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Northern Plains Resource Council v. United States Army Corps of Engineers
Full text linkEnvironmental activist and indigenous rights groups have challenged the validity of the Keystone XL Pipeline since its initial approval in 2010. In April 2020, less than a month after crews broke ground, the opposing groups notched a major win when the United States District Court for the District of Montana revoked a key permit for the project on the grounds that the United States Army Corps of Engineers had inadequately assessed the pipeline’s impact on endangered species
Atlantic Richfield Company v. Christian
Full text linkIn 1983, the EPA designated roughly 300 miles of polluted mining land near Butte, Montana, as a Superfund site, which the EPA now manages. In 2008, landowners adjacent to the Superfund site brought state law claims against Atlantic Richfield, the company that owned the smelter site. In March 2020, the Supreme Court of the United States ruled that Montana state courts have jurisdiction over the landowners’ suit, and that the landowners on this Superfund site qualify as potentially responsible parties
Tax Burdens and Tribal Sovereignty: The Prohibition on Lavish and Extravagant Benefits Under the Tribal General Welfare Exclusion
Full text linkThis article examines a portion of a relatively new federal tax statute, the Tribal General Welfare Exclusion (TGWE), that allows qualified individuals an exclusion from gross income for payments received from American Indian/Alaska Native tribes for any Indian general welfare benefit. Indian general welfare benefits are payments made to tribal members by the tribe pursuant to an Indian tribal government program for the promotion of general welfare, such as for health, education, or housing. The TGWE is intended, in part, to promote participation in American Indian tribal cultural and ceremonial practices. To that end, Indian general welfare benefits include payments made for participation in cultural or ceremonial activities for the transmission of tribal culture. The statute expressly states that excludable welfare benefits cannot be lavish and extravagant, but it does not define what lavish and extravagant means. This article makes the following contributions: It is the first piece of legal scholarship to examine the new TGWE, and it provides in depth description and explanation of the provision. The article also brings attention to federal tax enforcement on certain transfers between tribes and tribal members, particularly those transfers that occur in the scope of tribes engaging in cultural, ceremonial, or religious practices. This article also analyzes a particular limitation in the language of the TGWE, that transfers from tribes to tribal members may not be lavish and extravagant, and makes policy recommendations as to the interpretation of that language as the IRS and consulted tribes move forward with interpretative guidance. Finally, on a broader level, this article seeks to contribute to the greater conversations about tribal self-determination and self-governance and the role federal tax law plays as an instrument of those federal Indian policie
Montana Environmental Information Center v. Department of Environmental Quality
Full text linkThe DEQ renewed a 1999 MPDES Permit on September 14, 2012 that allowed Western Energy Company to discharge pollutants from the Rosebud Mine into streams. Environmental groups MEIC and the Sierra Club sued, arguing this violated both the Montana Water Quality Act and federal Clean Water Act because the DEQ’s interpretation of its own regulations that exempted waters with ephemeral characteristics from water quality standards was arbitrary and capricious. The district court agreed, but the Montana Supreme Court reversed. It held the DEQ’s interpretation was lawful and remanded for further fact finding to assess how the DEQ applied the interpretation and to require the agency to explain how its representative monitoring of precipitation-driven discharges at the mine were representative of the monitored activity in fact
Juliana v. United States
Full text linkPlaintiffs sued the United States government for promoting activities that were known to pollute the atmosphere and cause climate change. They claimed the government’s policies violated their rights under the substantive due process clause of the Fifth Amendment, the equal protection clause of the Ninth Amendment, and the public trust doctrine. The Ninth Circuit held it was not within the court’s Article III power to create and oversee a comprehensive plan capable of redressing the Plaintiffs’ injuries and, therefore, Plaintiffs lacked standing
