Articles Posted in Government & Administrative Law

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Under the federal environmental laws, the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs. The United States owned national forest lands in New Mexico that were mined over several generations by Chevron Mining Inc. The question presented for the Tenth Circuit’s review was whether the United States is a “potentially responsible party” (PRP) for the environmental contamination located on that land. The Tenth Circuit concluded that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the United States is an “owner,” and, therefore, a PRP, because it was strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land. The Court also concluded the United States cannot be held liable as an “arranger” of hazardous substance disposal because it did not own or possess the substances in question. The Court reversed the district court in part and affirmed in part, remanding for further proceedings to determine the United States’ equitable share, if any, of the clean-up costs. View "Chevron Mining v. United States" on Justia Law

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Plaintiffs-Appellants Pueblo of Pojoaque appealed a district court’s dismissal of its claim for declaratory and injunctive relief based on the New Mexico’s alleged unlawful interference with Class III gaming operations on the Pueblo’s lands. In July 2005, the Pueblo and New Mexico executed a Class III gaming compact pursuant to the Indian Gaming Regulatory Act (“IGRA”) that allowed it to operate casino-style gaming on its lands. Prior to the expiration of the compact, the New Mexico Gaming Control Board (“the Gaming Board”) sought to perform its annual compliance review of the Pueblo’s gaming operations. The Pueblo complied on June 24; on June 30, 2015, the compact expired at midnight. The Gaming Board announced that despite the U.S. Attorney’s decision allowing the Pueblo’s gaming operations to continue pending the review, the Pueblo’s casinos were operating illegally due to the absence of a compact, and it placed in abeyance approval of any license application or renewal for vendors who did business with the Pueblo. The Pueblo commenced this action, asserting in part that New Mexico failed to conduct compact negotiations in good faith in violation of IGRA and that individual defendants conspired under the color of state law to “deprive the federal right of the Pueblo and its members to be free of state jurisdiction over activities that occur on the Pueblo lands.” The Pueblo sought an injunction, contending that the Gaming Board’s actions were an impermissible attempt to assert jurisdiction over gaming operations on tribal lands, despite the termination of New Mexico’s jurisdiction over such activities upon the expiration of the compact. The district court entered final judgment, stayed the effects of the preliminary injunction, and issued an indicative ruling that it would vacate or dissolve the preliminary injunction on remand. The Pueblo sought to stay the district court’s judgment and restore the preliminary injunction. The district court declined to do so, but the Tenth Circuit extended a temporary injunction against the State mirroring the preliminary injunction entered by the district court. On appeal, the Pueblo argued the district court did not have jurisdiction to proceed to the merits given the interlocutory appeal of the preliminary injunction and, even if it did, it erred in concluding that IGRA did not preempt New Mexico’s regulatory action. The Tenth Circuit found the text of IGRA clearly evinced congressional intent that Class III gaming would not occur in the absence of a compact, and no such compact existed. Accordingly, conflict preemption also does not apply. For similar reasons, the Court rejected the Pueblo’s argument that the Gaming Board’s determination as to the unlawful nature of the Pueblo’s gaming activities was an improper assertion of jurisdiction preempted by IGRA. Because the Pueblo’s gaming activities are not conducted pursuant to a compact or an alternative mechanism permitted under IGRA, the Pueblo’s present gaming is unlawful under federal law, and the State’s conclusion to this effect was not an exercise of jurisdiction that IGRA preempts. View "Pueblo of Pojoaque v. New Mexico" on Justia Law

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This matter arose from the death of Todd Murray, a Ute tribal member, following a police pursuit on the Uintah and Ouray Indian Reservation. Murray’s parents, his estate, and the Ute Indian Tribe (the “Tribal Plaintiffs”) sued the officers involved in Ute Tribal Court for wrongful death, trespass, and other torts. The officers then filed suit in federal court against the Tribe, its Business Committee, the Tribal Court, the Acting Chief Judge of the Tribal Court, and the other Tribal Plaintiffs. The district court enjoined the Tribal Court action, holding that Nevada v. Hicks, 533 U.S. 353 (2001), barred tribal civil jurisdiction over the officers, making exhaustion of tribal court remedies unnecessary. It further determined that certain defendants were not entitled to tribal sovereign immunity. After review, the Tenth Circuit concluded the district court erred in excusing the officers from exhaustion of tribal remedies with respect to the Tribe’s trespass claim; that claim at least arguably implicates the Tribe’s core sovereign rights to exclude and to self-govern. The Court further concluded this claim was not barred by Hicks. However, the Court agreed the remaining Tribal Court claims were not subject to tribal jurisdiction and thus exhaustion was unnecessary. The Court reversed the district court’s denial of tribal sovereign immunity as to the Tribe, its Business Committee, and the Tribal Court. View "Norton v. Ute Indian Tribe of the Uintah" on Justia Law

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Plaintiff Ralph Rogerson, a licensed pest-control applicator in Kansas, challenged a regulation of the Kansas Department of Agriculture on the ground that it required excessive pesticide treatment in preconstruction applications. He filed suit for declaratory and injunctive relief against the Secretary of the Department, claiming that the regulation: (1) was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) because it conflicted with pesticide labels approved by the Environmental Protection Agency (EPA); and (2) was preempted by the Sherman Antitrust Act because it limited consumer choice and competition through retail price maintenance. The United States District Court for the District of Kansas rejected both claims, and Plaintiff appealed. The Tenth Circuit affirmed: the Kansas regulation was neither expressly nor impliedly preempted by FIFRA. And Plaintiff conceded the absence of an essential element of his Sherman Act claim. View "Schoenhofer v. McClaskey" on Justia Law

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Plaintiff Bridgette Marlow sued her employer The New Food Guy, Inc., d/b/a Relish Catering, under the Fair Labor Standards Act (FLSA). The FLSA required employers to pay a minimum wage of $7.25 per hour, plus time and a half for overtime. Relish paid Ms. Marlow $12 an hour and $18 an hour for overtime. Despite this, Marlow claimed Relish was obligated to turn over to her a share of all tips paid by catering customers. She relied on the tip-credit provision of the FLSA, which was directed to employers who satisfy their minimum-wage obligations in part with tips retained by their employees, and on a regulation promulgated by the Department of Labor (DOL) purportedly interpreting that provision. The Tenth Circuit was not persuaded by this argument, finding the tip-credit provision does not apply in this case and that the regulation was beyond the DOL’s authority. The law’s “silence” about employers who decline the tip credit was no “gap” for an agency to fill. Instead, the text limits the tip restrictions in the statute to those employers who take the tip credit, leaving the DOL without authority to regulate to the contrary. View "Marlow v. The New Food Guy, Inc." on Justia Law

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In response to a request from the Quapaw Tribe, the National Indian Gaming Commission (NIGC) Acting General Counsel issued a legal opinion letter stating that the Tribe’s Kansas trust land was eligible for gaming under the Indian Gaming Regulatory Act (IGRA). The State of Kansas and the Board of County Commissioners of the County of Cherokee, Kansas, filed suit, arguing that the letter was arbitrary, capricious, and erroneous as a matter of law. The district court concluded that the letter did not constitute reviewable final agency action under IGRA or the Administrative Procedure Act (“APA”). The Tenth Circuit affirmed: the IGRA’s text, statutory scheme, legislative history, and attendant regulations demonstrated congressional intent to preclude judicial review of legal opinion letters. Further, the Acting General Counsel’s letter does not constitute final agency action under the APA because it did not determine any rights or obligations or produced legal consequences. In short, the letter merely expresses an advisory, non-binding opinion, without any legal effect on the status quo ante. View "Kansas v. National Indian Gaming Comm'n" on Justia Law

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The Fourth Corner Credit Union applied for a master account from the Federal Reserve Bank of Kansas City. The Reserve Bank denied the application, effectively crippling the Credit Union’s business operations. The Credit Union sought an injunction requiring the Reserve Bank to issue it a master account. The district court dismissed the action, ruling that the Credit Union’s stated purpose, providing banking services to marijuana-related businesses, violated the Controlled Substances Act. The Tenth Circuit vacated the district court’s order and remanded with instructions to dismiss the amended complaint without prejudice. By remanding with instructions to dismiss the amended complaint without prejudice, the Court’s disposition effectuated the judgment of two of three panel members who would allow the Fourth Corner Credit Union to proceed with its claims. The Court denied the Federal Reserve Bank of Kansas City’s motion to strike the Fourth Corner Credit Union’s reply-brief addenda. View "Fourth Corner Credit Union v. Federal Reserve Bank of Kansas" on Justia Law

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Plaintiffs were families with children enrolled in the Douglas County School District RE-1 (“DCSD”) and the American Humanist Association (“AHA”). Plaintiffs filed suit challenging various DCSD practices as violations of the Establishment Clause and the Equal Access Act (“EAA”), contending DCSD engaged in a pattern and practice of promoting Christian fundraising efforts and permitting faculty participation in Christian student groups. The Tenth Circuit found most of the plaintiffs failed to demonstrate that they or their children experienced “personal and unwelcome contact with government-sponsored religious” activities. Furthermore, they failed to demonstrate their case for municipal taxpayer standing because they could not show expenditure of municipal funds on the challenged activities. The sole exception is plaintiff Jane Zoe: she argued DCSD violated the Establishment Clause when school officials announced they were “partnering” with a Christian student group and solicited her and her son for donations to a “mission trip.” The district court held that because Zoe’s contacts with the challenged actions were not conspicuous or constant, she did not suffer an injury for standing purposes. The Tenth Circuit found "no support in our jurisprudence" for the contention that an injury must meet some threshold of pervasiveness to satisfy Article III. The Court therefore concluded Zoe had standing to seek retrospective relief. View "American Humanist Assoc. v. Douglas County School District" on Justia Law

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Unable to win the consent of all necessary landowners, a public utility company contended it had a statutory right to condemn a right-of-way on two parcels of land in New Mexico. Because federal law did not permit condemnation of tribal land, the Navajo Nation’s ownership of undivided fractional interests in the parcels presented a problem for the company. The Tenth Circuit affirmed the district court’s dismissal of the condemnation action against the two land parcels in which the Navajo Nation held an interest. View "Public Service Company of NM v. Barboan" on Justia Law

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Morris Blackburn worked as a coal miner for twenty years, exposed to dust in an Energy West coal mine. He also smoked cigarettes, and eventually developed a respiratory disease. Based on this disease, Blackburn claimed benefits under the Black Lung Benefits Act. Energy West challenged the award of benefits, arguing Blackburn caused his disease by smoking cigarettes. The Department of Labor’s Benefits Review Board affirmed an award of compensation, and Energy West appealed. The Tenth Circuit found no reversible error in the award of benefits, and affirmed. View "Energy West v. Blackburn" on Justia Law