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Articles 1 - 30 of 47
Full-Text Articles in Law
Seminole Tribe Of Florida V. State Of Florida, Wesley J. Furlong
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
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
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
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 …
What The Best Evidence Rule Is - And What It Isn't, Cynthia Ford
What The Best Evidence Rule Is - And What It Isn't, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
Michigan V. Bay Mills Indian Community, Wesley J. Furlong
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
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 …
A Surprise: Montana's Mental Health Provider Privileges, Or Lack Thereof, Cynthia Ford
A Surprise: Montana's Mental Health Provider Privileges, Or Lack Thereof, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
Friends Of The Wild Swan V. Ashe, Hannah S. Cail
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
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
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
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.
Elaine Hightower Gagliardi On Flipping The Lens Of Estate Planning: An Examination Of The Effectiveness Of Lifetime Transfers To Achieve Federal And State Tax Savings, Elaine H. Gagliardi
Elaine Hightower Gagliardi On Flipping The Lens Of Estate Planning: An Examination Of The Effectiveness Of Lifetime Transfers To Achieve Federal And State Tax Savings, Elaine H. Gagliardi
Faculty Journal Articles & Other Writings
Estate planners are recalibrating their planning focus in response to recent tax modifications at the federal and state levels. The need to refocus planning emanates from changes wrought by recent federal tax acts, beginning in 20011 and ending in 20132 with enactment of “permanent” provisions which increase the basic exclusion amount for federal estate and gift tax and generation skipping transfer tax exemption to an inflation adjusted $5,340,000 as of 2014,3 institute the portability election for federal estate tax purposes,4 alter the transfer tax rate to essentially a flat 40 percent,5 and eliminate the state death tax credit in favor …
Doctor, Doctor, Mr. M.D.: Dr./Patient Privilege In Mt, Cynthia Ford
Doctor, Doctor, Mr. M.D.: Dr./Patient Privilege In Mt, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
The Hercules Of Helena: Justice James C. Nelson And The Jurisprudence Of Principle, Anthony Johnstone
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
Mediator Certification: Should It Be Required In Montana?, Michelle Vanisko
Mediator Certification: Should It Be Required In Montana?, Michelle Vanisko
Montana Law Review
Mediator Certification: Should It Be Required In Montana?
Duke Crowley's Final Examination : Another Kind Of Evidence Column, Cynthia Ford
Duke Crowley's Final Examination : Another Kind Of Evidence Column, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine, Jesse Kodadek
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
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
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
A (Different Kind Of) Fathers' Day Column "Bless Me, Father..." Montana's Clergy Privilege, Cynthia Ford
A (Different Kind Of) Fathers' Day Column "Bless Me, Father..." Montana's Clergy Privilege, Cynthia Ford
Faculty Journal Articles & Other Writings
No abstract provided.
The Mother's Day Column: Parent-Child Evidentiary Privilege In Montana, Cynthia Ford
The Mother's Day Column: Parent-Child Evidentiary Privilege In Montana, Cynthia Ford
Faculty Journal Articles & Other Writings
In this article the author examines the lack of parent-child evidentiary privilege in Montana.
Wildearth Guardians V. Jewell, 738 F.3d 298 (D.C. Cir. 2013), Ross Keogh
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
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 …
Bargaining With Consequences: Leverage And Coercion In Negotiation, Paul F. Kirgis
Bargaining With Consequences: Leverage And Coercion In Negotiation, Paul F. Kirgis
Faculty Law Review Articles
Leverage has been called “negotiation’s prime mover,” conferring power to reach agreement “on your terms.” This power, however, is not always benign. When a negotiator has sufficient power to compel a counterparty to accept a set of unfavorable terms, the use of leverage may cross a line into inappropriate or illegal coercion. While coercion has been the subject of rich philosophical investigation, the topic of coercive power has received only cursory treatment in the negotiation literature. This article seeks to fill that gap by analyzing the uses and limits of negotiating leverage, which I define as power rooted in consequences. …
Wilderness Management In National Parks And Wildlife Refuges, Sandra B. Zellmer
Wilderness Management In National Parks And Wildlife Refuges, Sandra B. Zellmer
Faculty Law Review Articles
This Article provides a wilderness scorecard of sorts for the two "dominant use" land management agencies-the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). Given that both agencies operate under a similar conservation oriented mandate, one night assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. However, NPS and FWS have both, at times, been surprisingly hostile toward wilderness within their systems. In NPS's case, this is likely because of a concern that wilderness might disrupt visitor use and rein in its management discretion over park activities and …
Public Lands Access Association V. Board Of County Commissioners Of Madison County, Graham Coppes
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
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
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.