Natural Resources Law
Taught by	Karen Bradshaw Schulz
School	New York University School of Law
Semester(s) taught
Required texts
Supplementary materials
Related course(s)

I. American Lands and Resources, Public and Private[edit | edit source]

A. Course Introduction: Why Public Lands[edit | edit source]

Federal Lands and Resources

• Except for the original 13 colonies, Texas and Hawaii, the US Gov’t once owned nearly all the land within its present borders. Indian lands are excluded from laws, statistics and courses pertaining to federal public lands.
• Federal public lands passed out federal ownership as the public lands were opened for settlement and development. Easy availability of land was the primary incentive for pioneers & settlers to move west and populate the nation.
• The heart of public land policy was to promote the small family farm: after the best agricultural lands in the Midwest were settled, homesteaders moved to Willamette Valley in OR, Central Valley in CA, and other lowlands. Prospectors/miners claimed land over gold/silver/copper/iron deposits in areas such as CA Mother Lode country, Comstock Lode in NV, Mesabi Range in MI, and Butte in Montana.
• Mid 19^th Century – Congress & Presidents withdrew public land parcels into private hands and dedicated/reserved them for other purposes; Reservation for other military or Indian purposes began w/ the establishment of Yellowstone National Park in 1872.
• Modern Era – land selection by Alaska and Alaska Natives removed ~150mil acres from federal ownership
• US owns ~28% of nation’s land area (650mil acres)
  • o Highest proportion in 11 western states (AZ, CA, CO, ID, MT, NV, NM, OR, UT, WA & WY) and Alaska which has ~250mil federal acres or 38% of all federal public lands; Constitute nearly half of land in 11 western states (bc population is so low)
  • o Smaller portions are held in Eastern states: 4mil in MI, 3mil AR, FL, & MN, ~3mil in NC & TX, ~2mil in VA.
• Fed gov’t also owned major less-than-fee simple interests; retains subsurface mineral interests under ~60mil acres of private and state land in the West, acquired waterfowl easements; asserts sovereignty over resources of outer continental shelf (3 miles offshore).
• Public Domain – lands acquired by the US from other sovereigns, including Indian tribes, and still federally-owned. Lands open to entry and settlement (opposite of reserved and withdrawn lands). Contrasts acquired lands – lands that were once in private or state ownership.
• Acquired lands – acquired from private or state owners by gift, purchase, exchange, or condemnation. Some lands have been reacquired because US previously had purchased or won them from foreign and Indian sovereigns.
• Public Lands – all lands owned by the US. Common law: unreserved and unappropriated public domain lands open to entry, settlement, and appropriation. 1920 CL: subject to private appropriation and disposal. 1976 CL: any land and interest in land owned by the US and administered by the Bureau of Land Management, without regard to how the US acquired ownership – except Indian and offshore lands.
  • o Include less than fee simple interest in the land, such as severed mineral estates.
  • o Do not refer to submerged lands off the seacoasts or lands held in trust for Indians.
• Water - Trans-Mississippi regions. Aridity and large concentration of public lands are the two most distinctive features of western society.
  • o ~2/3 of water run-off in the 11 western states and all the great western rivers, originate on federal lands. These lands comprise of: Continental Divide, Sierra Nevada, Cascade Range and other mountainous areas in the West.
  • o Much of this land was purchased because of their value as watersheds.
  • o 20^th century – US developed water resources in effort to provide irrigation water, municipal drinking supplies, electricity and recreational opportunities but have taken heavy toll on wildlife and amenities of free-flowing water.
• Minerals – discovery of gold in CA foothills in 1848 prompted true opening of the west.
  • o Fossil fuels exist in large quantities on federal land. Federal lands onshore and offshore account for ~35% of total domestic production of oil and gas. Much of output of precious metals (gold, silver, nickel, lead, copper, zinc, etc.) also come from deposits found wholly or partially on federal lands.
• Timber – fed gov’t owns ~18% of nearly 500 mil acres of commercial timber lands. 6/7^th’s of federal commercial timber is in national forests. Before WWII, managed by Forest Service and the Bureau of Land Management producing only ~5% of national total timber harvest. Result – federal lands still hold comparatively large amount of old-growth, virgin timber, especially in Pacific Northwest.
• Grazing – More acres of fed lands are used for domestic livestock grazing than for any other single use except recreation.
  • o Historically, the public domain was a “commons” where grazing was allowed with no federal regulation, which took a great toll on the forage resource.
  • o Today, domestic animals spend share the rangeland forage with thousands of wild horses and burros and millions of antelope, deer, moose, and mountain sheep.
  • o Public range is largely in fair or poor condition and overgrazing by modern standards is still widespread in some areas.
  • o Managed by the National Wildlife Refuge System; Primary mission is to maintain healthy populations of plants and animals.
• Wildlife – 96-million-acre National Wildlife Refuge System’s primary mission is to maintain healthy populations of plants and animals.
• Preservation – “in wildness is the preservation of the world” – Henry David Thoreau. Congress moved to set aside numerous national parks in 19^th & 20^th century. Preservation also includes archeological, historical, and cultural artifacts, structures and settings.
• Recreation – x
• Federal holdings are divided into 3 board categories: resource preservation lands; multiple resource use lands; lands used to specific non-resource-orientated purposes.
  1. Resource preservation – include lands in the National Park system (which includes monuments, preserves, recreation areas, seashores, lakeshores, trails, and rivers), wilderness areas, and the National Wildlife Refuge System.
  2. Multiple Use – includes national forests (including national grasslands), the BLM lands (the traditional “public domain), outer continental shelf lands, and lands administered for power, irrigation, or flood control purposes by the Federal Energy Regulatory Commission, the Army Corps of Engineers, and the Bureau of Reclamation.
  3. Non-resource-orientated – catchall for all other forms of federal land ownership.

Management of Federal Lands

• Public land management systems are usually classified per what uses are allowed in them. Primary/dominant public land uses are for mining, grazing, logging, recreation, wildlife and preservation. The national forests and the BLM lands are multiple use.

1. National Forest System: created by the withdrawals of the “forest reserves” from the public domain began in 1891, creation of Gifford Pinchot’s Forest Service in Department of Agriculture, and transfer of the Forest reserves to Agriculture in 1905. National forests still contain ~193 million acres, second largest system by acreage.
   • o Prime beneficiary – reacquire into federal ownership, primarily for conservation purposes, land from private owners.
   • o 1912 – WWII: purchased several million acres of agriculturally depressed or abandoned land east of Mississippi under the Weeks Act. Acquired what was known as National Grasslands by purchase from bankrupt dirt farmers in the western Great Plains during drought-ridden years of the Great Depression.
   • o Has landholdings in nearly every state.
   • o Established to improve and protect the forest and for securing favorable conditions of water flows, and to furnish a continuous supply of timber.
   • o Management of the forest was primarily custodial: before WWII, suppled less than 5% of annual timber harvests. ~1940 annual harvest from national forests exceeded 2bil board feet; doubled by 1951; Doubled against by 1959; reached 12bil board feet in 1966. Caused by post-war housing boom and depletion of privately owned commercial forests; Pressure to produce more timber led to first refinement of Pinchot’s utilitarian philosophy and then to the enactment of the multiple use mandate into law.
   • o of the timber resource of the national forests is now controlled by the National Forest Management Act of 1976
2. The BLM Public Lands: unreserved, public domain lands were administered by the Department of the Interior’s Grazing Service until 1946 when it merged with the General Land Office to form the Bureau of Land Management. Considers “lands nobody wanted.”
   • o Responsible for management of ~180mil acres of mostly arid and semi-arid land, nearly all of it in the 11 western states and Alaska.
   • o Alaska – BLM retains jurisdiction over ~86mil acres, sharp reduction from 3 decades ago because of statehood grants, grants to Alaskan Natives under the Native Claims Settlement Act of 1971 and transfers to other agencies under the Alaska National Interest Lands Conservation Act of 1980.
   • o BLM has not undone the damage wrought before the agency existed; BLM evolved internally a multiple use philosophy over the years but with an emphasis on grazing and mining instead of logging. (Sometimes called the Bureau of Livestock and Mining).
   • o Administered “National Landscape Conservation System” which encompasses wilderness areas, national monuments and “areas of critical environmental concern.”
   • o Responsible for managing all 700 mil acres of subsurface mineral rights owned by the US. Given challenging mgmt. tasks w/ little funding compared to other departments.
   • o Transitioned from a custodial agency dominated by ranching and mining interests to a modern, conservation-orientated land management agency.
3. The National Wildlife Refuge System: Created in 1903. President and Congress reserved federal lands and purchased nonfederal lands piecemeal over the years under various authorities.
   • o 1966 – Congress established the Refuge System with broad-reaching management authority for protecting endangered species; Clear mission: maintaining a healthy network of habitats for plants and animals.
   • o Managed by the U.S. Fish and Wildlife Service (FWS) in the Department of the Interior.
   • o Comprises ~92mil acres in fee ownership with lesser interests such as waterfowl easements on another 4 mil acres. Operates ~550 national wildlife refuges and thousands of waterfowl production areas.
   • o Only category of federal lands administered primarily for the conservation of wildlife, although states have wildlife areas and wildlife mgmt. is a concern on practically all fed. lands
   • o Suffered under funding, political neglect, and popular overuse.
4. The National Park System: forms of recreation such as bird watching, camping and hunting. Devoted primarily to recreation and preservation. Encompasses ~84 mil acres located in almost every state.
   • o Created in 1916. Approx. 60 national parks are still managed for the “enjoyment of future generations” but more intensive recreation is typical on other land designations within the system.
     • National seashores, national lakeshores, national rivers, the Boundary Water Canoe Area, national wild and scenic rivers, national gateway parks and 14 national preserves. Also, manages historical memorials, battlefield monuments, and many of DC area parks and memorials.
5. The Preservation Lands and Other Generic Categories
   • o Wilderness Act: lands so designated are to be devoted primarily to preservation. ~9mil acres, some are 5k acres “untrampled by man” were set aside initially and the National Wilderness Preservation System has continued to grow. Management of the area is done by whatever agency whose jurisdiction the area falls under.
   • o Another federal land category is national monuments – created by presidential proclamation under authority of the 1906 Antiquities Act. Statute authorizes the president to reserve federal lands to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
     • Grand Canyon, Death Valley and Glacier Bay National Park were first large areas to be protected. Clinton protected more acres of federal land than any other president besides Jimmy Carter who designated more than 56mil acres of national monuments in Alaska in 1978.
       • Many of Clintons monuments were designated on BLM land and BLM remains the manager.
       • Congress sometimes legislated national monuments and has usually confirmed Presidential monuments
     • o Congress added The Wild and Scenic Rivers Act of 1968 and Alaska National Interest Lands Conservation Act of 1980;
6. The Legal Offices
   • o The Office of the Solicitor is housed in the Department of Interior and is general counsel to the Secretary. Solicitor’s office houses all lawyers who give legal advice to the Department’s land mgmt. agencies. They write opinions, draft regulations, and render legal advice to the land mgmt. agencies. Solicitor’s office does not represent the Department in court – that’s left to the Department of Justice.
     • General counsel in the Department of Agriculture serves similar function to the Forest Service.
     • The concentration of resource issues in Interior and the wealth of the Solicitor’s Opinions mean that the Interior Solicitors Office is a primary source of law on the public lands.
   • o Interior Board of Lands Appeals (IBLA) – Interior Department’s Office of Hearings and Appeals. ~1k appeals are filed every year with the IBLA involve mineral resources, but the agency’s jurisdiction also encompasses some things like grazing, special use permits, wilderness review, and wild horses and burros. IBLA sits in panels of 3 judges. Judges are appointed by the Secretary.
7. US Congress
   • o Specific committees in both houses of Congress has primary responsibility over public land legislation.
     • Committees on Public Lands or Public Lands & Surveys (House 1805-1951; Senate 1816-1948); Separate committees on mines and mining existed in each house form 1865-1947; Public Lands and Mining Committees in each house were collapsed (1948 Senate; 1951 House) into committees on “Interior and Insular Affairs.” The House Interior Committee became the House Natural Resources Committee in 1992 and its counterpart in the Senate became the Committee on Energy and Natural Resources in 1977.
     • Committees were “stacked” with westerners because westerners actively seek such committee assignments to enhance their influence over issues of concern back home, and non-westerners tended to avoid the assignments. The chairs of these committees, commonly the two most influential legislators on public lands issues in the entire Congress are usually from the West.
8. The Special Case of Alaska
   • o Statehood came to AK in 1959; Its 375mil acres remained almost completely in federal ownership because only a relatively negligible amount of land was suitable for homesteading or was deposited under the public land laws then existing.
   • o Under the Alaska Enabling Act, state gov’t won the right to select 104 mil acres on fed land.
   • o Mid 1960’s, AK Natives began to protest; Said that their aboriginal title had never been disturbed and that any administrative transfer of title to the state of the mining industry would violate Native property rights.
     • Interior Secretary Stewart Udall suspended issuance of almost all patents and mineral leases (1966). 1968 – discovery of massive oil deposits were confirmed in AK. Udall then withdrew all unreserved lands in AK form all forms of entry until Congress had resolved the Native Claims
   • o 1971 – Alaska Native Claims Settlement Act became law. It extinguished all Native title, granted AK Natives the right to select 44 mil acres of fed land in the state, provided Natives ~$1bil in fed funds and allowed state selection to resume. 1971 Act also reflected the emerging power of the modern environmental movement.
     • D(2) provision authorized the Secretary of Interior to withdraw up to 80mil acres of land that might merit inclusion in four “national interest” systems (national parks, forest, wildlife refuses, and wild rivers.)
     • D(2) expired on 12/16/1978 because Congress failed to complete work on conservation legislation that would have protected the lands permanently. Carter executed massive, overlapping withdrawals and Antiquities Act reservations that effectively extended the d(2) withdrawals and staved off mineral development and state selections of these federal lands
   • o 12/2/1980 Carter signed the Alaska National Interest Lands Conservation Act (ANILCA) into law. Allocated more than 103mil acres, former BLM land, to fed conservation system. Added 43.5 mil acres to National Park System, 53.7 mil acres to National Wildlife Refuge System and 56.4 mil acres to National Wilderness Preservation System. 13 rivers were added to National Wild and Scenic Rivers System. BLM were split into 1.2mil acres Steese Conservation Area and 1mil acres White Mountains National Recreation Area.

Perspectives on Public Land and Resource law

1. Aldo Leopold, The Land Ethic:
   • o To sum up: a system of conservation based solely on economic self-interest is hopelessly lopsided. It tends to ignore, and thus eventually to eliminate, many elements in the land community that lack commercial value, but that are essential to its healthy functioning.
   • o The Land Pyramid: the image commonly employed in conservation education is “the balance of nature.” Fails to describe accurately what little we know about the land mechanism. The Biotic pyramid – the pyramid is a symbol of land, and later develop some of its implications in terms of land-use
     • The bottom layer is soil. A plant layer rests on the soil, and insect layer on plants, a bird and rodent layer on insects and so on up though various animal groups to the apex layer, which consists of the large carnivores.
     • The species of a layer are alike by what they eat. Each successive layer depends on those below it for food and often for other services, and each in turn furnishes food and services to those above. Proceeding upward, each successive layer decreased in numerical abundance. Thus, for each carnivore there are hundreds of his prey, thousands of their prey, millions of insects, uncountable plants. The Pyramidal form of the system reflects this numerical progress from apex to base. Man, shares an intermediate layer with bears, raccoons, and squirrels which both each meat and vegetables.
   • o Land is not merely soil – it is a foundation of energy following through a circuit of soils, plants, and animals.
   • o The process of altering the pyramid for human occupation released stored energy and this often gives rise, during the pioneering period, to a deceptive exuberance of plant and animal life, both wild and tame. These releases of biotic capital tend to becloud or postpone the penalties of violence.
   • o The most serious obstacle impeding the evolution of a land ethic is the fact that our educational and economic system is headed away from, rather than toward, an intense consciousness of land. Your true modern is separated from the land by many middlemen, and by innumerable physical gadgets. He has not vital relation to it; to him it is the space between cities on which crops grow. Turn him loose for a day on the land, and if the spot does not happen to be a golf links or a “scenic” area, he is bored stiff. If crops could be raised by hydroponics instead of farming, it would suit him very well. Synthetic substitutes for wood, leather, wood and other natural land products suit him better than the originals. In short, land is something he has “outgrown.”
   • o The cause for a land ethic would appear hopeless but or the minority which is in obvious revolt against these “modern” trends. – quit thinking about decent land-use as solely an economic problem. Examine each question in terms of what is ethically and esthetically right, as well as what is economically expedient. A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community, it is wrong when it tends otherwise.
2. Mountains Without Handrails: Reflections on the National Parks
   • o

B. History of American Public Lands[edit | edit source]

Acquisition of the Public Domain

1. '''From the Original Colonies''
2. '''From Foreign Nations''
   1. Louisiana Purchase'''''
   2. Florida Acquisition and Settling the Northern Border'''''
   3. Texas, The Treaty of Guadalupe Hidalgo, and the Gadsden Purchase'''''
   4. The Oregon Compromise'''''
   5. The Alaska Purchase'''''
3. '''From Indian Tribes ''
   1. '''''Johnson v. M’Intosh

''''''''''Disposition of the Public Domain

1. 'The Disposition System'
   1. ' The Survey and Early Land Laws'
   2. ' Disposition by Foreign Governments'
2. ' State Lands and Trust Doctrines '
   1. ' The Equal Footing Doctrine'
      1. '''Pollard v. Hagan: P claimed title under patent from US confirmed by 1836 Act of Congress. D claimed title under prior Spanish land grant recognized by Georgia in 1795'

C. Resource Conflicts and Federalism – pg. 146-150; 155-69 (1/17)[edit | edit source]

• Starting point for considering federal law of public land and resource management is the constitutional power of Congress. Federal-state conflicts over federal lands are governed by 3 constitutional principles:
  • o Enclave Clause – Article I § 8, cl. 17
  • o Supremacy Clause – Article VI, cl. 2
  • o Property Clause – Article IV, § 3, cl. 2

Jurisdiction Within Federal Enclaves

• 'Enclave Clause – gives Congress exclusive jurisdiction over DC and all places purchased by the Consent of the state legislature for the erection of forts, magazines, arsenals, dock-yards and other needful buildings. Lands so acquired are called federal enclaves. Enclaves amount to ~6% of total federal land holdings. '''''
  • o While a state might reserve the right to enforce some criminal or civil laws on the transferred property, the Clause does not provide an affirmative grant of state power.
  • o SCOTUS refused to read the Enclave Clause literally or strictly. If it did – state authority would have stopped at enclave boarders and the state could not have taxed private property or served process within enclaves. Courts held that the state and federal gov’t could make whatever jurisdictional allocations they desired and that “needful buildings” encompasses all federal purposes.
    • This resulted in the extension of the Enclave Clause to situations where gov’t owned land that it acquired before the states existed or the states attached conditions to cessions of jurisdiction – led to below case.
  • Fort Leavenworth R. Co. v. Lowe:
    • o Kansas ceded jurisdiction over Fort Leavenworth to the US but reserved jurisdiction to serve process and to tax private property within the federal reservation. The railroad argued that “exclusive” means “absolutely exclusive” and that the state could not tax its property, but the Court upheld the reserved state taxing power. '''''
    • o Supreme Court created an immunity from state law for areas owned and used by the fed gov’t for military purposes. Because the US owned Fort Leavenworth before Kansas was admitted to statehood, its “cession could be accompanied with such conditions as the state might see fit to annex not inconsistent with the free and effective use of the fort as a military post.”'''''

''''''''''Intergovernmental Immunities & Revenue Sharing

• 'Supremacy Clause – establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law. In a conflict between federal and state law, the federal law must be applied. State constitutions re subordinate to federal law. National acts take prior over any state acts that conflict with national law. '''''
• Pollard v. Hagan held that the states did, under the equal footing doctrine, come into title of lands underlying navigable waters. But the US retained title to large amounts of other land, not under navigable waters, in new states. '''''
• Gibson v. Chouteau – the court upheld the claim of the holder of a federal patent to land in Missouri against a competing claim against another who was relying on state law. Court repeated that Congress’s power under the Property Clause is subject to no limitations, that Congress has an absolute right to decide upon the disposition of federal land and that no state legislation can interfere with this right or embarrass its exercise. '''''
• Utah Power & Light Co. v. United States: Utility company built electric generation works on National forests without federal permission and argued that Utah law should apply because there had been no cession of jurisdiction by the state under the Enclave Clause. limited the reach of state law on federal lands to matters non-inconsistent with federal power and federal law. '''''
  • o A state has civil and criminal jurisdiction over lands within its limits belonging to the US but this jurisdiction does not extend to any matter that is not consistent with full power in the US to protect its lands, to control their use, and to prescribe in what manner others any acquire rights in them. While the state may punish, public offenses committed on such lands, and may tax private property, located thereon, it may not tax the lands themselves or invest others with any right whatever in them. '''''
• The Color of Title Act' allows adverse possession claims against the US, but only were the claimant has either (a) good faith adverse possession for more than 20 years and either cultivation or erection of valuable improvements, or (b) continuous good faith possession since January 1, 1901.'''''
• The Quiet Title Act of 1972' waives immunity, on specific terms, to those who claim title based on a valid conveyance rather than on adverse possession, but many private claims are barred by its 12-yr statute of limitations, which generally begins to run on the date a plaintiff knew or should have known of the opposing claim to title by the US. '''''
• Federal sovereignty and the Supremacy Clause immunize federal property from state tax laws. Federal tax immunity does not generally extend to situations where the state imposes taxes not on the federal gov’t directly, but on federal employees or private contractors doing business with the federal gov’t on federal lands. '''''
• Congress has attempted to compensate states for the tax-exempt status of federal lands.'''''
  • o Common way to do this is to pay the states a percentage of the proceeds from resource development. '''''
  • o The Wildlife Refuge Revenue Sharing Act' provides that 25% of revenues realized from developed of refuge are paid to the local counties. The state of origin receives 50% of revenues from all onshore O&G leases under the provisions of the Mineral Leasing Act – Except Alaska which receives 90%. '''''
  • o The Payment In Lieu of Taxes Act (PILOT) provides a minimum federal payment of $0.75/acre of land managed by the BLM, Forest Service and Park Service to local gov’t’s regardless of development revenues and provides other forms of compensation. (ON THE FINAL PG. 159)''
    • Lawrence County v. Lead-Deadwood School Dist''. – court held that counties are free to spend PILOT funds for any governmental purposes and that the states cannot place restrictions on such county expenditures. '''''
  • o The Federal Highway Act' – increased the federal contributing share for construction of interstate and other federal highways in any state where the percentage of federal and Indian landholdings in that state exceeds 5% of the state’s total land area. '''''
• When the amount of federal aid is tied directly to resource development, the effect is to make state and local gov’t advocates of more federal timber sales and mineral leasing. '''''
  • o The financial incentives sometimes lead state or local gov’ts to bring lawsuits against federal land managers when they restrict resource development or to intervene as defendants in cases seeking to apply environmental laws to reduce timber harvesting. '''''
  • o Federal law currently puts 100% of federal revenue from O&G development on outer continental shelf in the federal treasury. Nearly all costal states have been opposed to federal O&G leasing on the OCS off their shores, driven mostly by local environmental concerns. In response, the O&G industry and its supporters in Congress have favored giving the coastal states a share of federal offshore O&G lease revenues such as happens onshore in hopes of inducing states to back off their opposition. '''''

''''''''''The Property Clause

• Enclave clause and intergovernmental immunities doctrine are now overshadowed by the Property Clause. '''''
• Property Clause:' Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US. '''''
  • o Earliest cases dealt with Congress’s power to put in place the governmental machinery, such as a judicial system, to govern territories. '''''
• McKelvey v. United States'': 3 sheepherders denied passage over public lands by defendant cattle ranchers who, after warning and threatening them, shot and seriously injured one of them, threatened to finish him and did other things calculated to put all three in terror. The ranchers were convicted of violating that part of the Unlawful Enclosures Act which prohibits any person “by force, threat, or intimidation” from preventing or obstructing anyone from peaceable entering upon any tract of public land. '''''
  • o On appeal, D’s claimed Congress’s prescription of criminal penalties was beyond its power and an encroachment on the state police power. Justice Van Devanter stated “it is firmly settled that Congress may prescribe rules respecting the use of the public lands. It may sanction some uses and prohibit others, and may forbid interference with such as are sanctioned. '''''
• Hunt v. United States: upheld a federal deer control program undertaken in contravention of state law. Court brushed aside AZ’s argument that the US cold not kill large numbers of deer on federal lands in Northern AZ without conforming to state law. The program was conducted after elimination of the deer’s predators (to protect local ranching operations) caused the deer population to explode.'''''
  • o The court said “the power of the US to protect its lands and property does not admit of doubt the game laws or any other statute of the state to the contrary notwithstanding. '''''
• Kleppe v. New Mexico: involved a challenged to the validity of the Wild Free-Roaming Horses and Burros Act which prohibits the killing, harassment, or sale of such critters on BLM or FS lands. The state argued that it owned the regulated feral beasts, that Congress could act only to protect federal lands, not wildlife, and that the United States is only a proprietor, without legislative power, when it acts as a landowner. The unanimous Court soundly rejected all those contentions. It differentiated between enclave and other lands, noting that cases concerning the former, such as Fort Leavenworth R. Co. 'were irrelevant to the latter. The requirement that legislation be directed at protection of the public lands applies only to situations in which the federal gov’t is acing “extraterritorially.” '''''
  • o The US remains a sovereign when it owns land, and congressional Property Clause power is “without limitations.” Federal legislation is preemptive as well as plenary (full; complete; entire; absolute): where “state laws conflict with legislation passed pursuant of the Property Clause, the law is clear: the state laws must recede.”'''''

D. Collaborative Land Management – pg. 201-205; 465-485 (1/17)[edit | edit source]

Cooperative Federalism and Natural Resources Law

• Cooperative federalism includes all programs with incentives for state, tribal, and local jurisdiction to help advance federal law. National resources law provides important additional tools to extend cooperative federalism beyond pollution control.
  • o The property clause provides a stronger basis for exclusive federal controls of federally owned natural resources.
• Early 1970’s pollution control law began employing cooperative federalism but federal resource management remained largely independent of state implementation until the “Sagebrush Rebellion” of the late 1970’s and early 1980’s.
  • o Sagebrush Rebellion – movement that sought major changes to federal land control, use and disposal policy in the American West where, in 13 western states, federal land holdings included between 20-85% of the state’s area. Wanted more state and local control over these lands, if not outright transfer of them to state and local authorities or privatization. This was meant to increase the growth of Western economies – particularly through livestock grazing, mineral extraction and other economic development policy.
  • o The Sagebrush rebellion failed to transfer federal public land management to state or commodity users, it did prompt more state cooperative involvement in federal land admin.
• Place-Based Collaboration
  • o A place-based collaboration is a system of decision-making about the environment that is unique to a particular site or region. Rather than impose a uniform model for interaction, place-based collaborations grow from the particular circumstances of the locus (a particular position, point or place) and nature of a dispute.
  • o Strength of this approach: brings a wide range of stakeholders and regulatory jurisdictions, state and federal, together to engage in holistic management.
  • o Incidental take permit – waives strict prohibition on harm to listed species’ habitat/animals. In order to secure such a permit, a party must complete a habitat conservation plan (HCP).
• State Favoritism in Federal Process
  • o State favoritism – procedural favoritism – reserves a special role for states in the process by which the federal gov’t makes environmental decisions.
  • o Federal agency decision-makers have a responsibility at least to document their consideration of the state’s views and to explain why it did not prevail.
  • o The federal land planning provisions are good examples of procedural favoritism. States and counties may engage in their own planning exercise in order to receive the special consideration afforded by the foundational laws governing federal multiple use land management.
    • Federal Land Policy Management Act (FLPMA) requires the BLM to coordinate with state and local gov’t laws in the development of land use plans “to the extent consistent with laws governing the administration of the public lands,” and to consider input concerning land use decisions from states.
    • National Forest Management Act (NFMA) requires the Secretary of Agriculture to coordinate with the natural resource “planning processes of State and local governments.”
  • o Federal statutory preference for consistency with a state or local plan is an incentive for states to be more organized than they otherwise might be in developing their own objectives.
  • o National Forest Roadless Rule – reversed a 2001 regulation that prohibited logging and other development activities in ~60mil acres of roadless areas in national forests.
    • In place of the national prohibition, the 2005 rule lets state governors petition the Forest Service to promote special rules establishing management requirements for roadless areas within the state.
  • o The Wild and Scenic Rivers Act, which provides an alternative to congressional river designation where a governor applies to the Secretary of the Interior for administrative designation of rivers protected under state law.
• Federal Deference to State Process
  • o Federal deference to state process is created when legislation specifies that a state policy, standard, or plan, if adopted in accordance with certain procedures, will be employed by the federal government in its own national decisions. While procedural favoritism gives states an advantage over other stakeholders in asserting their interest in federal decision-making, federal deference provides greater assurance that the fed gov’t will actually comply with the state position
  • o Best example – Coastal Zone Management Act – provides funding and guidelines for state to use in developing coastal zone management plans. Once the National Oceanic and Atmospheric Administration approves a state’s plan, all activities authorized or carried out by federal agencies that affect the coastal zone must be consistent with the state’s plan.

The Lessons of Inducement in Cooperative Federalism

• Usually, the federal gov’t has ultimate authority to make a preemptive determination. However, situations do arise where states induce the federal gov’t to cooperate, sometimes after adopting a variety of regimes which regulated industries seek to preempt with uniform federal legislation. '

''''Organic Legislation for Public Land Systems

• Each of the 4 major public land systems has its own legislative charter for management: an organic act'
• 1^st organic act – Petigrew Amendment to the Sundry Civil Act – came to be known as the Forest Service Organic Act; Served as a basis for Gifford Pinchot to organize the forest reserves into a larger working system.'
• An organic act provides a comprehensive framework for unified management of a system of parcels. '
• 5 hallmarks of modern organic legislation:'
  • o purpose statements'
  • o designated uses'
  • o comprehensive planning'
  • o substantive management criteria'
  • o public participation'
• These features compose a ‘table of elements’ for which Congress has synthesized modern public land statutes and identify topics for reform of laws lacking effectiveness in key areas. '
• Authority contained in the organic acts is not the exclusive authority or mandate for management of a public land system because each system has its share of similar statutes including some that govern particular areas or units'

''''National Environmental Policy Act

• An environmental statute that emphasizes information rather than regulation. NEPA governs certain classes of gov’t action, and requires the public of information on anticipated environmental effects of, and possible alternatives to, the proposed action. '
• Purpose: NEPA forced federal agencies to consider the environmental impact of their regulations and present alternatives to the proposed governmental actions. This information was then presented to the public and to decision makers. '

''''Public Participation

• Western Watersheds Project v. Kraayenbrink – case challenges amendments to the BLM grazing regulations. BLM says that the changes were necessary to “improve the working relationship between the permittees and licensees and increase administrative efficiency and effectiveness.'
  • o P’s (WWP) say that the claims violated NEPA and FLPMA. '
  • o 1^st change – modified the definition of “interested publics” Under new rule, WWP would be dropped from the list if it received notice but did not comment. '
  • o 2^nd change – narrowing of BLM’s duty to consult, cooperate, and coordinate (CCC) with the interested public. New rules wouldn’t require BLM to CCC with interested public on decisions on:'
    • adjustments to allotment boundaries; changes in active use; '
  • o New regulation eliminates public oversight of temporary nonrenewable permits. '

E. Assembling Public and Private Lands[edit | edit source]

• Environmental governance is characterized by public-private approaches, where state actors collaborate with non-state actors to decide how to use and conserve resources.
• Bottom-up approaches: emphasize on governance by users who have superior knowledge of resource conditions relative to bureaucrats.
• Private insurers creating risk-based pricing prompts owners to replace equipment and thus reducing accidental environmental harm.
• Understanding that you also must consider the real-world implications, aside from just the constitutional interpretations and the federal governments interpretations. Learn how these rules apply and impact the local level.
• It teaches us how the law is interpreted on a high level and how to apply that law to your clients.
• It’s important to truly know your client’s business – the client’s business is their life; The inner workings of the business, what are their goals and fears; put yourself in the mindset of your client.

F. Natural Resources Damages[edit | edit source]

• Natural resource damages are tort-like remedy designed to make the public whole after environmental harm by restoring injured natural resources to their baseline conditions.
  • o Remedy isn’t a fine or payment for clean up; Funds must be spent on restoration and restoring the harmed resource.
• Article argues that scholars and commentators underestimate the value/frequency with which claims are pursued because they fail to incorporate settled claims into their analysis.
  • o By incorporating settlement data into discussion – suggest remedy is far larger than presently estimated.
• Articles provides overview of settlement data for natural resource damage claims, reflecting every settlement tracked and reported by every federal trustee.
  • o Federal agencies have settled claims for over $10.4 billion.
  • o DOI pursuing ~550 claims and has more than $600 mil in unspent funds generated from settlements.
• Natural resource damage actions produce considerable funds for environmental recovery – provides source of funds for ecological projects that can be deployed without need for political approval.

· Remedies have been underestimated in the size and scope of its administration by failing to account for settled claims. Accurately capturing the scope of the remedy in practice provides a necessaryEn banc hearing – if you don’t agree with a lower court holding, you canUtah -

• PILOT Act – does not include tourism. Local economies do not directly benefit from tourism.
• Granting federal lands into a natural monument – those lands lose their grazing rights
• Utah citizens really into Off-Road Vehicles; If there is a national monument – cannot use those ORV’
• Congress has the power to sell all public lands – under the property clause.

G. Grazing competition between wild horses and cattle[edit | edit source]

Notes – Animal Property Rights

• Anthropocentric – property rights only entitled to humans; excludes animals
• Roosevelt-era – created statutory de facto property rights for animals by preserving and protecting public lands
• Western lands remained unclaimed because of geographic unsuitability for human use, and low population rates in the 1970s; Congress reverted unclaimed lands to the public trust and has since created statutory mandates for many public land – which vests property interests to animals
  • o Functional wildlife property rights have coupled with additional legislation to stave off widespread wildlife extinction as human population grew, by preserving undeveloped habitat.
• Humans and wildlife rely upon the same resources to survive – food and water
  • o Homesteaders steadily displaced wildlife.
  • o Each wave of development diminished the availability of natural habitat to wild animal.
  • o Coasian theory – wildlife was steadily divested of highest valued lands and increasingly pushed to lower value land. Humans excluded wildlife users through development through fencing, predator programs, and eliminating sources of food and water.
• Tragedy of the commons – humans are incentivized to over-utilize common pool resources in an open access regime., leading to resource exhaustion.
  • o Hardin proposed privatization as a solution to resource exhaustion, with the two-fold effects of: (1) ending open access to common pool resources; and (2) incentivizing individual landowners

Class Notes

• What are Mustangs classified as?
  • o Feral horses? Wild Horses?
• AUM/AML (Appropriate Management Level): Problem with lawyers is that we don’t get the scientific background in subjects; It’s worth understanding how these measures are determined – there standards are very subjective per scientist. “This is the appropriate management level” – this is a calculation based on specific inputs; If these inputs are changed, the calculation completely changes.
• Charismatic megafauna –
• Group project – 2 competing resources or “oil & gas and cultural resources” – something that catches these conflicting issues; Each person comes up with an individual topic that shows the confliction of those two conflicts (ex: oil and gas and preservation as it pertains to Alaska wilderness) Research/thesis questions – how to define a solution or an approach to the issue.
  • o Need project and team submitted by Tuesday.
  • o Describe how oil and gas leases are sold
    • How are the royalties distributed
  • o Alaska laws
  • o Wildlife
  • o Indigenous communities
    • Tribes selling their O&G reserves because of climate change
  • o Climate change and how it’s affecting land and

II. Statutes & Doctrines Governing Natural Resources[edit | edit source]

A. National Environmental Policy Act (NEPA)[edit | edit source]

• Land management agencies must observe NEPA procedures while promoting plans. NEPA is not limited to formal planning. '''''
  • o Comes into play whenever agencies contemplate “major federal actions significantly affecting the quality of the human environment.” It forces every federal agency to put its reasoning and conclusions regarding such actions into writing and making them subject to public scrutiny and judicial review. '''''
  • o NEPA has played a big role in modernizing mgmt. of fed. lands'''''
• SCOTUS explain relationship between 2 sections of NEPA in Robertson v. Methow Valley Citizens Council'''
  • o Section 101' of NEPA declares broad national commitment to protecting and promoting environmental equality. The act also establishes some important “action-forcing” procedures.'''''
  • o Section 102' – statutory requirement that a fed. agency contemplating a major action prepare such an environmental impact statement serves NEPA’s action-forcing purpose in 2 important ways.'''''
    • It ensures the agency will have available and will carefully consider detailed information concerning significant environmental impacts; '''''
    • Also guarantees that relevant info will be made available to the public so that they can also participate in the decision-making process and the implementation of that decision. '''''
  • NEPA is a purely procedural statute' as opposed to a standard.'''''
    • o If adverse environmental effects of the proposed action are identified and evaluated, the agency I not constrained by NEPA from deciding that other values outweigh the environmental costs. '''''
    • o NEPA prohibits uninformed agency action as opposed to unwise agency action. '''''
  • Section 102:''
    • o Congress authorizes and directs that, to the fullest extent possible: (1) the polices, regulations, and public laws of the US shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Fed. Gov’t shall:'''''
      • (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment:'''''
      • (B) identify and develop methods and procedures, in consultation with the Council of Environment Quality established by subchapter II of this chapter, which will insure that presently unqualified environment amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations;'''''
      • (C) include in every recommendation or report on proposals for legislation and other major Fed. actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on:'''''
        • (i) the environmental impact of the proposed action'''''
        • (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented'''''
        • (iii) alternatives to the proposed action;'''''
        • (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and'''''
        • (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. '''''
      • (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. '''''
    • The detailed statement is known as the Environmental Impact Statement (EIS)'''''
    • NEPA creates the President’s Council of Environmental Quality' (CEQ). '''''
      • o Early 1970’s - Originally prepared guidelines for EIS process. Attempted to capture the best of the agency experience and judicial guidance concerning NEPA’s implementation.'''''
      • o Carter Admin – CEQ rewrote guidelines and published them as binding regulations. '''''
    • NEPA litigation raises 1 of 2 questions:'''''
      • o Must the agency prepare a full EIS on some action that is before it? And'''''
      • o If an EIS is prepared, is it adequate?'''''
      • o First question: involves determining whether an agency is proposing a major federal action significantly affecting the quality of the human environment.” ('MFASAQHE)'''''

''''''''''Metcalf v. Daley – pg. 248

• Facts: Makah tribe contracted with NOAA (National Oceanic and Atmospheric Administration) and NMFS (National Marine Fisheries Service) to help them obtain quota to hunt whales from IWC (International Whaling Commission) [US signed International Convention of the Regulation of Whaling to regulate whaling through IWC – IWC banned taking and killing of gray whales through the 1949 Whaling Convention Act]; Tribe signed agreement with NOAA and NMFS in ’95; First EA wasn’t performed until Oct. ’97.
  • o IWC approved quota of 4 whales.
• Holding: making such a firm commitment before preparing an EA, the Federal D’s failed to take a hard look at the environmental consequences of their actions and therefore violated NEPA.
  • o D’s only prepared EA after they signed an agreement binding them to the tribe.
  • o D’s did not start EA at earliest possible time; Didn’t consider potential environmental effects of proposed actions.
  • o NOAA – EA was bias and slanted towards pro-whaling bc they signed K and if they found, through EA, that whaling would have significant environmental impact and wouldn’t have been able to fulfill their written K, NOAA would be in breach of K.
• Dissent: Tribe has a treaty – so therefore they shouldn’t even be subjected to NEPA;
  • o Tribe & NOAA needed IWC permission to hunt the whales; No point in wasting money and time on EA if IWC wasn’t going to give permission.
• ** Metcalf distinguishes when an EIS/EA should be prepared. Also, the court ordered the agency to repair its flawed EA by preparing another EA.** The issue is when “the earliest possible time” is considered.

''''''''''Robertson v Methow Valley Citizens Council'''Facts:

• Forest Service is authorized to manage national forests for “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” Also able to issue “special use” permits.
• Permit process has 3 stages:
  • o First – examine general environmental and financial feasibility of a proposed project and decide whether to issue a special use permit. Because this is a decision is a “major federal action” within meaning of NEPA, it must be prepare environmental impact statement.
  • o If Service decides to issue permit – then proceeds to select a developer, formulate basic terms of arrangement with selected party, and issue the permit. The special use permit does not give the developer the right to begin construction.
  • o Last stage – Service evaluates the permittee’s “master plan” for development. Construction may only begin after an additional environmental analysis and final approval of the developers master plan.
• Sandy Butte is a mountain in Okanogan National Forest in Okanogan County, WA. 1970 study declared Sandy Butte as having the highest potential of any site in WA for development of major downhill ski resort.
• 1978 – Methow Recreation, Inc. applied for special use permit to build “Early Winters Ski Resort.” Proposed development would make use of 3,900 acre of Sandy Butte.
  • o Forest Service prepared an EIS – Early Winters Alpine Winter Sports Study. Draft of study was completed and circulated in 1982, but release of final EIS was delayed by Congress because they considered including Sandy Buttes in a proposed wilderness area.
  • o Washington State Wilderness Act of 1984 was passed, Sandy Buttes was excluded and the EIS was released.
• Study evaluated 5 alternative levels of development – lowest being no action alternative and the highest being development of a 16-lift ski area able to accommodate 10.5k skiers at one time.
  • o Study considered effect of each level of development on water, soil, wildlife, air quality, vegetation and visual quality, land use, transportation, economic market for skiing and other summer and winter recreational activities in the valley.
  • o Study also included on-site and off-site impacts per Council on Environmental Quality regulations.
    • Said off-site was too difficult to predict because of uncertainty of where other public and private lands may develop.
  • o Study outlined certain steps to be taken to mitigate adverse effects but indicated that these proposed steps are merely conceptual and will be made more specific as part of the design and implementation states of the planning process.
  • o Adverse effects on wildlife – study concluded that no endangered/threatened species would be affected and the only impact would be the loss of a pair of spotted owls.
    • Washington Department of Game concerned over the Methow deer – the state’s largest migratory deer herd; Total population to be affected was 30k+ animals and the ultimate impact could exceed 50% reduction in population.
      • Agency also stated – residents place great deal on hunting; In 1980 hunters spent avg of $ 198 on each deer killed in WA and had contributed over $6 mil in state’s economy in ’81. Agency predicted that WA business can expect to lose over $3 mil annually from reduced recreational opportunity.
    • o Study also included:
      • On-site mitigation possibilities: locating roads, ski lifts and roads in areas that minimize interference with wildlife; restricting access to selected roads during fawning seasons; further examination of effect of development on the Mule deer migration routes.
      • Off-site mitigation: the use of zoning and tax incentives to limit development on deer winter range and migration routes; encouragement of conservation easements; acquisition and mgmt. by local gov’t of critical tracts of land.
    • o Ultimately – study recommended issuance of permit for development at 2^nd highest level – 16-lift ski area able to accommodate 8.2k skiers at one tie.
  • July 1984 – Regional Forester issued a special permit. Found no major adverse effects would result directly from fed. action, but secondary effects could include degradation of existing air quality and a reduction of mule deer winter range.
    • o Directed supervisor of Okanoagon National Forest and local officials to ID and implement mitigation measures.
  • 4 envtl groups sued to challenge the adequacy of NEPA compliance. Lost in district court; Won in Ct of appeals.

''''Substantive Review Under NEPA''''

B. Endangered Species Act[edit | edit source]

1. Intro and Overview[edit | edit source]

Tennessee Valley Authority v. Hill

2. Section 4: Listing Species and Designating Habitat[edit | edit source]

Northern Spotted owl v. Hodel'''Notes'Note: Critical Habitat'Note: Recovery Plans

• 1978 amendments added to § 4 requiring SOI to develop and implement plans – recovery plans – for the conservation and survival of listed species unless he finds that such a plan will not promote the conservation of the species. '
  • o Secretary is to give priority to those species most likely to benefit such plans. About ½ of listed species have recovery plans, although only about 1/3 of the animals do (and only about 15% of the mammals)'
• Recovery plans must, to the maximum extent practical incorporate a description of such site-specific mgmt. actions as may be necessary to achieve the plan’s goals for the conservation and survival of the species; contain objective, measurable criteria for determining when the species can be removed from the list; and estimate the time and cost of the measures needed to achieve the goal and intermediate steps for that goal. '

'

3. Section 7: The Consultation and Conservation Duties[edit | edit source]

• Requirements of § 7 are not limited to federal lands and resources; they have gov’t-wide and national applicability. '
• Two important duties for federal agencies created by § 7: consultation (the duty to avoid jeopardy) and conservation (the affirmative duty to aid species recovery). '

Consultation Duty'''Thomas v. Peterson

• P’s – landowners, ranchers, outfitters, miners, hunters, fishermen, recreational users, and conservation and recreation organizations; D – US Forest Service; Challenging action in planning and approve access road in Nez Perce National Forest in Idaho.
• Facts: Neighboring lands were designated as wilderness by Congress; Nov. 1980 – Forest Service held public hearing and public comments on gravel road that would provide access to timber to be sold.
  • o Forest Service drafted EA to see if an EIS was needed; EA determined that EIS was not needed and issued a FONZI; FONZI and notice given to go ahead with construction was issued Feb. 1981;
    • Decision notice stated “no known threatened or endangered plant or animal species have been found within the area, but EA contained no discussion of endangered species.”
  • o P’s brought lawsuit after exhausting administrative remedies; Principle allegation is that the road is likely to affect the Rocky Mountain Gray Wolf and Forest Service failed to follow procedures mandated by ESA.
• Decision and Rationale: Once an agency is aware that an endangered species might be in the area of proposed action, ESA requires agency to prepare biological assessment to determine if proposed action will likely affect the species and requires formal consultation with fish and wildlife services.
  • o Forest service did not prepare this assessment before its decision to build the road. Failure to prepare biological accession cannot be considered too trivial or minor to merit consideration of a violation of ESA.
  • o District Court – found that Forest Service had undertaken sufficient study based on affidavits submitted for litigation; Ct of appeals determined that these do not constitute a substitute for preparation of biological assessment as required under ESA.
  • o Remedy for violation of ESA must be an injunction of the project pending compliance with ESA. Procedural requirements of NEPA and ESA are analogous.
    • Ct determines that there’s no reason that the same principles applied under NEPA cannot apply to procedural violation under ESA.
  • o Forest Service argues: procedural requirements under ESA should be enforced less stringently than NEPA because ESA also contains substantive provisions.
    • Ct: if anything, the strict substantive provisions of ESA justify more stringent enforcement of its procedural requirements because the procedural requirements are designed to ensure compliance with the substantive provisions.
      • Calls for a systematic determination of the effects of a fed. project on endangered species. If a project is allowed to proceed w/o substantial compliance of these requirements, there can be no assurance that a violation of ESA’s substantive provisions will not result.
    • o Forest service is asking district court to make a finding that the road is not likely to effect the Rocky Mountain Gray Wolf and that therefore failure to comply with ESA is harmless.
      • Congress has assigned an appropriate agency to make this determination – US Fish and Wildlife. It is not the job of the plaintiffs or the court to make this determination.
    • Holding: District court erred in declining to enjoin construction pending compliance w/ ESA.

Notes

• Three-tiered Consultation process to ensure that agency actions will not jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat.'
  • o First Step:' Action agency to ask FWS whether any listed species are found in the action area. '
    • If answer is no, and action agency determines its action will have no impact on listed species or critical habitat, nothing further is required. '
    • If yes, go to step two.'
  • o Second Step:' If action “may affect” a listed species or critical habitat, 2^nd step involves “informal consultation” with FWS.'
    • Informal consultation – action agency prepares biological assessment (BA). Based on BA, if action agency concludes that contemplated action is “not likely to adversely affect” a listed species, FWS may either:'
      • (1) issue a written concurrence in the determination; or'
      • (2) suggest modifications that the action agency could take to avoid the likelihood of adverse effects to the listed species.'
    • If no concurrence is research, or if the BA concludes there will be a “likely affect,” ten regulations require formal consultation between the two agencies. '
  • o 'Third Step: formal consultation between action agency and FWS. Outcome of formal consultation is a biological opinion (BO)'
    • If BO shows that jeopardy is likely, it must “include reasonable and prudent alternatives, if any, to avoid these effects.”'
      • BO may have 1 of 3 conclusions:'
        • o No jeopardy'
        • o Jeopardy w/ reasonable and prudent alternatives (must more frequent; you must take these steps to offset the impacts to this species); or'
          • Some people argue that this step violates 5^th amendment – taking of life, liberty, property w/o due process; People believe that FWS are “taking” their property w/o just compensation '
        • o Jeopardy w/o such alternatives. (This project can’t happen) '
      • Even in a “no jeopardy” BO, FWS may require measures to minimize impact of proposed action. '
    • 'Comparison of ESA and NEPA – EIS statute provides that the action agency may use the NEPA process as a vehicle for complying with the BA requirement of ESA. '
    • 'Biological Assessment: purpose – ID any endangered or threatened species which is likely to be affected by the proposed action and to examine the probable impact of the proposed action. '
    • 'Jeopardy – to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.'
      • o Thus – appreciably reducing the likelihood of recovery alone isn’t sufficient to trigger jeopardy is survival isn’t diminished. '
    • 'Adverse Modification – changes in critical habitat that “appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species”'
      • o Proposed modification of critical habitat which impairs the species’ recovery but does not impart its survival is not “adverse”'
    • 'Counterpart Regulations: Implemented under Bush; these rules relax the general requirement that the wildlife agency provide written concurrence of action agency “not likely to adversely affect” findings for certain land mgmt. activities by Forest Services and BLM aimed at reducing fire loads. '
      • o Goal is to make consultation more efficient in situations that require immediate action to reduce fire danger – although generic regulations governing consultation of emergencies already have exceptions. '

Conservation Duty

• ESA § 7(a)(2) have 2 general directives:'
  • o (1) requires Secretaries of Commerce and Interior w/ major responsibility for implementing the act to review programs they administer and utilize such programs in furtherance of the purposes of ESA.'
  • o (2) directed at all other federal agencies and requires them in consultation with and with the assistance of the two secretaries to utilize their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of listed species. '

Sierra Club v. Glickman

• Case is about the endangered species that rely on water from the Edwards Aquifer; Edwards-dependent species – 5 of them; 4 animals 1 plant. '''''
• Aquifer is of great economic significance to TX:'''''
  • o Provides water for crops, drinking water and other businesses rely on the water. '''''
• 'Facts: 1995 – P’s brought suit against USDA claiming it violated § 7(a)(1) – District Ct held that USDA didn’t utilize its authority to carry out programs for conservation of previously listed Edwards-dependent species and that it didn’t consult with FWS about how to carry out the programs. Ct ordered USDA to consult with FWS and develop a program that utilized USDA’s authority for conservation purposes. '''''
• USDA’s Argument:' P’s have no standing to raise issue because injury suffered by Sierra Club is caused by independent actions of 3^rd party farmers which USDA doesn’t have control over. '''''
  • o The most USDA can do is to encourage water conservation practices by offering incentives. '''''
  • o Ct: there’s no evidence that the additional incentives would relieve Sierra Club of their injuries.'''''
  • o Sierra Club: this claim contradicts the summary judgment evidence. '''''
    • Summary Judgment evidence submitted by USDA:''
      • First piece – Cooperative Solutions document: one of the programs proposed in the study would have ~38k acre-feet of irrigation water in avg year. Saving would be even greater in dry year. '''''
        • o Ct: not only does USDA have authority to carry out such program, USDA itself described proposal as cost-effective. '''''
      • Second piece – 1996 Biological Evaluation; irrigation pumping represents 20% of pumping in dry years, when threat to Edwards-dependents is at its greatest and much higher percentage in avg year. '''''
      • Final piece – FWS’s response to 1996 BE – FWS concluded that 20% reduction would have significant impact on Edwards-dependents. FWS disagreed with USDA statement that 20% decrease in pumping would have no significant impact on species. USDA acknowledges that FWS extends to factual issues of how action affect listed species. '''''
    • o Ct: We find USDA’s claims to be unpersuasive. Evidence introduced clearly shows that USDA’s failure to adopt any of the mentioned programs is fairly traceable to the injury of Edwards-dependents. '''''
  • 'Standing argument: Given plain language of statute, Congress intended to impose affirmative duty on each fed. agency to conserve each species listed. Agencies must consult with FWS about each species not just undertake a generalized consultation. '''''
    • o Procedures in question were designed to protect Sierra Club’s threatened concrete interest in this case. Sierra Club has standing.'''''
  • 'Judicial Review Argument: USDA argues that no judicial review can be obtained under ESA citizen suit provision or the APA because USDA duties are not judicially reviewable because there is “no law to apply”'''''
    • o USDA’s argument relies on its argument that 7(a)(1) does not impose a duty of fed. agency to consult with FWs and develop programs for conservation of each endangered species. '''''
      • Ct: we find that 7(a)(1) has clear statutory directive that requires fed agencies to consult and develop programs for each endangered species listed. Just because Congress passed a statute that is broad, in the sense that it imposes a “tremendous burden” on fed. agencies to comply with its mandates doesn’t mean that it was written in such broad terms that there is no law to apply. '''''
    • o USDA argues that its duties under 7(a)(1) are not judicially reviewable bc it has a substantial amount of discretion in developing programs. Argues that it has unreviewable discretion to ignore 7(a)(1) altogether because it enjoys a substantial amount of discretion to ultimate program decisions. '''''
      • Ct: argument entirely w/o merit; Just because USDA has discretion doesn’t mean that the agency has unlimited, unreviewable discretion. It means that the court conducting judicial review must require the agency show that it has considered the relevant factors and followed the required procedures. If the agency has done so, the court may not substitute its judgment on the merits for the agency’s judgment. '''''
    • o USDA argues that it complied with requirements because Edwards-dependent species have experience incidental benefits from national USDA programs designed and carried out for other purposes.'''''
      • Sierra Club: USDA’s position directly conflicts with language of 7(a)(1) which requires the program to be designed specifically for conservation of endangered species. USDA cannot ignore these provisions – cannot simply read-out.'''''
      • Ct: USDA has never fulfilled its obligations. '''''

''''''''Note: Habitat Conservation Plans (HCPs) and “No Surprises”

• Section 9 taking may be avoided by receiving an incidental take permit under section 10. Incidental take permits are issued upon Secretarial approval of a “conservation plan” – a habitat conservation plan (HCP)'
  • o Once approved, a plan shields the land embraced w/in it for some or all § 9 liability. The secretary must find that the plan includes steps that the applicant will take to minimize and mitigate the impacts of the incidental take to the maximum extent practicable and that the applicant will ensure that adequate funding for the plan will be provided. '
  • o When issuing a permit, FWS is found by § 7 no jeopardy standard and must ensure that the incidental take will not appreciably reduce the likelihood of survival and recovery of the species in the wild. '
• Under Clinton Admin, USFWS developed “no surprises” policy – provides that under certain circumstances the gov’t would not ask more from the landowner over the term of the plan if unanticipated problems occur. '

''''Note: Reintroduction of Species

• ESA authorizes designation of “experimental populations” of a listed species for reintroduction outside of the current range of the species if the Secretary determines that the release will further the conservation of the species. '
  • o Most notable – reintroduction of Canadian Gray Wolves into Yellowstone. '
• Statute requires that the experimental population must be wholly separate geographically from the nonexperimental populations of the same species. The purpose of this requirement is to maintain protection for indigenous populations while allowing, where separation existed, the FWS some flexibility in setting the terms of reintroduction in order to encourage and provide incentives for acceptance of reintroduction. '

4. Relationship between Section 9 and Section 7[edit | edit source]

• HCPs are not used on fed. land but fed agencies may receive an equivalent kind of protection from liability under § 9 through incidental take statements included in biological opinions prepared as part of the formal § 7 consultation process.
  • o FWS issues the statements in biological opinions when it concludes that any taking of a listed species incidental to the agency action is not likely to jeopardize the listed species of result in destruction or adverse modification of critical habitat.
• § 9 is more sweeping than § 7: § 7 only applies to federal agency actions and asks whether the action poses jeopardy to the species rather than focusing on the individual takes.
  • o Fed agencies must comply with both and compliance with § 7 may be achieved through consultation process under § 7.

Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Service

• Issue: whether FWS provision of issuing incidental take statements was arbitrary and capricious under § 706 of Administrative Procedure Act.
• 1^st Case: BLM grazing program affects 288 grazing allotments on 1.6 mil acres of land. FWS BO analyzed 20 species of plants and animals and concluded that grazing program wasn’t likely to jeopardize species nor result in destruction/adverse modification of critical habitat.
  • o FWS still issued incidental take statement for fish listed/proposed a endangered.
  • o ACGA – summary judgment motion focuses on 2 of 10 incidental take statements: 1. Razorback sucker 2. Cactus ferruginous pygmy-owl.
• 2^nd case: Challenged ITS issued in 2^nd BO; FWS examined 962 allotments of land, determined that grazing would have no effect on listed species for 619 of those allotments and cause no adverse effects for 321 of remaining allotments – leaving 22 allotments.
  • o FWS concluded that ongoing grazing on 21 out of 22 allotments would not jeopardize continued existence of any protected species or result in destruction/adverse modification of any critical habitat. But ongoing grazing would cause incidental takes of one or more protected species on each of the 22 allotments and issued ITS for each allotment.
• District Ct: FWS argued taking under section 7 should be interpreted more broadly than taking under section 9 because section 7 offers protection where section 9 is punitive.
  • o FWS argued that taking in section 7 should encompass situations in which harm to listed species was “possible” or “likely” in the future due to the proposed action.
  • o District ct rejected this. Ct of appeals: we agree w/ district ct that definition of taking in section 7 and 9 are identical in meaning and application.
  • o Ct took up section 9 take prohibition saying that harming a species may be indirect in that the harm may be caused by habitat modification but habitat modification does not constitute harm unless it actually kills or injures wildlife.
• § 7 Consultation process: BO must specify whether any incidental taking will occur. Must ID areas where members of particular species are at risk. Advisory opinion states:
  • o (i) specifics the impact of such incidental taking on the species;
  • o (ii) species those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact and
  • o (iv) sets forth terms and conditions that must be complied with by fed agency or applicant
  • o Ct: congress clearly intended to enact one standard for taking within both sections.
    • The purpose of the amendment to section 7 is to resolve the situation where fed agency or permit/license applicant has been advised the proposed action will not violate section 7 but the proposed action will result in taking of some species incidental to that action – a clear violation of section 9 which prohibits any taking of a species.
  • o Ct: rejects the argument that taking should be applied differently bc the two section serve different purposes. Interpreting the statute in that manner could effectively stop cattle grazing entirely. Such broad interpretation would allow FWS to engage in widespread land regulation even where no section 9 liability could be imposed.
• When must FWS issue ITS: FWS are trying to manage lands that it does not own – land owned by private parties or other gov’t agencies.

Florida Panther

• Endangered; Listed by DOI and FWS in 1964 along with 12 other mammals (Timber Wolf, Red Wolf, Grizzly Bear), 35 birds, 6 Reptiles & Amphibians, and 21 Fishes.
• Typically found in southern Florida.
• Throughout 1800s and early 1900s, people feared puma concolor because it posed a risk to live stock. Species was maliciously hunted and almost eradicated from eastern US. Only 1 subspecies remain in eastern US. Hunting decimated populations badly and it was one of the first species added to the endangered species list in 1973.
• Main way to tell Florida panther from other sub-species of Puma concolor is by looking at the tail and back. Florida anthers have a crooked tail and a unique patch of fur on the back. The back fur is almost a cowlick, not conforming to the rest of the panther’s fur.
  • o Size: btwn 6-7 feet long; Males are bigger than females
  • o Diet: white-tailed deer, feral hogs, raccoons and other medium-sized mammals and reptiles. Sometimes also birds.
  • o Lifespan: ~12yrs in the wild but bc of small population they are susceptible to disease, genetic disorders and car accidents.
  • o Range: historic range was from Florida to Louisiana through the Gulf Coast states and Arkansas. Today, only place with wild FL panthers is southwestern tip of FL.
  • o Communication: Panthers don’t roar like lions do. They can’t;
  • o Life history and reproduction: Live alone, unless a pair is mating or a female is raising cubs. Males roam much larger territories than females. Male can make a territory over 200-250 square miles in size.
• 2008 Notice of Availability of Florida Panther Recovery Program.
  • o Florida Panther is the last subspecies of puma still surviving in eastern US. Historically, throughout southeastern US, panther is restricted to less than 5% of its historic range in 1 breeding population of approximately 100 animals. They require large contiguous areas to meet their social, reproductive, and energetic needs. Panther habitat is related to prey availability. (i.e., habitats that make prey vulnerable to stalking and capturing are selected.)
  • o Habitat loss, degradation and fragmentation are greatest threats to panthers survival.
    • Vehicle strikes and problems associated with a small isolated population keep current population at low numbers.
  • o Potential habitat throughout southeast continues to be affected by urbanization, residential development, agricultural development, mining and mineral exploration.
  • o Plan of recovery program is to achieve long-term viability of panther to a point where it can be reclassified as endangered to threatened and then removed. Recovery plan ID’s 3 objectives to meet this goal:
    • Maintain, restore, and expand population and its habitat in south FL and expand breeding portion of population in south FL.
    • ID, secure, maintain and restore panther habitat in potential reintroduction areas within panther’s historic range and establish viable populations of the panther outside south and south-central FL.
    • Facilitate panther recovery through public awareness and education.
  • o Reclassification will occur when:
    • Two viable populations of at least 240 individuals (adults and subadult) have been established and subsequently maintained for minimum of 12 years (or 2 panther generations)
    • Sufficient habitat quality, quantity, and spatial configuration to support these populations is retained/protected or secured for the long term.
  • o Delisting will occur when:
    • 3 viable, self-sustaining populations of at least 240 individuals each have been established and subsequently maintained for minimum of 12 years
    • Sufficient habitat quality, quantity, and spatial configuration to support these populations is retained/protected or secured for the long term.
  • o Viable population = one in which there is a 95 percent probability of persistence for 100yrs. Population may be distributed in a metapopulation structure composed of subpopulations that total 240 individuals.
  • o For delisting – exchange of individuals ad gene flow among subpopulations must be natural (i.e., not manipulated or managed). Habitat should be in relatively unfragmented blocks that provide for food, shelter, and characteristics movements (e.g., hunting, breeding, dispersal, and territorial behavior) and support each metapopulation at a minimum density of 2 to 3 animals per 100 square miles.
• 2009 5 year review:
  • o Panther population increased from estimated 12 to 20 (excluding kittens) in early 1970 to an estimated 100 to 120 in 2007. Panther continues to face numerous threats.
  • o Genetics: geographical isolation has resulted in inbreeding. This caused loss of genetic variability and diminished health. Plan for genetic restoration in 1994 – introduced 8 female Texas puma into the population; visible genetic defects like crooked tails and cowlicks decreased.
  • o Human population: from 1850 to 2000 FL population grew from 87k to over 18mil.
  • o Panther is restricted to less than 5% of its historic range.

''''Class NotesStatutory – Congress created it because they were worried about species loss because of land development.

• Part of the envtl law movement in the 70’s.
• Humans depend on biodiversity and we don’t always understand the way that nature interacts.
• Rationale for ESA:
  • o Habitat loss that leads to extinction
    • Carrier pigeon – overhunting lead to extinction.
    • Bison – overhunting
  • o Biodiversity – keep species abundant; presents economic benefits – genetic library of the world.
• Counterarguments:
  • o Extinction is inevitable for some species
  • o Economic development
• Unintended consequences – keeping populations at what they were in 1970.
  • o At what point is the baseline?
• Critical habitat designation – restrictions on private land
  • o Prevent listing of a species
    • FWS has begun w/ working with concerned land owners to do either critical candidate listed agreements to come up with set of conditions where FWS won’t list the species.
  • Travels with Charlie.
  • Hillbilly Elegy
  • Externalities
    • o Envtl statutes strip communities, impose externalities on the community just like industries impose externalities on the environment
  • Recovery plans
    • o Happens pretty rarely. Sect of Interior should develop plans
  • ESA has also been used to protect ecosystems
    • o Ex: caves, areas around Rose Mount Mine;
    • o ESA is the strongest hook of environmental law established under TVA v. Hill.
  • Species reintroduction – Sky Islands example; Historic places where animals used to live are no longer available today.
    • o How do you adapt ESA to the landscape of today when Congress has no idea of climate change and other impacts on the environment today.
    • o 10(j) – creates statutory regulations for experimental populations so people in recipient’s areas would be less concerned.
    • o Most controversial is wolves and predators because of the threat to livestock.

C. Delegation – pg. 404-410[edit | edit source]

National Parks & conservation Association v. Stanton

• P’s: National Parks and Conservation Association (NPCA), Barry Harper and American Canoe Association (ACA) bring suit against Robert Stanton – Director of National Park Service (NPS) – challenging mgmt. plan for Niobrara river.
  • o The plan – NPS delegates all of its responsibilities for managing Niobrara to an independent local council over which NPS as virtually no control.
• Facts:
  • o Niobrara river runs largely through private land; 1991 – congress designated portions of the river into the national Wild and Scenic Rivers system. (Niobrara Scenic River Designation Act of 1991)
    • Congress limited amount of land the gov’t could acquire and encouraged state and local involvement in mgmt. and administration of the River locale. Congress also created 11 member advisory committee whose purpose was to represent local interests and to aid NPS in developing a mgmt. plan for the area.
  • o NPS and Advisory Committee created a General MGMT Plan and EIS – outlined 4 mgmt alternatives.
    • Alternative B – mgmt. by a local council which would include members from various county and state agencies as well as local landowners and business people.
  • o July 1997 – NPS entered into the Interlocal Cooperative Agreement; established the Niobrara council and outlined the Council’s duties (duties on pg 406)
    • Agreement also said that the Council should seek outside sources of money to avoid having NPS dictate decisions of the council
  • o August 1997 – Council entered into Cooperative Agreement w/ NPS – CA stated that if the Council failed to manage and protect to Niobrara as set forth in the GMP/EIS, NPS has the authority to terminate the agreement and implement one of the other alternatives for managing the Niobrara.
    • Under the GMP/EIS, Council must carry out its activities to meet standards acceptable to NPS. NPS must consider for consistency with the GMP the advice and recommendations of the Council during and upon completion of its activities ID’d above.
  • Procedural History:
    • o P’s allege that nothing has been done to protect or manage the Niobrara’s resources. Ps challenge the decision to adopt Alternative B, the duties that have been delegated to the Council and NPS’ compliance with NEPA.
  • First Issue:
    • o P’s argue: that NPS’ decision to adopt Alt B for mgmt. of the Niobrara was an unlawful delegation of its responsibilities and authority.
    • o Court must first examine the extent of NPS’ existing statutory obligations before reaching the delegation issue.
      • Under Wild and Scenic Rivers Act, Congress said that agencies would manage the rivers. Under the Niobrara Amendment, administration is given to Secretary of the Interior. Duties explained in statute:
        • “Secretary of the interior, in his administration may utilize such general statutory authorities relating to areas of the national park system and such general statutory authorities otherwise available to him for recreation and preservation purposes and for the conservation and management of natural resources as he deems appropriate to carry out the purposes of this chapter.”
      • Ct says that statute gives Sec. of Interior sole responsibility for administering the lands included in the National Parks System and the National Wild and Scenic Rivers system.
      • Meaning of administer – to manage, to direct or superintend the execution, use, or conduct of, to manage or conduct affairs.
        • Secretary cannot wholly delegate his responsibility to a local entity which is not bound by the statutory obligations set forth in the statute.
        • The creation of the Advisory Commission does not alleviate of the Secretary’s duties. Congress created the Advisory Committee to deflect local opposition to national designation and to aid NPS in developing a mgmt. plan for the area. But Congress did not intend to undermine the Secretary’s duties or shift them to any other entity.
      • NPS cannot completely shift its responsibility to administer the Niobrara to a private actor, particularly a private actor whose objectivity may be questions on grounds of conflict of interest.
        • o Delegations by federal agencies to private parties are valid so long as the fed. agency/official retains final reviewing authority.
        • o Under GMP – Alt. B calls for mgmt. of Niobrara by local council w/ NPS merely serving as liaison and providing technical support as needed. All of these duties fall within Secretary’s responsibilities for managing the Niobrara.
        • o The agreement is clear that it is the Council which shall manage the river. To Further ensure that NPS does not “dictate” the decisions of the Council, NPS has only 1 voting member on the Counsil and all decisions are made by majority vote.
          • It is clear that NPS retains virtually no final authority of the actions or inaction fo the Council.
        • D’s argue: the relevant statutes encourage and authorize NPS to cooperate with local gov’t and enter into cooperative agreements.
          • o Fed agency may entire into written cooperative agreements for state or local gov’t participation in the administration of the component
          • o Secretary of Interior or head of any other fed agency, shall assist with states to plan, protect and manage river resources. Such assistance may be through written agreements or otherwise.
          • o Although NPS is given authority to enter into cooperative agreements, nothing in statute cited by either party to suggest that Congress wished to change the traditional role of NPS. No precedent.
        • Ct concludes that D’s delegation of its statutory mgmt. duties to the Council violates the unlawful delegation doctrine because NPS doesn’t have oversight over the Council, has no final reviewing authority, and the Council’s private local interests are likely to conflict with the national environmental interests that NPS is mandated to represent.
          • o Delegation is also unlawful bc the Council, does not share NOS’ national vision and perspective.
        • D’s argue that they have supervisory power over the Council – But D’s offer no specifics to support their argument and the exact nature and scope of the relationship btwn the Council and NPS remains vague and unclear.
          • o Relationship raises additional questions as to how exactly NPS plans to ensure compliance with applicable federal laws since the Council isn’t a federal entity and therefore not obligated to comply w/ these laws.
          • o Even though NPS claims it will ensure that all fed laws are complied with, they offer no specifics and present no evidence ot support their argument that they would be able to ensure compliance, especially given that compliance wold require extensive and voluntary participation by the Council.
        • Ct rules: D’s only authority over the Council appears to be its ability to terminate the Cooperative Agreement. This does not constitute the “final reviewing authority” required to prevent an unlawful delegation. The selection of Alternative B violates the unlawful delegation doctrines, constitutes an abuse of discretion, is not in accordance with the law and is in excess of the Secretary’s and NPS’ statutory jurisdiction.

Black Letter Case: NPS decided to hand over all mgmt. responsibilities for the Niobrara National Scenic River to an independent local council. That council took no action for an extended period. The court ruled that delegation was invalid because the agency did not retain final reviewing authority. Most federal land laws require consultation and cooperation; but decisional authority must remain where Congress has placed it.

E. Withdrawals and Reservations[edit | edit source]

Supplemental Material:

• The processes of withdrawal and reservation were established because public domain was generally available for homesteaders and miners and the fed gov’t found it necessary to take some land out of the available category for forts and Indian reservations.
• Withdrawal – statute or order that temporarily or permanently changes the status of a defined parcel of land from available to unavailable for certain types of disposition or use. It’s a negative action in that it prohibits some uses w/o prescribing other uses.
• Reservation – legislative or executive designation of a withdrawn tract as primarily or exclusively suitable to specified federal purposes, such as wildlife conservation.
  • o Virtually all of the fed. lands now have been withdrawn from the operation of the homesteading and

Class NotesAZ is a testing ground for the unlawful delegation doctrine.Antiquities Act

• Enacted in 1906 by Congress. Reasons behind the act were from Casa Grande Ruins. Concerned that looters would follow what Harvard Scholars did and just loot the ruin and not turn over the artifacts to museums.
  • o The enactment of the statute was too late, but it has protected many monuments in the future.
• Antiquities act gives the president the authority to designate land; Then afterwards Congress turn it into a national park.
  • o This is similar to the presidential pardon power; Presidents typically use this as they are going out of power because it’s so controversial. (both the pardon and antiquities act)
  • o State residents do not like this because they argue that it takes away future economic revenue that the state can derive on that land.
• Environmental justice concern because the area is so sparsely populated; They need that land because of economic revenue.
• Withdrawals are a very broad category.
  • o Property Clause of Constitution – very difficult to bring in court; Most times court sides with the Congress
  • o Executive Authority under Art. 2, Section 1, 3 – US v. Midwest Oil
  • o Antiquities Act
  • o FLPMA – Federal Land Policy and Management Act;
    • Defines withdrawal on pg. 416
  • o Withdrawals are only applicable on federal public lands.
    • Congress/Executive branches have a great deal of flexibility.
    • Through antiquities act, can hugely affect state’s rights.
      • Tribes – under antiquities act – can rely on executive power
      • There’s a limiting principle of what the states will accept.
    • Reservation
    • Classification: categorization of land by land mgmt. agencies.
    • Proclamation – modern equivalent is a presidential executive order.

Delegation:

• Unlawful delegation doctrines'
• Forest Service creates more EA and EIS than any other federal agency. Originally federal agency for timber logging. '
• Delegation works as an example of cooperative federalism'
• Stakeholders tend to be landholders, grazers, NGO’s/environmental groups; Not everyone is going to get what they want but they can get an input into the collective bargaining and '
• Important stakeholders are excluded – typically tribes are often overlooked and not included in the original stakeholders of a collaboration. '
• Collaboration takes a long time – its not quick action, its not short action. '
  • o Just a series of meetings. '

Are agencies allowed legally to establish delegation and to what degree?'Is this a good idea?'What are the pros and cons of collaborative efforts

III. Natural Resources[edit | edit source]

A. Cultural Resource Considerations[edit | edit source]

1. Natural Resources Under the Trump Administration[edit | edit source]

The Pruitt Emails: EPA Chief was arm in arm with industry

• Leaked emails show that Scott Pruitt – EPA Admin – closely coordinated w/ major O&G producers, electric utilities and political groups with ties to Koch brother to roll back environmental regulations'
• Senate Democrats tried to postpone the final vote on Pruitt until the emails could be made public but Repubs beat the delay and approved Pruitt’s confirmation. The subject matter of the emails shows why Republicans were eager to beat the release. '
• One email stated “Thank you to your respective bosses and all they are doing to push back against President Obama’s EPA and its axis with liberal environmental groups to increase energy costs for OK’s and American families across the states.” '
• Trump is expected to announce at least 2 executive orders directing Pruitt to begin rolling back and weakening a set of Obama-EPA regulations aimed at limiting emissions that cause global warming and at pollution in the nation’s rivers, streams and wetlands'
• Industry executives and Pruitt had secret meetings to discuss comprehensive ways to combat Obama admin EPA agenda. '

''''Trump’s Pick for Interior is No friends of endangered species

• Ryan Zinke poised to lead Department of Interior. He would oversee 1/5^th of nations land, 70k employees and several agencies including National Park Service, US Geological Survey, US Fish & Wildlife Service and Bureau of Indian Affairs.'
• Fish & Wildlife Services is 1 of 2 agencies that administers the ESA; Under Obama Admin, 23 species recovered enough to be removed from protected list. '
  • o “In the Act’s 43-yr history, more recoveries have been declared under the Obama admin than all past administrations combined”'
• According to World Wildlife Fund, humans could kill off /3s of the world’s wildlife by 2020. '
• Conservationists have expressed that Zinke’s nomination could halt the positive trend for America’s threatened species. '
  • o His supporters say that he is a defender of public lands but the League of Conservation Voters gave Zinke a 3% lifetime voting record on issues such as air and water, climate change, drilling, forests and wildlife. '
• Zinke cast at least 21 votes against endangered species protections, including voting to remove endangered species protection for the gray wolf and to prevent protection for greater sage grouse, lesser prairie chicken, and northern long-eared bats. Also opposed stricter regulation of the ivory trade. '
  • o During confirmation hearing, Zinke said he would consider reversing the Obama admin’s decision to stop O&G drilling in the Artic. In 2015, eh blocked the BLM from limiting harm to wildlife, water and air from fracking. '
• Zinke has opposed the transfer of federal public lands to states and corporations.'
  • o He is an avid hunter. '
  • o Noted to curb the use of the Antiquities Act which protects natural, cultural and scientific sites. Voted against public review of hard rock mining on public lands and for legislation pushing through approval of Keystone XL pipeline. Opposed CPP: aimed to curb emissions from power plants that cause climate change (that emit climate change induced GHG’s) and the stream protection rule: regulation that would have protected waterways from mining operations. '
• Zinke votes for the interests of oil and gas companies. Oasis Petroleum is his largest campaign contributor and the O&G industry is his 3^rd largest sector contributor. Zinke received $300k from O&G donors over the course of his political career. '

''''The Endangered Species Act: Uncertainty under Trump

• Worried that trump is going to establish a precedent of overlooking the best available science and stray even further from his party’s traditional values of conservation in favor of commercial gains. '
• Zinke has championed expanded O&G development on public lands and moved to exempt agribusiness from ESA regulations. '
  • o Led efforts on the federal level to take away protections for species like the wolves and lynx and voted to block efforts that would have limited the black market ivory trade. '
  • o Studies show that permanent protection of public lands drives economic growth. '
• “It’s unacceptable to see lives, human or animal, being lost because of legislative roadblocks and political rivalries. The daily headlines – ‘Elephants disappearing’ ‘Bees near extinction’ ‘Coral reefs dying’ – do not grant us permission to write off these calamities as business as usual. '
  • o The path we take now as a nation will determine whether we uphold out charge to be stewards of God’s creation. '

2. The Cultural Resources Effects of the Border Wall[edit | edit source]

A 75-mile wide gap in Trump’s wall? A tribe says it wont let it divide its land

• Sonoran Desert in AZ is the Tohono O’odham Nation, Native American reservation the size of CT that for thousands of years extended south into Sonora, Mexico. '
• Border Patrol agents and a ssteel-post fence make it hard for the O’odham people to freely cross the border to visit relatives and traditional sacred sites in Mexico but Trump’s border would make it even harder. '
• Tribal eaders said that they would refuse to support building a border wall on their land. Without the tribes support, Trump could be forced to accept a 75-mile wide gap in his wall. '
  • o Federal law requires BLM to consult with tribal gov’t before making any changes to land use. Trumps only option for building a wall on the land would be through a stand-alone bill in Congress that would have to condemn the land and remove it from the trust of the Tohono O’odham nation, which is recognized by law as an autonomous tribal gov’t '
• 28k members occupy Tohono O’odham land; 9 communities in Mexico are directly south of the 2.8 million-acre Nation. Most of the land is separated only by the border. '
  • o Tribal lands use to extend south to Sonora, Mexico, north past Phoenix, west to the Gulf of California and east to the San Pedro River. Through the Gadsden Purchase of 1853, the land became divided between the US and Mexico. '
• Border Patrol has detained and deported members of the Nation for crossing the border; Us Customs has prevented tribe members from transporting raw materials and goods and has confiscated cultural and religious items. '
• Dept of Homeland Security has proposed building 15 permanent towers along the border for 24hr surveillance. '
• Water resource is 4 miles away and located in Mexico. '
• Border Patrol maintains 2 law enforcement '

'

3. Consultation Duties[edit | edit source]

• Federal duty to consult with tribes has existed for a long time.
• Since 1492, Indian tribal gov’ts have lost up to 98% of their aboriginal land base. As a result, the overwhelming majority of tribal properties of cultural and religious significance are located outside Indian reservations and federal trust lands
  • o Tribes are considered sovereign nations and have an inherent responsibility to promote and protect the welfare of their people, which includes “the right to protect their cultural and religious properties and the right to be treated with respect by federal agencies”
• The federal Indian treaty, trust and concomitant consultation obligations extend to on-reservation trust resources and off-reservation tribal economic assets as well. Economic success in Indian Country is tied to the cultural empowerment and sovereignty; Indian economies will not progress without assurance that the treaty and trust resources will be kept intact.
• From 1968 and onward – fed gov’t has recognized importance of tribal concerns regarding the protections of on and off-reservation properties of cultural and religious significance.
  • o But – even today – federal agencies have been reluctant to comply with their duty to implement tribal consultation.
• Tribal consultation is the law and it is also a “sound mgmt. policy” and good governance and business.
  • o Tribal opposition can cost contractors time and money which is passed on to taxpayers; Tribal opposition can also stop a project.
  • o Tribal consultation is required to reduce these risks to project managers; they want to be sure the federal agencies “engage in meaningful consultation with concerned tribes and to do so early” If fed agency has jurisdiction over a project – whether on or off reservation – federal law requires the agency meaningfully consult with any concerned tribe.
• Preemptive Consultation
  • o Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views to the agency decision marker. Comprises of a meeting, where fed. agency notifies tribe and justifies its reasoning. Tribe may then issue a motion of support for the decision or reject the decision pursuant to tribal law or procedure.
  • o A boilerplate letter to several tribes , informal communication or a single meeting does not constitute meaningful consultation.
  • o Fait accompli – a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept.
• Consultation as a federal mandate
  • o Numerous federal statutes, presidential orders, and federal agency regulations mandate meaningful consultation with Indian tribes prior to federal action.
  • o 1971 – bureau of Indian Affairs (BIA) created Guidelines for Consultation with Tribal Groups on Personnel Management With the Bureau of Indian Affairs: guidelines set forth consultation policies, urging Bureau managers to finds way to accomplish objectives of the consultation policy.
  • o Oglala Sioux Tribe of Indian v. Andrus: Tribe argued BIA violated these guidelines by failing to make meaningful consult before making personnel decisions affecting the Tribe. Ct agreed with the tribe; Found that BIA actions deprived Tribe of “fair notice of the agency’s intentions” in violation of “those general principles which govern administrative decision-making”
  • o 1994 – Clinton issued Presidential Document mandating that every federal agency consult with tribal gov’t prior to taking actions that affect federally recognized tribal govts.” Secretary of Interior issued Secretarial Order 3175 and Department Manual which required all Interior agencies to consult with recognized tribal gov’ts w/ jurisdiction over the trust property that may be affected.
  • o Lower Brule Sioux: Tribe used this mandate to obtain writ of mandamus – forced BIA to follow its own guidelines. Ct found that even though federal agency’s are given deference, when the interpretation is “plainly inconsistent with the wording of the regulating or otherwise deprives affected parties of fair notice of the agency’s intentions” it cannot stand.
    • Ct held that BIA violated its obligations of trust and fiduciary obligations by failing to keep its promises to the Tribe and that the BIA acted in an arbitrary and capricious manner in violation of federal law.
  • Consultation as a Indian Trust Obligation
    • o Indian trust doctrine – common law trust obligation that all federal agencies must consult with tribes. Doctrine was created in a set of 3 opinions called “Marshall Trilogy” Chief Justice John Marshall held:
      • (1) tribes are domestic dependent nations;
      • (2) as such, tribal sovereignty is subject to the overriding sovereignty of the federal gov’t;
      • (3) but the federal gov’t must not haphazardly diminish tribal sovereignty because “their relationship to the US resembles that of a ward to his guardian”
    • o Courts have determined that this ward to guardian relationship creates a fiduciary duty to tribal lands and resources. Federal actions affecting tribal resources are construed in light of the Indian trust doctrine. If agencies do not comply with these instructions, a trust duty is violated.
    • o Fiduciary duty to tribes includes consultation; This duty is triggered when an agency decision impacts the value, use or enjoyment of Indian trust assets.
    • o Klamath Tribes v. US: Court granted injuction that prevented Forest Service from selling timber without ensuring, in consultation with the Klamath Tribes on a gov’t-to-gov’t basis that the Tribes resources would be protected.
    • o Confederated Tribes and Bands of the Yakama Nation v. US Dept of Agriculture: Case is noteworthy because tribe took a cumulative approach; Argued that USDA violated: the Treaty With the Yakama of 1855; NEPA; Section 106 of National Historic Preservation Act; American Indian Religious Freedom ASct; Presential Executive Orders 13,175, 13,007, and 12,898; The Administrative Procedures Act; and federal Indian trust common law.
      • Ct found that because the path of the garbage was in an area in which tribal members exercise their in common hunting, gathering and fishing rights, there were serious questions about whether the USDA adequately consulted the Yakama Nation as required by federal Indian trust common law. Court ordered the injunction.
    • o Iftribes are not consulted, breaches of the trust obligation will become not only routine but seemingly sanctioned.
  • Consultation as an Indian Treaty Obligation
    • o Peoria Tribe of Indians of Oklahoma v. United States: Clause in the treaty that read “it is agreed that the President may, from time to time, and in consultation with the Indians, determine ho much shall be invested in safe and profitable stocks.” Ct held that bc tribe was not consulted, the treaty was violated and the US was liable for the difference in the price that the Tribe would have received for its property at public auction, plus interest.
    • o Under principles of international law, all Treaties invoke mutually binding obligations between parties. These obligations must be interpreted in good faith, in a manner that fulfills the purpose of the treaty at the time of formation.
      • It is a foundation principles of federal Indian law that Treaties be interpreted in a manner that the signatory tribe would have understood them.
    • o Constitution states “Treaties are the supreme Law of the Land which the Judges in every state shall be bound thereby.” Not far-fetched to say that tribes expected Treaties to be regarded as supreme law. Tribes shold take advantage ofthis often-overlooked aspect of asserting their treaty right to consultation.
  • Enforcing the federal Indian Consultation Right
    • o The duty to consult is procedural; consultation requires that the fed. gov’t must respect the desires of Native Americans to be involved in decisions that affect them, but does not bind fed. agencies to anything resembling a commitment to the application of tribal input. Federal agencies have a duty to seriously consider tribal input. A failure to consult or to consider tribal input could put an end to a federal undertaking.
    • o Administrative Procedures Act
      • APA acts as an express waiver in most suits aginst fed. agencies. APA provides a limited waiver of sovereign immunity for suit seeking “non-monetary” relief against fed. agencies acting in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” when executing their duties.
      • Agency action is considered arbitrary and capricious if the agency has not considered the relevant factors in making decisions
        • SCOTUS: agency action would be arbitrary and capricious if the agency has relied on factor which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that could not be ascribed to a difference in view or the product of agency expertise”
      • When fed. agencies take action, action must be in compliance with relevant federal law.
      • In order to bring suit under APA, fed agency action must be “final.” Action should mark the consummation of the agency’s decision-making process and the action must be one by which rights or obligations have been determined or from which legal consequences flow.
        • When a final agency action is created, the Tribe has the APA.
      • o Injunction
        • Tribes may petition for an injunction; In order to receive an injunction, tribe must establish:
          • (1) That it is likely to succeed on the merits (i.e., showing a violation of the APA once that agency action is final)
          • (2) that it is likely to suffer irreparable harm in the absence of preliminary relief
          • (3) that the balance of equities tip in its favor; and
          • (4) that an injunction would be in the public interest
        • o Writ of Mandamus
          • In order to do this, the tribe must show:
            • (1) the officer has a clear and nondiscretionary duty to perform the action in question [i.e., to consult];
            • (2) the patent violation of agency authority or manifest infringement of substantial rights and
            • (3) the tribe has no adequate alternative remedy
          • o Treaty Breach
            • Fed cts have jurisdiction to hear and decide claims by an Indian tribe against US for breach of treaty-guaranteed rights.

4. Landscape Level Resources[edit | edit source]

Landmark and Landscape: A Contextual Approach to the mgmt. of American Indian Resources ''''''''''Class Notes

• Basics of Indian Law – Where does it come from?
  • o Treaty Rights – last treaty made in 1871
  • o Constitution – Indian Commerce Clause Statutes
  • o Case law – trust doctrine and Marshall Trilogy
    • Starts with Johnson v. M’Intosh; Worchester; Cherokee Indian v. Georgia
  • o Executive Orders
    • Establish & diminish reservations;
    • Executive agencies
    • Most Indian interaction stems from Congress
    • Can change from President to President
  • o Regulations
  • o Executive Influence
• Future of Economic Development of Tribes
  • o Obama Admin:
    • Established White House Tribal Nation Conference and created WH Council on NA Affairs; CPP; Stopped new coal mining leases on public lands in ‘16
      • Provides tribes the chance to have a seat at the table.
    • o Trump Admin:
      • Scott Pruitt & Ryan Zinke
      • Trump questioning sovereignty of tribe because they don’t pay taxes and wanted to establish a casino that would be in direct competition with his casinos in Atlantic City
    • o Zinke Relationship w/ Tribal Nations
      • Introduced legislation to extend fed. juris. To the Little Shell tribe of the Chippewa Indians
      • Secured water rights settlement for Blackfeet nation
      • Supports Gateway Pacific Terminal
    • o Coal Mining and Production ‘Gateway Pacific Terminal’
      • Power River Basin supplies US w/ 40% of its coal; Largest coal reserves; Public land resource – sells at a lower price than the private coal mines in PA
      • Otter Creek Mine: opposed by tribe; railroad to deliver coal to west coast would encroach on Crow Tribe’s land
      • Crow Tribe: 10k+ members; 75% live on reservation
      • Northern Cheyenne Reservation very anti coal mining on reservation land; Tribe heavily believes in preservation and conservation.
        • Nance v. EPA: Under CAA, Tribe stopped 2 coal mines from being produced.

Cultural Resources: Effects of the Border Wall

• Tohono O’odham – main source of economic development: ranching
• Post 9/11 border patrol causes drug trafficking and smuggling to more report areas which led to more border patrol agents to be established on tribal land near the border. **Why doesn’t the fed. gov’t pay tribal members to act as border patrol on the reservation** tribal members not happy with border patrol agents & its also hard for border patrol to reach the remote areas because of lack of roads
  • o Cooperation between tribes and dept of homeland security
  • o Mexico does not recognize Native American tribes and do not recognize their ancestral lands; They do not reserve land for Tribes. Certain gates to cross the border are met with private property ownership in Mexico; Private property owners want tribe to pay to allow members to cross the border into Mexico/private property
• Act in 1990 – allowed Sec. of Interior to wave NEPA and EPA requirements to build fence on beach in San Diego
  • o Real ID Act of 2005; Allows for the waiver of all legal requirements to ensure expeditious construction of barriers and roads; Only challenged under constitutional challenges
  • o Secure Fence Act 2006
• Previous barriers on floodplains restrict the natural flow of water – killed 2 people and caused $3mil in damages
• Tribal members are forced to decide whether to reside in US or Mexico

Tribal Consultation: The Dakota Access Pipeline

• Was there meaningful consultation in the construction of the DAPL
• Tribal Consultation – stems from multiple authorities:
  • o Treaties
    • Treaty-making time?
  • o Constitution
    • Indian Commerce Clause
  • o Case law
    • Trust responsibility- Cherokee Nation v. Georgia “wards to their guardian” relationship placed into trust law. Gov’t has a fiduciary relationship/duty to tribes
    • Marshall Trilogy
  • o Congressional acts
    • Removal Act
    • Allotment Act
    • Indian reorganization act
    • Archeological
  • o Executive Orders
    • Most prevalent – Pres. Clinton
  • o Agency Regulations
    • National Historic Preservation Act
  • ***DAPL – does it run through reservation tribal land or ancestral land?***
  • Vice network on youtube – google Sacred Water: Standing Rock Part I – RISE
  • National Historic Preservation Act – must take into effect their actions on locations eligible for inclusion on National Register
    • o Section 106 – Consultation with interested parties must happen at an early stage of project planning
    • o Consulting parties include Indian tribes
  • TIPO – Tribal Informational
  • UNDRIP (UN Declaration on the Rights of Indigenous Peoples) – only opposed by 4 countries: US, Canada, Australia & New Zealand.

Landscape Level Resources & The Cultural Landscape Approach

• Bounded space – promotes individual/privatized ownership. Defined by humans; Landscapes – comprises areas greater than individual/private landowners. Defined by natural elements.
• Tribes and legal rights to landscape resources
  • o Water – Winters Doctrine
  • o Hunting
  • o Fishing
  • o Grazing
  • o Viewpoints/vistas of sacred nature (AIRFA)
  • o Timber & extraction
• Cultural Landscape Approach – laws to use
  • o Antiquities Act
  • o National Historic Preservation Act
  • o American Indian Religious Freedom Act
  • o Native American Graves Protection and Repatriation Act

B. Oil and Gas Development in Alaska[edit | edit source]

C. Water Security[edit | edit source]

Buying and Drying: Water Lessons from Crowley County

• County sold its water rights – no crops growing. Crowley is an example of what happens when cities and industries dry up farmland to buy rural water – controversial practice known as “buy and dry” deals.
• Crowley County had to build irrigation systems in order to sustain farming; South of the county bordered by Arkansas River. 1^st irrigation system came from Colorado Canal in 1890s. 1920s, state built a tunnel through the mountains to deliver water from Roaring Fork River on Western Slope into a reservoir at Twin Lakes.
  • o Known for its crop and cattle production
• 1960’s – crops and cattle prices declined, farmers contemplating selling water rights.
  • o 1972 – Foxley Cattle Company bought water rights: land stayed in agriculture and continued to be irrigated; Crowley County Land and Development Company bought more water rights – from Foxley and from farmers/ranchers – who sold water rights to Pueblo, Colorado Springs, Pueblo West and Aurora.
    • County now only owns 10% of its water rights. Used to have over 50k irrigated acres, now only has 5k. Drought in 2012 dropped it to 2.5k. Few remaining farmers w/ water rights are not guaranteed water if there isn’t enough to go around.
    • Only have dairy cattle now – instead of cattle sold for beef.
  • Failing agricultural business led the town to invest in prisons. 46% of residents in the County is inmates. Property tax revenue = $1.6 mil which over half came from prison.
  • Hay fields have to be pollinated with rented bees.
  • Under Colorado water law – once water has been removed from the land through purchase of a water right, it cannot be returned. It’s gone for good.

Parched Cities Share Water in West

• Phoenix & Tucson – Phoenix agreed to send surplus water to Tucson in exchange for part of Tucsons share of the Colorado River when needed. '
• Supply of western water has decreased because of drought and increased population. Lake Mead reservoir has fallen to 39% of its capacity – it provides water to 20 million people in CA, NV and AZ.'
• Because of climate change, Colorado River could drop to as little as 40% of its long-term average.
  • o Arizona has underground storage which holds 11mil acre feet of recoverable water. Water isn’t readily accessible or cheap to withdraw. Only have 18 active wells which can only meet 5% of peak demand.
  • o Tucson has over 200 wells because its only source of water is that from the Colorado River.

Underground Water Storage – Arizona Revised Statutes

• Underground water storage is a way to “use” your water rights so that you don’t lose them.
• Water exchange – trade of any water for any other water

Voluntary Water Exchange Program

• Pilot system – local family agreed to forgo irrigation of a small pasture for 1 year, generating water credits that will offset the use of groundwater by 2 vineyards. In exchange, the vineyards will purchase the water credits to provide revenue that can be used to compensate the local family.

Impacts of Waste from Concentrated Animal Feeding Operations on Water Quality

• Growth in concentrated animal feeding operations presents a greater risk to water quality because of the increased volume of waste and to contaminants that may be present that may have both environmental and public health impacts. '
• Generally accepted livestock waste mgmt. practices do not adequately or effectively protect water resources from contamination with excessive nutrients, microbial pathogens, and pharmaceuticals present in the water. '
• Potential impacts on human and environmental health from long-term inadvertent exposure to water contaminated with pharmaceuticals and other compounds are a growing public concern.'
• Contaminants from livestock waste have been found in surface water and ground water supplies in agricultural areas in the US. Urban wastewater streams also contain these contaminants. '
• Pig waste contain over 100 microbial pathogens that cause human illness and disease. 1/3 of antibiotics used in US each year is added to animal feed to increase growth. This is promoting increased antibiotic resistance among microbial populations present, and increased resistance of naturally occurring pathogens in surface waters that receive a portion of the waste. '
• Excessive nutrients like phosphorus levels can contribute to algal blooms and cyanobacterial growth in surface waters used for recreation and as sources of drinking water. '
• CAFO waste spills lead to major kills of freshwater fish.'
• Exposure to waterborne contaminants can result from either recreational use of affected surface water and from ingestion of drinking water from either contaminated surface water or groundwater. '
  • o High-risk populations are the very young, the elderly, pregnant women, and immunocompromised people. '
    • May result in diarrhea or other gastrointestinal tract distress, skin contact during swimming may cause skin, eye, or ear infections. '
    • Drinking water exposures could occur in private wells. '

''''Salinity Control Act of 1974

• Compliance w/ US obligations to Mexico under Minute No. 242. Facilities allow US to deliver water to Mexico '
• Worried about California using all of the water in the Colorado River; SCOTUS case determined that state lines didn’t matter in the case of prior appropriation. '

''''''''''Class Notes'CAFO – Concentrated Animal Feeding Operations

• CAFO – have at least 700 dairy cattle; most have over 1000; Family farmers typically have 200 dairy cattle.
• CAFOs receive lots of subsidies – USDA subsidies and others
• Safe Drinking Water Act – private, individual wells are not regulated by EPA
  • o Private well owners must test their own wells at their own expense.
• Clean Water Act – CAFO’s are point source pollutants; Must get NPDES permit; and Wisconsin has their own permit system as well.
  • o Under CWA – defines AFO (Animal Feeding Operation) and considers large operations as CAFO’s.
• Wisconsin Right to Farm Statute – WI Supreme Court determined state could bring public nuisance claim against the Quality Egg Farm.
  • o 1995 Amendment eliminated private nuisance claim by stating that a large farm would only be found to be a nuisance if it presents a substantial threat to public health and safety and limited further remedies available to private citizens.
  • o Ignores changes to the farming land as long as it remains considered “farming”
    • Live next to a corn field and farmer decides to change into a large cattle CAFO;
  • Local Zoning
  • Public Health Ordinances – Jan 1 to March 15 cannot spread manure on the fields. CAFOs must store manure for 6 months of the year.
    • o Has not been litigated yet.

Water Scarcity

• Colorado River Delta'
  • o Used to be a lush wetland – largest desert estuaries.'
  • o Building of Hoover Dam and Glen Canyon Dam has caused this area to be decreased to 5% of its total area. '
  • o UNESCO creates a Biosphere Reserve.'
• 1922 Colorado River Compact – allocates 7.5 mil acre ft a year.'
  • o Loses 1.5 mil acre ft/year due to evaporation'
  • o Average flow is 13.5 mil acre ft/year'
  • o Ranges between 4.4-22 mil acre ft/year'
  • o Doesn’t address water quality (1974 Colorado River Basin Salinity Control Act), endangered fish (1973 Endangered Species Act), and recreation (Grand Canyon Protection Act 1992).'
• 1928 Boulder Canyon Project – started the disruption of Colorado River'
• 1944 Treaty w/ Mexico – Treaty of Guadalupe Hidalgo – regulated Colorado River for navigated purposes.'
  • o Established hierarchy of permissible uses for the Colorado. Gave Mexico 1.5 mil acre ft/yr. '
    • Water is not appropriated before even quantifying tribal Winters rights.'
  • o Article 10(b) – in times of drought, allotted water will be reduced in same proportion '
  • o Under treaty, Mexico gets their allotment; Any excess goes to the Delta. Mexican infrastructure distributes water to farmers. '
  • o Intentionally Created Mexican Allocation (ICMA) '
    • Allows Mexico to store extra water in Lake Mead. ICMA water cannot exceed 200k acre-ft. '

''''Adapting to Shortage: Building a Successful Water Market

• West has prior appropriation water rights – first in time, first in right. '
  • o Beneficial use – just because a water appropriator used water first, does not give her the right to waste water. '
• Water Markets – 6 benefits'
  • o Stimulate water savings'
  • o Increase water availability'
  • o Improve community flexibility'
  • o Improve water’s productivity and allocation efficiency'
  • o Return water to nature'
  • o Improve accounting for water use and availability'
• Opposition to Water Markets
  • o Water flows uphill towards money'
  • o Threats to food supply'
  • o Fear or speculators'
    • Scared that people will come in a buy water rights and sit back on it, let a drought occur and wait until water prices skyrocket and then sell the water to make high profits. Droughts = $$$$$$$ '
  • What is gov’ts role is regulating an unregulated market – “the invisible hand needs help from the visible hand” – free market capitalism needs help from gov’t regulation. '
  • Colorado Buy and Dry – municipalities buying up rural farmers water rights. '
    • o 3 major factors have contributed:'
      • population growth'
      • Inaccessibility of new water supplies'
      • The Colorado water court system'
        • No Harm Rule – protects existing uses, instead of promoting new ones; Makes it hard to transfer water rights. Cities buy all the water rights at once instead of temporary water rights. Temporary costs money, so does buying the rights – but rather spend the money and buy them, high up front costs but is fractional compared to the costs of long-term temporary water rights. '
        • High Transaction Costs – '
      • California Palo Verde Irrigation District/Metropolitan Water District Agreement'
        • o Don’t go to court – go to administrative agency; Must establish that they do not cause “substantial injury” to other water owners. '
      • ***Question to think about – Comparison between Colorado and California'
        • o In Colorado – Big cities against small, individual farmers'
        • o In California – Big cities against big irrigation system that represents the smaller farmers'
      • Australia – spent $3.1bil to purchase water rights to be dedicated to preserve environmental river flows. Cannot be purchased back from the gov’t. '
        • o Negative consequences – Australia allocates every drop of water – so therefore they also sell “excess” water '
        • o Wasteful practices because of the “sell now – sell this year” type of mentality'
      • Verde River Exchange – water users voluntarily forbear water use so new users pay existing users for their forbearance. '
        • o Completely voluntary '

D. Summarization of Natural Resources Themes[edit | edit source]

E. Sustainability as applied to natural resources and public lands management[edit | edit source]