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Articles 1 - 30 of 30
Full-Text Articles in Law
Center For Biological Diversity V. Jewell, Kirsa Shelkey
Center For Biological Diversity V. Jewell, Kirsa Shelkey
Public Land & Resources Law Review
Following years of pressure to list the upper Missouri River population of Arctic grayling as an endangered or threatened species, the United States Fish and Wildlife Service issued a 2014 Finding that listing the fish was “not warranted at this time.” The Service relied on voluntary Candidate Conservation Agreements with Assurances in the Big Hole River Basin to determine that listing criteria under the Endangered Species Act was not met and therefore listing was not necessary. Ultimately, the court deferred to agency expertise and found that the Service’s decision not to list the Arctic grayling was reasonable.
United States V. Washington, Kirsa Shelkey
United States V. Washington, Kirsa Shelkey
Public Land & Resources Law Review
Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right of taking fish, …
Cascadia Wildlands V. Thrailkill, Maresa A. Jenson
Cascadia Wildlands V. Thrailkill, Maresa A. Jenson
Public Land & Resources Law Review
The ninth circuit denied preliminary injunction for a wildfire Recovery Project in Oregon’s Klamath Mountains, the home range of the threatened spotted owl. The USFWS BiOp for the Recovery Project determined that there was no jeopardy to the species, even though research found adverse habitat effects and incidental take of the spotted owl. Thus, affirming the scientific procedure contained the “best available science” and was not arbitrary or capricious.
National Wildlife Federation V. National Marine Fisheries Service, Jacob R. Schwaller
National Wildlife Federation V. National Marine Fisheries Service, Jacob R. Schwaller
Public Land & Resources Law Review
The tide in the legal battle surrounding anadromous fish protections in the Columbia River watershed most recently swung in favor of the fish. In the latest iteration of National Wildlife Federation v. National Marine Fisheries Service, the Court found in a lengthy opinion that NOAA fisheries acted arbitrarily and capriciously when it issued its 2014 BiOp concluding that the FCRPS did not violate the ESA. The Court also ruled that the Corps violated NEPA by failing to prepare an environmental impact statement in connection with their records of decision implementing reasonable and prudent alternatives in the BiOp. This decision could …
Natural Resources Defense Council, Inc. V. Pritzker, Caitlin Buzzas
Natural Resources Defense Council, Inc. V. Pritzker, Caitlin Buzzas
Public Land & Resources Law Review
In Natural Resources Defense Council, Inc. v. Pritzker, the Ninth Circuit dealt with the conflict of science in making legal and policy decisions. NMFS was held to a stringent mitigation standard to protect marine mammals against the Navy’s use of LFA sonar for military operations. In this decision the court held that agencies are required to apply the least practicable adverse impact on marine mammals in these types of operations and agencies must listen to their own experts when making these decisions.
Sturgeon V. Frost, Emily A. Slike
Sturgeon V. Frost, Emily A. Slike
Public Land & Resources Law Review
Tension has long existed between states and the federal oversight invoked throughout the western United States. While courts have clarified some, there are still questions about the oversight the federal government should be afforded. In Sturgeon v. Frost, the Supreme Court left the hard questions of state sovereignty and federal land management to the lower appellate courts. However, the Court ruled that Alaska will continue to remain the exception to the rule and that Alaskan conservation system units can be treated differently than other federally managed preservation land throughout the rest of the country.
City Of Longmont Colorado V. Colorado Oil & Gas Association, Arie R. Mielkus
City Of Longmont Colorado V. Colorado Oil & Gas Association, Arie R. Mielkus
Public Land & Resources Law Review
In Colorado, the oil and gas industry's use of hydraulic fracturing, and municipalities’ attempts to restrict where the practice can be done, are at odds. Those in favor of hydraulic fracturing laud the economic benefits and natural gas’s ability to burn cleaner than coal, while those in opposition warn of potential adverse environmental impacts including the strain on water resources in the arid west. The City of Longmont was sued following its enactment of an amendment outlawing hydraulic fracturing within city limits. The City’s amendment was found to be preempted by state law, and thus could not remain in force. …
Protect Our Communities Foundation V. Jewell, Benjamin W. Almy
Protect Our Communities Foundation V. Jewell, Benjamin W. Almy
Public Land & Resources Law Review
In Protect Our Communities Foundation v. Jewell, the Ninth Circuit upheld a right-of-way grant issued by the BLM for the development of the Tule Wind energy facility in the McCain Valley in southern California. In its decision to uphold the district court’s summary judgment ruling in favor of the Defendants, the Ninth Circuit reaffirmed National Environmental Policy Act (“NEPA”) standards of compliance for a satisfactory Environmental Impact Statement (“EIS”). The specific challenges raised by the Plaintiffs and addressed by the court were to the Statement of Purpose and Need, the Project Alternatives, the Mitigation Measures, and the “Hard Look” …
Kain V. Department Of Environmental Protection, Sarah M. Danno
Kain V. Department Of Environmental Protection, Sarah M. Danno
Public Land & Resources Law Review
Global climate change and its chronic frustrations generated passage of the Massachusetts Global Warming Solutions Act. The Massachusetts Legislature imposed time-bound implementation mandates on the Massachusetts Department of Environmental Protection with Massachusetts residents acting as compliance watchdogs. In Kain, the Supreme Judicial Court of Massachusetts interpreted the Act in favor of environmental integrity and strict agency compliance standards.
United States Army Corps Of Engineers V. Hawkes Co., Jonah Brown
United States Army Corps Of Engineers V. Hawkes Co., Jonah Brown
Public Land & Resources Law Review
When landowners seek to determine if a permit is required from the Army Corps of Engineers to discharge dredged or fill material into waters within their property boundaries, they may first obtain a jurisdictional determination specifying whether “waters of the United States” are present. In an 8-0 judgment, Army Corps of Engineers v. Hawkes was a victory for landowners, concluding that an approved jurisdictional determination is a final agency action reviewable under the Administrative Procedure Act.
Oregon Natural Desert Association V. Jewell, Jody D. Lowenstein
Oregon Natural Desert Association V. Jewell, Jody D. Lowenstein
Public Land & Resources Law Review
In Oregon Natural Desert Association v. Jewell, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a wind-energy development on inaccurate scientific analysis. In negating the BLM’s action, the court held that flawed data and indefensible reasoning were discordant with NEPA’s central tenets. Furthermore, the court did not hold the BLM responsible for addressing a distinct environmental issue that was not brought to its attention during the public comment period.
United States V. Bryant, Lillian M. Alvernaz
United States V. Bryant, Lillian M. Alvernaz
Public Land & Resources Law Review
The epidemic of domestic violence committed against Native American women and the jurisdictional maze these women are forced to navigate for justice is an unfortunate reality created by gaps in laws between sovereigns. In an effort to curb this violence, the 2005 reauthorization of the Violence Against Women Act enacted 18 U.S.C. § 117(a), the habitual offender provision. The Ninth Circuit’s ruling in favor of the Sixth Amendment over the unreliability of uncounseled tribal court convictions created a circuit split, thus the United States Supreme Court granted certiorari for resolution. The Court held that when tribal court convictions occur in …
What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills
Public Land & Resources Law Review
The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the …
Passage And Flow Considered Anew: Wild Salmon Restoration Via Hydro Relicensing, Paul Stanton Kibel
Passage And Flow Considered Anew: Wild Salmon Restoration Via Hydro Relicensing, Paul Stanton Kibel
Public Land & Resources Law Review
No abstract provided.
Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino
Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino
Public Land & Resources Law Review
The law governing the quantification and use of tribal water rights is complex and inconsistent, creating major challenges for tribes working to gain control over and make use of their water resources. There are even greater challenges a tribe must overcome if it wishes to safeguard non- consumptive water uses not generally protected under Western water law regimes. Non-consumptive water uses include any use that does not require removing water from the natural water body. Such uses include protecting in-stream water flows for fisheries, riparian habitat, traditional plants, ceremonial uses, or recreation. There are legal tools available to tribes, however, …
“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong
“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong
Public Land & Resources Law Review
No abstract provided.
A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec
A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec
Public Land & Resources Law Review
In the fall of 2012, leaders from Columbia Basin First Nations and tribes participated, along with about 150 other people, in the 4th transboundary symposium convened by the Universities Consortium on Columbia River Governance. Gathered on the shores of Flathead Lake in Polson, Montana, the participants explored the interests, rights, roles, and responsibilities of indigenous people in the international Columbia River Basin. This symposium generated two notable outcomes: first, The Columbia River Basin: A Sense of the Future—a synthesis of interests and concerns with regard to the future of the transboundary river basin as captured by the Universities Consortium during …
United States V. Estate Of Hage, Kevin B. Rechkoff
United States V. Estate Of Hage, Kevin B. Rechkoff
Public Land & Resources Law Review
In their decision to partially vacate and partially reverse the district court’s holding for the Defendants, the Ninth Circuit reaffirmed the authority of federal agencies to determine the criteria for grazing on federal land. Additionally, the Ninth Circuit rejected the district court’s attempt to attach long established water rights to grazing rights through necessity. Thus, parties seeking to access federal lands for grazing must seek and acquire a permit through the BLM, removing the possibility of water rights representing a sufficient interest to lay claim to a property right. Lastly, any of Defendant’s assertions that federal agencies and officials had …
In Re Crow Water Compact, Ariel E. Overstreet-Adkins
In Re Crow Water Compact, Ariel E. Overstreet-Adkins
Public Land & Resources Law Review
In re Crow Water Compact is the second appeal from the Crow Water Compact, agreed upon by the Settling Parties to distribute and manage water rights amongst themselves. The decision upholds the negotiated Compact for the second time, affirming the Montana Water Court’s decision granting summary judgment to the Settling Parties over objections by the Objectors and approving the Compact by a final order. This decision represents the last step in a process, started in 1979, to define and quantify the reserved water rights for current and future uses of the Crow Nation in Montana.
Mauna Kea Anaina Hou V. Board Of Land And Natural Resources, Wesley J. Furlong
Mauna Kea Anaina Hou V. Board Of Land And Natural Resources, Wesley J. Furlong
Public Land & Resources Law Review
Native Hawaiians and the scientific community have been pitted against each other in a decades-long culture war over the construction of observatories and telescopes on sacred landscapes. In Mauna Kea Anaina Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian culture and rights by halting the construction of a new telescope on Mauna Kea. The decision must be read cautiously, however, as it is firmly rooted in the strict application of procedural due process.
Wildearth Guardians V. United States Office Of Surface Mining, Reclamation And Enforcement, Hallie Bishop
Wildearth Guardians V. United States Office Of Surface Mining, Reclamation And Enforcement, Hallie Bishop
Public Land & Resources Law Review
Wildearth Guardians v. United States Office of Surface Mining, Reclamation and Enforcement sprung from the approval of a modified mining plan for the Spring Creek Mine in Montana. Wildearth Guardians is the adoption of Magistrate Judge Ostby’s Findings and Recommendations by United States District Judge, Susan Watters concluding that the Office of Surface Mining, Reclamation and Enforcement violated several provisions of NEPA.
Anglers Conservation Network V. Pritzker, Lindsay Ward
Anglers Conservation Network V. Pritzker, Lindsay Ward
Public Land & Resources Law Review
After the Mid-Atlantic Fishery Management Council declined to further investigate an amendment that would add two species of fish to a management plan, the appellants brought suit stating that federal agencies failed to properly manage river herring and shad in the Atlantic Ocean. Appellants asserted this inaction triggering judicial review under the Magnuson-Stevens Act and the Administrative Procedure Act. The court refused to find the National Marine Fisheries Services subject to judicial review, holding that the Council was not a government agency and that not amending the act did not constitute final agency action.
Federal Energy Regulatory Commission V. Electric Power Supply Association, Keatan J. Williams
Federal Energy Regulatory Commission V. Electric Power Supply Association, Keatan J. Williams
Public Land & Resources Law Review
In a 6-2 opinion delivered by Justice Kagan, the United States Supreme Court upheld FERC Order No. 745, which regulates the prices that wholesale market operators pay for demand response bids. At issue in the case was whether this regulation exceeded FERC’s wholesale regulation authority under the Federal Power Act, thereby impinging on retail markets under state regulation, and whether the pricing regulations within the rule were chosen in an arbitrary and capricious manner. The Court held Order No. 745 withstood both challenges.
Tohono O’Odham Nation V. City Of Glendale, 804 F.3d 1292 (9th Cir. 2015), Kathryn S. Ore
Tohono O’Odham Nation V. City Of Glendale, 804 F.3d 1292 (9th Cir. 2015), Kathryn S. Ore
Public Land & Resources Law Review
Tohono O’odham Nation v. City of Glendale is a reminder of the tension between state governments and the federal government. It also reflects continued unease with tribal gaming policies. The Ninth Circuit reiterated the longstanding federal preemption doctrine to override the State of Arizona and City of Glendale’s attempted circumvention of the Gila River Bend Indian Reservation Land Replacement Act. In doing so, the court prevented state legislation from undermining the Tohono O’odham Nation’s ability to obtain replacement lands for its reservation.
Cascadia Wildlands V. Woodruff, Erick A. Valencia
Cascadia Wildlands V. Woodruff, Erick A. Valencia
Public Land & Resources Law Review
Predator management has long been a source of contention among the general public, and few predators have had a more polarizing effect on the public than wolves. Cascadia Wildlands v. Woodruff is yet another example of the tension between conservationists and private interests. In this case, Wildlands opposed the federal government’s FONSI and EA regarding Wildlife Services’s involvement in assisting the WDFW to implement its Wolf Conservation and Management Plan. The district court determined that Wildlife Services had acted arbitrarily and vacated Wildlife Services’s FONSI and EA.
Coastal Conservation Association V. United States Department Of Commerce, Taylor R. Thompson
Coastal Conservation Association V. United States Department Of Commerce, Taylor R. Thompson
Public Land & Resources Law Review
The Eastern Louisiana District Court upheld Amendment 40 to the Gulf of Mexico Fishery Management Council’s Reef Management Plan. The court held that the Gulf Council and the National Marine Fisheries Service’s proposed rule establishing fishing quotas for the red snapper met all of the statutory guidelines imposed under the Magnusson-Stevens Act.
Montana Environmental Information Center V. Montana Department Of Environmental Quality, Hannah R. Seifert
Montana Environmental Information Center V. Montana Department Of Environmental Quality, Hannah R. Seifert
Public Land & Resources Law Review
In MEIC II, the Montana Supreme Court held MEIC’s claims regarding the extent of reclamation required under the MMRA were procedurally barred. In affirming application of issue preclusion to two of MEIC’s three claims, the Court relied on a 2011 district court decision resolving, arguably, identical claims against MEIC. The Court found that, even though MEIC had not raised its statutory argument before, the claim was barred because its consideration would require the court to revisit the previously litigated constitutional issue. Ultimately, the Court upheld the reclamation plan adopted by the DEQ in conjunction with the expansion of an …