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Abstract: This essay reviews the book, Free Market Environmentalism, and finds it wanting on several counts. The proponents of free market environmentalism (Privateers) hold an atomistic view of of society, glorify market exchanges, discount market failures, and decry governmental intervention. They indict the democratic process for being dominated by rent-seeking interest groups and claim that public dialogue can never subsume private preferences. Yet privateers ignore the fact that most environmental resources are incapable of being accurately priced. This essay explains how external cost, collective goods, and free rider problems ensure that the marketplace systematically overvalues polluting activities and resource consumption while undervaluing clean air and water and other environmental goods, thus creating significant inefficiencies. The essay also points out that enforcing market-based preferences requires public enforcement, which is itself costly. Reliance on common law remedies like nuisance produced spectacular inefficiences and unfairness in the past. The authors of Free Market Environmentalism offer no prescriptions of how to avoid these mistakes in the future. Because Free Market Environmentalism fails to acknowledge that markets persistently fail to produce ecological and health information necessary to allocate environmental resources efficiently, it is a deeply flawed book. Privateers also unwisely assume the wisdom of current preferences and the fairness of existing wealth distribution. And they carve out a significant role for the judiciary, the least representative branch of government, to allocate environmental resources. While there may be a role for markets in the implementation of environmental policy, particularly in supplying incentives to comply with environmental requirements, thereby reducing both fiscal and psychic costs, the market is a poor place in which to make environmental policy. The values which shape environmental policy are better identified through the dialogue of democracy, through public hearings and legislative determination, and with the participation of both the landed and the landless.
environmental policy, economics, markets
Abstract: One of the more misunderstood concepts of Anglo-American law is the discovery doctrine, the principle by which Europeans rationalized their presence in North America. Misinterpretation of the doctrine led to unwarranted assumptions about the relationship between the federal government and indigenous tribes in the late 19th and early 20th centuries and to misinterpretations abroad, notably in Australia. These misinterpretations by judges and Congress made the discovery doctrine into what one scholar called a perfect instrument of empire. But this article maintains that this result was a perversion of the doctrine laid down in the early 19th century by the Marshall Court. The article explains that the discovery doctrine, as articulated by the Marshall Court, actually produced very little immediate effects on native proprietary rights. However, Chief Justice Marshall laid the seeds for later misunderstandings by characterizing aboriginal title as sui generis, outside the conventional system of Anglo-America property law. In fact, had Marshall been better versed in property law, it would have been quite easy to conceptualize aboriginal title in conventional terms. Had he done so in the cases in which he used the discovery doctrine to shape native property, the federal government's interest in native lands would have been understood to be merely a right of preemption and the native interest to be a fee simple subject to a partial restraint on alienation. This interpretation would have been consistent with the Supreme Court's oft-quoted phrase that Indian title is as sacred as the fee. The discovery doctrine's effect on tribal sovereignty turned out to be much more pernicious than its effect on native property rights. The doctrine not only foreclosed relations between the Indian tribes and foreign nations and led to exclusive federal control over native affairs, it also assumed that questions about federal-tribal relations were properly left to federal courts, the courts of the conqueror in Chief Justice Marshall's words. This decision on venue equipped Marshall's successors to erect a doctrine of plenary federal power on questionable authority and to use it to give sanction to unilateral federal breaching of treaties and the breaking up of the Indian land base. This article aims to clarify the discovery doctrine by examining its origins, its adoption by the Marshall Court, and its ensuing effects on native property rights and sovereignty. Among the legacies of the doctrine was an impetus to treaty-making, which enabled some tribes to reserve important natural resources for their use, so the results of the discovery doctrine were not all adverse to the tribes. The article explores the relationship between discovery and treaty-making and also a modern alternative to the erosion of inherent tribal sovereignty initiated by the discovery doctrine: delegated sovereignty under federal pollution control statutes. The article concludes that while Chief Justice Marshall would never have countenanced his successors' interpretation of the discovery doctrine he articulated, understanding the origins, scope, and legacies of the doctrine remains foundational to native proprietary and sovereign rights in the modern world.
Indian law, Legal History, Property, Natural Resources Law, Environmental Law
Abstract: Advocates for expanded property rights heralded the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission as the dawn of a new era in which landowners would obtain increased constitutional compensation for the burdens of regulation, and which in turn would discourage regulatory initiatives. The post-Lucas era has been a considerable disappointment to property rights advocates, however. Ensuing decisions have confined the categorical takings rule to regulations that result in complete economic wipeouts, a rare phenomenon. On the other hand, courts have expansively interpreted the decision's exemption from compensation for regulations that merely forbid uses prohibited by background principles of property and nuisance law. In fact, a dozen or more categorical defenses have evolved under the Lucas decision's background principles inquiry. Thus, surprisingly enough, Lucas's chief effect has been to make the nature of the claimant's property interest a threshold issue in all takings cases. Instead of increasing the likelihood of either landowner compensation or deregulation, Lucas's principal legacy lies in affording government defendants numerous effective categorical defenses with which to defeat takings claims.
Takings, Constitutional Law, Land Use Regulation, Environmental Law
Abstract: The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transferred to English common law, capture doctrine became laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own, and therefore control, all wildlife that had been unowned in Rome. Thus, the English concepts of royal forests and hunting franchises imposed substantial limits on the capture of wild animals. In early America, colonial rejection of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896. Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife within its borders. This article examines that phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for destriction of wild animals, and 3) offering an affirmative defense against landowner claims of constitutional takings based on restrictive habitat protections.
property law, natural resources law, wildlife law, consititutional law, legal history
Abstract: This article applies public choice political theory to public lands decisionmaking and concludes that it explains why multiple-use management, the paradigm for most federal public lands, consistently overemphasizes commodity production at the expense of other values like watershed protection and wildlife preservation. Public choice theory predicts small, well-organized special interests will be able to dominate diffuse, less-invested majorities. Consequently, rent-seeking commodity-based interest groups pressure federal land managers to maintain historic levels of grazing or timber harvest levels in low-visibility administrative decisionmaking under the multiple-use directive. And the lack of meaningful standards in multiple-use statutes means extraordinarily deferential judicial review. The article recommends that Congress discard the existing concept of multiple-use decisionmaking because it produces unbalanced decisions from captured land managers who serve factional interests, and thus undermine the long-term sustainability of public land resources. Instead, Congress should redefine a new concept of multiple-use around Clean Water and Endangered Species Act standards and the fish and wildlife provisions in the National Forest Management Act. Such a redefinition would focus on protecting the most vulnerable public land resources, not those capable of providing economic benefits to a narrow class of rent-seekers.
environmental law, public land land, natural resources law, multiple use
Abstract: Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence was outcome determinative. Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases - as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field. This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years on the Court, he has written just one environmental dissent - and that on states' rights grounds, which is one of his chief priorities. The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging regulatory takings, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights - which is unassailable - yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation. At what might be close to the mid-point in his Court career - and with his power perhaps at its zenith - Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded and do not conflict with Kennedy's overriding notions of states' rights. The article concludes with some comparisons between Justice Kennedy and Justice Holmes.
environmental law, land use, property, federalism, takings
Abstract: This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.
public trust doctrine, environmental law, public property
Abstract: Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights reserved from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established. Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts - comprised largely of elected judges - could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated. This study aims to begin to fill that gap by examining the results of six Western water right adjudications - five of which were decided by state courts - involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users. The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements - and even state law - to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.
Indian law, natural resources law, water law, environmental law
Abstract: A prime vehicle of the Bush Administration's implementing its public land policies: a series of sweetheart settlements with extractive industries. The pattern resembled a Trojan Horse: the government would invite litigation from the industry; then, once a case was filed in a forum picked by the industry, the government would agree to a settlement that would give the industry all that it could have hoped for in the litigation, undermining environmental protection in the process. All this was accomplished behind closed doors, without public review. Indeed, the government opposed environmental group participation (not always successfully). The sweetheart settlement policy was accompanied in one of the examples the paper studies by a closely related policy of virtually failing to defend Clinton Administration policies at all. In this manner, the Bush Administration revolutionized public land policy without having to seek legislation or public comment. This paper evaluates four policy initiatives: 1) the unwillingness to defend the Clinton Administration's roadless rule and ensuing exemptions from it; 2) the elimination of wilderness study areas and the pursuit of measures to recognize roads that would disqualify areas from wilderness consideration; 3) the rollback of species protections at the heart of the Northwest Forest Plan, the nation's first large-scale experiment with ecosystem management; and 4) the well-publicized effort to overturn a Clinton Administration phase-out of snowmobiling in Yellowstone National Park, which produced apparently inconsistent results from two different federal district courts. All of the initiatives involved sweetheart settlements, although the principal means to undermine the roadless road involved a failure to litigate, followed by opposition to environmental groups which wanted to defend the rule. The depth of the Bush Administration's dismantling of the Clinton Administration's public land policies is, as this study illustrates, fairly stunning - involving not only both abandonment of positions embraced by both Republican and Democratic Administrations and the pressing of novel interpretations never before advanced. The paper concludes by suggesting that what all the Bush Administration initiatives have in common is an unstated assumption that the public in public land policy is the local business constituency using public lands for commercial purposes. That may be the hallmark of the Bush Administration's public land policies.
public lands law, environmental law
Abstract: In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it's clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years. Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in the 1970s and 1980s. But after a hiatus of a decade-and-a-half, land planning opponents put on the ballot a scheme that promised landowners either compensation or a regulatory waiver from land use requirements imposed after they - or a family member - acquired the land in question. That 2000 measure, which the voters approved as an amendment to the Oregon Constitution, was struck down by the Oregon Supreme Court for violating the state constitutional requirement that initiatives be limited to only a single subject. Undaunted, the opponents of Oregon land use planning put another initiative on the ballot quite similar to the 2000 initiative in 2004, except that this initiative was a statutory amendment, not a constitutional amendment. Thus, it was not burdened by the concerns that led to the 2000's measure's judicial rejection. This measure, known as Measure 37, promises to transform land use regulation in Oregon and the Oregon landscape in the process. This article explains the background, politics, and implementation of Oregon's experiment in creating what is the leading example of libertarian property in the world. The article explains early judicial and attorney general interpretations of the measure and its predecessor and focuses attention on the many ambiguities in the measure's language, particularly the uncertain scope of its express exceptions from compensation. Measure 37's proponents have attempted to export its principles to other states and, in 2006, Arizona joined Oregon as another laboratory for libertarian property. Finally, the Oregon legislature recently sent to the voters a referendum, which would attempt to clarify some of Measure 37's ambiguities, expedite regulatory waivers for small developments, but impose limits on new waivers for large developments. The Oregon electorate will decide this referendum in November 2007.
property, land use, takings, just compensation, environmental law, real estate law
Abstract: Clyde Martz published the first natural resources law casebook in 1951, combining the previously discrete subjects of water law, mining law, and oil and gas law. Martz relied almost exclusively on case excerpts and emphasized the creation of private rights in natural resources. Over the next-half century, through several generations of casebooks, the natural resources course developed in response to the rise of the environmental movement and a series of energy crises. This article traces the evolution of the natural resources law casebooks from Martz's pioneering effort through several generations of texts to a new generation of casebooks that has been published over the past couple of years. Through the years, the casebook authors have variously emphasized the allocation of private rights vs. public management, extractive rights vs. resource preservation, public vs. private lands, Western vs. Eastern issues, and case law vs. secondary materials. Some have emphasized economic themes, others ecosystem preservation, and the article illustrates these variations by focusing on the books' approach to the water resource, arguably with most important natural resource. After the past quarter-century of dominance by the Coggins, Wilkinson & Leshy book, a public lands-oriented casebook, the new generation of four texts seeks at least to balance private lands and Eastern issues against Western public lands, and in one case focuses on state private property law as the dominant forum for resolving natural resource disputes. The new generation also emphasizes place-based contextual approaches and employs materials well beyond traditional case law, including web-based resources, visual aids, maps, charts, diagrams, and the like, as well as many secondary sources.
natural resources law, public lands law, property law, water law
Abstract: A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision, a landmark in Indian treaty interpretation, protected critically important cultural and economic practices from white encroachment, a surprising result in an era committed to Indian assimilation and allotment. This article examines the case, its context, its participants, and its contributions to Indian natural resources law. The dispute took place at Celilo Falls, the most important Indian fishing site in the Columbia Basin, although the government agents and attorneys viewed it as a test case, emblematic of the clash of cultures taking place throughout the Northwest at the end of the 19th century. In fact, the article considers in some depth two predecessor cases involving the same tract of land at issue in Winans and suggests that the Indian agents who pursued the case did so because they saw treaty fishing as an economic lifeline for Indians who had failed at agrarianism on-reservation. The district court issued a confusing array of injunctions and opinions that ultimately culminated in dismissal of the case some eight years after it was filed. A direct appeal to the Supreme Court produced an opinion memorable almost as much for its poetic language as for its result. Justice Joseph McKenna, not otherwise known for his lyricism, wrote that fishing at Celilo Falls was not much less necessary to the Indians than the atmosphere they breathed and proceeded to rule that their treaty rights included the imposition of a servitude, a right in land necessary to access their traditional fishing sites. In response to the lower court's conclusion that the treaty language recognizing a tribal right of taking fish in common with settlers meant only equality of treatment, McKenna averred that such a result was certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more. The decision's lodestar status is not merely due to its language, however. It established the reserved rights doctrine, which holds that Indian treaties are not a grant of rights to the Indians but a grant of rights from them - a reservation of rights not granted. Over the last century, the reserved rights doctrine has been immensely important in recognizing tribal proprietary rights to natural resources and in recognizing tribal sovereignty. Winans also reaffirmed the rule that Indian treaties should be interpreted as the Indians, the weaker party, would have understood, and rejected claims that state ownership of the riverbed foreclosed federally created treaty rights. Both of these principles endure. Finally, the case recognized treaty fishing rights as property rights that would run against not only the federal government but also the state and private parties, a precedent that some recent lower court decisions seem to have overlooked.
Indigenous peoples law, natural resources law, property law, legal history
Abstract: Snake River salmon, historically constituting the most abundant salmon runs in the Columbia River Basin, today teeter on the brink of extinction. Their decline has prompted federal, state, and tribal restoration plans, some of which advocate breaching the four federal dams on the lower Snake River and eliminating or lowering John Day reseroir on the Columbia River. These measures would restore natural flows in portions of the Columbia and Snake Rivers and significantly decrease salmon mortality, but opponents claim they are sceintifically unjustified and too costly. In this Article, the authors comprehensively review the major scientific and economic studies on breaching the lower Snake River dams and conclude that this option is not only scientifically sound, but also economically affordable. In fact, they assert that dam breaching may prove less costly, both economically and socially, for upriver interests than attempting to improve the current restoration program. Designed to have as little effect as possible on cheap hydropower generation, navigation, and irrigation, the current program relies on a trucking and barging program to transport salmon downstream. This program has proved to be a twenty-year failure. The Article also explores numerous legal mandates to restore Snake River salmon that make continuation of the status quo legally unacceptable.
environmental law, natural resources law, water law
Abstract: In 2004, in Norton v. Southern Utah Wilderness Association (SUWA), a unanimous Supreme Court ruled that environmentalists could not obtain injunctive relief against the failure of the Bureau of Land Management (BLM) to regulate growing off-road vehicle (ORV) use in federal wilderness study areas in Utah, despite a statutory directive that BLM prevent impairment of such areas, and despite BLM's promises in its land plan that it would monitor ORV use and close the areas if warranted. Justice Scalia's opinion for the Court acknowledged that the Administrative Procedure Act authorizes federal courts to compel action in the face of agency inaction, but decided that BLM's failure to act to prevent impairment was not actionable because Congress had not directed BLM to take a discrete action, instead leaving the agency with considerable discretion as to how to prevent impairment. The decision in SUWA has produced widespread ramifications: federal land managers have employed it to successfully insulate from judicial review a wide variety of federal actions as well as inactions. Moreover, the Bush Administration seized upon the decision as a justification for redefining national forest land plans as aspirational in nature, without any making any binding commitments as to particular authorized activities or land suitability. The Administration also moved to eliminate environmental review of national forest plans, claiming that under its redefinition plans produce no environmental effects, an effort that was subsequently stalled by the courts. This article discusses these developments, maintaining that they are inconsistent with the congressional commitment to federal land planning made in 1976 in both the Federal Land Management and Policy Act and the National Forest Management Act. Thirty years ago, Congress created modern federal land planning as the cornerstone of greater public involvement in public land decisionmaking. SUWA and its aftermath have destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars. If effective public participation in federal land planning requires that the public be able to enforce the promises made in land plans, Congress must amend the authorizing statutes to restore federal land plans as legally significant commitments of public resources.
public lands, environmental law, land use, property, administrative law
Abstract: Our 2004 article, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision, analyzed the four federal circuit court cases in which litigants have argued that the take provision of the Endangered Species Act (ESA) is an unconstitutional exercise of Congress's Commerce Clause power. We concluded that the Supreme Court would clearly uphold the constitutionality of the take provision in situations where either the listed species or the activity that caused the take had a substantial effect on commerce in the aggregate. But since adoption of either rationale (or both) would potentially leave species and some takes beyond the scope of federal power, we maintained that a better outcome would result from the Court's approving the comprehensive scheme rationale adopted by the Fourth Circuit in Gibbs v. Babbitt and the Fifth Circuit in GDF Realty v. Norton. Since publication of our article, the Court decided Gonzalez v. Raich, which upheld the constitutionality of the federal Controlled Substance Act as applied to the intrastate production and possession of marijuana. In doing so, the Court ratified the comprehensive scheme principle, holding that the federal regulation of marijuana as a drug was an essential part of a larger regulation of economic activity, which could be undercut unless the intrastate activity were regulated. We think that that this embracing of the comprehensive scheme rationale indicates that the Court would also validate the constitutionality of the ESA's take provision, and this brief comment explains why. We also include an addendum predicting that John Roberts' ascension to the Court will not cause a rethinking of the Raich rationale, despite his dismissive reference to the arroyo toad in his dissent from the D.C. Circuit's denial of rehearing in the Rancho Viejo v. Norton case.
Endangered species, environmental law, constitutional law, commerce clause
Abstract: The saga of Columbia Basin salmon recovery is one of the foremost natural resource restoration efforts in the United States over the last quarter-century. Although development of the world's largest integrated hydroelectric system crippled the Columbia's salmon runs, Congress declared in 1980 that salmon and hydropower were to become co-equals in the management of Columbia Basin dams. That declaration did not prevent the listing of most Columbia Basin salmon runs under the Endangered Species Act (ESA), however. Widely perceived as a Draconian, economically insensitive statute, the ESA has proved extremely pliable in the case of Columbia Basin salmon. The National Oceanic and Atmospheric Administration (NOAA), the agency charged with implementing the statute in the case of salmon, consistently chose to exercise its discretion to largely preserve status quo hydropower and navigation operations. While this rather remarkable development has apparently escaped the attention of congressional reformers attempting to make the ESA more economically accountable, it has not escaped the attention of many in the Pacific Northwest. As a result, a series of lawsuits over the last decade has challenged NOAA's ESA implementation. The suits have, for the most part, born fruit. NOAA's two most recent biological opinions have been struck down, and the federal district court has indicated that without a drastic change in course, salmon recovery is headed for a train wreck. Thus, the Columbia Basin salmon story appears about to embark on a new era of active judicial oversight. This article explains how and why this development came to be, and charges that NOAA and the federal agencies operating Columbia Basin dams have engaged in longstanding deceptive practices, in an attempt to mislead the public and Congress into thinking that meaningful salmon restoration is underway, when in fact it has never been seriously attempted.
natural resources, endangered species, salmon, hydropower
Abstract: This essay, written for a symposium commemorating the 25th anniversary of the publication of Charles Reich's famous article, "The New Property", maintains that the 1964 article, which argued for procedural protection for government benefits like social security and unemployment compensation, was a harbinger of environmental rights that would be created in the following decade. Calling for "scrupulous observance of fair procedures", Professor Reich anticipated the procedural regularity that courts would insist from agencies under the National Environmental Policy Act and pollution control statutes. The essay claims that underlying the process rights accorded both those with "new property" and environmental concerns was a liberty concern, which helps explain the ensuing close judicial scrutiny. The similarities between new property rights and environmental rights is hardly accidental, since allocating rights to use the environmental commons is an archetypical case of dispensing governmental largess. The participatory rights recognized in both contexts assures access to decisionmakers which may produce informed dialogue, more democratic decisionmaking, and changed visions of the public interest.
property, environmental law, legal history
Abstract: This article examines the legal rights of native peoples in the United States, Canada, and New Zealand to protect and maintain traditional fishing cultures and economies. The article maintains that native fishing rights are real property interests - profits a prendre - which have received significant judicial recognition and protection in the three countries. Although the native right to fish has evolved separately in the three jurisdictions, each country not only recognizes that the native fishing right includes an allocated harvest share but also there is increasing recognition of habitat protection necessary to maintain the fisheries. In the U.S., judicial enforcement of 19th century treaty promises, particularly in the Pacific Northwest, has been central. In Canada, courts have been interpreting a relatively recent constitutional guarantee recognizing and protecting aboriginal and treaty rights. In New Zealand, legislation establishing an advisory tribunal, to which the courts have deferred, has been crucial. The article contends that underlying all three nations' belated recognition of the nature and scope of native fishing rights is the common law nature of the right, springing from time immemorial use, not from government recognition.
Indigenous peoples law, property law, legal history, environmental law, Canadian law
Abstract: Under the influence of powerful irrigation and timber lobbies, the state of Idaho enacted a law in 1996 which renounced the application of the public trust doctrine to water rights and public land decisionmaking, in an effort to overturn several decisions of the Idaho Supreme Court. This article explains the genesis of that law, exposes its flaws, and questions its validity. In particular, we maintain that the rights that Idaho legislature attempted to terminate are in fact inalienable, sovereign rights that a state cannot renounce. We also argue that a state cannot, consistent with the federal law, terminate public rights in lands conveyed to the state under the equal footing doctrine. Finally, we contend that the Idaho statute violates the state constitution's declaration of the public character of water within the state. The article notes that its analysis may have use beyond the state of Idaho, as several other western states have constitutional provisions that could be interpreted to incorporate the public trust doctrine.
environmental law, natural resources law, public trust doctrine, water law
Abstract: In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a "servitude upon every piece of land." We have described this servitude as a "piscary profit," a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century. This article explores the history and contours of the treaty fishing right from 1905 to present, tracing the evolution of the federal courts' understanding that implied within the fishing right is a right of access, a right to a fair share of the salmon harvest, and a right of habitat protection. In particular, the article examines the 2007 Culverts Case, in which Judge Ricardo S. Martinez resoundingly affirmed that the treaty fishing right prohibits habitat-damaging activities that preclude tribes from earning a moderate living through fishing-in this case, the state of Washington's construction and maintenance of fish passage-blocking culverts. The article concludes that not only is Judge Martinez's decision the logical progeny of over a century's worth of precedent, the result is consistent with common law principles of profits. In the end, the Martinez Decision represents the most important treaty fishing rights decision in decades, with the potential to rectify a fundamental unfairness in treaty fishing rights law, which previously provided access to fisheries, allocated harvest shares, and yet allowed destruction of the salmon resource, the central consideration of one of the largest real estate transactions in history.
Indian law, environmental law, Indian treaties, Indian fishing, land use, salmon, habitat protection
Abstract: This article traces the evolution of the public trust doctrine in Western water law. It claims that the doctrine is best understood through the remedies courts have prescribed concerning trust violations. Although there are four distinct categories of remedies in the case law, all promote either public access to trust resources or to decisionmakers who allocate them. Thus, according to the article, the public trust doctrine is a democratizing force - preventing monopolization of trust resources and requiring decisionmaking that is accountable to the public. The article predicts that state courts will continue to expand the public trust doctrine, relying especially on state constitutional provisions declaring water to be publicly owned. Finally, the article responds criticisms of the public trust doctrine by Professor Huffman by maintaining that the doctrine is a coherent body of law providing a necessary complement to prior appropriation principles, is not inconsistent with takings jurisprudence, and has sufficient grounding in state constitutions and statutes to continue to infuse public concerns into Western water law decisionmaking in the years ahead.
Property law, Environmental Law, Water Law
Abstract: The meaning of complex statutes like the Clean Water Act is heavily influenced by interpretations of implementing agencies like the U.S. Environmental Protection Agency (EPA). This article recounts three significant cases in which EPA chose to discount the Clean Water Act's objective of preserving and restoring the integrity of the nation's waters in favor of political or administrative convenience. The result was that EPA helped to make the statute ineffective against the chief source of water pollution: runoff from nonpoint sources (polluted runoff). This article claims that all three cases involved statutory gaps or ambiguities which an EPA that took seriously the statutory objective would have interpreted differently, and that these interpretations would have been sustained by the courts. The article suggests that, pending a change of heart by the agency, there are several opportunities for litigants to challenge EPA's roads not taken.
Environmental law, clean water
Abstract: The Endangered Species Act's prohibition against taking listed species has been the statute's most controversial provision because it can impose restrictions on private property. ESA opponents have mounted repeated attacks against the take provision, claiming that it exceeds Congress's constitutional authority under the Commerce Clause. These attacks have not succeeded: four federal appellate decisions have upheld the provision's constitutionality, but they have employed strikingly different reasoning in doing so. This Article evaluates each of these decisions and considers whether the Supreme Court would affirm and, if so, on what ground. The Article predicts that the Court would uphold the ESA's take provision as having a sufficient commercial nexus under the Commerce Clause; that is, the statute is a comprehensive economic regulatory scheme aimed at preserving the economic benefits of biodiversity and avoiding economically destructive intrastate competition.
Endangered Species Act, Constitutional law, Commerce Clause
Abstract: Judicial interpretation of the National Environmental Policy Act (NEPA)in the aggregate has prompted widespread confusion, as some analysts have alleged that NEPA is a "paper tiger;" others have claimed that the statute amounts to a "procedural straightjacket." NEPA's opaque language and its process-oriented provisions seem to give courts license to subject agency environmental documents to either the hardest of looks or the softest of glances. As a result, many critics have alleged that NEPA litigation is completely unpredictable, a function of the caprice of the reviewing judges. This article challenges the notion that NEPA is unpredictable by relating the comments of environmental and natural resources agencies to the outcomes of NEPA litigation. The results of numerous case studies the article examines show a close correlation to the views of agencies with expertise and the courts' views of NEPA compliance. When environmental comment agencies raised serious concerns, courts were much more likely to conclude that the action agency violated NEPA. On the other hand, when environmental comment agencies approved agency proposals, courts were quite likely to find NEPA compliance. Although there were some exceptional cases that did not conform to the model suggested above, we maintain that the study demonstrated that comments by agencies with environmental expertise have had a profound effect on the outcome of NEPA litigation, an outcome that is wholly consistent with NEPA's goal of elevating the role of agencies with environmental expertise in governmental decisionmaking. Among other lessons, the study suggests that members of the public with an interest influencing the outcome of agency proposals subject to NEPA should focus their attention on encouraging comments from agencies with environmental expertise which share their perspective.
environmental law, administrative law
Abstract: The Mono Lake case is a lodestar in public trust jurisprudence. This article discusses that case and explains how it revolutionized California water law. The article identifies six principles established by the decision that place it in the vanguard of public trust case law. It also examines some of the progeny of the Mono Lake decision, both in California and in other western states. The article claims that in the wake of Mono Lake, a half dozen western states have recognized the application of the public trust doctrine to water rights, although no other state has embraced all six of the tenets of the Mono Lake doctrine. The article concludes that the the public trust doctrine's deep historical roots and conceptual coherence make it a promising vehicle by which to moderate the excesses of the prior appropriation doctrine of western water law and replace that doctrine's all or nothing approach with what the article refers to as the accommodation principle, under which both diversionary and instream uses of water will be accommodated wherever feasible.
environmental law, water law, property law
Abstract: The Columbia River Gorge, a spectacularly beautiful canyon along the border of Oregon and Washington, has for the past two decades, been the scene of a largely unnoticed experiment in land-use federalism. In 1986, to protect the Gorge from unwise development, Congress enacted the Columbia River Gorge National Scenic Act, which authorized an interstate compact agency, the Columbia River Gorge Commission, to create a plan to protect and enhance the Gorge's scenic, cultural, recreational, and natural resource values, while encouraging development within urban areas. The Commission developed and implements this plan in conjunction with the U.S. Forest Service, which manages the 30 percent of the Gorge that is owned by the federal government. The 1986 Act and the resulting 1992 plan set in motion complex federal-interstate-state-local government relationships that have revolutionized land-use practices in the Gorge and continue to generate controversy. A considerable amount of litigation has ensued, including challenges to the constitutionality of the statute, the alleged inflexibility of the management plan, and to implementing restrictions as unconstitutional takings of private property. Most of these challenges have been rejected by the courts. But there remain a series of pending suits concerning whether state agencies must implement the statute and its plan, and whether 2004 amendments to the plan satisfy the statute. This article examines these issues with the idea that the experiment in the Columbia River Gorge may provide useful information to the management of other transboundary resources in other locations. Particularly noteworthy are the statute's opt-out provisions, enabling landowners to trigger a condemnation process in lieu of complying with the plan's most stringent restrictions on sensitive lands.
property, land use, environmental law, takings, constitutional law, intergovernmental relations
Abstract: This article examines two Federal Circuit decisions handed down in the wake of the Supreme Court's rulings in Lucas v. South Carolina Coastal Comm'n and Dolan v. City of Tigard, in which the Federal Circuit indicated it would impose much more exacting scrutiny on federal regulations than the Supreme Court. In one case, Florida Rock Industries v. U.S., the Federal Circuit approved a just compensation for a partial taking of property. In the other, Loveladies Harbor, Inc. v. U.S., the court ruled that the relevant parcel was only the wetlands burdened by the regulation, not the entire original tract owned and developed by the claimant. Both cases involved federal regulation under the Clean Water Act, suggesting that the Federal Circuit was announcing stricter compensation requirements for federal regulation than virtually any other court has imposed on state and local regulation. The article suggests that this is an anomolous result, since the problems the Just Compensation Clause aims to remedy - rent-seeking, disparate treatment, unscientific and uneconomical regulation - are much more likely at the state and local level than the federal level. The article maintains that the Federal Circuit's libertarian view of property risks erecting an imperial judiciary, quite out of touch with the complexities and interdependencies of most most environmental problems. Moreover, the natural law principles at the root of liberterian property are out of step with Supreme Court precedent and the history and purpose of the Just Compensation Clause.
takings clause, environmental law, constitutional law
Abstract: In an article published two years ago, one of us made the claim that the federal agencies in charge of Columbia Basin salmon restoration efforts were engaged in a widespread practice of deception - attempting to make it appear to the public that meaning restoration efforts were underway when in fact hydropower domination remained the status quo. That article claimed that the courts would soon inaugurate an era of active and skeptical review. That era has unfolded more quickly and more dramatically than we imagined. In a series of decisions throughout 2007, the Ninth Circuit and district courts have have consistently rejected agency attempts to portray their cynical efforts to deceive as rational decisionmaking. Thus, the Ninth Circuit 1) struck down as arbitrary the National Oceanic and Atmospheric Administration's (NOAA's) biological opinion on Columbia Basin hydroelectric operations under the Endangered Species Act (ESA); 2) refused the Bonneville Power Administration's (BPA's) proposed defunding of the Fish Passage Center, an agency providing critical information on salmon migration in the Columbia Basin; and 3) rejected BPA's failed to fully fund fish and wildlife mitigation measures in its wholesale electric power rates, as required by the Northwest Power Act. District courts have followed the Ninth Circuit's lead concerning close review, as the Western District of Washington rejected NOAA's salmon hatchery policy, which had led to a downlisting of Upper Columbia steelhead, as inconsistent with the ESA's preference for wild salmon. And the District Court of Oregon, which had earlier ruled that NOAA possessed only limited authority to distinguish between wild and hatchery salmon, allowed NOAA to treat wild salmon differently than hatchery salmon after listing. Another judge in the same district subsequently rejected NOAA's attempt to delist Oregon Coast coho salmon as arbitrary. All of these results of 2007 indicate that a new era of close and skeptical review is underway in the Columbia Basin. The imperiled salmon runs, which have endured the longstanding deception of the federal agencies, are surely the better as a result of the courts' emerging mistrust.
salmon, endangered species, administrative law, judicial review
Abstract: This article, written on NEPA's 20th anniversay, maintains that the statute's constitution-like language conveyed the hope of a nation that the federal government could be transformed from an environmental degrader to an environmental preserver and restorer. In retrospect, its optimism seems quite unrealistic. Nevertheless, its call for productive harmony between man and nature, elimination of damage to the biosphere, and non-degradation of environmental quality sounds themes that remain relevant. By its 20th birthday, the Supreme Court had made clear that NEPA was essentially procedural, reducing it to a public disclosure statute without substantative content. This produced fewer NEPA injunctions against agency action, fewer court suits, and more agency authority to pursue environmentally objectional projects. NEPA in effect had become one part information disclosure, one part public participation, and eight parts administrative discretion. This paper overviewed a symposium on NEPA, discussing the results of some fourteen articles on NEPA, including the statute's judicial history, a call for substantive review, a defense of judicial deference, the task of enforcing agency promises, the myth of mitigation, and war stories from public land mining, the national forests, the Corps of Engineers, the Department of Energy, the state of Washington, and Canada. The paper also suggested a number of NEPA possible reforms within federal agencies, through changes to the Council on Environmental Quality's regulations, and statutory amendments. Lead agency reforms included producing improved biological science in environmental impact statements (EISs), monitoring agency predictions, and greater decision-making authority for those writing NEPA documents. Proposed revisons to the CEQ regulations included use of briefing-style EISs, post-decisional monitoring in the form of compliace reports, a revised definition of mitigation, more detail on Environmental Assessments, and greater CEQ oversight of agency NEPA compliance. Finally, suggested statutory changes included a 1989 amendment that passed the House of Representative which would have required agencies to consider the effects of their actions on areas outside the U.S. (particularly in terms of global climate change), require mitigation measures in EISs, and direct CEQ to evaluate the accuracy of agency predictions in EISs.
environmental law, administrative law,
Abstract: Federal reserved water rights have always been a controversial doctrine in the Western United States because they threaten long-established water users with defeasance of what they thought were fixed and certain prior appropriation water rights under state law. But this federal doctrine has been firmly fixed in Supreme Court precedent since the 1908 Winters v. U.S. decision and applied to all federal land reservations since Arizona v. California in 1963. In a series of decisions in the 1970s and 1980s, the Supreme Court read extremely broadly a statute known as the McCarran Amendment, a 1952 appropriations rider that gave the federal government's consent to be sued in state court if part of a comprehensive river basin adjudication. Thus, federal reserved rights can be subject to state court interpretation. State judges, who often are elected in the West, have proved to be fairly hostile to federal reserved rights. The best example of this judicial hostility occured in a 2000 decision of the Idaho Supreme Court, in which the court denied - on a 3-2 vote - the existence of federal reserved water rights for wilderness areas in that state. This decision reversed an earlier one in which the same court upheld wilderness reserved rights. The reversal took place in the wake of a partisan election in which the author of the earlier opinion was defeated for reelection, largely on the basis of her reserved rights opinion. This article critically analyzes the Idaho court's opinion on wilderness water - as well as several related opinions on other federal land reserves in the state - and suggests that the result calls into question the independence of the Idaho judiciary from the state's powerful agricultural lobby.
water law, public land law, natural resources law, federalism, environmental law
Abstract: The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, transforming fee simple absolutes into defeasible fees, and recognizing pubic easements on private land titles. The article concludes that the public trust doctrine, if properly understood, can perform the important function helping to modernize property law.
public trust doctrine, private property, environmental law, natural resources law
Abstract: Nineteenth century treaties promised Pacific Northwest Indian tribes the right of taking fish in common with the citizens... The meaning of those ten words has produced numerous court decsions in the ensuing century-and-a-half, including a half-dozen from the U.S. Supreme Court. This article explores that case law, and in particular explains how the treaty fishing right evolved from a right to access historic fishing ground (an easement), to a right to be free from state licensing fees and discriminatory regulation (a negative servitude), to a right to an equal harvest share (also a negative servitude, since it restricts non-Indian harvests). An unresolved issue is whether the treaty fishing right protects the habitat necessary to sustain the fish that were the subject of the treaty promise. A quarter-century ago the tribes filed suit, claiming that the treaties implicitly protected fish habitat necessary to make meaningful their treaty-guaranteed right, which the Supreme Court interpreted to be a livelihood, that is to say a moderate living. Although a district court agreed with the tribes, the Ninth Circuit ducked the issue and vacated the lower court decision, due to the fact that it was issued in the absence of a concrete factual dispute. This article argues that, despite the Ninth Circuit's evasion, there is a good deal of case law suggesting that such a right to habitat protection exists, surveying cases involving dams, water rights, timber harvests, and other water-related development projects. The article then attempts to sketch how such a right would function in practice, drawing on pertinent case law and an executive order. The article concludes that the treaty fishing right should be interpreted as a profit a prendre, a venerable real property interest, in this case a piscary profit. Profit-holders may enjoin activities unreasonably interfering with the exercise of the profit, and the article maintains that courts should use this standard to protect the treaty fishing right from habitat damage that interferes with tribal fishing livelihoods.
Indigenous Peoples, Treaty Rights, Environmental Protection, Natural Resources Law, Water Law
Abstract: Contrary to popular belief, water in the Pacific Northwest is not an abundant resource. This Article debunks several myths which inhibit full understanding of the framework under which water rights in the Northwest are allocated. These myth include: 1) the erroneous assumption that the Northwest is humid; 2) the belief that salmon recovery divides the region into lower and upper basin constituencies; 3) the assumption that the market allocates water rights; 4) the notion that appropriators are entitled to a fixed quantity of water; 5) the misguided perspective that hydropower is not part of water law; 6) the premise that water law is unconnected to watershed protection; and 7) the supposition that Indian treaty fishing rights are not water law. The Article also provides an overview of a symposium on water policy and sustainability in the Columbia Basin.
water law, Indian treaty rights, hydropower, natural resources law
Abstract: The most contentious natural resource issue in the West involves streamflows. Legal rights to streamflows were long nonexistent under the region's dominant water law doctrine of prior appropriation, which historically required a diversion for a recognized water right (thus supplying no legal protection for streamflows). Prior appropriation also ignored long-range planning, conservation, water quality, the needs of Indian tribes, recreation needs, and wildlife habitat, among other things. For these reasons, many think prior appropriation is out-of-step with modern values. Perhaps the polar opposite of state prior appropriation laws is the federal reserved rights doctrine, a judicially created principle aimed at protecting the purposes of federal reservations. These federal water rights require neither diversions nor conformance to state law definitions of beneficial use, and therefore offer opportunities to protect streamflows, especially in view of the fact that reserved rights often trump prior appropriation rights. Also threatening to destabilize Western prior appropriation rights are regulatory measures under federal statutes like the Clean Water, Endangered Species, and Federal Power Acts. This article surveys developments in federal reserved and regulatory water rights which may threaten established Western water rights. The article forecasts the dawn of a new era in which states will have to accommodate these unconventional water rights.
water law, natural resources law, property law, environmental law
Abstract: This article maintains that despite the fact that the Supreme Court's decision in Palazollo v. Rhode Island gave the landowner victories by relaxing ripeness hurdles to filing constitutional takings cases and reject the government's notice rule defense - under which the existence of preexisting regulations would defeat takings claims - the chief significance of the decision was the Court's signal that it would reject attempts to expand categorical rules in takings cases. Under this view, Palazollo will be remembered for the decline of Justice Scalia's categorical approach to takings, as reflected in his Lucas v. South Carolina Coastal Commission decision, and for the triumph of multi-factor balancing championed by Justice Brennan's Penn Central v. City of New York opinion. A postscript to the article contends that the Court's Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency decision, which was decided while the article was in press, confirms these predictions.
constitutional law, property, land use, takings, environmental law
Abstract: The Columbia River is the paradigmatic example of the influence of technology on an ecosystem, having been developed for hydropower, navigation, and flood control throughout the 20th century. The upshot is that the Columbia Basin is now home to the largest interconnected hydroelectric system in the world and a seaport 465 miles inland. The cost has been high, however: near extermination of the basin's salmon runs, once the world's largest. Because the decline of Columbia Basin salmon has had significant adverse effects on cultural, historic, and religious values, since 1980 the region has made efforts to reverse the decline, in what has been termed as the world's largest biological restoration program. This article critically surveys efforts to recover Columbia Basin salmon under the Northwest Power and Endangered Species Acts, the Northwest Forest Plan, and unimplemented plans developed by Columbia Basin tribes with treaty fishing rights and the federal Columbia Basin Ecosystem Management Project. The article suggests that the proliferation of such plans is a product of the inability (or unwillingness) of the federal agencies managing the Federal Columbia Basin Hydroelectric System - by far the chief cause of salmon mortalities - to appreciably reduce the adverse effects of their operations. Thus, these salmon restoration plans have become amphibious, focusing on upriver habitat issues that might protect salmon spawning, rather than change project operations in the mainstem river, which would increase power costs. The article suggests that this upland focus may produce a significant change in public land management in the Columbia Basin, although the result may not be a material improvement in the plight of the salmon.
environmental law, natural resources law, public land management, hydropower, endangered species
Abstract: This article examines the reasons for the decline of Idaho's salmon runs, analyzes several ineffective past attempts at restoration, and evaluates a number of remaining options to prevent extinction of Idaho salmon. The article explains how and why, over a half-century, Idaho salmon have had eight major mainstem dams placed between their spawning grounds and the ocean and a deepwater port sited some 465 miles inland. Although there have been numerous restoration attempts over the years, those efforts has produced few spawning salmon. The article outlines several alternative means of restoring Idaho salmon, including measures under the Northwest Power Act, the Endangered Species Act, and Indian treaty fishing rights. It concludes by suggesting that any successful restoration strategy must include five elements: 1) recognition of both the links and disparaties between state water law and federal hydropower law; 2) assurance that state water law will not frustrate salmon restoration efforts; 3) use of the great flexibility of the hydroelectric system to improve salmon spawning and migration, 4) a presumption of biological needs over economic cost concerns; and 5) creative design of the Northwest's energy blueprint for the future so as to reduce the costs of achieving the region's salmon restoration objectives.
salmon law, water law, Endangered Species Act, hydropower, Indian treaties
Abstract: In the 1990s, the Columbia Basin--once home to the world's largest salmon runs - witnessed numerous listing of its signature natural resource under the Endangered Species Act (ESA). Those listings propelled the ESA into the forefront of land and water use decisionmaking across a vast landscape of the Pacific Northwest. This article examines the Columbia Basin salmon listings and their aftermath. Specifically, it considers the effect of the ESA's consultation requirements on hydroelectric, hatchery, harvest, and habitat decisionmaking. The article draws several lessons from this examination, many of them surprising, including the assertion that while the listings produced many innovations in the implementation of the statute, they led to few improvements in the condition of the listed salmon, due partly to the persistent sensitivity of the consultation process to economic concerns. The article concludes that this reluctance to disturb existing activities damaging the salmon runs does not bode well for the continued existence of the most imperiled of the species, including the Snake River runs.
Endangered Species Act, salmon, hydropower, natural resouces
Abstract: This article analyzes the National Marine Fisheries Service's (NMFS's) 2000 biological opinion on Columbia Basin hydroelectric operations. This opinion, which will govern operations until 2005, was extremely controversial when issued because it basically authorized a continuation of existing dam operations instead of recommending the breaching of the four Lower Snake River dams, which several scientific studies concluded was necessary to rescue the most imperiled salmon runs from extinction. To avoid the politically controversial position of recommending dam breaching, the 2000 biological opinion called for numerous "offsite" mitigation measures involving habitat restoration, hatchery operations, and harvest management. Many of these measures were merely called for studies without promising action; others were directed at agencies that are not hydropower managers, and therefore, not bound by the biological opinion. Because NMFS admitted that, without these offsite measures, hydroelectric operations would jeopardize the continued existence of listed salmon, if the offsite measures conflict with the Endangered Species Act, the 2000 biological opinion this article claims the opinion is unlawful. We examine several arguments raised in pending litigation challenging the opinion, concluding that there are good reasons why the court should strike it down. If the opinion is allowed to stand, the authors predict that Snake River salmon, the most imperiled of the species, will continue to slide toward extinction.
environmental law, endangered species, hydropower, fisheries
Abstract: One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.
property, nuisance, takings, environmental law, natural resources law
Abstract: This is a review of Karl Brooks' book, "Before Earth Day: The Origins of American Environmental Law, 1945-70." Brooks challenges the standard account given in most America law school classes that has environmental law bursting onto the legal scene in the "environmental decade" of the 1970's. Like the "miracle in Philadelphia" in the summer of 1787, this "divine conception" theory of the genesis of environmental law is a myth, as Brooks ably demonstrates. He discusses the struggle to pass environmental statutes in the late 1940's like the Fish and Wildlife Coordination Act, as well as successful block developments like Idaho dams in the 1950's. He also gives forgotten figures like Idaho lawyer Bruce Bowler and Virginia Congressman and Senator Willis Robertson (the father of the televangelist) their due. However, Brooks' claim that the origins of environmental law lay in the post-World War II era is flawed: those origins can be traced at least as far back as the Progressive Conservationists of the turn of twentieth century. Still, this is an engaging and enjoyable account of an era of environmental law that gets short shirft from most environmental law teachers.
environmental law, legal history
Abstract: This Article is a response to an attack by Greg Hobbs (now a justice on the Colorado Supreme Court) on the Long's Peak Report, a report that was the result of a 1992 working group of some 30 national experts issued on the verge of the inaugeration of the Clinton Administration. The Article claims that Hobbs's critique represents a wish to return to a bygone era in which the federal government's role was to subsidize Western development by funding large storage projects. But this Article maintains that the era of water development subsidies is over, and that those who oppose reform will not be able resist by relying on the Constitution's takings clause. The Article also outlines a number of necessary reforms on both the federal and state levels.
water law, natural resources law
Abstract: This is a brief reply to a debate between Greg Hobbs (now a justice of the Colorado Supreme Court) on water law reform. The reply claims that Hobbs' mischaracterized the Long's Peak recommendations (the product of a group of some 30 national experts) and erroneously invoked the legacy of Gifford Pinchot. The reply explains that Pinchot's concept of multiple use was not simply a call for development of water resources but a prescription for a federal anti-monopoly role. The reply also emphasizes that nuisance law cabins water rights, that there is an appropriate federal role in streamflow protection, and argues that Pinchot would endorse both propositions.
Abstract: Salmon remain the cultural and economic soul of the Pacific Northwest, a species whose very life cycle largely defines the region. At the center of the salmon region lies the Columbia River, which once supported the world's largest salmon runs and which now is home to the world's largest interconnected hydroelectric system. These massive federal and non-federal dams have devasted Columbia Basin salmon runs, some of which are now exinct, others are on life-support. This book tells the story of the decline of the Columbia Basin salmon in the 20th century. But it begins earlier, with the signing of mid-19th century Indian treaties that promised the tribes the right of taking fish in return for ceding some 64 million acres of land to the onrushing United States. This treaty promise was actually the first in a series of promises that the salmon runs would be maintained. The book uses the promise metaphor to examine the state of salmon and surrounding legal and institutional environment over the last century-and-a-half. None of the promises have been fully kept. Among ensuing promises was a false hope that a region-wide commitment to salmon hatcheries could replace salmon habitat lost to development, especially hydroelectric development. Another promise was the 1980 Northwest Power Act's restoration program, which once envisioned doubling Columbia Basin salmon runs. Failure of that promise led to ongoing and largely unsuccessful efforts under the Endangered Species Act (ESA) to conserve the dwindling salmon runs. The book is especially critical of ESA implementation, maintaining that the listing of salmon under the statute has done much more to change ESA administration than the ESA has done to revive the salmon runs. Other promises the book examines concern the 1985 Pacific Salmon Treaty with Canada, hydroelectric licensing under the Federal Power Act, and water quality protection under the Clean Water Act. The book includes chapters on the judicial interpretation of Indian treaties, a history of dam building in the Northwest, the rise of ecosystem mangement planning, and the case for breaching four Lower Snake River dams. Concluding chapters examine the prospects for wild salmon runs in the 21st century and lessons from the decline of Columbia Basin salmon for other resources in other areas.
natural resources law, policy, and history, environmental law, Indian law, water law, energy law
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