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Cultural Recognition and Introduction
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Cultural Recognition: drum performance and blessing by The People’s Cente
Upper Skagit Indian Tribe v. Lundgren
Get PDFStemming 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 grew in significance on appeal, when the respondent landowners asserted an alternative argument based on the immovable property exception to sovereign immunity. While case law clarified that exception in the context of traditional sovereigns, none explored its applicability to tribes. Recognizing the novelty of the argument and its potentially sweeping consequences, the Court remanded the question to the Washington Supreme Court, prompting a spirited dissent accusing the majority of abdicating its judicial duties
Public-Private Conservation Agreements and the Greater Sage-Grouse
Get PDFIn 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 the greater sage-grouse exemplifies persistent controversies about federal protections for declining species and the effects such protections may have on property owners and economic actors
PREVIEW; \u3cem\u3e City of Helena v. Parsons\u3c/em\u3e: Reckless Vigilante or Good Samaritan Done Wrong?
Get PDFThis case arises from Ronald Parsons’ (“Parsons”) actions that ended a police chase outside an elementary school in Helena in March of 2016. The city of Helena (“Helena”) charged Parsons with negligent endangerment and reckless driving because he maneuvered his truck and trailer to block the route of a suspect evading law enforcement, which caused the suspect to crash. The Arrest by a Private Person statute authorizes a person to use reasonable force to arrest another when there is probable cause to believe that the person is committing or has committed an offense. Parsons attempted to use this statute as a defense, but was barred from doing so as both the municipal court and the district court concluded that the statute was inapplicable to Parsons’ criminal case. The jury was therefore not instructed on the statute in any way, and Parsons was convicted on both charges. Parsons appeals what he contests were substantially prejudicial rulings, which led to his conviction. The main issue here is whether, by not instructing the jury on the Arrest by a Private Person statute, the court substantially prejudiced Parsons and deprived him of a fair trial
Reception
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Collaboration Through NEPA: Achieving a Social License to Operate On Federal Public Lands
Get PDFAs 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 support from the public and the communities in which they operate. A social license to operate is a voluntary license granted by communities, obligating companies to go above and beyond the requirements of their legal license to operate. While natural gas developers have increasingly sought to achieve a social license to operate in urban settings, such as the Colorado Front Range, there has been little use of this approach by operators drilling on federal public land. We advocate for the use of increased collaboration with affected stakeholders and communities through the NEPA process as a means to achieve a social license to operate on federal public land
Still-In-Flux: Reinterpreting Montana\u27s Rights-of-Minors Provision
Get PDFThis note explores how this provision, referred to interchangeably as Article II, Section 15 and the rights-of-minors provision throughout, has developed since its adoption. Part II of this note discusses the sources of the provision, including key United States Supreme Court precedent on juvenile rights in the years immediately before the Convention, and the evolution of the provision through several stages of the 1972 Montana Constitutional Convention. Part III examines the structure and substance of Article II, Section 15 by dividing the provision into three subparts and illustrating how each sub-part functions through relevant Montana Supreme Court decisions. Part IV discusses the potential flaws of the Court’s interpretation and application of the rights-of-minors provision by focusing again on each subpart, and suggests new approaches to understanding and applying its rules. Part V concludes the note
Debtor Malice
Get PDFThis Article is about what malice should mean under bankruptcy law. Malice is used in other areas of law as a sorting function—to identify wrongful acts that are especially grievous. For example, criminal law uses malice to separate murder from manslaughter. The Bankruptcy Code uses malice to perform a similar sorting function. Bankruptcy law discharges or forgives certain kinds of debts. It separates debts that society is willing to forgive from debts that are not forgivable. One way it accomplishes this sorting function is through Section 523(a)(6) of the Bankruptcy Code, which excepts from discharge debts for “willful and malicious injury by the debtor.” The Supreme Court has interpreted the word malicious to require “a wrongful act, done intentionally, without just cause or excuse.” But neither the Supreme Court nor the circuit courts have provided meaningful guidance on the degree of wrongfulness that is required. Because intentionally injuring another is inherently a wrongful act, there should be a difference between a mere willful injury and the required “willful and malicious” injury. In addition, a circuit court split has developed on whether malicious requires intent, and if so, what level of intent. This Article seeks to clarify the meaning of malicious. It explains why courts should stop construing malicious to require intent. It also recommends the definition of malicious be changed to require an “extraordinarily” wrongful act so that malice can accomplish its sorting function
Wyoming v. Zinke
Get PDFIn Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, which rendered the issues prudentially unripe for review