States Assistant Secretary of the Interior for Indian Affairs, Former Idaho Attorney General, and Former Shoshone-Bannock Tribal Attorney will share his Thoughts on State/Tribal Relations in the 21st Century;
  2. Adam Crepelle, Associate Professor, Southern University Law Center, and Managing Fellow of its Native American Law and Policy Institute, will discuss Tribes and Internet Payday Loans;
  3. Fronda Woods, Assistant Editor, American Indian Law Deskbook, will discuss Public Law 280: Fundamentals and Misconceptions;
  4. Clay Smith, Chief Editor, American Indian Law Deskbook, will discuss Tribal Adjudicatory Authority: Exhaustion, Deferral and the Merits; and 
  5.  Bruce Turcott, Managing Assistant Attorney General, and Michelle Carr, Assistant Attorney General, State of Washington will discuss Cannabis and Indian Country.
WAGLAC meetings are limited to CWAG Attorneys General and staff. Subject matter experts are encouraged to participate in the roundtable discussions. 
*Please note the meeting dates, times and duration have changed to accommodate participation by all CWAG member states. 

CWAG is pursing CLE credits for meeting.
Tribes Sue EPA Over Permit Rule
E&E News
September 1, 2020

"American Indian and Alaska Native tribes are suing EPA and accusing the agency of illegally curbing their authority in Clean Water Act permitting for federally approved projects like pipelines and export terminals.

The Suquamish and Pyramid Lake Paiute tribes and the Orutsararmiut Native Council, represented by Earthjustice, filed the lawsuit in the U.S. District Court for the Northern District of California, taking aim at a final rule EPA issued in June that limits the scope of state water quality reviews under Section 401 of the Clean Water Act.

The rule, already facing numerous lawsuits, bars governors from considering other concerns like climate change, and places a one-year deadline on state action (Greenwire, June 2). Columbia Riverkeeper and the Sierra Club are also plaintiffs in the suit."
Trump Administration Rolls Back Obama-Era Rule Aimed at Limiting Toxic Wastewater From Coal Plants
The Washington Post
August 31, 2020

"The Trump administration weakened a 2015 regulation that would have forced coal plants to treat wastewater with more modern, effective methods in order to curb toxic metals such as arsenic and mercury from contaminating lakes, rivers and streams near their facilities.

In a statement, Environmental Protection Agency Administrator Andrew Wheeler said that the final rule’s “flexible, phased-in” approach would make it easier for the coal industry to comply while also protecting the environment. Three years ago the Trump administration delayed the Obama-era rule — which the EPA had estimated would keep 1.4 billion pounds of pollutants out of U.S. waterways each year — before replacing it with a scaled-back version."
Trump EPA Launches Office of Mountains, Deserts and Plains to Effectively Address Abandoned Mine Lands, Accelerate Cleanup Across the West
September 2, 2020

"At a press conference at the Western Museum of Mining and Industry, the U.S. Environmental Protection Agency (EPA) announced the creation of the Office of Mountains, Deserts and Plains located in EPA’s office in Lakewood, Colo. This western lands-focused office will address cross-cutting issues unique to the region, and more effectively leverage existing EPA staff, expertise and resources in hardrock mining cleanup."
Proposal Clarifies Critical Habitat Designations
U.S. Fish & Wildlife Service
September 4, 2020

"Furthering the Trump Administration’s objectives to balance effective, science-based conservation with commonsense policymaking, the U.S. Fish and Wildlife Service (Service) is proposing regulations to clarify and update its processes for considering exclusions from critical habitat designations under the Endangered Species Act (ESA). The proposed changes relate to the Service’s recent announcement on the proposed definition of habitat and respond to a 2018 Supreme Court decision in the Weyerhauser case, as well as codifying and modifying current agency practices."
Governors Request 'Close Working Relationship' Between States, Federal Agencies on Definition of "Habitat"
Western Governors' Association
September 3, 2020

Western Governors request that federal agencies and state wildlife managers "maintain a close working relationship" in comments to the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration about the proposed rule, Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat. The proposed rule would establish a regulatory definition of “habitat” in the context of critical habitat designations under the Endangered Species Act. The Governors assert that collaboration on that definition will "ensure that any new interpretation or application of the term does not result in unintended consequences for state management of species." The letter of Sept. 3, 2020 was signed by WGA Chair Oregon Gov. Kate Brown and Vice Chair Idaho Gov. Brad Little.
Water and Tribes Initiative
Western States Water Newsletter
September 4, 2020

"The Water and Tribes Initiative, a collaboration between the Center of Natural Resources and Environmental Policy at the University of Montana, the Babbitt Center for Land and Water Policy, Walton Family Foundation, Ten Tribes Partnership and other individuals
and groups, has published a report called “Toward a Sense of the Basin: Designing a Collaborative Process to Develop the Next Set of Guidelines for the Colorado River System.” This report was developed over the past year and a half in response to the upcoming negotiations beginning in late 2020 on new guidelines to replace Bureau of Reclamation’s (USBR) 2007 Interim Guidelines for operating the Colorado River. The effort consisted of over 100 interviews in 2019 and three workshops in 2019 and early 2020 that allowed stakeholders to discuss and provide feedback. Many Western States Water Council members were interviewed as part of the effort, as well as other state
representatives, tribes, local water providers, foundations, conservation groups, academics, and individuals from the International Boundary and Water Commission, the Department of the Interior and USBR."
Interior Watchdog: Top Officials Misled Congress on BLM Relocation Out West
The Hill
September 1, 2020

"Top Interior Department officials misled Congress when they claimed high office rent in Washington, D.C., was a factor in the need to move the Bureau of Land Management (BLM) to a new headquarters in Colorado, the agency’s internal watchdog found.

A report from Interior’s Office of Inspector General found that two officials overplayed the cost of BLM’s M Street SE lease near Nationals Park as a motivating factor in the move, as the agency already had plans underway to return to office space owned by the government.

Joseph Balash, a former assistant secretary for land and minerals management who now works in the oil industry, and BLM acting Director William Perry Pendley, whose tenure with the agency is the subject of a lawsuit, are implicated in the report."
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.
United States v. Smith, ___ F. Supp. 3d ___, 2020 WL 5084128 (D.N.M. Aug. 27, 2020)Federal jurisdiction exists over an offense allegedly committed by a non-Indian against an Indian on nontribal land within a pueblo’s exterior boundaries.
Ute Indian Tribe of Uintah and Ouray Reservation v. McKee, ___ F. Supp. 3d ___, 2020 WL 5095277 (D. Utah Aug. 28, 2020)Tribal court lacked jurisdiction over claim that nonmember misappropriated water conveyed across the nonmember’s reservation fee land by water project canals.
United Auburn Indian Community of Auburn Rancheria v. Newson, ___ P.3d ___, 2020 WL 5103639 (Cal. Aug. 31, 2020)California governor possessed inherent authority to concur in a determination by the Secretary of the Interior to take land into trust for gaming purposes under the Indian Gaming Regulatory Act.
Samish Indian Nation v. Washington Dep’t of Licensing, ___ P.3d ___, 2020 WL 5105074 (Wash. Ct. App. Div. 1)As used in state statute authorizing negotiation over fuel tax agreements with a federally recognized tribe located on a "reservation,” the term “reservation” includes trust lands on which a retail station is located.
San Carlos Apache Tribe v. Azar, ___ F. Supp. 3d ___, 2020 WL 5111109 (D. Ariz. Aug. 31, 2020)Tribe is not entitled to contract support costs under an ISDEAA contract for services provided through income received from third-party payers.
Pauma Band of Luiseno Mission Indians of Pauma & Yuma Reservation v. California, ___ F.3d ___, 2020 WL 5225700 (9th Cir. Aug. 2, 2020)State did not violate its duty under the Indian Gaming Regulatory Act to bargain in good faith with respect to a tribe’s request to renegotiate a 1999 class III gaming compact.
Pueblo of Jemez v. United States, ___ F. Supp. 3d ___, 2020 WL 5238734 (D.N.M. Sept. 2, 2020)Motion to reconsider and alter final decision in Pueblo of Jemez v. United States, 430 F. Supp. 3d 943 (D.N.M. 2019), denied.
In Matter of Dependency of Z.L.G. and M.E.J.G., ___ P.3d ___, 2020 WL 5241275 (Wash. S. Ct. Sept. 3, 2020)Under the Indian Child Welfare Act and its Washington state law counterpart, “reason to know” of possible Indian child status exists when a participant in the child custody proceedings indicates that the child has tribal heritage.
United States v. Washington, ___ F. Supp. 3d ___, 2020 WL 5249499 (W.D. Wash. Sept. 2, 2020)Magistrate judge did not err in refusing to award compensatory damages to tribes for a private grower’s violation of the revised shellfish implementation plan.
Seneca Nation v. Cuomo, ___ F. Supp. 3d ___, 2020 WL 5248467 (W.D.N.Y. Sept. 3, 2020)Tribe’s claim challenging the validity of a 1954 easement for the New York State Thruway across reservation land was not barred by collateral estoppel and sought prospective relief within the scope of the Ex parte Young doctrine.
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.