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Herrera v. Wyoming: A New Trend for Indian Law?
No full textOn May 20, 2019, the United States Supreme Court, by a 5–4 decision in Herrera v. Wyoming, upheld the treaty-reserved rights of Crow tribal members to hunt in Wyoming’s Bighorn National Forest—an area where the Tribe has sought sustenance for more than three centuries—despite Wyoming’s attempt to regulate those rights.1 While this outcome (and particularly Justice Gorsuch’s role in rendering it) points to the possibility of a new and improved future for tribal rights before the Supreme Court, neither Mr. Herrera nor Indian law more broadly are out of the woods yet
PREVIEW; BNSF Railway Company v. The Asbestos Claims Court of the State of Montana, Honorable Amy Eddy, Presiding Judge: \u3cem\u3eDoes Allowing Defendants to Assign Liability to Non-Parties Violate Due Process?\u3c/em\u3e
Full text linkThis case presents the issue of a Montana statutory defense’s constitutionality. It concerns whether BNSF can allege a non-party, W.R. Grace & Company’s, conduct absolves it of liability for the Plaintiffs’ injuries. Known previously as the “empty chair defense,” it is referred to here as a non-party defense, or the “settled party defense” based on the language added to the 2017 version of the statute. The Montana Supreme Court’s decision on BNSF’s ability to assert Grace’s conduct absolves it of liability will have important implications for the ability of injured plaintiffs to recover damages against named defendants. BNSF maintains the Asbestos Claims Court employed a flawed strict liability analysis in determining that the defense under MCA § 27–1–703(6) did not apply
Waiving Federal Sovereign Immunity in Original Actions between States
Full text linkThere 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 federal government to an original action before the Supreme Court. This Article shows how federal sovereign immunity stands in the way of comprehensive resolution of interstate water rights and highlights the need for reforms to facilitate meaningful participation by the United States. In particular, it investigates the merits of a waiver of federal sovereign immunity in original actions between the states. Although federal immunity is a staple of our nation\u27s jurisprudence, it has no constitutional basis and it serves little purpose in this context. The Article concludes that a congressional waiver of federal sovereign immunity would be appropriate and would have few downsides, at least in the case of original actions between states before the U.S. Supreme Court
Appalachian Voices v. State Water Control Board
Full text linkThe Virginia State Water Control Board certified the issuance of permits for the construction of a natural gas pipeline that traversed over 300 miles of Virginia in addition to other states. Local environmental groups and individuals petitioned the Fourth Circuit to review the certification under the Administrative Procedure Act. The Fourth Circuit Court of Appeals gave deference to the agency’s actions and denied the petition for review
A Legal Response to the Sovereign Citizen Movement
Full text linkThis article seeks to provide civil servants, law enforcement, and the judiciary with a comprehensive reference guide to the Sovereign Citizen movement. To do this, the article attempts to make sense of and explain the most common Sovereign Citizen themes and their failings under the Constitution: first, the jurisdiction of the federal government over actual flesh and blood citizens; second, the ability to tax citizens and redeeming the strawman (the so-called Redemption Scheme ); and third, the individual\u27s right to travel. By explaining the legal shortcomings of the Sovereign Citizen ideology, lawyers and judges can address citizens\u27 concerns about government overreach, dissuade Sovereign Citizens themselves from continually reasserting the same meritless arguments, and inform the general public of their actual constitutional rights
PREVIEW; Maryland Casualty Company v. The Asbestos Claims Court, and the Honorable Amy Eddy, Asbestos Claims Court Judge: \u3cem\u3eWhat Duty does a Workers\u27 Compensation Insurer Owe the Employees of its Insured?\u3c/em\u3e
Full text linkThis case presents two significant issues. The overarching issue is whether a Writ of Supervisory Control will be granted to resolve the underlying issue: what duty, if any, a workers’ compensation insurer owes the employees of its insured. The resolution of the underlying issue will be an important one, both within the multitude of pending asbestos claims in Montana and beyond. The Petitioner, Maryland Casualty Company, claims the Asbestos Claims Court used an improper standard in determining that Maryland Casualty Company owed a duty to the employees of its insured, W.R. Grace & Company
PREVIEW; Nunez v. Watchtower\u3cem\u3e: The Constitutional Implications of Montana\u27s Statutory Cap on Punitive Damages and Negligence Per Se Under Montana\u27s Child Abuse Reporting Statute\u3c/em\u3e
Full text linkThis case presents the Court with two significant issues. The core issue before the Court is whether Montana’s statutory cap of $10 million on punitive damages comports with Montana’s Constitution. The second issue before the Court is whether Petitioners Watchtower Bible and Tract Society of New York, Inc. and The Christian Congregation of Jehovah’s Witnesses are liable to Respondent Alexis Nunez, a congregant at Petitioner Montana’s Thompson Falls Congregation of Jehovah’s Witnesses for failure to report sexual abuse under Montana’s child abuse reporting statute
PREVIEW; Murray v. BEJ Minerals: \u3cem\u3eDigging Up the Truth on Whether the Possessory Right of Dinosaur Fossils Lie with a Parcel\u27s Mineral Interest or Surface Interest\u3c/em\u3e
Full text linkThe Ninth Circuit Court of Appeals granted rehearing en banc in Murray v. BEJ Minerals, LLC, to determine whether dinosaur fossils are part of the surface or mineral estate under Montana law. Finding state law determinative and no controlling precedent, the Ninth Circuit certified the question to the Montana Supreme Court. This question asks the Court to determine: Whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation?
This question presents the Court with the issue of determining whether dinosaur fossils are “minerals” for the purpose of a mineral reservations in a deed between private parties in Montana. During the 2019 Legislative Session, the Montana State Legislature passed legislation establishing that fossils are not “minerals” for the purpose of a mineral rights reservation. Here, however, the Court has the opportunity to articulate a test that will affect not only the dinosaurs fossils in this matter, but also principles of contract interpretation and the relationship between the judiciary and the legislature