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Articles 1 - 30 of 58
Full-Text Articles in Law
Crow Indian Tribe V. United States, Hallee Kansman
Crow Indian Tribe V. United States, Hallee Kansman
Public Land & Resources Law Review
The protection status of the Greater Yellowstone grizzly bear continues to elicit debate and find its way into the courtroom. In Crow Indian Tribe v. United States, for the second time in the last decade, a court held the Service’s attempt to delist the Yellowstone Grizzly arbitrary and capricious. Specifically, the court found the Service’s evaluation of remnant populations, recalibration, and genetic health deficient. This case demonstrates the importance in and the resilient motivation behind preserving grizzly bear populations and genetics. As the practice of delisting a species under the Endangered Species Act continues, this case will provide important …
Brackeen V. Zinke, Bradley E. Tinker
Brackeen V. Zinke, Bradley E. Tinker
Public Land & Resources Law Review
In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians’ …
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 …
Elaine Gagliardi On The Family Limited Partnership In 2018: Powell, Cahill, And Income Tax Basis At Death, Elaine H. Gagliardi
Elaine Gagliardi On The Family Limited Partnership In 2018: Powell, Cahill, And Income Tax Basis At Death, Elaine H. Gagliardi
Faculty Journal Articles & Other Writings
The Tax Court’s 2017 holding in Estate of Powell v. Commissioner1 followed by its 2018 decision in Estate of Cahill v. Commissioner,2 signals a need to rethink how best to structure the family limited partnership and the terms of the partnership agreement. In a shift away from its historical approach to analyzing gross estate inclusion of family limited partnership assets, the Powell court endorses application of Section 2036(a)(2)3 to include the value of partnership assets in decedent’s gross estate, and in an unprecedented step employs Section 2043 to determine the value of family limited partnership assets includible in the gross …
Still-In-Flux: Reinterpreting Montana's Rights-Of-Minors Provision, Rebecca Stursberg
Still-In-Flux: Reinterpreting Montana's Rights-Of-Minors Provision, Rebecca Stursberg
Montana Law Review
This note explores how this provision, referred to interchangeably as Article II, Section 15 and the rights-of-minors provision throughout, has developed since its adoption. Part II of this note discusses the sources of the provision, including key United States Supreme Court precedent on juvenile rights in the years immediately before the Convention, and the evolution of the provision through several stages of the 1972 Montana Constitutional Convention. Part III examines the structure and substance of Article II, Section 15 by dividing the provision into three subparts and illustrating how each sub-part functions through relevant Montana Supreme Court decisions. Part IV …
Curious In-Laws: The Legal Connections Between Montana And Puerto Rico, Jorge M. Farinacci Fernós
Curious In-Laws: The Legal Connections Between Montana And Puerto Rico, Jorge M. Farinacci Fernós
Montana Law Review
From the face of it, Puerto Rico and Montana seem to have very little in common. One is a former Spanish colony in the Caribbean whose legal system is mostly based on the civil law tradition. The other is one of the largest, yet most underpopulated, states of the United States, located on the Canadian border. Yet, as with many things related to law and history, appearances can be deceiving.
The Analysis Is Simple: A Child's Right To Counsel In Dependency And Neglect Proceedings Under The Montana Constitution, Jennifer Shannon
The Analysis Is Simple: A Child's Right To Counsel In Dependency And Neglect Proceedings Under The Montana Constitution, Jennifer Shannon
Montana Law Review
This comment argues that given Article II, Section 15’s text, intent, and development in the courts, children must be appointed attorneys in dependency proceedings. Part II briefly explains the process of dependency proceedings, and the federal and state statutory framework that guides them. Part III first explains the rights implicated in dependency proceedings, which have been complicated by the courts. It then explains the origins of procedural due process in the federal system. Lastly, it discusses Montana’s extension of procedural due process to parents in dependency proceedings, giving parents the right to counsel. Part IV discusses four Montana Supreme Court …
The Rule Of Lenity In The State Of Montana: Is There Lenity?, Angelica Gonzalez
The Rule Of Lenity In The State Of Montana: Is There Lenity?, Angelica Gonzalez
Montana Law Review
This note examines how the rule of lenity is applied in the Montana Supreme Court and ultimately demonstrates that the Court’s understanding of the rule’s application is not always clear. The first application of the rule of lenity occurred in 1922. From 1922 to 1933, the Montana Supreme Court applied the rule of lenity, despite it not being codified in Montana since 1895. In 1934, the Court correctly cited to the statute that abrogated the common law rule of strict construction in Montana by looking to the Revised Codes of 1921. However, only four years later, in 1938, the Court …
2018 James R. Browning Distinguished Lecture In Law, Jeffrey S. Sutton
2018 James R. Browning Distinguished Lecture In Law, Jeffrey S. Sutton
Montana Law Review
2018 James R. Browning Distinguished Lecture in Law
When Daubert Is The Way: The Road Less Traveled By, Cynthia Ford
When Daubert Is The Way: The Road Less Traveled By, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
Western Organization Of Resource Councils V. United States Bureau Of Land Management, Seth Sivinski
Western Organization Of Resource Councils V. United States Bureau Of Land Management, Seth Sivinski
Public Land & Resources Law Review
To what extent must the BLM analyze potential climate change impacts where millions of acres of public lands and federal mineral estates are being considered for coal development? Western Organization of Resource Councils v. BLM addresses this, setting the scope for NEPA-mandated environmental impact analysis and reasonable alternative consideration by federal agencies. Judge Brian Morris of the District of Montana eschewed BLM’s assertions that considering climate impacts would be speculative, instead requiring BLM to acknowledge scientific reality and include modern climate science in its NEPA review analysis.
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
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
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 this debate, conservation of …
Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas
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 special-interest …
Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson
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
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
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, highlighting how …
Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker
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 the taking of …
Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains
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 request …
The Law Of Health Insurer Claims Handling In Montana, Greg Munro
The Law Of Health Insurer Claims Handling In Montana, Greg Munro
Faculty Journal Articles & Other Writings
No abstract provided.
Report From The Royalty Policy Committee: The Past, Present, And Future Of The Royalty Policy Committee, Monte Mills
Report From The Royalty Policy Committee: The Past, Present, And Future Of The Royalty Policy Committee, Monte Mills
Faculty Books & Book Chapters
This report was Prepared for the Rocky Mountain Mineral Law Foundation Special Institute on Federal and Indian Oil & Gas Royalty Valuation and Management: Panel: Report from the Royalty Policy Committee October 24, 2018 ~ Houston, Texas
Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen
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 …
Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey
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.
California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers
California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers
Public Land & Resources Law Review
In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.
California Department Of Toxic Substances Control V. Westside Delivery, Llc, Mitch L. Werbell V
California Department Of Toxic Substances Control V. Westside Delivery, Llc, Mitch L. Werbell V
Public Land & Resources Law Review
The Ninth Circuit’s recent decision in California Department of Toxic Substances Control v. Westside Delivery, LLC reminds prospective purchasers of tax-defaulted property of their responsibility for due diligence.The case addressed the reach of the third-party defense to a CERCLA cost recovery action. The court determined that CERCLA’s third-party defense did not apply to a company which purchased a contaminated property at a tax auction because of its “contractual relationship” with the former owner-polluter and because the relevant contaminating acts occurred “in connection with” the prior polluter’s ownership of the site.
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Buffalo Field Campaign V. Zinke, Hallee C. Kansman
Public Land & Resources Law Review
Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Western Organization Of Resource Councils V. Zinke, Daniel Brister
Public Land & Resources Law Review
Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.
Current Developments In Indian Water Law And Treaty Rights: Old Promises, Recent Challenges, And The Potential For A New Future, Monte Mills
Faculty Books & Book Chapters
Chapter nine of 64 Rocky Mt. Min. L. Inst. 9-1 (2018).