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Does the state agency managing the water flow in Florida’s Everglades need a federal pollution discharge permit? Unable to answer that question based on the record before it, the Supreme Court on March 23 reversed a grant of summary judgment in favor of the South Florida Indian tribe making that argument and returned the case to a Fort Lauderdale, Fla., federal district court for further proceedings. South Florida Water Management Dist. v. Miccosukee Tribe of Indians, No. 02-626. The tribe asserted that because of the district’s water management practices, polluted storm runoff and groundwater was being diverted through a canal into an undeveloped wetland in violation of the Clean Water Act’s National Pollution Discharge Elimination System (NPDES). At issue is whether the canal and the undeveloped wetland are distinctly separate bodies of water. If they are, then under the NPDES program, the district would need a federal permit limiting the type and quantity of pollutants that can be released into the wetland area. Justice Sandra Day O’Connor wrote the near-unanimous opinion. Justice Antonin Scalia dissented in part. TAXATION In a unanimous ruling, the justices concluded that an Internal Revenue Service (IRS) assessment of employment taxes due from a California general partnership was sufficient to extend by 10 years the time to collect those taxes from the individual partners. U.S. v. Galletti, No. 02-1389. The individual partners, who had filed for Chapter 13 bankruptcy protection more than three years after the tax came due, argued that the proofs of claims then filed by the IRS were untimely because the debtors themselves had not been subject to assessment by the IRS. The 9th U.S. Circuit Court of Appeals agreed. Reversing that ruling, Justice Clarence Thomas said for the court that once the tax had been properly assessed on the partnership, nothing in the Internal Revenue Code required the IRS to duplicate its efforts by assessing the same tax against individuals who, under state law, are liable for the partnership’s debts. TELECOMMUNICATIONS Calling the argument made by an association of Missouri municipalities “farfetched,” the justices ruled, 8-1, that Congress did not intend to override a state ban on municipally owned telecommunications companies when it passed the Telecommunications Act of 1996. Nixon v. Missouri Municipal League, No. 02-1238. The ruling overturns an 8th Circuit reading of 47 U.S.C. 253, which the circuit court had read to pre-empt the Missouri law and enable municipalities to become telecommunications services providers. Writing for the majority, Justice David H. Souter distinguished between public and private entities and said that there was no showing that Congress had intended to interfere with a state’s chosen disposition of its own power. Justice John Paul Stevens authored the lone dissent. On March 22, the court agreed to hear oral argument next term in these two cases: CRIMINAL PRACTICE The high court will hear argument in Wilkinson v. Dotson, No. 03-287, a civil rights suit brought by two inmates up for parole in the Ohio prison system. Both prisoners argued that the procedure used for their parole hearings violated their due process rights. One asserts that he was not allowed to make a statement or ask questions as allowed by statute. The other maintains that he was denied an interim review due to retroactive application of new rules. A pair of Ohio federal district courts had denied the prisoners’ claims, ruling that they were barred from challenging the validity of their continued incarceration in a 42 U.S.C. 1983 suit. The 6th Circuit reversed, holding that prisoners may mount procedural challenges to parole eligibility and parole suitability. NATIVE AMERICAN LAW The justices will also hear argument on whether the Indian Self-Determination and Education Assistance Act requires the U.S. Department of Health and Human Services to pay the “contract support costs” associated with carrying out self-determination contracts with the Indian Health Service, where appropriations were otherwise insufficient to fund those costs fully. Cherokee Nation of Okla. v. Thompson, No. 02-1472, consolidated with Thompson v. Cherokee Nation of Okla., No. 03-853. In 2002, the 10th Circuit ruled in Cherokee Nation�a case brought by that tribe and the Shoshone-Paiute Tribes of the Duck Valley Reservation�that payment was premised on there being adequate funding. In Thompson, however, the Federal Circuit last year said that the department had breached the contract by not paying the full amounts.

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