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Articles 211 - 240 of 421
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
The Good, The Bad, And The Unnecessary : Forest Fire Suppression Funding And Forest Management Provisions Of The Consolidated Appropriations Act Of 2018, Peter B. Taylor
The Good, The Bad, And The Unnecessary : Forest Fire Suppression Funding And Forest Management Provisions Of The Consolidated Appropriations Act Of 2018, Peter B. Taylor
Public Land & Resources Law Review
No abstract provided.
Massachusetts Lobstermen’S Association V. Ross, Daniel Brister
Massachusetts Lobstermen’S Association V. Ross, Daniel Brister
Public Land & Resources Law Review
President Obama established the first––and only––national monument in the Atlantic Ocean on September 15, 2016. Located 130 miles southeast of Cape Cod, Massachusetts, and comprised of 4,913 square miles of marine ecosystems rich in biodiversity, the protected area includes four underwater mountains and three submarine canyons. Plaintiff commercial lobster and fishing associations, seeking to overturn the designation, asserted that the Antiquities Act does not permit a president to establish marine national monuments. The U.S. District Court for the District of Columbia disagreed, upholding a president’s authority to protect offshore areas and vast ecosystems as objects of scientific interest, and dismissing …
Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer
Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer
Faculty Law Review Articles
There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …
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 …
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 …
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.
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).
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Public Land & Resources Law Review
In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …
United States V. Osage Wind, Llc, Summer Carmack
United States V. Osage Wind, Llc, Summer Carmack
Public Land & Resources Law Review
The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …
United States V. Gila Valley Irrigation District, Ryan L. Hickey
United States V. Gila Valley Irrigation District, Ryan L. Hickey
Public Land & Resources Law Review
Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.
Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom
Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom
Public Land & Resources Law Review
In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., the Ninth Circuit upheld the Tribe’s federal reserved right to the groundwater underlying its reservation. This decision enforces that the courts will not defer to state water law when there is an established federal reserved water right. Further, the Ninth Circuit expressly extended this right to groundwater.
Lewis V. Clarke, Summer L. Carmack
Lewis V. Clarke, Summer L. Carmack
Public Land & Resources Law Review
One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …
Why Indian Country? An Introduction To The Indian Law Landscape (Chapter One In Indian Law And Natural Resources: The Basics And Beyond), Monte T. Mills
Why Indian Country? An Introduction To The Indian Law Landscape (Chapter One In Indian Law And Natural Resources: The Basics And Beyond), Monte T. Mills
Faculty Books & Book Chapters
No abstract provided.
Lewis V. Clarke, Lillian M. Alvernaz
Lewis V. Clarke, Lillian M. Alvernaz
Public Land & Resources Law Review
The nation to nation relationship between tribes and the federal government is unique. Within that relationship, the federal government acknowledges and respects tribal sovereignty. An important aspect of sovereignty is sovereign immunity. Lewis v. Clarke confronts the applicability of sovereign immunity through an extension of tribal sovereignty over an employee defendant. After having heard oral argument, the United States Supreme Court could either reaffirm or severely limit the applicability of tribal sovereign immunity to “arms” of a tribe. While the lower court analyzed tribal sovereign immunity by considering the damages sought, the Supreme Court opinion portends to extend far beyond …
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein
Public Land & Resources Law Review
The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.
Akiachak Native Community V. United States Department Of Interior, Lillian M. Alvernaz
Akiachak Native Community V. United States Department Of Interior, Lillian M. Alvernaz
Public Land & Resources Law Review
Alaska Native Tribes have long been classified differently than the federally recognized Indian tribes in the rest of the country. The Akiachak decision contributes to the shifting treatment of Alaska Native Tribes and clarifies their relationship with the federal government. The ability to put land into trust is essential to the protection of generations to come and the exercise of sovereign authority. By enabling Alaska Native tribes the ability to petition to put tribally owned fee land in trust, the DOI promotes and encourages tribal self-governance and empowerment.
The Traffic Of Native American Women, Nasrin M. Chaudhry
The Traffic Of Native American Women, Nasrin M. Chaudhry
Undergraduate Theses, Professional Papers, and Capstone Artifacts
No abstract available.