California Supreme Court Issues Opinion in CEQA Case Concerning City of San Diego’s Zoning Ordinances
The U.S. Supreme Court ruled that the hunting rights of a Native American tribe survived U.S. expansion into the West.
In Herrera v. Wyoming, the the High Court voted 5-4 in saying the Crow tribe's rights did not expire when Wyoming became part of the United States in 1890. The controversy started when Clayvin Herrera, a Crow tribe member, and fellow Crow members were hunting on their reservation in Montana. They followed elk that had crossed into the forest of neighboring Wyoming. They shot three elk and took the meat back to the reservation.
Herrera was then convicted for hunting violations in the Bighorn National Forest. He claimed a right to hunt there pursuant to an 1868 treaty between the tribe and the federal government. Wyoming argued, however, that the right expired upon statehood.
In the 1868 treaty, the tribe had ceded over 30 million acres to the U.S. In exchange, the federal government, as part of that treaty, said the tribe "shall have the right to hunt on unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and the Indians on the borders of the hunting districts."
Ruling for Herrera, the Supreme Court noted that the Crow had inhabited the land for more than three centuries and under the treaty had the right to hunt in the Bighorn National Forest. The decision also marked the second time that Justice Neil Gorsuch has voted for tribal rights in close decisions.
SIXTH CIRCUIT ERASES “CHALKING” OF PARKED CARS
It’s not often that a dispute over parking tickets ends up in federal court. But that’s exactly what happened this week in Taylor v. City of Saginaw.
Taylor involved a challenge to “a common parking enforcement practice known as ‘chalking,’ whereby City parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked.” This practice is used by many jurisidictions and is generally known to be effective for identifying those that stay too long in their spot. But it is apparently very effective in Saginaw, Michigan.
After receiving a slew of parking tickets, Ms. Taylor filed suit in federal court, alleging that the City violated the Fourth Amendment by chalking her tires without her consent or a valid warrant. The Sixth Circuit agreed, relying upon the Supreme Court’s recent decision in United States v. Jones, 565 U.S. 400 (2012), to hold that chalking constitutes an unreasonable trespass upon a constitutionally-protected area (your car).
At first blush, chalking a car’s tires may not seem like the type of “search” typically raising Fourth Amendment concerns. But as Judge Donald explained, Jones signaled a rebirth of “the seldom used ‘property-based’ approach to the Fourth Amendment search inquiry,” which focuses on physical intrusion to one’s property:
Under Jones, when governmental intrusions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.
In the Court’s view, chalking satisfied both of these requirements: the officer came into contact with Ms. Taylor’s car, in an attempt to obtain information about her (whether she remained in her parking spot too long).
The Court held that the search was unreasonable because the car was parked legally when chalked, and the officer lacked any reasonable suspicion (let alone probable cause) that a crime had been committed. The Court also specifically rejected the City’s assertion of the “community caretaker” exception, explaining that “the purpose of chalking is to raise revenue, and not to mitigate [a] public hazard.”
WATER DIVERSION REGULATIONS IMPACTING FARMERS AND CATTLEMEN
Water rights are certainly something that most agricultural operators spend a significant amount of time grappling with due to SB 88 passed in 2015. SB88, among other things, requires that all water diversions in the state over 10 acre-feet install measuring devices to accurately measure the rate and amount of diversion…