President Obama Orders the Creation of Bears Ears National Monument

By Erick Valencia

On December 28, 2016, President Obama issued a proclamation creating the 1.35 million acre Bears Ears National Monument southwest of Moab in San Juan County, Utah. The order, noting the breathtaking desert landscape, the area’s archeological significance, and its importance to numerous Native American Tribes, is a step toward tribal sovereignty. Indeed, the order creates a Bears Ears Commission consisting of one elected officer from each of the Hopi Nation, the Navajo Nation, the Ute Mountain Ute Tribe, the Ute Indian Tribe of the Uintah Ouray, and the Zuni Tribe. The Commission is to partner with the U.S. Forest Service and the Bureau of Land Management (“BLM”) and make recommendations regarding the management of the Monument.

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Photo Credit: Josh Ewing

The Forest Service and the BLM will jointly manage the Monument, with the Forest Service managing parts of the Monument that fall within the boundaries of the National Forest System and the BLM managing the remaining parts.

In a recent press release, the U.S. Department of Agriculture noted that the designation will allow for currently authorized uses of the land that are consistent with the management of resources. The Monument will not affect existing oil and gas or mining development, but new development will be prohibited. The Monument will also not affect the State of Utah’s ability to manage fish and wildlife, including hunting and fishing. Furthermore, the Forest Service and BLM are expected to continue to issue grazing permits. Off-highway vehicles will also continue to be permitted so long as their use remains consistent with the protection of objects provided by the Monument’s creation.

There are already rumblings of attempts to repeal the order through legislative, judicial, and even executive action. Indeed, Utah Attorney General Sean Reyes stated he plans to file a lawsuit to prevent the Monument’s creation. And while no president has ever repealed a national monument designation, only time will tell if President-Elect Trump will be the first to do so.

A map of the Monument can be found here: https://www.blm.gov/programs/national-conservation-lands/national-monuments/utah/bears-ears/map

 

The BLM’s fact sheet on the Monument can be found here: https://www.blm.gov/programs/national-conservation-lands/national-monuments/utah/bears-ears/fast-facts

The Presidential Proclamation can be found here: https://www.whitehouse.gov/the-press-office/2016/12/28/proclamation-establishment-bears-ears-national-monument

The U.S. Department of Agriculture’s Press Release can be found here: https://content.govdelivery.com/accounts/USDAOC/bulletins/17ccc61

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One Step Forward, Two Steps Back: The Conceivable End of Chevron Deference

By Maresa Jenson

Recently, the much beloved[1] two-step standard has been put in jeopardy, with the potential to significantly alter Administrative Law. On January 11, 2017, by a 238 to 183 vote, the House passed the Regulatory Accountability Act of 2017,[2] an section of which repeals the well-established “Chevron Deference” standard for reviewing agency actions. The bill was introduced by Representative Bob Goodlatte of Virginia, and the Chevron Deference provision of the bill was sponsored by Representative John Ratcliffe of Texas. Representative Ratcliffe provided that Chevron Deference had allowed “growth of a branch of government that the founders never intended.”[3] All the provisions passed in the Regulatory Accountability Act had previously passed the House, but not made it passed the Senate.[4]

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Picture by author

Established in 1985, Chevron Deference is two step analysis used to determine whether agency interpretation of a statute is permissible.[5] The court first examines whether Congress has spoken directly on the issue then, if the Congressional intent is silent or ambiguous, the court will move to step two and consider whether the agencies interpretation is reasonable and permissible. The language of the Regulatory Accountability Act inserts that:

If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.[6]

Congressionally repealing the Chevron Deference standard would result in ambiguity for legal challenges to agency decisions, potentially creating further uncertainty in this time of political turmoil. While the implications are unknown, news sources are already considering potential new challenges on agency actions.[7]

[1] See NYU law students dancing about Chevron Deference: https://www.youtube.com/watch?v=uHKujqyktJc&ab_channel=LewieBriggs

[2] https://www.congress.gov/bill/115th-congress/house-bill/5

[3]  https://www.law360.com/articles/879235/house-passes-bill-ending-chevron-deference

[4] Id.

[5] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[6] Separation of Powers Restoration Act: Judicial Review of Statutory and Regulatory Interpretations, Section 202(1)(B). https://www.congress.gov/bill/115th-congress/house-bill/5/text#HAD73D2673AA74FC385ECEAB870A95CCA

[7] https://www.law360.com/articles/883314/bill-to-end-chevron-deference-may-put-target-on-uspto-rules

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By Kevin Rechkoff

This year saw the latest chapter unfold in the battle over the legality of exempt wells in Montana. On Tuesday, September 13, 2016, the Montana Supreme Court affirmed the First Judicial District Court’s 2014 decision requiring the Department of Natural Resources (DNRC) to reinstate the 1987 Exempt Wells Rule. The decision held that the later Exempt Wells Rule, promulgated in 1993, created a loophole in the water use permitting process. The loophole, according to the Court, allowed users to drill as many exempt wells as they wanted, on a single parcel, as long as the wells were not physically connected in their plumbing. The Court determined the later Rule frustrated the “general purpose” of the Montana Water Use Act, upholding the district court decision that re-implemented the 1987 Rule.

Thus, the Exempt Wells Rule, as it stands after the Court’s decision, allows for a property owner to drill one well, drawing up to ten acre-feet per year of water, without needing a permit from the State. If users want to drill an additional well, they must apply for a permit.

Developers, such as the Montana Realtors Association contend that the 1987 Rule stymied development, and that increased withdrawals caused by the 1993 Rule were not harmful to the State’s groundwater resources.

The fight over exempt wells in Montana might not be over. State Legislators who pushed for the 1993 Rule, could be considering passing legislation with the language of the 1993 Rule, effectively overruling the DNRC and Court.

Stay Tuned!

http://missoulian.com/news/local/exempt-well-loophole-fails-before-state-supreme-court/article_85816d0a-6603-5d2c-b077-c8e64a371d45.html

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Yellowstone Bison Management

By Hallie Bishop

Yellowstone Bison are genetically unique animals. These bison recovered from the brink of extinction due to conservation efforts by government agencies, State actors, and Tribes. In 2000, the State of Montana and the federal government established the Interagency Bison Management Plan to manage the Yellowstone Bison. The Yellowstone Bison population has continued to grow, with a current population around 5,500. While the population grows, their habitat has not. The Yellowstone Bison are not allowed to roam outside the Yellowstone National Park due to fears of infecting livestock with brucellosis. The State of Montana has passed legislation that prohibits moving Yellowstone Bison to other conservation areas. Therefore, as the population grows, the Yellowstone Bison must be culled every year to prevent overgrazing or mass starvation. Recently, the Yellowstone Bison management has come under criticism.

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In September 2016, three wildlife groups sued the federal government demanding listing of the Yellowstone Bison as threatened or endangered to prevent the scheduled culling of roughly 900 bison. The culling entails rounding up Yellowstone Bison roaming near Yellowstone National Park’s boundaries and transferring them to nearby Native American Tribes for slaughter. The wildlife groups alleged the federal government should base their Yellowstone Bison conservation efforts on science not the political influence of the livestock industry. The influence of the livestock industry has restricted the Yellowstone Bison’s habitat to Yellowstone National Park’s boundaries requiring the annual culling to prevent overpopulation.

The recent uproar in determining the proper method for managing the Yellowstone Bison demonstrates the need for the government agencies, State actors, and tribes to reevaluate the 2000 Interagency Bison Management Plan. The Yellowstone Bison are an integral part of Yellowstone National Park, which saw over 4 million tourists last year. Here the issue is not whether the Yellowstone Bison need to managed to ensure their existence in Yellowstone National Park, but rather how to guarantee these animals do not return to the brink of extinction.

https://www.nps.gov/yell/learn/nature/bisonmgnt.htm

http://www.ecowatch.com/yellowstone-bison-lawsuit-2020593012.html

http://missoulian.com/news/opinion/columnists/save-yellowstone-bison-from-slaughter/article_2270da19-626c-5ae5-82a1-d4b62e18c693.html

http://missoulian.com/news/opinion/columnists/reducing-bison-population-key-to-saving-yellowstone-s-northern-range/article_89d6b7ad-9f19-5ccf-bce1-b544adc0bf14.html

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Hope for Climate Change Litigation in a New Administration

By Caitlin Buzzas

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This past November, amid an election that devastated the environmental and climate science communities, there was a glimmer of hope in the U.S. District Court in Eugene, Oregon. In an unprecedented move, Judge Ann Aiken ruled in favor of a group of children and young adults against the federal government and energy interest group’s motion to dismiss for failure to state a claim. The plaintiffs, who included a group of children between 8 and 19 years old asserted that the government’s failure to address climate change violated their Fifth Amendment substantive due process rights to life, liberty, and property. The plaintiffs contended that the government knowingly endangered their health and welfare by approving and promoting fossil fuel development that increased CO2 levels and destabilized the climate. The plaintiffs further contended that under the public trust doctrine the government violated its responsibility to hold natural resources, such as air and water, in public trust for present and future generations.

The government and energy interest groups claimed that the plaintiffs lacked standing. However, the Court held that the plaintiffs had individual injuries in fact related to climate change that gave them standing to sue. These included drinking water poisoned by algae blooms, wildfires and extreme flooding jeopardizing personal safety, drought and heat waves affecting agriculture and food sources, and decreased snowpack threatening winter recreation. The Court also determined that a climate change case did not involve a “political question,” which would limit the federal courts ability to hear the case.

The case, Juliana v. United States, will go to trial sometime in 2017, and may find its way to the U.S. Supreme Court. This groundbreaking decision could pave the way for future substantial legal climate action even in the era of a Trump administration.

See also:

https://elr.info/litigation/46/20072/juliana-v-united-states

http://www.slate.com/articles/health_and_science/science/2016/11/the_kids_lawsuit_over_climate_change_is_our_best_hope_now.html

http://www.natlawreview.com/article/oregon-federal-court-allows-children-s-climatechange-suit-to-proceed

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Montana Congressman Ryan Zinke Selected to Replace Sally Jewell as Secretary of the Interior: Environmental, Tribal, and Natural Resource Perspectives

By Keatan Williams

President-elect Donald Trump selected Montana Congressman Ryan Zinke to be his Secretary of the Interior. Zinke’s confirmation hearing is scheduled for Tuesday, January 10, 2016. The news has been met with mixed feelings from parties in the environmental, tribal, and natural resource fields.

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It is expected that Zinke will work primarily to forward Trump’s goals of opening public lands to more fossil fuel development. Zinke has opposed Department of Interior regulations on methane emissions and greenhouse gases from oil and natural gas wells. Despite his voting record against environmentalists, Zinke is a lifetime hunter and angler who strongly opposes any transfer of public lands to the States and has pushed for full funding of the Land and Water Conservation Fund.

Zinke’s appointment is being considered by some as a victory for Indian country. Zinke supported the Blackfeet Water Compact, pushed for federal recognition of the Little Shell Band of Chippewa Cree, and has been an advocate of tribal sovereignty. Harry Barnes, chairman of the Blackfeet Nation called the appointment “a great day for Montana.”

Ryan Zinke’s appointment will likely lead to increased fossil fuel development and sustained access on public lands, as well as continued interest in tribal sovereignty within the Department of the Interior. If confirmed by the Senate, Zinke will resign from his seat in Congress and will be replaced in a special runoff election eighty-five to one hundred days later. Montana Governor Steve Bullock is responsible for the special election process, and for selecting a temporary replacement from a list of three appointees selected by the Republican Party. Each political party will then choose a candidate for the special election. Several Republicans have already stepped up to run including Ed Buttrey of Great Falls, Scott Sales of Bozeman and Daniel Zolnikov of Billings. No Democrats have stepped up to run yet.

http://www.wsj.com/articles/trump-picks-rep-ryan-zinke-to-run-interior-department-1481668785

https://www.washingtonpost.com/news/energy-environment/wp/2016/12/13/trump-taps-montana-congressman-ryan-zinke-as-interior-secretary/?utm_term=.db4b20d5f61c

http://www.hcn.org/articles/interior-secretary-pick-has-a-record-of-listening-to-tribes

http://helenair.com/news/politics/republicans-line-up-to-run-for-zinke-s-open-seat/article_69fea969-f992-5751-ad69-4de4e9f704dd.html

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New Rule Simplifies Transfer of Federal Land

By Lindsay Ward

Facing harsh criticism, a new land conveyance provision was approved which will simplify the transfer of federal land to local governments this past week. The provision allows these transfers free of cost to the federal government even if the transfer decreases federal revenue, bypassing “pay-as-you-go” rules that had been implemented in 2010; these earlier rules permitted Congress to block a transfer if there was no showing of how the lost revenue would be recouped, such as budget cuts.

Many interpret the approval as a triumph for republican goals of commercial development. The provision’s author, House Natural Resources Chairman Rob Bishop, R-Utah, states it will be a benefit for the local control of lands. “This rule democratizes our process by eliminated bureaucratic red tape, it facilitates the transfer of land from the federal government to the local government where people will have a larger voice in the management of their lands,” Bishop stated. Proponents of the change cite to federal mismanagement and proclaim that local management will yield better results.

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(Al Hartmann | The Salt Lake Tribune) Rob Bishop, R-Utah Congressman Rob Bishop addresses a poster that negatively portrayed his views of federal land use, as Congressman Jason Chaffetz grins behind him.

Others take a far different stance. Bobby McEnaney, senior lands analyst at the Natural Resources Defense Council asserted that the change was “an escalation in the Republican Platform to start looking at privatization of our federal assets.” The Democratic staff at the Natural Resources Committee noted that tribes and local governments likely would not have the resources to manage large tracts of federal land, opening up the possibility the lands would be auctioned off to “the highest bidder.”

The change’s likely repercussions hold special importance in Montana. Ryan Zinke, Republican Congressmen from Montana and President-elect Trump’s pick for Secretary of the Interior has previously opposed the transfer of federal land—last summer, Zinke quit the Republican Party Platform Committee when comparable language was introduced in it. However, Zinke voted for the change last week. Land Tawney, CEO of the Missoula-based organization Backcountry Hunters and Anglers, said that the change “greases the skids for the sale and/or transfer of federal land.” He is not content to passively accept the rule, and says he has “faith in the American people to stand up and fight this idea.”

For more information, see:

http://www.redding.com/story/news/politics/2017/01/06/new-rule-makes-easier-hand-off-public-lands/96271368/

https://www.washingtonpost.com/news/energy-environment/wp/2017/01/03/house-gop-rules-change-would-make-it-easier-to-sell-off-federal-land/?utm_term=.964777cf1918

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