Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Kiewit Infrastructure West Co. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2125

Opinion Date: August 26, 2020

Judge: Haldane Robert Mayer

Areas of Law: Environmental Law, Government Contracts

The Federal Highway Administration (FHA) issued a solicitation for the "Deweyville" project, consisting of reconstructing approximately 12 miles of road running through Alaska's Tongass National Forest. The FHA provided a Waste Site Report, which identified sites that a contractor could use to dispose of waste materials and provided access to the “Categorical Exclusion,” prepared under the National Environmental Policy Act, 42 U.S.C. 4321–70.2, which stated that waste sites are expected to be sourced at existing quarries identified in the Waste Site Report. The solicitation placed responsibility for licenses and permits on the contractor, including Clean Water Act permits, 33 U.S.C. 1344, and purchasing wetland mitigation credits. Kiewit’s successful bid included approximately $1,000,000 for wetland mitigation fees. Kiewit requested an equitable adjustment for the cost of purchasing mitigation credits for the wetlands it encountered at government-designated waste sites. The Claims Court upheld the denial of that request. The Federal Circuit reversed. The contract documents dictate that, unless a contractor decided to expand the government-designated waste sites, “[n]o further analysis of the environmental impacts of” such sites would be necessary. That the FHA, during the NEPA process, had already assessed the project’s effects on wetlands bolstered Kiewit’s reasonable conclusion that it would not need to conduct further wetlands analysis at designated waste disposal areas. Kiewit reasonably interpreted the documents to mean what they say—that no further environmental impacts analysis would be required if a contractor chose to dispose of waste at government-designated sites. The FHA effected a constructive contract change when it required Kiewit to perform wetland delineation at those sites.

Vote Solar v. Montana Department of Public Service Regulation

Court: Montana Supreme Court

Citation: 2020 MT 213

Opinion Date: August 24, 2020

Judge: Mike McGrath

Areas of Law: Government & Administrative Law, Government Contracts, Utilities Law

The Supreme Court affirmed the order of the district court vacating and modifying the orders of the Montana Public Service Commission (PSC) reducing standard-offer contract rates and maximum contract lengths for small solar qualifying facilities (QFs), holding that the district court did not err. Specifically, the Supreme Court held (1) the district court did not err in determining that the PSC's calculation of the avoided-cost rate was arbitrary and unlawful; and (2) the district court did not err in concluding that the PSC arbitrarily and unreasonably calculated QF capacity contribution values and arbitrarily and unreasonably reduced maximum-length QF-1 contracts to fifteen years.

Woodrock, Inc. et al. v. McKenzie Cty.

Court: North Dakota Supreme Court

Citation: 2020 ND 182

Opinion Date: August 27, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Construction Law, Government Contracts

Woodrock, Inc. appealed the grant of summary judgment dismissing its negligence and other claims against McKenzie County, North Dakota. In September 2018, Woodrock sued the County for violations of N.D.C.C. ch. 48-01.2 and negligence. Woodrock alleged the County hired Edwards Gravel & Trucking, LLC to supply aggregate to aggregate stockpiles, the County did not obtain a payment bond from Edwards Gravel, Woodrock furnished materials for use in the project, and Edwards Gravel did not pay Woodrock for the materials. Woodrock claimed that the County violated N.D.C.C. section 48-01.2-10 and was negligent by failing to obtain a bond from Edwards Gravel and that the County was liable to the subcontractors and material suppliers who worked on the project. Woodrock requested damages in the amount of $298,629.54. On appeal to the North Dakota Supreme Court, Woodrick argued the district court erred in concluding a project to stockpile aggregate materials was not a public improvement and the bond requirement under N.D.C.C. 48-01.2-10 did not apply. The Supreme Court concluded supplying aggregate materials to stockpiles for general use in maintaining and repairing county roads did not constitute “construction of a public improvement.” Therefore, the Court affirmed the district court's judgment.