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Articles 1 - 21 of 21
Full-Text Articles in Law
Held V. State, Alec D. Skuntz
Held V. State, Alec D. Skuntz
Public Land & Resources Law Review
On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Public Land & Resources Law Review
In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …
Knick V. Township Of Scott, Alizabeth A. Bronsdon
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.
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V
Public Land & Resources Law Review
The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s path, were futile.
Big Horn County Electric Cooperative, Inc. V. Big Man, Brett Berntsen
Big Horn County Electric Cooperative, Inc. V. Big Man, Brett Berntsen
Public Land & Resources Law Review
The tribal exhaustion doctrine requires that parties first exhaust available tribal court remedies before challenging tribal jurisdiction in federal court. Exactly what constitutes an exhaustion of tribal court remedies, however, remains riddled with nuance. In Big Horn County Electric Cooperative, Inc. v. Big Man, the U.S. District Court for the District of Montana rejected a U.S. magistrate judge’s recommendation to remand a case to tribal court to further develop the factual record. Instead, the district court relied on federal circuit court precedent in holding that exhaustion had occurred when the tribal appellate court expressly ruled on the case’s jurisdiction …
Martin V. United States, Mitch L. Werbell V
Martin V. United States, Mitch L. Werbell V
Public Land & Resources Law Review
In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may …
National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack
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 …
California V. United States Bureau Of Land Management, Molly M. Kelly
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.
United States V. Osage Wind, Llc, Summer Carmack
United States V. Osage Wind, Llc, Summer Carmack
Public Land & Resources Law Review
The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …
Lewis V. Clarke, Summer L. Carmack
Lewis V. Clarke, Summer L. Carmack
Public Land & Resources Law Review
One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …
Milky Whey, Inc. V. Dairy Partners, Llc: Transacting Business Under Montana’S Long-Arm Statute To The Full Constitutional Limit, Victoria Dettman
Milky Whey, Inc. V. Dairy Partners, Llc: Transacting Business Under Montana’S Long-Arm Statute To The Full Constitutional Limit, Victoria Dettman
Montana Law Review
Milky Whey, Inc. v. Dairy Partners, LLC: Transacting Business Under Montana’s Long-Arm Statute to the Full Constitutional Limit
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.
Town Of Barnstable V. O’Connor, Taylor R. Thompson
Town Of Barnstable V. O’Connor, Taylor R. Thompson
Public Land & Resources Law Review
The United States Circuit Court of the First Circuit’s decision in Town of Barnstable v. O’Connor reignites a hotly debated offshore wind plant proposal. The First Circuit held that the Ex parte Young exception to the Eleventh Amendment applied because the complaint alleged an ongoing violation of federal law and the relief sought was prospective. The court did not discuss the merits of the claim, so the fight against the proposed wind plant powers on.
The Breaking Of A Wave: Jacobsen V. Allstate Ins. Co. And Class Certification, Lucas Hamilton
The Breaking Of A Wave: Jacobsen V. Allstate Ins. Co. And Class Certification, Lucas Hamilton
Montana Law Review
No abstract provided.
Standards Of Review In Montana Appellate Courts - Documents, Jeffrey T. Renz
Standards Of Review In Montana Appellate Courts - Documents, Jeffrey T. Renz
Faculty Journal Articles & Other Writings
This document and the three additional files set out the standards of review applicable to various cases and issues before the Montana Supreme Court. These documents explain what the various standards mean and how the appellate attorney should consider them. They also point out those few occasions when the Court has been imprecise or inconsistent in articulating the standards so that both lawyers and judges may avoid those statements. Three additional files are attached to this document. The first addresses the standards applicable to issues on appeal in civil cases. The second sets out the standards that apply to issues …
Serving A Summons By First Class Mail: Why Bankruptcy Rule 7004(B)(1) Violates Due Process, Jonathon S. Byington
Serving A Summons By First Class Mail: Why Bankruptcy Rule 7004(B)(1) Violates Due Process, Jonathon S. Byington
Faculty Law Review Articles
This article argues that even though it has been accepted and widely used throughout the nation for thirty-five years by courts, practitioners, and commentators, the service method of delivering a summons and complaint solely by first class mail under Bankruptcy Rule 70004(b)(1) violates due process. Part I shows that the establishment of first class mail as an alternate service method occurred before the vast expansion of bankruptcy court jurisdiction. Part II evaluates the various reasons why Rule 7004(b)(1) violates due process. The article concludes in Part III by recommending a two-part solution to revise the rule.
A Response To The Sounds Of Silence, Andrew King-Ries
A Response To The Sounds Of Silence, Andrew King-Ries
Faculty Law Review Articles
In his article, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, Tom Lininger attempts to "facilitate the effective prosecution of domestic violence cases, particularly domestic homicide, while complying with the new requirements announced [for forfeiture by wrongdoing] by the Supreme Court in Giles [v. California]."' In doing so, Lininger tackles a wide array of topics, including analyzing the "theoretical underpinnings" of forfeiture by wrongdoing; explicating the Giles decision, criticizing Justice Scalia's originalist approach for its "selective historical research . . . conflation of evidentiary and constitutional forfeiture theories, and . . . vacillation between objective and subjective …
Default Judgment In Montana: The Costs Of Inexcusable Neglect Or The Death Of Trial On The Merits?, Sara F. Tappen
Default Judgment In Montana: The Costs Of Inexcusable Neglect Or The Death Of Trial On The Merits?, Sara F. Tappen
Montana Law Review
Default Judgment
The Problem Of The Expert Juror., Paul F. Kirgis
The Problem Of The Expert Juror., Paul F. Kirgis
Faculty Law Review Articles
In this article, I argue that the new focus on the risks of spurious "expertise" compels attention to the problem of juror expertise. 24 Specialized knowledge poses the same risks to the truth-seeking objectives of trial whether it enters the decision-making process through expert testimony or through the back door of juror background knowledge. In fact, the risks to accuracy may be less when expertise is offered by a witness than when it is introduced by a juror, because the witness will be subject to cross-examination and rebuttal. Flawed expertise brought to the case by a juror is not subject …
Rule 11 Gets Moderate Exercise In Montana: Part Ii, Cynthia Ford
Rule 11 Gets Moderate Exercise In Montana: Part Ii, Cynthia Ford
Faculty Journal Articles & Other Writings
This article provides the results of an informal survey of active practicing lawyers in Montana that the author conducted to gather additional information about the actual operation of Rule 11 in Montana and to sample the perceptions of the bar about the use of Rule 11 and its effect on the practice of law in Montana.
Rule 11: Montana Must Decide Whether To Adopt Softer Federal Version: Part I, Cynthia Ford
Rule 11: Montana Must Decide Whether To Adopt Softer Federal Version: Part I, Cynthia Ford
Faculty Journal Articles & Other Writings
This article examines the proposed changes to Rule 11 of the Federal Rules of Civil Procedure and if modified, the decision facing Montana regarding whether to incorporate the new federal changes into the state Rule 11.