Law Commons^™

Hawai'i Wildlife Fund V. County Of Maui, Lowell J. Chandler

Public Land & Resources Law Review

In Hawai’i Wildlife Fund v. County of Maui, the Ninth Circuit held that the plain language of the Clean Water Act provides jurisdiction over indirect discharges of pollutants from a point source into groundwater that is shown to be connected to navigable waters. The court found that studies confirmed pollutants entering the Pacific Ocean were fairly traceable to the County of Maui’s sewage disposal wells. In affirming the district court’s ruling, the Ninth Circuit held that Maui County violated the Clean Water Act by discharging pollutants into a navigable water without the required permit. The court also concluded the …

Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly

Public Land & Resources Law Review

Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.

A Tribute To Justice Wheat On The Occasion Of His Retirement From The Montana Supreme Court, Nick Kirby Brooke

Montana Law Review

Justice Mike Wheat retired from the Montana Supreme Court at the end of 2017, after serving seven years on the bench. Wheat was appointed by Governor Brian Schweitzer in 2010 to replace the retiring Justice John Warner. In 2014, the people of Montana re-elected Justice Wheat with 59.1% of the vote after a contentious campaign which, at the time, was the most expensive judicial race in state history.

Article V, Section 12 Of The Montana Constitution: Restoring Meaning To A Forgotten Provision, Constance Van Kley

Montana Law Review

The Montana Supreme Court does not—and should not—hesitate to refuse to “march lock-step” with the United States Supreme Court, “even where the state constitutional provision at issue is nearly identical to its federal counterpart.” However, in interpreting Montana’s constitutional restriction on special legislation, the Court has done the opposite, applying a federal constitutional test to a state constitutional provision with no federal counterpart.

Article V, Section 12 of the Montana Constitution provides: Local and special legislation. The legislature shall not pass a special or local act when a general act is, or can be made, applicable.

Section 12 can and …

Transgender Equality And Dignity Under The Montana Constitution, Caitlin E. Borgmann

Montana Law Review

The United States is seeing a wave of explicit anti-transgender animus, expressed in the form of legislation banishing transgender individuals from full participation in public life. In Montana, such a measure was defeated in the Legislature in the 2017 session. HB 609 would have discriminated against transgender individuals by prohibiting them from using the restroom, locker room, or changing facility in a government building or under public control that corresponds with their gender identity. Following the House Judiciary Committee’s rejection of HB 609, the Montana Family Foundation began collecting signatures on ballot initiative I-183, a nearly identical measure to HB …

Getting Back On Track: Bnsf Railway Co. V. Tyrrell Clarifies Fela Jurisdiction And Venue In State Court, Molenda L. Mccarty

Montana Law Review

The Federal Employers’ Liability Act (“FELA”) holds a railroad common carrier liable for injuries sustained by employees during their course of employment. Likewise, railroad carriers are liable to an employee’s personal representative for the death of an employee during the course and scope of employment. Section 56 of FELA establishes that FELA claims can be brought in the district where: the defendant railroad resides, the action arose, or the defendant railroad conducts business. It also establishes that federal jurisdiction shall be concurrent with that of the States. Although the United States Supreme Court had previously addressed Section 56, it made …

The Abolitionist Movement Comes Of Age: From Capital Punishment As A Lawful Sanction To A Peremptory, International Law Norm Barring Executions, John D. Bessler

Montana Law Review

The anti-death penalty movement is rooted in the Enlightenment, dating back to the publication of the Italian philosopher Cesare Beccaria’s treatise, Dei delitti e delle pene (1764). That book, later translated into English as An Essay on Crimes and Punishments (1767), has inspired anti-death penalty advocacy for more than 250 years. This Article traces the development of the abolitionist movement since Beccaria’s time. In particular, it highlights how the debate over capital punishment has shifted from one focused primarily on the severity of monarchical punishments, to deterrence, to one framed by the concept of universal human rights, including the right …

Double And Nothing: Open Government In Montana Under Article Ii, Section 9 And Section 10, Peter Michael Meloy

Montana Law Review

This article will present the author’s view that it is unnecessary to reconcile Sections 9 and 10 of Article II because the Convention delegates harmonized the two opposing rights within the text of Section 9: “No person shall be deprived of the right to examine documents or to observe the actions and deliberations of all public officials or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy exceeds the merits of public disclosure.” While the Montana Supreme Court has developed its jurisprudence governing open meetings and records by construing Section 9 …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler

Public Land & Resources Law Review

In MEIC v. U.S. Office of Surface Mining, the cost of coal mining’s climate impacts and the agency’s NEPA review obligations are at issue. The United States District Court for the District of Montana found that the Office of Surface Mining and Enforcement failed to adequately consider the need for an EIS and to take a hard look at the indirect, cumulative, and foreseeable impacts of a proposed coal mine expansion in central Montana. In its NEPA analysis, the court concluded that if the benefits of a carbon-intensive project are quantified, then the costs to the climate should be …

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

California V. United States Bureau Of Land Management, Molly M. Kelly

Public Land & Resources Law Review

After President Trump’s Executive Order No. 13783 encouraging relaxing regulatory burdens on energy production, the Bureau of Land Management reevaluated its 2016 “Waste Prevention Rule” which addressed waste of natural gas from venting, flaring, or other leaks resulting from oil and natural gas production activities. The BLM sought to postpone the Rule’s compliance date to give the agency time to promulgate a new rule—effectively overruling the 2016 Rule. Plaintiffs challenged the agency’s compliance under the Administrative Procedures Act, and the court found the BLM did not properly follow APA requirements.

Bitterrooters For Planning, Inc. V. Montana Department Of Environmental Quality, Rebecca A. Newsom

Public Land & Resources Law Review

In Bitterrooters for Planning, Inc. v. Montana Department of Environmental Quality, the Montana Supreme Court found that the Montana Department of Environmental Quality did not violate the Montana Environmental Policy Act when the department issued a wastewater discharge permit for a large retail merchandise store. This decision enforced a narrow interpretation of agency requirements under the Montana Department of Environmental Quality Act, focusing only on direct effects with a close causal connection to the agency action.