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Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. Mcculloch

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Tuesday, December 3, 2019, at 11:00 a.m. in the Supreme Court Building in Washington, D.C. Lisa S. Blatt will likely appear for the Petitioner. Joseph R. Palmore will likely appear for the Respondents. Solicitor General Noel J. Francisco will likely argue on behalf of the United States.

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

Preview—County Of Maui, Hawaii V. Hawaii Wildlife Fund: Clean Water Act Regulation Of Point Source Pollution Conveyed Through Groundwater, Connlan W. Whyte

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Wednesday, November 6, 2019, at 10:00 a.m. at the Supreme Court Building in Washington, D.C. Elbert Lin will likely appear for the Petitioner. David Lane Henkin will likely appear for the Respondents. Solicitor General, Noel J. Francisco, will argue on behalf of the United States.

Wildearth Guardians V. Zinke, Emily M. Mcculloch

Public Land & Resources Law Review

WildEarth Guardians v. Zinke marks an important decision prompting the Bureau of Land Management to seriously consider greenhouse gas emissions when performing environmental assessments for oil and gas leasing. WildEarth Guardians and Physicians for Social Responsibility, two non-profit organizations, asserted BLM improperly failed to recognize greenhouse gas emissions and their impacts on climate change when issuing oil and gas leases in three western states. The United States District Court for the District of Columbia agreed, finding that by failing to take a hard look at environmental impacts from its leasing decisions, BLM violated the National Environmental Policy Act’s requirements.

Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed

Public Land & Resources Law Review

In 2017, Secretary of the Interior Ryan Zinke issued a new order lifting the previous administration’s 2016 Jewell Order that had placed a moratorium on mineral leases until a programmatic EIS was completed. The new order repealed the moratorium, cancelled the programmatic EIS, and instructed the BLM to expedite new mineral lease applications. Several plaintiffs challenged Zinke’s order, and the United States District Court for the District of Montana ruled that it was a major federal action that triggered NEPA analysis and that the agency acted arbitrarily and capriciously when it issued the order without any environmental review.

Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson

Public Land & Resources Law Review

The Montana Supreme Court will hear oral arguments in this matter on Thursday, November 7, 2019 at 9:30 AM in the courtroom of the Montana Supreme Court, Joseph P. Mazurek Building, Helena, Montana. The Honorable Olivia Rieger will hear the case in place of Justice Jim Rice, who recused himself. Eric B. Wolff is expected to argue for the Appellants. Harlan B. Krogh is expected to argue for the Appellees.

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Sturgeon V. Frost, Layne L. Ryerson

Public Land & Resources Law Review

After two trips to the United States Supreme Court, an Alaskan moose hunter secured motorized access to his hunting ground while establishing Alaska as the exception, rather than the rule, regarding federal land management. In a much-anticipated holding, the Court determined that the surface waters of the Nation River within the Yukon-Charley Rivers National Preserve qualify as “private” land and therefore fall beyond the control of the National Park Service. The decision stripped the Park Service of normal regulatory authority over navigable waters within Alaska’s national parks, prompting a concurrence urging Congress to clarify resulting ambiguities.

League Of Conservation Voters V. Trump, Adam W. Johnson Mr.

Public Land & Resources Law Review

A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

Herrera V. Wyoming, Dylan M. Jaicks

Public Land & Resources Law Review

Stemming from the conviction of a Crow tribal member for illegal hunting, Herrera v. Wyoming reignited long-running questions concerning treaty abrogation and precedent. In an effort to clarify conflicting case law, the Supreme Court upheld the Crow Tribe’s reserved hunting rights and rejected the argument that statehood extinguished such rights.

Truth, Lies, And Copyright, Cathay Y. N. Smith

Faculty Law Review Articles

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the tele-phone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction.

This Article is the first to offer a comprehensive analysis of …

Beyond Constitutional Frontiers: Tribal Rights, Resources, And Reform, Monte Mills

Faculty Journal Articles & Other Writings

The current era arguably poses the most complex and challenging environmental dilemmas in human history. With climate change, increasingly scarce resources, and exponentially expanding demand, traditional legal notions of standing, harm, and liability are being stretched and reshaped to accommodate a shifting set of values regarding natural resources and potentially respond to the moment. While these novel and innovative approaches are modestly reshaping the fields of natural resources and environmental law, however, the historical and time-honored claims of Indian tribes are also presenting avenues for rethinking the foundations of those areas of law. Arising both within and outside of the …

Tribal Data Governance And Informational Privacy: Constructing "Indigenous Data Sovereignty", Rebecca Tsosie

Montana Law Review

This essay discusses tribal claims to data sovereignty and informational privacy, examining the nature of the respective claims, as well as how tribal governments can exercise effective authority over the collection and use of data about the community and its members. Part I of the essay explores the issue of data sovereignty comparatively, framing the concept within its global and national contexts, and then discussing the rights of tribal governments and other Indigenous peoples. Part II of the essay examines the various claims that are comprised within the movement toward "Indigenous data sovereignty," as well as the current context of …

From The Coils Of The Anaconda, Restriction Of Constitutional Amendment By Popular Initiative In Montana Association Of Counties V. State, Ryan Douglas

Montana Law Review

This note examines the ways in which Montana Association of Counties concerns Montana law, elections, and history. While it is now nearly futile to suggest any regulation of campaign speech based on the speaker's corporate identity, it is possible to limit the influence of outsiders on the political process and fundamental text of the state. Part II discusses the historical development of the statutory initiative and referendum regime that existed under the 1889 Constitution and tracks its transition to the constitutional amendment by popular initiative process that emerged as part of Montana's 1972 Constitution. Part III describes the factual background, …

Giggin' In The 21st Century, Haley Ford

Montana Law Review

Against this backdrop and based upon an analysis of fairness and complexity principles, this comment argues for several tax policy changes that should be implemented immediately in order to address some of the most pressing concerns gig economy workers presently face under current labor classifications. Part II provides a background of the gig economy while explaining the legal rationale behind the present classification of gig economy workers as independent contractors. Part II then illustrates the mechanics of a standard gig economy transaction generally, concluding with a side-by side comparison of a gig economy worker and a similarly-situated employee. Part III …

Remarks At The Dedication Of Walter Lyndon Pope Memorial Library, University Of Montana Law School June 9, 1979, James R. Browning

Montana Law Review

No abstract provided.

The Parable Of Portobello: Lessons And Questions From The First Urban Acquisition Under The Scottish Community Right-To-Buy Regime, John A. Lovett, Malcolm M. Combe

Montana Law Review

Scholars, lawyers, and activists interested in community development in the United States, Scotland, or any country seeking to expand community ownership of land will be interested, we think, in the lessons we learned in Portobello and the questions it poses for the future.

2019 James R. Browning Distinguished Lecture In Law, "Holding The Delicate Balance Steady And True": The History Of Fisa's Grand Bargain, Richard C. Tallman, Tania M. Culbertson

Montana Law Review

The Honorable Richard C. Tallman and his career law clerk Tania M. Culbertson explain what led to the passage of the Foreign Intelligence Surveillance Act ("FISA") and its creation of the FISA courts, and describe the grand bargain that was struck between our three branches of government when creating FISA's judicial review procedures over domestic espionage and counter-terrorism investigations. Their hope is to leave you with a keener understanding of how we have arrived at where we are today, and how the judiciary understands its oversight role within FISA's statutory framework under our Constitution.

A Legal Response To The Sovereign Citizen Movement, Caesar Kalinowski Iv

Montana Law Review

This article seeks to provide civil servants, law enforcement, and the judiciary with a comprehensive reference guide to the Sovereign Citizen movement. To do this, the article attempts to make sense of and explain the most common Sovereign Citizen themes and their failings under the Constitution: first, the jurisdiction of the federal government over actual flesh and blood citizens; second, the ability to tax citizens and redeeming the "strawman" (the so-called "Redemption Scheme"); and third, the individual's right to travel. By explaining the legal shortcomings of the Sovereign Citizen ideology, lawyers and judges can address citizens' concerns about government overreach, …

You Can't Escape Your Past: State V. Blaz And The Future Of 404(B) Evidence In Montana, Britton Fraser

Montana Law Review

This note focuses on identity evidence—specifically, the admissibility of evidence of past crimes or acts in order to identify the defendant as the perpetrator of a crime. It explains how the Court, by improperly expanding its prior rulings, opened the floodgates to admit types of behavior that have not constituted uniquely identifying criminal signatures. It also seeks to illustrate the effect this expansion might have on the admissibility of such evidence in the future. Part II of this note begins with a brief background on applicable Montana law and an overview of the law’s purpose. Part II also discusses prior …

Book Review Of "River Of Lost Souls", Clifford J. Villa

Public Land & Resources Law Review

No abstract provided.

'Race, Racism, And American Law ': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

Faculty Law Review Articles

The events of fall 2016 exploded the myth of a post-racial America that some believed had been ushered in by Barack Obama’s presidency.1With the U.S. presidential campaign in full swing, soon-to-be President Donald Trump disparaged Muslims as terrorists, Mexicans as rapists and murderers, and African Americans as poor.2 Trump’s racist demagoguery came amidst the momentum of the Black Lives Matter,Standing Rock, and Dreamer movements—mass mobilizations that sought to end the police killings of Black people, protect Native American treaty rights, and grant immigrant minors legal status.3 Once again, the racial divide that has defined this nation since its inception 2019] …

2018 James R. Browning Symposium Keynote, Matthew L.M. Fletcher

Montana Law Review

No abstract provided.

Tribal Nations And Congress's Power To Define Offences Against The Law Of Nations, John H. Dossett

Montana Law Review

The Framers of the Constitution founded the United States on a principle that the federal government has limited, enumerated powers. This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act. There is considerable evidence that the Offences Clause was intended to authorize Congress to regulate relationships with tribal nations as well as foreign governments. This Article puts forth the Offences Clause as a response to the challenges raised by Justice Thomas and the State of Texas, including concerns about racial classification or overreach of commerce …

On Indian Children And The Fifth Amendment, Matthew L.M. Fletcher

Montana Law Review

No abstract provided.

United States V. Gillette: A Tiny Prairie Casenote Opening A Window On The Enveloping Fog Obscuring The Indian Civil Rights Act Of 1968, Frank Pommersheim

Montana Law Review

United States v. Gillette is one of the first reported cases on the new post-United States v. Bryant road. As of yet, there is no reliable (legal) GPS to point the way. This "tiny prairie" casenote is not meant to focus on the answers, but rather clarify the questions and to widen the discussion as the journey continues.

Buddha Speaks Wisdom At The University Of Montana Law Review Symposium On Indian Law, Frank Pommersheim

Montana Law Review

No abstract provided.

Sovereign Metaphors In Indian Law, Gregory Ablavsky

Montana Law Review

This exploration reveals that tribes were not as anomalous as the Supreme Court of the United States has suggested. Even while the Court proclaimed the Tribes' uniqueness, it readily applied doctrines developed in the context of foreign nations, states and U.S. territories to Native nations, ignoring the differences between the situation of tribes and other sovereigns. This narrative about what tribes lack when compared to other sovereigns has become a constant, and pernicious, trope within the discourse of Indian law.

From Foundational Law To Limiting Principles In Federal Indian Law, Alexander T. Skibine

Montana Law Review

Federal Indian law has been "exceptional" in the sense of being distinctively compared to other areas of American Public Law. This Article analyzes areas of federal Indian Law where the application of exceptionalism and foundational principles is especially likely to motive the Supreme Court of the United States to search for limiting principles. The Article focuses on tribal sovereign immunity cases, tribal-state conflicts involving off-reservation treaty rights, and state taxing power within Indian reservations.