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The Canadian Crown's Duty To Consult Indigenous Nations' Knowledge Systems In Federal Environmental Assessments, Stephen S. Crawford 2018 University of Guelph

The Canadian Crown's Duty To Consult Indigenous Nations' Knowledge Systems In Federal Environmental Assessments, Stephen S. Crawford

The International Indigenous Policy Journal

In 2016, the Government of Canada undertook a review of regulatory processes for federal environmental assessments (EAs) in preparation for replacing the Canadian Environmental Assessment Act. An EA Expert Panel was appointed to review numerous oral and written submissions from Indigenous nations, government agencies, and the public. The Panel's final report included recommendations that were considered by Canada in the development of its currently proposed new legislation regarding federal EAs: Bill C-69. The goal of this analysis is to evaluate the extent to which Canada’s review and proposed legislation actually addressed the Crown’s duty to consult Indigenous ...


Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey 2018 Alexander Blewett III School of Law at the University of Montana

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor ...


Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western 2018 Haub School of Environment and Natural Resources and the University of Wyoming College of Law

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain ...


Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot 2018 University of Denver Sturm College of Law

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of ...


Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas 2018 Alexander Blewett III School of Law at the University of Montana

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages ...


Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson 2018 University of New Mexico School of Law

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Public Land & Resources Law Review

No abstract provided.


Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic 2018 Alexander Blewett III School of Law at the University of Montana

Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic

Public Land & Resources Law Review

No abstract provided.


Center For Biological Diversity V. Zinke, Ryan Hickey 2018 Alexander Blewett III School of Law at the University of Montana

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding ...


Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker 2018 Alexander Blewett III School of Law at the University of Montana

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit ...


Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains 2018 Alexander Blewett III School of Law at the University of Montana

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA ...


Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen 2018 Alexander Blewett III School of Law at the University of Montana

Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen

Public Land & Resources Law Review

Stemming from a property dispute between a private landowner and the Upper Skagit Indian Tribe, this action evolved into a debate concerning the scope of tribal sovereign immunity and whether Indian tribes should be bound by certain common law doctrines applicable to most other sovereigns. The Washington Supreme Court originally ruled against the Tribe, citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation in holding that sovereign immunity does not apply to in rem actions. The United States Supreme Court granted certiorari to clarify that its ruling in Yakima did not support such a proposition. The case ...


Sections 7 And 15 Of The Canadian Charter Of Rights And Freedoms In The Context Of The Clean Water Crisis On Reserves: Opportunities And Challenges For First Nations Women, Madiha Vallani 2018 Western University

Sections 7 And 15 Of The Canadian Charter Of Rights And Freedoms In The Context Of The Clean Water Crisis On Reserves: Opportunities And Challenges For First Nations Women, Madiha Vallani

Master of Laws Research Papers Repository

This paper analyzes the water crisis on reserves through the lens of the Canadian Charter of Rights and Freedoms. Specifically, this paper discusses certain issues, stemming from the water crisis, that some First Nations women experience, through the lens of the Charter’s section 15 right to equality, and section 7 right to life, liberty, and security of the person. In doing so, this paper aims to draw attention to the various ways that the water crisis uniquely impacts First Nations women due to their intersectional experiences under the protected grounds of sex, ethnic origin, race, and residency on reserve ...


Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey 2018 Alexander Blewett III School of Law at the University of Montana

Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey

Public Land & Resources Law Review

The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.


The Seminole Water Rights Compact And The Seminole Indian Land Claims Settlement Act Of 1987, Jim Shore, Jerry C. Straus 2018 Florida State University College of Law

The Seminole Water Rights Compact And The Seminole Indian Land Claims Settlement Act Of 1987, Jim Shore, Jerry C. Straus

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


An Indian Site-Specific Religious Claim Again Trips Over Judeo-Christian Stumbling Blocks (Lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988))., Anita Clark Pryor, Gypsy Cowherd Bailey 2018 Florida State University College of Law

An Indian Site-Specific Religious Claim Again Trips Over Judeo-Christian Stumbling Blocks (Lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988))., Anita Clark Pryor, Gypsy Cowherd Bailey

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


The Bald Eagle, The Florida Panther And The Nation's Word: An Essay On The "Quiet" Abrogation Of Indian Treaties And The Proper Reading Of United States V. Dion, Robert Laurence 2018 University of Arkansas School of Law

The Bald Eagle, The Florida Panther And The Nation's Word: An Essay On The "Quiet" Abrogation Of Indian Treaties And The Proper Reading Of United States V. Dion, Robert Laurence

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky 2018 University of Tulsa College of Law

Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky

Florida State University Journal of Land Use and Environmental Law

This Article targets the problem of depletion of salmon and steelhead fisheries in the Northwest United States. The Article provides a brief overview of the Sohappy v. Smith and United States v. Washington decisions, which promoted regulation and conservation of these fisheries. Next, the Article discusses the Ecosystem Management Model, which these courts declined to adopt. Additionally, a description of the legislative measures taken in response to these two cases is provided. The Article concludes that adoption of an ecosystem management approach to fisheries management is essential to the future well-being of the fisheries in the Northwest United States.


Commercial Hazardous Waste Projects In Indian Country: An Opportunity For Tribal Economic Development Through Land Use Planning, Robert Sitkowski 2018 Florida State University College of Law

Commercial Hazardous Waste Projects In Indian Country: An Opportunity For Tribal Economic Development Through Land Use Planning, Robert Sitkowski

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


Chapter 8: Indigenous Belonging: Membership And Identity In The Undrip: Articles 9, 33, 35, And 36, Shin Imai, Kathryn Gunn 2018 Osgoode Hall Law School of York University

Chapter 8: Indigenous Belonging: Membership And Identity In The Undrip: Articles 9, 33, 35, And 36, Shin Imai, Kathryn Gunn

Shin Imai

The recognition of Indigenous peoples' right to determine their own membership is crucial for their ability to meaningfully exercise their right to self-determination. The Declaration addresses rights of membership directly in Article 9 (right to belong), 33 (right to determine membership), 35 (right to determine responsibilities of members), and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of Indigenous peoples to define themselves, both in terms of membership and geographic scope.


A View From American Courts: The Year In Indian Law 2017, Grant Christensen 2018 Seattle University School of Law

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area ...


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