Law Commons^™

Seminole Tribe Of Florida V. State Of Florida, Wesley J. Furlong

Public Land & Resources Law Review

Seminole Tribe of Florida v. State of Florida stands as a declaration that tribal sovereignty preempts state taxation of tribal lands. Although the court framed its decision in the “‘deeply rooted’ historical ‘policy of leaving Indians free from state jurisdiction and control,” it held that Florida’s Rental and Utility Taxes imposed upon the Tribe were impermissible, based not on the rights and sovereignty of tribes, but on well-established principals of judicial deference to agency rule making.

Cts Corp. V. Waldburger, Lindsay M. Thane

Public Land & Resources Law Review

The Supreme Court determined that a North Carolina statute of repose barred plaintiffs from bringing suit against CTS Corporation for contamination that occurred on land CTS owned 24 years earlier. The Court found that CERCLA preempts state statutes of limitations in order to allow plaintiffs’ claims to accrue when the injury is caused by contamination that has a long latency period. However, the Court also decided that CERLCA does not preempt state statutes of repose because Congress did not specifically preempt them as they did with statutes of limitations, thus; enforcing statutes of repose was not found to frustrate the …

Ellis V. Bradbury, Tristan T. Riddell

Public Land & Resources Law Review

The United States District Court for the Northern District of California reiterated the need for a party seeking suspension or cancellation of an EPA registered pesticide to fully exhaust their administrative remedies under FIFRA. Here, plaintiffs filed a number of claims, including claims requesting either cancellation or suspension of pesticides containing clothianidin and thiamethoxam. However, as described by the court, plaintiffs failed to adequately exhaust existing administrative remedies outlined within § 136d of FIFRA. Additionally the court found that claims asserting § 7 violations of the ESA could be filed prior to exhaustion of administrative remedies under FIFRA.

Alaska County Action On Toxics V. Aurora Energy Services, Llc, Lindsey M. West

Public Land & Resources Law Review

On September 3, 2014, the Ninth Circuit Court of Appeals reversed and remanded a district court decision that exempted non-stormwater discharges of coal into Alaska’s Resurrection Bay from Clean Water Act liability. The Court of Appeals reasoned that defendants, Aurora Energy Services, LLC and Alaska Railroad Corp., were not shielded from liability under the Clean Water Act because National Pollutant Discharge Elimination System general permits unambiguously prohibit non-stormwater discharges of coal. The general permit lists eleven categories of authorized non-stormwater discharges, none of which include non-stormwater discharges of coal. Thus, the court concluded that the general permit plainly disallowed defendant’s …

Michigan V. Bay Mills Indian Community, Wesley J. Furlong

Public Land & Resources Law Review

Justice Kagan’s gambling metaphors aside, Michigan v. Bay Mills Indian Community stands as a resolute affirmation of the Supreme Court’s refusal to qualify tribal sovereign immunity absent congressional action. Bay Mills reaffirms that as domestic dependent nations, tribes exercise inherent sovereign immunity, qualified only by the clear direction of Congress, not the Court. While the dissent vented its frustration with the precedent relied on by the majority, the Court reaffirmed that tribal sovereign immunity extends to all commercial activities occurring off Indian land.

Drakes Bay Oyster Co. V. Jewell, Tristan T. Riddell

Public Land & Resources Law Review

In Drakes Bay the United States Court of Appeals, Ninth Circuit ruled that language within appropriations legislation aimed specifically at the expiration of the Drakes Bay Oyster Company’s Reservation of Use and Occupancy within Point Reyes National Seashore provided the Secretary of the Interior discretion whether to issue a new special use permit for oyster farming. The inclusion of the term “notwithstanding” ensured that the Secretary was not obligated to consider previously passed legislation, department policy, or any other requirements in reviewing whether to reauthorize the special use permit. The Ninth Circuit held that they had jurisdiction to review the …

Friends Of The Wild Swan V. Ashe, Hannah S. Cail

Public Land & Resources Law Review

In Friends of the Wild Swan v. Ashe, the District Court of Montana reviews the reasonableness of the U.S. Fish and Wildlife Service’s delayed preparation of the Canada lynx recovery plan. Environmental organizations brought the action for declaratory and injunctive relief pursuant to the ESA and the APA. In applying the “TRAC factors” and the “rule of reason,” the U.S. District Court for the District of Montana held that the Service’s twelve-year delay was unreasonable. The court ordered the Service propose a schedule, which the court will set as firm after review.

Alliance For The Wild Rockies And Native Ecosystems Council V. Krueger, Nicholas R. Vandenbos

Public Land & Resources Law Review

Environmental plaintiffs demanded injunctions following U.S. Forest Service approval of two fuel reduction projects in the Gallatin National Forest, alleging, inter alia, ESA and NEPA violations. Although both projects had already been challenged in Salix v. United States Forest Serv., Plaintiffs in Alliance for the Wild Rockies alleged specific harms, allowing the court to create a new injunction standard for cases involving procedural, programmatic violation of the ESA. The new test harmonizes two conflicting lines of Ninth Circuit precedent.

Environmental Protection Agency V. Eme Homer City Generation L.P., Lindsey M. West

Public Land & Resources Law Review

The U.S. Supreme Court determined the Environmental Protection Agency properly interpreted the “Good Neighbor Provision” of the Clean Air Act in adopting the Transport Rule. The Court found, contrary to the D.C. Circuit Court of Appeals decision to vacate the rule entirely, the EPA did not act arbitrarily and capriciously by integrating a cost-effective allocation of emission reductions or by disallowing states a second opportunity to file a State Implementation Plan before promulgating a Federal Implementation Plan.

Powder River Basin Resource Council V. Wyoming Oil And Gas Conservation Commission, Lindsay M. Thane

Public Land & Resources Law Review

The Wyoming Supreme Court reversed and remanded the district court’s decision that chemicals used in fracking are confidential “trade secrets” that do not need to be publicly disclosed. The Court ordered the district court to apply the WPRA, not the APA, as the standard of review, and to use the FOIA definition of “trade secrets.” The Court’s chosen definition will make it more difficult for companies to demonstrate that the chemicals they use should not be disclosed.

The Hercules Of Helena: Justice James C. Nelson And The Jurisprudence Of Principle, Anthony Johnstone

Montana Law Review

The Hercules of Helena: Justice James C. Nelson and the Jurisprudence of Principle

Public Water, Private Rights: All Are Not Equally Protected When The State Allows Some To Divert Small Quantities Of Ground Water Outside The Permitting System, Carolyn A. Sime

Montana Law Review

Public Water, Private Rights: All Are Not Equally Protected When The State Allows Some To Divert Small Quantities Of Ground Water Outside The Permitting System

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine, Jesse Kodadek

Montana Law Review

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence, Kelly M. Driscoll

Montana Law Review

Severing Ties: The Case For Indefinite Orders Of Protection For Survivors Of Domestic Violence

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders, Johnna Preble

Montana Law Review

The Shame Game: Montana's Right To Privacy For Level 1 Sex Offenders

Mediator Certification: Should It Be Required In Montana?, Michelle Vanisko

Montana Law Review

Mediator Certification: Should It Be Required In Montana?

Wildearth Guardians V. Jewell, 738 F.3d 298 (D.C. Cir. 2013), Ross Keogh

Public Land & Resources Law Review

As part of a comprehensive strategy to keep coal “in the ground,” environmental plaintiffs challenged the BLM’s leasing of federally owned coal tracts in the Powder River Basin in 2010 on climate change grounds. WildEarth Guardians was the first suit to reach a federal circuit court, where the District of Columbia Circuit Court affirmed that the BLM’s environmental analysis of the climate change impacts of the leased coal was adequate under NEPA. Notably, in reversing the district court, the circuit court found that the plaintiffs had procedural standing.

Pyramid Lake Paiute Tribe Of Indians V. Nevada, Dept. Of Wildlife, David A. Bell

Public Land & Resources Law Review

In Pyramid Lake Paiute Tribe of Indians v. Nevada, Dept. of Wildlife, the Court of Appeals for the Ninth Circuit upheld a Nevada federal district court decision to vacate the Nevada state engineer’s approval of the transfer of three water applications. While the appeals court recognized the state’s re-watering of wetlands as a “salutary” purpose, it could not allow the engineer’s decision to go forward because it did not meet the legal definition of “irrigation.” The Court made the decision pursuant to two federal court decrees, which resulted from prior actions by the United States to quiet title to …

Public Lands Access Association V. Board Of County Commissioners Of Madison County, Graham Coppes

Public Land & Resources Law Review

On January 16, 2014, the Supreme Court of Montana reversed and remanded a district court decision that had foreclosed the public’s right to access the Ruby River. The Court held that the right of way was a public prescriptive easement, which extended beyond the road surface itself to include such area as necessary for the county to maintain the road in the interest of the public. Furthermore, the Court concluded that once a public right-of-way is established by prescriptive use, the scope of current and future use of such an easement is not limited to those historic adversarial practices which …

Arkansas Game & Fish Commission V. U.S., Katelyn J. Hepburn

Public Land & Resources Law Review

The United States Court of Appeals for the Federal Circuit, on remand from the Supreme Court, reconsidered whether temporary increased dam-releases resulting in downstream flooding, constituted a physical taking under the Fifth Amendment of the United States Constitution. Applying the Supreme Court’s more complex balancing test, the Court of Appeals affirmed the Court of Federal Claims’ decision holding that temporary government-induced flooding can qualify as a Fifth Amendment taking. The court upheld an award of damages in excess of $5.7 million.

Cloud Foundation, Inc. V. Salazar, Maxwell Kirchhoff

Public Land & Resources Law Review

The United States District Court for the District of Columbia found that the BLM and Forest Service did not act arbitrarily and capriciously when they maintained and extended a boundary fence and decided not to expand a wild horse and burro range. The court also held the BLM used reasoned decision making when it determined a target horse and burro population in a herd management plan. Additionally, a National Environmental Policy Act claim was defeated under the “capable of repetition yet evading review” exception to the mootness doctrine.

Bell V. Cheswick Generating Station, Jill A. Hughes

Public Land & Resources Law Review

ABSTRACT

This case addressed the issue of whether the Clean Air Act (CAA) preempts state law tort claims of private landowners brought in the state where emissions are occurring. Additionally, the case determined whether the political question doctrine barred the complaint as a policy-making decision constitutionally allocated to the U.S. Congress. The court decided that the cooperative purpose of the CAA is not frustrated when actions are brought under the law of the pollution’s source state, rather than the state law of affected parties. The federal regulations serve as a floor that state law may exceed but not lower. The …

Bostwick Properties Inc. V. Montana Department Natural Resources And Conservation, Carolyn A. Sime

Public Land & Resources Law Review

The Montana Supreme Court upheld the law requiring that applicants for new ground water permits in closed basins show no net surface depletion and that the new appropriation will not adversely affect senior water appropriators. Where the relationship between surface and ground water is uncertain or attenuated, applicants still bear the burden of proof, even if the proposed use constitutes only a de minimis quantity. Once again, the Court acknowledged the hydrologic connection between surface and ground water and the underlying legal framework which seeks to make water available for new appropriation and simultaneously protect the water rights of senior …

Human Rights Must Be At The Core Of The Post-2015 International Development Agenda, Ved P. Nanda

Montana Law Review

The 2013 Honorable James R. Browning Distinguished Lecture in Law

Jurisdictional Confusion That Rivals Erie: The Jurisdictional Limits Of Campus Police, Jamie P. Hopkins, Kristina Neff

Montana Law Review

Jurisdictional Confusion that Rivals Erie: The Jurisdictional Limits of Campus Police

Montana's Rural Version Of The School-To-Prison Pipeline School Discipline And Tragedy On American Indian Reservations, Melina Angelos Healey

Montana Law Review

American Indian1 adolescents in Montana are caught in a school-toprison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. While these are typical of the school-to-prison phenomenon as it also appears in poor minority communities across the country, the rates and the disproportion for American Indians in Montana are particularly acute.2 Even more disturbing, many American Indian students in Montana are also the victims of another heartbreaking trend related to the school-to-prison pipeline—alarming levels of adolescent suicides and self-harm. The tragic situation of these children …

Lightning V. The Lightning Bug: A Problem Of Statutory Interpretation In State V. Cooksey, Caitlin Boland

Montana Law Review

Lightning v. The Lightning Bug: A Problem of Statutory Interpretation in State v. Cooksey

Montana Cannabis Industry Association V. State Of Montana And The Constitutionality Of Medical Marijuana, Thomas J. Bourguignon

Montana Law Review

Montana Cannabis Industry Association v. State of Montana and the Constitutionality of Medical Marijuana

Theorizing Billable Hours, Theresa M. Beiner

Montana Law Review

This article looks at the ethical and diversity implications of high billable hour requirements. While corporate counsel have increasingly demanded a diverse legal workforce and emphasized the need to lower the costs of outside counsel, law firms have not responded to these concerns in a manner that is producing results. Instead, women continue to drop out of law firm practice at higher rates than their male counterparts and the costs of legal services remain high. High billable hour requirements exacerbate both these problems and have implications as well for ethical lawyering. Using data from a variety of disciplines, the article …

The Unrealistic Geographic Limitations Of The Supreme Court's School-Speech Precedents: Tinker In The Internet Age, Lee C. Baxter

Montana Law Review

Tinker v. Des Moines Independent Community School District is regarded as one of the most influential decisions of the United States Supreme Court. Tinker owes its distinguished status to its position as the Court’s first decision to affirmatively uphold students’ First Amendment rights and to the popularity of public school cases. These cases do, after all, draw more than their fair share of attention because “a single case can tremendously change longstanding community paradigms.” In time spent, public schools are a second home to most American children; hence, the rules applicable to schools vividly impact the country. The Tinker Court …