Law Commons^™

A Familiar Crossroads: Mcgirt V. Oklahoma And The Future Of Federal Indian Law Canon, Dylan R. Hedden-Nicely, Stacy L. Leeds

New Mexico Law Review

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles …

Private Actors, Public Records, And New Mexico’S Inspection Of Public Records Act, John Kreienkamp

New Mexico Law Review

In a series of three recent court decisions, New Mexico’s appellate courts have grappled with IPRA’s implications for private entities. In State ex rel. Toomey v. City of Truth or Consequences2 and New Mexico Foundation for Open Government v. Corizon Health, the Court of Appeals held that the records of a private contractor performing services on behalf of a public body were subject to inspection under IPRA to the extent they related to government business.

This article maintains that IPRA requests must be directed to the public body, not a private contractor, and that a private entity is not a …

Introduction, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Evaluating Causation In Nmhra Retaliation Claims After Nassar: Why New Mexico Courts Should Adopt A Motivating Factor Causation Standard, Elisa Cibils

New Mexico Law Review

New Mexico courts apply a federal burden-shifting test to decide employment retaliation claims brought under the New Mexico Human Rights Act (NMHRA). In New Mexico courts’ application of this test, it is unclear whether the employee has to initially show whether the protected activity she engaged in—such as filing a discrimination complaint—was the “but-for” cause of the adverse employment action against her, or if it is sufficient for her to show that the protected activity was one motivating factor—among other potentially lawful or non-discriminatory factors—that contributed to the employer’s retaliatory acts against her. In light of the recent United States …

Downtown Condos For The Rich: Not All Bad, Michael Lewyn

New Mexico Law Review

Through a survey of the academic and popular literature as well as a review of relevant data, this Article suggests that the growth of high-end condominiums is likely to increase supply and hold down costs for local residents. Part I of the Article discusses the background of the debate, including the increased popularity of downtown life, the explosion of urban housing costs in some cities, and the growth of high-cost condos. Part II critiques the claim that the growth of high-end condos will fail to lower housing costs and suggests that this claim is wrong because (1) at least some …

The Case For Outside Reverse Veil Piercing In New Mexico, Laura Spitz

New Mexico Law Review

This article proceeds as follows. Part I sets out the current law on veil piercing in New Mexico. Jurisdictions that adopt outside reverse piercing often apply much the same test for both traditional and outside reverse veil piercing cases; accordingly, the best predictor of how New Mexico courts will approach outside reverse piercing is how they have approached traditional veil piercing.

Part II summarizes the positions of other jurisdictions to have considered outside reverse veil piercing, as well as themes, concerns, and key debates in outside reverse piercing cases. This jurisprudence points in the direction of adopting the doctrine in …

Motel Blues: Inspecting Patel’S Impact On The Law Of Administrative Searches, Casey Adams

New Mexico Law Review

Administrative inspections are a vital tool for agencies charged with guarding public health and safety at all levels of government. Fire, health, sanitation, building, and labor departments across the country rely on administrative inspections to ensure that regulated entities comply with laws and rules. But administrative inspections clearly have a privacy dimension as well—after all, an inspection may involve a uniformed agent of the government making demands to see documents or access nonpublic areas, sometimes under threat of criminal penalties and always with the specter of further enforcement action lingering in the background.

Finding the balance between these two competing …

Rules To Bind You: Problems With The Uspto’S Ptab Rulemaking Procedures, Andrew Dietrick, Jonathan Stroud

New Mexico Law Review

This Article analyzes some of the recent rules, guidance documents, policy-based administrative decisions, and rulemaking procedures used by the United States Patent and Trademark Office (USPTO), and concludes that the USPTO is improperly promulgating substantive rules sub rosa via, inter alia, updates to the Trial Practice Guide (TPG), an ostensibly nonbinding document that controls many broad substantive and procedural aspects of the Patent Trial and Appeal Board (PTAB), and in doing so, avoids appellate, Congressional, and stakeholder review of such decisions.

Part I will review the established law of administrative agencies’ rulemaking authority and procedures, specifically reviewing formal rulemaking, “informal” …

Better Balance: Why The Second Judicial District In New Mexico Should Prioritize Use Of Preliminary Hearings, Kathryn Sears

New Mexico Law Review

The New Mexico Constitution guarantees that felony charges shall not be brought against a person prior to either a grand jury indictment or a preliminary hearing finding of probable cause. But in March 2020, due to the COVID-19 pandemic, New Mexico courts were forced to halt the use of grand jury proceedings. As a result, all felony charges brought for the remainder of the year 2020 were vetted through preliminary hearings. Moreover, New Mexico is a unique jurisdiction because it applies the Rules of Evidence in full strength at preliminary hearings. This Comment makes a case for the continued expansion …

Consumer Welfare: Would Competitive Injury Claims Under The New Mexico Unfair Practices Act Actually Undermine Consumer Protection?, Raquel Koch Pinto

New Mexico Law Review

When the New Mexico Unfair Practices Act (UPA) was enacted in 1967, the language adopted did not clearly state whether the legislature intended to confer standing to competitors to sue for unfair or deceptive trade practices. Before the New Mexico Supreme Court decision in Gandydancer, LLC v. Rock House CGM, LLC,1 the New Mexico Court of Appeals and the U.S. District Court for the District of New Mexico—applying state law—had interpreted the statutory term “any person” as an opening for businesses to sue competitors under the UPA in certain circumstances. However, the New Mexico Supreme Court approached the UPA in …

Ohkay Owingeh Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Acoma Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Taos Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Santa Clara Pueblo V. Martinez In The Evolution Of Federal Law, Richard B. Collins

Tribal Law Journal

Few Indian law decisions have evoked as much scholarly attention as Santa Clara Pueblo.1 Shepard's pulls up over 1000 law review references, and Google reports almost 3,000,000 hits.2 It is a major case in all Indian law treatises and casebooks and is important in several other books.3 Most analyze the decision as an event and focus on its principal holding, denying a federal cause of action for civil enforcement of the Indian Civil Rights Act.4 Policy discussions parse tribal sovereignty and discrimination against women.

Tribal Justice: Honoring Indigenous Dispute Resolution (Symposium Keynote Address), Deb Haaland

Tribal Law Journal

Tribal Law Journal 20th Anniversary Symposium Keynote Address. I am working to weave our Native voice into a system that is not traditionally our own to make sure these legal fictions do not persist into another detrimental federal policy era. This symposium is highly valuable because it shows our community how important it is to incorporate indigenous traditional values into our legal system—but this is also important to highlight in our political systems and my effort to encourage more Native Americans to run for office and will continue. Native American people need to redefine all aspects of our governance systems …

Native American Oral Evidence: Finding A New Hearsay Exception, Max Virupaksha Katner

Tribal Law Journal

The Federal Rules of Evidence hearsay rules unjustifiably exclude legitimate and trustworthy evidence that support many Native American legal claims. Native American communities traditionally were not literate and rarely recorded the treaties, contracts, and other legal instruments they drew up or honored in any kind of written format, oftentimes recording their histories and diplomatic events in other ways; take for example wampum belts used by the Haudenosaunee Confederacy, among others. While the U.S. legal system presupposes that evidence in written statements provides a greater assurance of accuracy and truth than oral statements, this is not always the case. Writing is …

Tribal Opposition To Enbridge Line 5: Rights And Interests, John Minode’E Petoskey

Tribal Law Journal

This paper will examine the tribal interests at stake in the controversy surrounding Enbridge Oil Pipeline 5 (“Line 5”), and will explore why it is consistent with Michigan’s treaty obligations and public trust principles to remove the pipeline from the Straits of Mackinac. The Line runs beneath the Straits of Mackinac, the convergence of Lake Michigan and Lake Huron, and is nearly 70 years old. Should the pipeline burst, the resulting spill would irreparably harm fisheries in the Straits and impair tribal treaty rights to fish in the Great Lakes. Part I will provide a roadmap overview. Part II will …

Introduction, Sarah Mclain, Dharma Khalsa

Natural Resources Journal

No abstract provided.

Robert Brace And The Shifting Sands Of The Administrative State, Thomas Philbrick

Natural Resources Journal

Pennsylvania farmer Robert Brace was sued by the federal government in 1987 for repairs he had made to an existing drainage system on his farm. The Third Circuit Court of Appeals held in 1994 that Brace’s repair activities did not constitute “normal agricultural activity” and were therefore subject to Clean Water Act regulation. After thirty years of battling the government, Brace has now filed an $8 million administrative action against the Environmental Protection Agency, the Army Corps of Engineers, and the United States Fish and Wildlife Service requesting financial compensation for improper regulatory enforcement that has resulted in millions of …

Monopolizers Of The Soil: The Commons As A Source Of Public Trust Responsibilities, Connor B. Mcdermott

Natural Resources Journal

In the seventeenth century, public resources were essential to the survival of the English poor. The common law, stretching back to Magna Carta and the Forest Charter, provided them with usufructuary rights to the commons. Those rights were violated by the enclosure movement, which received royal assent beginning with Charles I’s absolutist reign in 1625. As a result, the common people joined with Parliament to overthrow Charles I. After the Interregnum, Matthew Hale wrote De Jure Maris, a treatise foundational to the public trust doctrine in America and the doctrine’s expansion abroad. Hale lived through the Civil War which resulted …

The Rise Of Force Majeure Amid Coronavirus Pandemic: Legitimacy And Implications For Energy Laws And Contracts, Cosmos Nike Nwedu

Natural Resources Journal

The global outbreak of coronavirus disease has become one of humanity’s current greatest challenges and may arguably surpass climate change in the short-term. The virus’s rapid dispersion through the transportation sector, its disruption to human health and global economies, has been remarkable. The energy sector has also been impacted, as it has seen episodic low prices of oil, particularly in April 2020. This scenario is due to less demand for oil amid various containment measures and related health policies of governments worldwide. The performance of existing oil and gas contracts, especially time-bound supply contracts, has been rendered impracticable in some …

Taxing Power Delegation For Better Environmental Regulation: A Proposal On Federal Carbon Tax Policymaking, Kaijie Wu

Natural Resources Journal

In view of the stalled situation in climate change lawmaking, transferring the focus from direct congressional lawmaking to the possibility of delegated lawmaking by agencies may provide a new perspective to break the gridlock of federal carbon tax legislation. Taxes, however, in practice are generally less delegable than environmental and other regulations. Specifically, the Internal Revenue Service and Treasury are not permitted to determine tax rates. This is also the case for environmental taxes in the Internal Revenue Code. Though some environmental statutes seem to provide some implied and untested delegation of power to regulate by taxation, the Environmental Protection …

Moonlight: A Photo Essay, David A. Westbrook

Natural Resources Journal

No abstract provided.

Introduction, Natural Resources Journal

Natural Resources Journal

No abstract provided.

Southwestern Acequia Systems And Communities; Nurturing A Culture Of Place, Eric Romero

Natural Resources Journal

El Aqua es La Vida” (Water is Life) is a ubiquitous bumper sticker on trucks, mini vans and tractors in New Mexico, Colorado and the greater southwest. Besides a succinct, pithy statement for natural resource management, the maxim references a land ethic that is particularly evidenced in acequia communities. Put simply, acequias are human-constructed hydrological systems that deliver water to agricultural fields. These community-governed irrigation systems are common in southwestern states– particularly northern New Mexico and southern Colorado. However, the English connotation of ‘irrigation ditch” fails to reflect the different levels of meaning associated with these important water channels. A …

The Colorado River Drought Contingency Plan: An Opportunity For Exploring Demand Management Through Integrated And Collaborative Water Planning, Daniel Spivak

Natural Resources Journal

The Upper Basin Colorado River Drought Contingency Plan (“DCP”), signed May 2019, was created to maintain sufficient Lake Powell storage levels for consumptive water demand and for hydropower generation. One of the most important requirements of the DCP is the obligation for Upper Basin states to explore the feasibility of demand management programs for their respective states. This exploratory process is ongoing for Upper Basin states. The DCP exploratory process, as well as the potential implementation of demand management programs, offer unique opportunities for water professionals to increase the role of public engagement in the implementation of a particular type …

Fracking The Bakken: Interpreting The Public Trust Doctrine And State Constitutional Law To Restrict Fracking Under Beneficial Use Principles, Cormac Bloomfield

Natural Resources Journal

This Note tackles the intersection of state constitutional law, the Public Trust Doctrine, prior appropriation case law, and insufficient safeguards around fracking’s water-intensive practices. Typically operating with lax state oversight, modern day fracking depletes needed water resources from water-scarce regions while simultaneously contaminating public water resources that remain. Conservationists should, and must, turn to state constitutional law and common law public trust doctrine developments to achieve judicial intervention of a poorly regulated industry. By advancing modern understandings of beneficial use and anti-waste principles under western states’ prior appropriation systems of water ownership, courts can ensure greater protections of public water …

Book Review: The Rule Of Five, Ashlee Carrasco

Natural Resources Journal

The Rule of Five reads like a novel that ought to be adapted for the big screen, despite its accurate overview of the landmark Supreme Court case, Massachusetts v. EPA. Richard J. Lazarus does an excellent job of honoring the legacy of those who fought long and hard to bring the issue of climate change to the Supreme Court for the first time. While the decision in Massachusetts v. EPA was a landmark decision handed down by the Supreme Court of the United States, the potential to bore the reader with procedural history and legal jargon was ever-present. However, Lazarus …

Fighting The Tragedy Of The Commons (Poem), Olivia Romo

Natural Resources Journal

No abstract provided.

Online Taxation Post Wayfair, Rifat Azam

New Mexico Law Review

The United States Supreme Court saved the states’ sales tax base in the landmark case of South Dakota v. Wayfair in 2018. This revolutionary decision ended the long ban on states imposing sales tax collection duties on out-of-state retailers without a physical presence in the state, as established in Bellas Hess v. Department of Revenue of Illinois in 1967 and Quill Corp. v. North Dakota in 1992. Wayfair now allows states to impose sales taxation on outof-state retailers in the era of digitalization. In this article, I provide valuable guidelines and suggestions to aid states on this critical journey toward …