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Articles 1 - 30 of 204
Full-Text Articles in Law
Development Of The Right To Privacy In Montana Discourse And The Montana Constitution, Scott A. O'Donnell
Development Of The Right To Privacy In Montana Discourse And The Montana Constitution, Scott A. O'Donnell
Undergraduate Theses, Professional Papers, and Capstone Artifacts
No abstract provided.
The Big Sky Shadow Docket: Noncite Opinions And The Montana Supreme Court, Blake Koemans
The Big Sky Shadow Docket: Noncite Opinions And The Montana Supreme Court, Blake Koemans
Montana Law Review
More than half of the Montana Supreme Court’s written opinions in 2022 carry no precedential value and cannot be cited as binding authority to a Montana court. The same is true for opinions issued in 2021, 2020, and 2019. Thousands of opinions—tens of thousands of pages, filled with the Court’s legal reasoning, factual applications, policy judgments, and practical advice—are unusable. Montana is not alone in this phenomenon as unpublished opinions constitute the majority of opinions in many other juris- dictions around the country. Consequentially, this outdated practice is impacting the law in Montana and throughout the country. Nonpublication was an …
Age Before Fundamental Right? Resolving The Contradiction Presented By An Age Restriction On Running For Executive Offices In Montana's Constitution, Kevin Frazier
Barry Law Review
The Montana Constitution guarantees that “[t]he rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Adults receive similarly strong protections. According to Article II, Section 15, of the Montana Constitution, “[a] person 18 years of age or older is an adult for all purposes,” except for legislated limits on the legal age to purchase alcohol.
It follows that all Montanans have a constitutional claim to the fundamental right that "[a]ll elections shall be free and …
Leave Them Kids Alone: State Constitutional Protections For Gender-Affirming Healthcare, Jessica Matsuda
Leave Them Kids Alone: State Constitutional Protections For Gender-Affirming Healthcare, Jessica Matsuda
Washington and Lee Law Review
State legislatures across the nation are continually targeting the rights of transgender individuals with a variety of laws affecting everything from bathrooms to medical care. One particularly invasive type of legislation, the gender-affirming healthcare ban, seeks to prohibit all forms of healthcare that align a person’s physical traits with their gender identity for individuals under eighteen. Bans like this severely impede the treatment necessary for transgender youth suffering from gender dysphoria, which carries serious physical consequences and sometimes fatal psychological repercussions. As legislative sessions pass, more and more states are introducing and actually enacting these bans
Striking down these bans …
Upper Missouri Waterkeeper V. Epa, Clare Ols
Upper Missouri Waterkeeper V. Epa, Clare Ols
Public Land & Resources Law Review
State water quality standards developed under the Clean Water Act play a key role in curtailing the negative environmental, economic, and human health impacts of water pollution. Under the state water quality regulatory framework, EPA may grant variances to state standards should the state demonstrate the compliance with its standards is infeasible for a certain pollutant discharger or waterbody. Montana DEQ developed a variance for nutrients based on evidence that compliance with those standards would cause economic harm. EPA approved Montana's nutrient pollutant variance, and Upper Missouri Waterkeeper challenged EPA's approval on the grounds that the variance violates the Clean …
A Comparative Analysis Of Repatriation Of Native American Artifacts And Human Remains Laws In Montana, Usa And Alberta Canada, Helen Cryer
Graduate Student Theses, Dissertations, & Professional Papers
ABSTRACT: Native American and Indigenous communities across the United States and Canada have lost an extensive amount of human remains and sacred artifacts to non-Native people exhuming Native American and Indigenous burial sites that may have been dug up for personal gain, stolen, placed in museums, or left in the hands of non-Native collectors. The repatriation of human remains and sacred artifacts to Native nations can be a lengthy, political, and challenging process yet it is worth the effort for Native people. Native American advocacy and evolving public sentiment toward Native people have led to legislative advancements in the United …
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 …
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Public Land & Resources Law Review
The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …
Equitable Hiring Policy In Higher Education At The University Of Montana, Victoria Mckinley Bigelow, Kinsey Anderson
Equitable Hiring Policy In Higher Education At The University Of Montana, Victoria Mckinley Bigelow, Kinsey Anderson
Graduate Student Portfolios, Professional Papers, and Capstone Projects
Higher Education; University of Montana; Equity; Hiring; University; College; Montana; Missoula; Public Administration; Organization; Missoula; Diversity; Women; Policy
Water For Fish And Farms: An Examination Of Instream Flow Programs In Montana Using Spatially-Explicit Water Rights Data, Anna Leigh Crockett
Water For Fish And Farms: An Examination Of Instream Flow Programs In Montana Using Spatially-Explicit Water Rights Data, Anna Leigh Crockett
Graduate Student Theses, Dissertations, & Professional Papers
The state-level institutions governing water use in the western United States have increasingly come under pressure and scrutiny related to their inability to navigate water use conflicts in recent decades. Rapid population growth and shifting public values towards leaving water instream for recreational and environmental purposes pose challenges to Montana water supplies which are predominantly allocated for irrigated agriculture. Additionally, while water scarcity and unpredictable availability are not new dilemmas in Montana, the rate at which climate change is driving shifts in the distribution, timing, and availability of water supplies is unprecedented. Current water policies may not be nimble enough …
Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed
Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed
Public Land & Resources Law Review
In 2017, Secretary of the Interior Ryan Zinke issued a new order lifting the previous administration’s 2016 Jewell Order that had placed a moratorium on mineral leases until a programmatic EIS was completed. The new order repealed the moratorium, cancelled the programmatic EIS, and instructed the BLM to expedite new mineral lease applications. Several plaintiffs challenged Zinke’s order, and the United States District Court for the District of Montana ruled that it was a major federal action that triggered NEPA analysis and that the agency acted arbitrarily and capriciously when it issued the order without any environmental review.
Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson
Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson
Public Land & Resources Law Review
The Montana Supreme Court will hear oral arguments in this matter on Thursday, November 7, 2019 at 9:30 AM in the courtroom of the Montana Supreme Court, Joseph P. Mazurek Building, Helena, Montana. The Honorable Olivia Rieger will hear the case in place of Justice Jim Rice, who recused himself. Eric B. Wolff is expected to argue for the Appellants. Harlan B. Krogh is expected to argue for the Appellees.
You Can't Escape Your Past: State V. Blaz And The Future Of 404(B) Evidence In Montana, Britton Fraser
You Can't Escape Your Past: State V. Blaz And The Future Of 404(B) Evidence In Montana, Britton Fraser
Montana Law Review
This note focuses on identity evidence—specifically, the admissibility of evidence of past crimes or acts in order to identify the defendant as the perpetrator of a crime. It explains how the Court, by improperly expanding its prior rulings, opened the floodgates to admit types of behavior that have not constituted uniquely identifying criminal signatures. It also seeks to illustrate the effect this expansion might have on the admissibility of such evidence in the future. Part II of this note begins with a brief background on applicable Montana law and an overview of the law’s purpose. Part II also discusses prior …
Kloker V. Fort Peck Tribes, Hallee Kansman
Kloker V. Fort Peck Tribes, Hallee Kansman
Public Land & Resources Law Review
Kloker v. Fort Peck Tribes investigates and deciphers the application of the Indian canons of construction to the congressional formation and establishment of the Fort Peck reservation in Montana. In general, courts interpret congressional acts creating reservations through the lens of the tribal-federal government trust relationship. Although this case examines different substantive models of legal interpretation and theories of water law, the ultimate dispute is textual in nature—questioning the plain language of the establishment legislation itself.
Solenex Llc V. Jewell, F. Aaron Rains
Solenex Llc V. Jewell, F. Aaron Rains
Public Land & Resources Law Review
In Solenex LLC v. Jewell, the Secretary of the Interior cancelled a highly contentious oil and gas lease in Montana’s Badger-Two Medicine area, an environmentally sensitive and culturally significant area to the Blackfeet Tribe, nearly thirty years after the lease had been issued. Solenex, a Louisiana based oil and gas company and holder of the lease, brought this action to enjoin the cancellation. The District Court for the District of Columbia agreed with Solenex and found that the Secretary’s decision took an unreasonable amount of time and violated good-faith contractual obligations. On these grounds, the court found the Secretary’s …
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 …
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 …
Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey
Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey
Public Land & Resources Law Review
The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …
Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler
Montana Environmental Information Center V. U.S. Office Of Surface Mining, Lowell J. Chandler
Public Land & Resources Law Review
In MEIC v. U.S. Office of Surface Mining, the cost of coal mining’s climate impacts and the agency’s NEPA review obligations are at issue. The United States District Court for the District of Montana found that the Office of Surface Mining and Enforcement failed to adequately consider the need for an EIS and to take a hard look at the indirect, cumulative, and foreseeable impacts of a proposed coal mine expansion in central Montana. In its NEPA analysis, the court concluded that if the benefits of a carbon-intensive project are quantified, then the costs to the climate should be …
Save Our Cabinets V. U. S. Fish & Wildlife Service, Jaclyn Van Natta
Save Our Cabinets V. U. S. Fish & Wildlife Service, Jaclyn Van Natta
Public Land & Resources Law Review
No abstract provided.
The Clark Fork Coalition V. Tubbs, Jonah P. Brown
The Clark Fork Coalition V. Tubbs, Jonah P. Brown
Public Land & Resources Law Review
Before landowners may appropriate groundwater in Montana, they must first apply for a DNRC permit pursuant to the Montana Water Use Act. Landowners may qualify for an exemption from the arduous permitting process if their appropriation meets certain criteria. However, the Act provides an exception to the exemption when a “combined appropriation” from the same source is in excess of ten acre-feet per year. The Clark Fork Coalition v. Tubbs affirmed the district court’s invalidation of the DNRC rule defining “combined appropriation” to only include physically connected groundwater wells.
Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks
Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks
Publications
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …
Center For Biological Diversity V. Jewell, Kirsa Shelkey
Center For Biological Diversity V. Jewell, Kirsa Shelkey
Public Land & Resources Law Review
Following years of pressure to list the upper Missouri River population of Arctic grayling as an endangered or threatened species, the United States Fish and Wildlife Service issued a 2014 Finding that listing the fish was “not warranted at this time.” The Service relied on voluntary Candidate Conservation Agreements with Assurances in the Big Hole River Basin to determine that listing criteria under the Endangered Species Act was not met and therefore listing was not necessary. Ultimately, the court deferred to agency expertise and found that the Service’s decision not to list the Arctic grayling was reasonable.
Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress
Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress
Native American Water Rights Settlement Project
Federal Legislation: Blackfeet Water Rights Settlement Act of 2016, in Water Infrastructure Improvements for the Nation Act, Title III, Subtitle G. PL 114-322, ** Stat. *** (Dec. 16, 2016). This Act authorizes, ratifies, and confirms the water rights compact between the Blackfeet Nation and Montana dated April 15, 2009, as modified to be consistent with this subtitle. The Act relates to the Blackfeet Nation’s water rights in the Milk River, Milk River Project, St. Mary River, instream flow rights, and rights in Lake Elwell and any water rights arising out of MT state law. The legislation authorized $422 million in …
Slides: Flpma In Its Historical Context, John D. Leshy
Slides: Flpma In Its Historical Context, John D. Leshy
FLPMA Turns 40 (October 21)
Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law
36 slides
This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.
See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm
Slides: Winter, Wilderness & Climate: Threats & Solutions, Jim Ramey, Lindsay Bourgoine
Slides: Winter, Wilderness & Climate: Threats & Solutions, Jim Ramey, Lindsay Bourgoine
Winter, Wilderness, and Climate--Threats and Solutions (October 12)
Presenters:
Jim Ramey, The Wilderness Society
Lindsay Bourgoine, Protect Our Winters
56 slides
Agenda: Winter, Wilderness & Climate: Threats & Solutions, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, The Wilderness Society, Protect Our Winters
Agenda: Winter, Wilderness & Climate: Threats & Solutions, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, The Wilderness Society, Protect Our Winters
Winter, Wilderness, and Climate--Threats and Solutions (October 12)
In partnership with the Getches-Wilkinson Center, join The Wilderness Society and Protect Our Winters for an interactive presentation about energy development and climate impacts on public lands.
This event was held on Wednesday, October 12, 2016, 5:30 - 7:30 p.m., in the University of Colorado Law School, Wolf Law Building, Wittemyer Courtroom.
United States V. Bryant, Lillian M. Alvernaz
United States V. Bryant, Lillian M. Alvernaz
Public Land & Resources Law Review
The epidemic of domestic violence committed against Native American women and the jurisdictional maze these women are forced to navigate for justice is an unfortunate reality created by gaps in laws between sovereigns. In an effort to curb this violence, the 2005 reauthorization of the Violence Against Women Act enacted 18 U.S.C. § 117(a), the habitual offender provision. The Ninth Circuit’s ruling in favor of the Sixth Amendment over the unreliability of uncounseled tribal court convictions created a circuit split, thus the United States Supreme Court granted certiorari for resolution. The Court held that when tribal court convictions occur in …
The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey
The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey
Research Data
These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015), available at http://scholar.law.colorado.edu/articles/56/. Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article.
In Re Crow Water Compact, Ariel E. Overstreet-Adkins
In Re Crow Water Compact, Ariel E. Overstreet-Adkins
Public Land & Resources Law Review
In re Crow Water Compact is the second appeal from the Crow Water Compact, agreed upon by the Settling Parties to distribute and manage water rights amongst themselves. The decision upholds the negotiated Compact for the second time, affirming the Montana Water Court’s decision granting summary judgment to the Settling Parties over objections by the Objectors and approving the Compact by a final order. This decision represents the last step in a process, started in 1979, to define and quantify the reserved water rights for current and future uses of the Crow Nation in Montana.