Analysis – Statutes – Cases
NEPA, APA BACKGROUND
NEPA
 Basics
o 102((2)(c)----recommendation of report on effect or statement of environmental impact (EIS)
o What is the function of NEPA--have federal agencies take environment into account before making
certain decisions that may adversely affect the environment
o NEPA applies to the federal government including federal agencies
o CEQ suggests the following process:
1. Idea
2. Proposal
3. Initial decision
1. Normally do EIS
2. Categorical Exclusion (1508.4) (minimum activities agencies do that don't really have an
effect on the environment
3. Prepare EA to decide
1. Decide to Prepare EIS
2. FONSI

EIS Requirements
o Federal agencies must determine for each proposed action whether it I "proposal (timing) for
major federal action significantly affecting the quality of the human environment."--42 U.S.C. $
4332(2)(c)
o Even with CEQ regs, not always easy
 "major federal action"
 IF THERE IS NO PLAN OR PROPOSAL, NEPA DOES NOT APPLY (Kleppe
v. Sierra Club)
 What constitutes a proposal?
 Exists ... When agency has a goal and is actively preparing to make a
decision on one or more alternative menas of accomplishing that goal and
the effects can be meaningfully evaluated
 AFTER KLEPPE- require agencies to "integrate the NEPA process with other
planning at the EARLIEST POSSIBLE TIME...." 40 CFR # 1501.2

"Significant impacts "includes"...
 Cumulative action
 Short and long turn effects
 Unique/endangered resources
 NEPA requires an EIS with a "detailed statement" including environmental impacts of propose project
and reasonable alternatives ... They think congress intended "detailed"
 Ensures NEPA's twin aims:
o Hard look at environmental consequences
o Insure the integrity of the process of a decision
 Agency has a duty "to study all alternatives that appear reasonable and appropriate for study... As
well as significant alternatives by other agencies or the public during comment period...."
 Alternatives don't need to be exhaustive .... Just a reasoned choice of alternatives...for the
agency to evaluate (Dubios v. US Department of Agriculture)
o Range of alternatives an agency must consider is bounded by "rule of reason"
o DOES REQUIRE DISCUSSION OF MITIGATION MEASURES but not necessarily
adoption of those measures (Robertson v. Methow Valley Citizens Council)
 NEPA prohibits only uninformed not unwise decisions...


Analysis – Statutes – Cases


EIS Mitigation
 In reviewing an agency's decision not to prepare an EIS under NEPA, use arbitrary and
capricious standard to determine whether the agency has taken a "hard look" at the
consequences of its actions, "based its decision on a consideration of relevant factors" and
"provided convincing reasons why a projects impacts are insignificant"(National Parks &
Conservation Association v. Babbitt)
 If an EA establishes that action MAY AFFECT environment, EIS must be prepared.... If not =
FONSI
 2 broad factors;
 Context (scope of agency's action)--Glacier Bay
 Intensity (# of vessels)
uncertainty and mitigation DO NOT EXCUSE FAILURE TO MAKE AN EIS
 Cannot plan to act first and study later
 EVEN WITH ARBITRARY AND CAPRICIOUS STANDARD, court found EIS required
bc EA ahosued that info to resolve uncertainties would be available and should be collected
 --"Mitigated FONSI" OK only if mitigation measures are well studied, effective, mandatory,
and enforceable

APA



Right to Judicial Review
o The only action that can be compelled under the APA is action legally REQUIRED -706(1)
authorizes courts to "compel agency action UNLAWFULLY withheld"
 Claim can only proceed where a P asserts that an agency failed to take a DISCRETE
agency action that it is REQUIRED to take
 Set aside if "arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law"
o Citizens to Preserve Overton Park, Inc. v. Volpe prvoivdes basis for challenging many
discretionary acts by federal agencies
 A court may inquire into the actio nto see whether agency acteed wihtin its authority
BUT cannot substitute its judgement for that of the agency
o Arbitrary and capricious if:
 Relies on factors Congress did not intend to consider
 Failed to consider other important aspectes
 Explanation is counter to the evidence before the agency
 So implausible that it could not be attirbuted to a differenc in view
 Hard look review--did agency take a hard look at relevenat issues and data
 upheld if they are "reasonably related to the purposes of the enabling legislation"
Ambiguousness (Chevron)
o Two Step
 Step One. Is the statute’s meaning clear? If so, that meaning controls.
 Step Two. If the statute is ambiguous, the agency’s interpretation will be upheld by the court
provided it is reasonable, even if the court would have chosen an alternative interpretation.
Jurisdictional Holdings
o Requirement that P has standing
 3 Standing requirements :
 Injry in fact that is concrete and particularized and actual or imminent
 Causal connection between the injury and conduct complained of
 Must be likely that the injury will be redressed by a favorable decision-Lujan
Analysis – Statutes – Cases
FORESTS
GOALS
Describe America's policies on forests
Identify the major federal legislation governing forests
Explain the management plans required by federal law
Articulate the environmental issues raised by harvesting timber
History
HISTORY & STATUTES
I.
II.
III.
Forest Service Organic Act of 1897 (pg 294)
a. Exploitation of forests in 19th century gave way to stewardship in 20th century
i. 1891, congress started passing legislations
ii. 1891: Amendment to general Revision Act that allowed President to set aside forest
reserves
b. Authorized the Sec. of the Interior (Sec. of Agriculture after Pinchot transferred forest
reserves to the Dept. of Ag. in 1905) to promulgate "rules and regulations" and to establish
"such service as will ensure the objects of such regulation"
c. Provided:
i. Addressed water flows and continuous supply of timber
ii. Providing against fire
iii. Allowing dead, mature, large growth to be harvested and sold
iv. Provisions for emergencies
v. Sales at appraised value
d. Purposes
i. Protect the water supply
ii. Protect the timber supply
iii. Furnish a continuous supply of timber for the nation
The Pinchot Letter (1905)
a. Brought a vision of managed forests which allowed Congress to move from perpetual
defense to offense
b. Written when forests were transferred from interior to agriculture
c. Greatest good of the greatest number in the long run
d. All forest resources are for use, under such restrictions only as will insure the permanence of
these resources
e. Used for the benefit of the home builder first of all
f. Local questions will be decided upon local grounds, the dominant industry will be
considered first
The Multiple Use-Sustained Yield Act (MUSYA) of 1960 (pg 296)
a. Expanded USFS's responsibilities to include outdoor recreation, range, fish, and wildlife (sec
528)
b. Principals of sustained yield and multiple use, but also legislative "intrusion" into recognizing
value of the forests
i. Multi-use
1. Consideration given to relative values of resources
2. “the management of all the various renewable surface resources of the
national forests so that they are utilized in the combination that will best
meet the needs of the American people; making the most judicious use of
the of the land…” (sec 531- definitions)
Analysis – Statutes – Cases
ii. Sustained-Yield
1. “Achievement and maintenance in perpetuity of a high-level annual or
regular periodic output of the various renewable resources of the national
forests without impairment of the productivity of the land” (sec 531 –
definitions)
c. These purposes are “supplemental to, and not in derogation of” the Organic Act purposes
(sec 528)
d. Referenced the Pinchot Letter, said the bill would continue that policy
Izaak Walton League v. Butz (1975)
I.
Holdings:
1.
Organic Act prohibited clearcutting
2.
Statute requires that each tree must be marked before it can be cut
3.
"mature" means physiological maturity
IV.
V.
National Forest Management Act of 1976, Sec. 1604 (pg 307)
a. Primarily a planning statute requiring development of “Land and Resources Management
Plans” (LRMPs, or forest plans) for each unit of the National Forest System.
i. Must embrace principles of “multiple use” and “sustained yield”
1. Requires long-range planning
ii. Must be fashioned in consultation with “interdisciplinary teams”
1. Must use outside scientific expertise
iii. Must work with NEPA EISs to make alternatives for final LRMP
iv. "do not compel actual development" and are "adjustable"
b. Limited timber harvests to lands where:
i. Soil, slope, or other watershed conditions will not be irreversibly damaged
ii. There is assurance that such lands can be adequately restocked within five years
after harvest
iii. Protection is provided for streams, streambanks, shorelines, lakes, & wetlands
c. Allowed clearcutting only where:
i. It is the optimum method
ii. Appropriate to meet the land management plan
iii. Biological, environmental, esthetic, economic impacts have been assessed
d. Sec 1604(g)--Secretary shall promulgate regulations in compliance with guidelines of MUSY
and NEPA (EIS statements)
i. (g)(3)(B)--Must provide for diversity of plant and animal communities and diversity
of tree species
ii. (g)(3)(e)(iv): the harvesting system to be used is not selected primarily bc it will give
the greatest dollar return
iii. (g)(F)(i)-can only use clearcutting when it is determined to be:
1. the optimum method
2. Appropriate to meet the land management plan
3. Biological, environmental, esthetic, economic impacts have been assessed
e. Sec 1604(d): public participation in management plans; availability of plans; public meetings
i. Need 3 months before final adoption
2005 USDA rule
Planning Requirements of NFMA
Overview
Analysis – Statutes – Cases
VI.
VII.
VIII.
NFMA requires the development of “land and resource management plans” (LRMPs or Forest
Plans)
a. describes procedural process USFS must do for long-range plans that
b. Predicts output
c. Effect of projected activities
d. Sec. (g) constrains on-ground timber activities (timber harvesting)
e. Uses outside scientific expertise --"Committee of scientists" "provide advice and cousnel on
proposed guidelines and procedures to assure that an effective interdisciplinary approach is
proposed/adopted"
Two-tiered decision-making process
a. Development of broad Forest Plan/LRMP
b. Application/implementation of the management practices to obtain goals of LRMP (sitespecific analysis)
Coordination with Multiple Use-Sustained Yield Act:
a. 1604(g)--Secretary shall promulgate regulations in compliance with guidelines of MUSY and
NEPA (EIS statements)
i. (g)(3)(B): Must provide for diversity of plan and animal communities and diversity
of tree species
ii. (g)(3)(e)(iv): the harvesting system to be used cannot be selected primarily b/c it will
give the greatest dollar return
iii. (g)(F)(i): can only use clearcutting when it is determined to be the optimum method
iv. (g)(F)(v)-
Sierra Club v. U.S. Forest Service (2001)
a.
b.
c.
d.
e.
Facts: Black Hills managed under general NFMS and MUSYA, but also site-specified laws like
Norbeck Organic Act
Issue: Does NFMA or Organic Act rule?
Holding: Specific mandates in an act creating an area trump the broader NFMA mandate
Thus, action that would have increased overall diversity but harmed a specifically protected group of
wildlife was impermissible
Agency has discretion but they must establish "management planes under both the Norbeck Act and
the NFMA. The NFMA mandate must be supplemental and may not diminish the more specific
mandate of the Norbeck Act"
Sierra Club v. Marita (1995)
a.
Issue: Was USFS required to employ conservation biology as opposed to another type of scientific
method?
b. NFMA requires the Forest Service to provide for and maintain diversity under Sec. 6(g), 1604(g)(3)
“specifying guidelines for land management plans...” (B) “provide for diversity of plan and animal....
To the degree practicable…”
a. NFMA diversity statute does not provide much guidance about execution
c. Holding: NFMA does not require the Service to use “conservation biology”, the Service is
entitled to use its own methodology, unless it is irrational
Standards in NFMA
IX.
NFMA contains some specific standards
a. Especially regarding timber harvests and clearcutting
Analysis – Statutes – Cases
X.
Senate Bill 2926 by Senator Randolph of West Virginia in1976:
a. Specific provisions to allow timber cutting only where not sloped land and where within 5
years it will be regenerated
b. Never enacted into law but some provisions appear in NFMA 1604(g)
c. Have the NFMA 1604(g) standards been subordinated to the planning process and rendered
unenforceable outside that process?
i. TX series of litigation suggests it has
1. Sierra Club v ESPY [1]
2. ESPY [2]
3. Glickman
4. Peterson (1)
5. Peterson (2)
Sierra Club v. Espy (I) (1993)
a.
Held that NFMA only allowed clearcutting in exceptional circumstances
Sierra Club v. Espy (II) (1994)
b. Held that clearcutting was not available only in exceptional circumstances, there are just certain
substantive restrictions
c. Decision to use clearcutting as part of an overall management plan is subject to narrow arbitrary and
capricious standard of review
Sierra Club v. Glickman (1997)
d. When clearcutting, NFMA requires conservation of soil and water resources
e. Forest service failed to meet this obligation because it was not even collecting the data it would need
to know if soil and water were being protected
Sierra Club v. Peterson (I) (1999)
f.
Although NFMA allows the Service to take actions anywhere along the continuum between
preservation of the status quo on one end and eradication of species on the other, this discretion is
not unbridled
g. NFMA contains substantive requirements that a court may enforce via an injunction
Sierra Club v. Peterson (II) (2000)
h. Held that “programmatic” challenges are not justiciable
i. Plaintiffs must identify a final agency action that marks the consummation of the agency’s decisionmaking process, not simply demand a general judicial review of the Service’s day-to- day operations
NFMA and NEPA in Forest Planning
Citizens for Better Forestry v USDA (2009)
a. Failure to adhere to certain procedures required by NEPA and the ESA after Dept of Agriculture
proumuldated regulations governing the development of management plans for forests within the
NFS upon preparation of an allegedly insufficient EIS and without preparation of a Biological
Assessment or consultation with FWS or NMFS
Analysis – Statutes – Cases
b. ????





USDA adopted a rule in 2005 that NEPA analysis was not needed for forest plans
 Plans were strategic and aspirational and don't require EIS (Lujan)
USDA decided that the 2005 Rule did not have environmental effects so did not need to be analyzed
What is a categorical exclusion under NEPA?
 Meant to encompass actions which do not individually or cumulatively have a significant effect
on the human environment
 Such actions do not require EIS or an EA
Environmental groups challenged the 2005 rule?
 How should the court rule and why?
o Categorical exlusions cannot rely on extraordinary circumstances and the 2005 rule did not
qualify for a categorical exclusion
o 2005 rule highly controversial and did not qualify for
o 2008 EIS was also struck down as the EIS was inadequate
What is the USFS doing with NFMA, NEPA, EIS, acronomy
What was the main reason California adopted its own foresty law?






California Forest Practice Act
 Wanted to provide regulation over private forests
Does it more closely follow the Organic Act or MUSY?
 MUSY--consideration must be given to non-timber uses
 4513
 4527
Does it only concern timber harvesting?
 No, 4527--it includes the conversion of lands to uses other than producing timber
Are the time frames for responding to Timber Harveest Plans (THPs) strict?
 Yes, respones within days are required
Might the broad application of the CA Forest Practice Act be counterprodutive?
 Yes to the extent that property owners decline to prepare a plan and harvest trees in situtions in
which insenct/desesas may occur or build up debris creating fire reisks
 Securing approval may encourage the use of lands for second homes and other development
Does the large payout to acquire forests owned by Pacific Lumber support the success of the California
FPA?
 Would increase the value becaue increase in scarcity
US v Kenner ???
RANGELANDS
GOALS
Describe America's policies on forests and rangelands
Summarize the major issues in managing rangelands
Describe how governments regulate grazing on federal lands
Evaluate the success of protecting the ecology of forests and rangelands
Identify ideas for improving the quality of our rangelands
History and Overview
Analysis – Statutes – Cases
I.
II.
III.
IV.
V.
VI.
Rangeland Major Issues
1.
Land rights
2.
Sustainability
3.
Water pollution
Grazing on federal lands not governed as a property-based regime, rather as a privilege subject to
regulation and revocation by the US
1.
Use permit system for regulation
2.
What rights are granted to ranchers under permits?
1.
Implied license
2.
Nonwritten permission to use the land of another that is revocable at any time by
the grantor
Fees and Permit prices
1.
How fees calculated?
1.
1966 base value 1.23 per AUM
2.
Calculated on 3 factors
i.
Current private grazing land lease rates
ii.
Beef cattle prices
iii.
Cost of livestock production
2.
Owners of ranches being subsidized?
1.
Yes they enjoy below market grazing fees
2.
Some argue it’s welfare
Cattle impact on the range?
1.
Cattle have had and continue to have significant negative ecological consequence on public lands
2.
Negatively impact water resources
Taylor Grazing Act (pg 367)
1.
315(a)
2.
Permits and leases
3.
Animal Units per Month (AUM)
1.
43 CFR 41000
2.
Amount of forage necessary for the sustenance of one cow or its equivalent for a period
of 1 month
i.
Cow can include it’s offspring until weaned, 6mo old,
ii.
Weight not considered
iii.
Consumption by calves not considered
3.
Consumption by cows today?
i.
Used to be around 1000 pounds
ii.
Now, typically 1700 pounds
iii.
Consumption underestimated leading to overgrazing
4.
Who determines grazing rights?
1.
Grazing advisory boards – local boards used to determine grazing rights
2.
Problem with this?
i.
Would want to make pro-local rancher decisions – make money over future
ecological consequences
ii.
Agency capture: local grazing boards are ranchers
iii.
May allow more grazing than ecologically optimal
iv.
May bot be concerned with riparian habitat and water quality
Federal Land Policy and Management Act (FLPMA) of 1976 (pg 360 and 371)
1.
Declares a policy of federal retention of public lands
2.
Provides for the management of public lands for the protection of scientific, scenic, historical,
and environmental values
3.
This is the BLM’s’ organic act but also specifically addresses grazing (supplemented and updated
BLM’s authority under the Taylor Grazing Act to require comprehensive land use plans)
Analysis – Statutes – Cases
4.
How does this affect grazing of federal lands?
1.
Mandatory management criteria
i.
Sec shall manage lands to prevent unnecessary or undue degradation of the
lands
5.
Is planning under FLPMA similar with NFMA?
1.
Yes generally similar under both,
2.
multi-disciplinary
3.
FLPMA not as detailed
6.
Can BLM cancel permits?
1.
Yes
7.
BLM doesn’t need to do NEPA for a grazing permit to be renewed
8.
Also must avoid “unnecessary or undue degradation of the lands”
9.
Issues: ecological/water v. grazing rights, public land ranching
VII.Public Rangelands Improvement Act (PRIA) of 1978 (pg 373)
1.
Wanted to halt continued decline of the federal range—defined range conditions it sought to
achieve, and mandated that the BLM inventory monitor range conditions
Statutory Framework
Public Lands Council v. Babbit (2000)
o DOI manages grazing districts (determines capacity) with district advisory boards, local ranchers
o Holding: 1st priority—“base property”—people who had been using land beforehand
United States v. Fuller (1973)
o Normally pay fair market value for property being condemned
o Holding: Government not required to pay an enhanced condemnation award for flooding
grazing land with a dam
o UPDATE: But now under FLPMA, ranchers entitled to compensation for adjusted value of
improvements
Public Lands Council v. Babbit (2000) #2
o Facts: Clinton regulations make land use plans for grazing land (dissociated grazing preferences
from AUMs) in order to promote restoration of the range conditions, end property rights culture
of the BLM and public lands ranchers
o Issue: Do the Secretary of the Interior's amendments governing grazing preferences, permit
issuance, and ownership of range improvements to the Taylor Grazing Act of 1934 exceed the
authority that this statute grants the Secretary and violate the Act?
o Holding: "[t]he regulatory changes do not exceed the Secretary's Taylor Grazing Act authority."
"Congress itself has directed development of land-use plans, and their use in the allocation
process in order to preserve, improve and develop the public rangelands," "And the secretary
[of the Interior] has always had the statutory authority...to reclassify and withdraw range
land from grazing use."
Protecting Ecological Resources
Natural Resources Defense Council v. Morton (1976)
 Issue: P’s claim that BLM draft EIS too broad, doesn’t look at individual, or local environment
o No FLPMA or PRIA yet
o TGA?
 Stop injury by preventing overgrazing and soil deterioration
Analysis – Statutes – Cases



Not purely environ
Highest use of public lands
 Kinda a stretch
o Trigger NEPA?
 Yes
 BLM’s issuance of grazing permits
 Permit considered final agency action
Holding: Programmatic EIS not sufficient because it didn’t look at local geographic conditions.
BLM must assess actual, on-the-ground effects of permits, individually or collectively.
Natural Resources Defense Council v. Hodel (1987)
 Issue: 3 challenges to BLMs plan by P?
o EIS hadn’t considered banning livestock completely
o Failure for affirm action to curb overgrazing and remedy past rangeland degradation
o Failure to assure under PRIA the improvement of rangelands
 Holding: Finds it unthinkable to consider eliminating livestock grazing in certain areas. BLM did not
violate NEPA by failing to include in the EIS specific proposals or alternatives for each grazing
allotment, by not including a "no grazing" alternative, or by failing to include site-specific estimates of
grazing capacity. Plan is sufficiently detailed despite its failure to determine grazing capacity or
allocate forage for each allotment. Finally, the court holds that the BLM's decision to decline to
adjust grazing levels until further data is collected is not arbitrary, capricious, or contrary to law
(sufficiently considered other options).
o Basically a super bullshit opinion that doesn’t consider long term health of the land and instead
just stands firm on shitty precedent
Idaho Watersheds Project v. Hahn (2002)
 Facts: 1981 BLM identified Livestock overgrazing as significant problem. BLM failed to address
destruction of riparian habitat caused by cattle overgrazing between 1981 and 1996. 1995 major changes
to substantive grazing regulations, new requirement for grazing permit. 68 permits approved.
Environmental groups challenge the issuance of the permits and seek to force BLM to institute practices
into conformance with statutory requirements.
 Appropriate interim remedy measures: 4 recommendations
o Judge adopted recommendation of agency official
o Agency determines what interim needs
 Why wasn’t the order to complete an environmental review a complete remedy?
o Since environmental harm would continue absent interim measures, an order to complete an
environmental review would not constitute an adequate remedy
Western Watershed Project v. BLM
 Continuance of the Idaho case—BLM did not meet “significant progress standard” of reforms—could
have reduced AUMs, reduce time animals in pasture, rotational grazing
 2014, BLM seized Bundy’s cattle on federal land for trespass
o What would you propose?
 Crim procedures
 Higher and higher fines
Western Watersheds v. Bernhardt (check the damn slides for this info)
United States v. Kenner (2017)
Analysis – Statutes – Cases


Defendant let cattle go on land in violation of National Wildlife Refuge System Administration Act of
1996
Guilty but only $100 fine because he worked with government (was negligent becuase he failed to notify
the USFWS about the inadequacy of fencing which caused the accidental offense)
Colorado Dept of Nat Res v USFWS
Beaver County v. Dept. of Interior
o Plaintifs are ranchers/county who want BLM to remove a bunch of wild places
o Dismissed because county lacked standing -injury in fact (concrete/actual or imminent), causal
connection, redressability
 Cannot have generalized grievances
 No alleged complaint
 Would be hard for ranchers to show lost income because grazing permits are implied
license and aren’t a property right
HARD ROCK MINERALS
GOALS
Describe America's policy for minerals on federal lands
Summarize how a person can establish a mining claim on federal land
Compare the rights in patented and unpatented mining claims
Explain how environmental interests are related to mining interests
History and Overview
HISTORY AND STATUTES
II. Mining Law of 1872 (pg 417)
1.
30 USC 22
1.
“Except as otherwise provided, all valuable mineral deposits …. Shall be free and
open to exploration and purchase.”
III. Are all public lands open for mineral entry?
1.
No, most NPS lands and wilderness areas are not
2.
BLM and Nat Forests are open
3.
Specific withdrawals and un-withdrawals complicate things
IV. What is a withdrawal?
1.
43 USC 1714
2.
Under FLPMA, Sec of Inter is authorized to make, modify, extend, or revoke withdrawals
up to 5000 acres from the development of miner resources
3.
This is a management tool to enable BLM to manage public lands under multi use
management principles
V. How does a prospector make a claim?
1.
Distinctly marked on the ground (30 USC 28)
2.
Under state common law doctrine of pedis possession, a prospector who is diligently
searching for minerals on public land is protected against entries by rival prospectors onto
land being occupied
VI. What rights does a prospector acquire?
1.
Sec 26 Locators’ rights of possession & enjoyment
VII.When does prospector acquire rights?
1.
Under pedis possessio when the miner marks, occupies, and diligently works toward discovery
Analysis – Statutes – Cases
2.
Prospectors have rights with respect to the government and other prospectors if a
prospector does enough. They acquire private property rights
VIII.
What about other regulations over mining claims?
1.
Sec 28 Mining district regulations
1.
Local mining districts
IX. Patenting a claim
1.
Sec 29
1.
Earnest money put down
2.
Fee per acreage
X. What does patent claim require?
1.
Claimholder must
1.
Physically discover a valuable locatable mineral deposit on open, unappropriated
federal land
2.
Expend at least $500 worth of labor or “patent improvements’ on the claim
3.
Comply with other federal and state regulation and procedures relating to
unpatented mining claims and
4.
Pay nominal per acre fee
XI. What rights accrue under the patenting for a claim
1.
Patented claims give prospector’s private property rights




How does patenting a claim affect title?
o Patenting passes title from the government to the claimholder
o Claimholder has title to the mineral and title to the surface lands
o Patented lands are not subject to withdrawal from public land access, as the lands are not
public
Can mining claims be lost
o Yes, “claim maintenance fee” for unpatented claims reduced the number of claims
o Claimants with fewer than 10 claims may qualify for a small miner’s waiver
Lode Claim
o Veins hitting the surface, well defined boundaries
Placer deposit
o Eroded away and carried to other places
Cole v Ralph
 Which claimant had filed a claim first: lode or placer claimant?
o Lode claimant
 At the time the placer claims were made, had the lode locations become valid and effective
claims?
o Valid lode claim would preclude a valid placer claim
 Why Ralph (lode) lose?
Analysis – Statutes – Cases
o
o
o
Jury felt he had not discovered the gold yet
So while he had a claim, a pedes posssesio (foothold by possession) he had not
discovered gold
Without discovery Ralph’s possession, buildings, mine shafts, and night watchman did
not establish a claim for gold
US v Coleman
o Marketability test
 Mineral must be able to be extracted, removed, and marketed at a profit
o Prudent man test
 Person would be justified in further expenditures to develop valuable mineral
deposits
o SCOTUS decision?
 Marketability doesn’t violate statute, complements prudent man test
 Marketability test helps illuminate claimant’s intention
 Using the claim for an expensive second home
 Stone in this case was common variety
Rights of Mining Claimants After Discovery
US v Locke
 Mining law of 1872, no record keeping
o FLPMA had record keeping provision
 314(a)
o Purpose of FLPMA provision on unpatented mining claims?
 To rid fed lands of stale mining claims
 To provide fed land managers with up to date info that allow them to make
informed land management decision
 Locke’s claim was deemed abandoned and void
o 1744(c) because he hadn’t filed on time and couldn’t refile because the area was barred by
Common Variety’s Act of 1955
o SCOTUS found that automatic forfeiture of claim for failure to make annual filings is
permissible
 Not an illegal taking by the govt
 right of an unpatented mining claim?
 “unique property right” constrained in ways other property rights may not
be
 Court recognizes that the fed govt “retains substantial regulatory power
over ….”
US v Rizzinelli
 Facts: Saloon on unpatented mining claim area
 General Mining Law 26
o … shall have exclusive right of possession and enjoyment of all the surface
 “Enjoyment” does not mean a saloon is permissible. Looks to meaning intended by
Congress
Okanogan Highlands Alliance v Williams
Analysis – Statutes – Cases



P wants: Court to force Forest Service to adopt more environmentally protective alternative that is
set forth in EIS to minimize adverse impact
Holding: No substantive standards in regulation
 Court found that FS had not violated Organic Act
What does this mean for environmentalists and the mining industry?
o Keen to have favorable Sec of Agriculture
 Whoever in charge of the FS has discretion to either make it easier to develop
mining projects or to adopt more strict environmental policies
Mineral Policy Center v Norton
 Holding: The federal government may determine on a case-by-case basis what constitutes
unnecessary or undue degradation under the FLPMA. The statute’s plain terms obligate the
BLM to disapprove necessary mining operations that would unduly harm or degrade public land.
Three canons of statutory construction support this conclusion.
Mining Reform Redux
 John Leshy opines that perhaps were are just too sentimental to do away with romantic symbols of
cupidity (greed for money) and the old West
Updating Fed mining Law
 Payment of a production royalty
 Diligence requirement for holding unpatented mining claims
 Eliminate confusing and meaningless distinction between load and placer claims
 Eliminate the prerequisite for BLM approved Mineral Survey
PARKS, MONUMENTS, WILDERNESS
GOALS
Articulate the distinctions between multiple use and protective land management
Identify the requirements for the management of national parks
Explain the difference between national parks and national monuments
Distinguish the approaches for designating national parks and monuments
Relate the objectives of the Wilderness Act
Examine the merits of the roadless rule
History and Overview
I.
What fed agencies oversee these areas?
1.
National Park Service
2.
Fish and Wildlife
3.
Forest Service
4.
Bureau of Land Management
II. Federally owned lands managed under:
1.
Most under some form of multiple-use mandate
1.
USFS manages National Forest System under NFMA
2.
BLM manages under FLPMA
2.
Significant number managed under more explicitly protective mandates
III. Govt devised categorization
1.
National Parks
2.
National Monuments
Analysis – Statutes – Cases
3.
Wilderness
4.
Roadless areas
IV. Who gets to choose which category should apply to an area?
1.
Congress for National Parks
2.
President chooses National Monuments
3.
Congress with Wilderness Areas
4.
FS and BLM for roadless areas
National Parks
HISTORY AND STATUTES
XII.The National Parks Organic Act of 1916
1.
National Parks created by Congress with “establishment” or “enabling” act
2.
Has two often conflicting mandates:
1.
Conserve the scenery and the natural and historic objects and the wildlife therein
(Preservation)
2.
Provide for the enjoyment of the same in such manner and by such means as will
leave them unimpaired for the enjoyment of future generations (Enjoyment)
i.
Preservation trumps enjoyment because it comes first in the language of the
act
Sierra Club v. Department of the Interior (1975)
I.
Secretary has a fiduciary duty to protect park resources, failure to spend $2.8m allocated for
protecting the Park was a judicially recognizable abuse of discretion
1.
This type of injunction would be difficult to sustain under Scalia’s Norton opinion
The Fund for Animals v. Norton (2003)
1. When there is a conflict between conservation and public enjoyment, conservation is to be
predominant
2. When the Agency makes a 180 degree reversal at the time of a change in administration it is subject
to a higher degree of scrutiny
International Snowmobile Manufacturers Association v. Norton (2004)
National Monuments
HISTORY AND STATUTES
XIII.
1.
2.
XIV.
The Antiquities Act of 1906 (pg 586)
Congress granted the president the power to carve out of general public lands “the smallest
area compatible with the proper care and management” of historic landmarks, historic and
prehistoric structures, and other objects of historic or scientific interest.”
Language in House Reports and Floor Statements that it was intended to reserve “small”
areas
National Monuments
Analysis – Statutes – Cases
1.
Common for national monument to become congressionally designated National Park, more
common recently
2.
Antiquities Act + Strong Presidential action for conservation = National Monuments
3.
Most national monuments part of National Park System and managed by NPS
1.
Since 1996, with Grand Staircase-Escalante, increasing numbers of national
monuments are managed by the BLM
XV. Antiquities Act and NEPA
1.
Does NEPA apply to monument designation decisions and why?
1.
Court concluded that NEPA did not apply to the President
2.
President is not a general agency
State of Wyoming v. Franke (1945)



State challenged presidential creation of Jackson Hole National Monument (221k acres)
Scope of review of Presidential discretion is limited:
o If there be evidence in the case of a substantial character upon which the President may have
acted in declaring that there were objects of historic or scientific interest included within the area,
it is sufficient upon which he may have based a decision.
o Arbitrary and capricious review
Congress can always take bake power if it feels it is being abused
Utah Association of Counties v. Bush (2004)


Challenge to designation of Grand Staircase-Escalante National Monument (1.7m acres)
The broad grant of discretion to the President generally precludes judicial review
o Court may only ask whether the President in fact exercised the authority that was delegated to
him
o Rejects inquiry into motives of President (ostensibly to prevent mining operations)
NRDC v. Trump
HR 1664
Wilderness
HISTORY AND STATUTES
I.
The Wilderness Act of 1964 (pg 599)
i.
Congress passed after a lot of environmentalists lobbying
1. WA is a compromise, doesn’t preclude all actions that would be deemed antithetical to
wilderness areas
ii.
Recaptured some authority over public lands by giving Congress power to designate a
“wilderness” area
iii.
Automatically designated lands previously administratively classified as “wilderness”, “wild,” or
“canoe” areas. Required Secretary of Agriculture to review within 10 years any lands classified as
“primitive areas” and to make recommendations on wilderness designations. (Sec 1132(b))
iv.
Managed by whatever land management agency controlled the land before the designation
v.
16 USC 1131-1136
Analysis – Statutes – Cases
1. Statutory Definition of Wilderness
1. Undeveloped federal land
2. Doesn’t need to be “natural” or “pristine,” no real guideline on what counts and what
doesn’t, just interpret as best as possible.
1. Appears to have been affected primarily by the forces of nature, with the
imprint of man’s work substantially unnoticeable
2. Has outstanding opportunities for solitude or a primitive and unconfined type
of recreation
3. Has at least 5k acres
4. May also contain other significant features
3. No commercial enterprises or permanent roads are allowed
4. Can have roads to private actors’ lands, can’t mountain bike
5. Can still allow preexisting grazing to continue but no new grazing permits
(1133(d)(4)(2))
II. Diff between Nat Parks and Wilderness?
i.
NP has enjoyment for people
ii.
WA untrammeled by people
III. Who benefits most, rich or poor?
i.
The rich, more likely to enjoy designated wilderness areas
IV. WA implicitly obligate FS to designation of areas back onto Congress?
i.
Yes, act intended to remove discretion from the Sec of Ag and FS and place the responsibility
back onto Congress
Parker v. United States (1971)


The Secretary’s duty to study & recommend suitable areas for wilderness designation is mandatory
No impairment of the status quo can occur to areas contiguous to existing wilderness areas until a
decision has been made at the Presidential level
The Wilderness Society v. U.S. Fish and Wildlife Service (2003)


Non-profit association could not stock a lake in a wilderness area because it was a commercial enterprise
Whether an activity is commercial turns on an assessment of the “purpose and effect” of the activity
o Here the purpose and effect were to aid commercial fishermen on rivers connected to the lake
Roadless Areas
I.
The Roadless Rule of 2001(pg 618)
I. Reaction to NPS enthusiastic use of roads to increase visitation, etc.
II. Beginning of 21st century saw evolution of separation of “wilderness” and “roadless” areas
III. Prohibits road construction, reconstruction, and timber harvesting in roadless areas
i.
Except public health, emergency, CERCLA, CWA, reserved rights, reconstruction
ii.
Also a prohibition on timber cutting
iii.
Intent: lasting protecting of inventoried roadless areas within the NFS in context of multi
use management
Wyoming v. US Dept. of Ag
Analysis – Statutes – Cases
TRIBAL LANDS
GOALS
Explain when states can add regulations applying to federal lands
Describe the prohibition against the NPS delegating responsibilities to an advisory board
Articulate how tribal lands are managed
Relate the federal government's responsibilities for Native American lands
Summarize the accommodations required for sacred Native American lands
History and Overview
HISTORY
I. Early years of federal governments interactions with Native Americans
i.
Federal government firmly asserted its constitutional authority to control relations with Native
American tribes by defining the boundaries of so called “Indian country” and requiring federal
consent to the alienation or lease of that property to the states or to individuals
ii.
federal government dealt with tribes as separate sovereigns, entered into treaties with and leaving
internal matters up to them
iii.
Although requiring federal consent for Indian land transactions may be offensively paternalistic,
it may have provided some protection for the tribes against states/individual land speculators
II. 1830 forcibly removing Native Americans from their ancestral lands and pushing them to western lands
i.
somewhat mediated policy of creating separate reservations for tribes on federal land
III. End of 19th century
i.
Congress stopped entering into treaties with tribes and adopted strong assimilationist policy to
break up tribal landholdings and to allot tribal lands directly to individual Native Americans
1. resulted in 2/3 of allotted lands passing to non-Native Americans
IV. 1934 Indian reorganization act
i.
United States would continue to hold all UN patented allotted lands in trust for individual Native
Americans and create a means for tribes to create their own constitutional governments
V. 1960s
i.
federal policy again promoted tribal autonomy over assimilation
ii.
Congress restoring relations with terminated tribes in enacting legislation strengthening tribes
role in managing natural resources and administering federal laws
Native America Sovereignty and Federal Trust
VI. 1905 Reservations
i.
SCOTUS acknowledged that the establishment of Indian reservation involved “not a grant of
rights to the Indians, but a grant of rights from them – a reservation of those not granted.” US v.
Winans
VII.
Trusts
i.
US has a special federal trust duty to protect the best interests of Native America tribes
1. Often described in the terms of fiduciary obligations
ii.
Feds are more protective of tribes than states—trust responsibility to the tribes
1. States tend to show a significant degree of animosity towards tribes
VIII. Boundaries
i.
Situated within two territorial boundaries of two other sovereigns - US and individual states
ii.
Complications because state/federal law, dealing with things that physically migrate (fish,
wildlife, water)
Analysis – Statutes – Cases
Standing Rock and DAPL
IX. Marshal Trilogy cases—legal basis for federal dispossession of Native American land, existence of
continuing tribal sovereignty, and special relationship of federal government to tribes
Worcester v. Georgia—states don’t regulate actions with tribes, only feds.. “ward to his guardian”
Tribal Lands in Black Hills
 Traditional homelands of the Great Sioux Nation where their ancestors once lived and are sacred
 In US v Sioux Nation of Indians (1980) SCOTUS rules that Black Hills had been illegally taken
o Sioux were awarded $106 million which they refuse to accept
o Want land back
United States v. Mitchell (1983)
 US is accountable in money damages for alleged breaches of trust for management of forest
resources of Indian reservation/management of Indian forest resources under 1910 timber sale
statutes, 1911 regs, 1934 Indian Reorganization Act
 Tucker Act
Native American Resources
X. Conflict on use of land and resources
i.
Presence of economically valuable natural resources on lands inhabited by Native American’s
and the desire of European Americans to exploit them contributed to the removal of American
Indians from the vast majority of their ancestral lands
ii.
Despite removal many sites are now non-Native American federal lands continue to be
spiritually or culturally significant to indigenous people. They are now controlled by federal Land
Management agencies.
iii.
Native Americans desire to protect and to continue to use areas of cultural and spiritual
importance can sometimes conflict with other citizen's views about the proper uses of those
lands
Lyng v. Northwest Indian Cemetery Protective Association (1988)
o ISSUE: to what extent the courts should protect native American spiritual and cultural
resources located on federal lands
o Court felt that the tribes occupy a position no different than any other religious
organization
o Did not fully consider the effect of FS activities upon tribal religious practices
o Shows difficulties of reconciling 1st amendment rights and discrimination
Bear Lodge Multiple Use Association v. Babbitt (2000)
o Ps allege that NPS’s request that rock climbers voluntarily refrain from climbing in June
promoted religion and were contrary to the Service’s own policies
o HELD: NPS was only an accommodation, not a promotion of religion, and
organizations benefitting “not solely religious organizations, but also represent a
common heritage and culture”… no dangerously close relationship with religion
Puyallup Tribe v Washington Dept of Game (Puyallup III)
Minnesota v Mille Lacs Band of Chippewa Indians
Analysis – Statutes – Cases
City of Council Bluffs
United States v Idaho
STATE LANDS
GOALS
Explain the government's interest in submerged lands
Relate the importance of navigability to ownership of lands
Describe the meaning of the public trust to land and water resources
Identify the benefits that accrue under conservation easements
Explain the rights for selling natural resources subject to a conservation easement
Overview


Focus:
o Protecting public values on non-federal lands
o Submerged lands owned by that state, soils that are covered by the tides or “navigable waters”
What questions can be asked about the public trust?
o Which submerged lands are subject to the public trust doctrine?
o What authorities and duties accrue to states as trustees?
o What benefits accrue to public?
o What legal basis, state or federal law?
Public Trust Doctrine – Early Laws
XVI.
1.
XVII.
2.
1.
The Public Trust Doctrine
The states (as trustees) hold title to certain submerged lands (the trust res) in trust for the
benefit of all citizens (the beneficiaries)
A trust involves property held in managed by one party for the benefit of another
Legal Basis of public trusts
Public trust doctrine raises perplexing questions concerning its legal basis
1.
federal law or state law
2.
constitutional, statutory, or common law
Martin v. Waddell’s Lessee (1842)
 SCOTUS says that states hold submerged lands in trust for the people of the state, no
exclusive private property right
o State governments control submerged lands and fishery rights
 Lands were passed to public as a trust under Gr. Brit King.. so same rights now. Can’t pass to
private hands.
 Equal footing doctrine: applies to submerged lands in Nebraska
Illinois Central Railroad v. Illinois (1892)
Analysis – Statutes – Cases


States may not give away public trust resources
Alienation only valid when the action will:
o Promote the public interest, OR
o Will not result in any substantial impairment of the public interest in the lands and
waters remaining
Scope of the Trust - Navigability
I.
Focus:
1.
Res communes: things such as water, light, and air that are commonly enjoyed by all and not
subject to private ownership
2.
Precise scope of the waters that the states hold and trust for public use and the states
corresponding title to the lands submerged beneath such waters
II. “Navigable” Waters
1.
The public trust doctrine applies to “navigable” waters
III. Four tests of navigability
1.
Navigability for title purposes test:
1.
whether a particular tract of submerged land passed from federal to state ownership
at the time of statehood (most related to public trust doctrine)
i.
BENCHMARK: Year of statehood
ii.
Federal law controls
iii.
Passed from the federal government to the states
2.
Navigability for Commerce Clause/Regulatory purposes test:
1.
whether a particular watercourse is subject to federal regulation under the authority
of the US Constitution art. 1 sec. 8
i.
Federal Law
3.
Navigability for Admiralty purposes test:
1.
whether a particular legal dispute or issue falls within the maritime jurisdiction of the
federal courts
i.
Federal Law
4.
Navigability for Use test:
1.
Whether the
i.
State Law controls
IV. Submerged Lands
The Daniel Ball (1870)



For Commerce Clause purposes, the federal government may regulate rivers that are “navigable in
fact” which means they are used or are capable of being used as “highways for commerce” between
states or foreign countries.
Even and intra-state route on a river that runs between states is subject to federal regulation
Rejects old English rule which defined navigability as influenced by the tide
Utah v. United States (1971)

Whether a State owns the bed of a waterway depends on whether the waterway was navigable at the
time of admission into the Union.
o If navigable then the State holds title under the Equal Footing Doctrine
o If non-navigable then ownership is determined by state law and private ownership is
possible
Analysis – Statutes – Cases

Test: Whether the lake was physically capable of being used in its ordinary condition as a
highway for floating and affording passage to watercraft in the manner over which trade and
travel was, or might be, conducted in the customary modes of travel on water at that time
o Not a difficult test meet, does not require that any navigation actually have taken place
PPL Mont., LLC v. Montana (SC 2012)
 Facts: Montana sues the company for property taxes, claimed they owned the lands where the power
projects were sited and they owned the three rivers
 Were they navigable at time admitted to the state?
o No- Looked at the individual segment of the river where the plant was located to
determine navigability
 Said the public trust doctrine is a state law doctrine with no federal constitutional implications—this
is just dicta, but important dicta
Trustee: Authority and Duty of the States
Defenders of Wildlife v. Hull (2001)


State could not disclaim its rights to streambeds by using a more restrictive navigability test than the
“Highway for Commerce” test
State has fiduciary duty to the public to maintain such lands
National Audubon Society v. Superior Court (The Mono Lake Case) (1983)


Water rights on a lake were granted to LA at a time when the state water board believed it did not
have the power to protect the Lake b/c the State had declared municipal use to be the highest use of
water
Court orders an administrative reconsideration of the decision that takes into account public trust
obligations, including preservation and conservation. Highest use must take into consideration
preservation and conservation.
Neptune City v. Avon-by-the-Sea (1972) 3



Holding: public trust resources must be open to all state residents on equal terms, not just
local residents
City could not charge non-residents a higher fee to access the high beach because that prevented the
public from having equal access to the wet sand and the ocean
Expanded scope of public trust outside of just “navigation, commerce, and fishing” and
expanded to “recreation and other shore activities”
Navigability for Use (State Law Test)
i.
Should state last step in allowing rafters and kayakers to take advantage of the challenging spring
early summer boating season even if the underlying beds are privately owned should state law
uncouple stream use from streambed title should private land owners be allowed to exclude voters
from the waters overlying their property?
Analysis – Statutes – Cases
ii.
iii.
iv.
“No aspect of the federal test of navigability used to determine title under the equal footing doctrine
precludes the various states from adopting more liberal tests in order to advance other important
interests of public uses.” Defenders of Wildlife v. Hull
This is used because some streams are temporary and therefore fail Daniel Ball test for “highways for
commerce” navigability
But in Hull, SCOTUS said there’s nothing stopping states from adopting a more liberal test
for other public uses under equal footing doctrine
People v. Emmert (1979)



Land under non-navigable rivers are subject to private ownership
Private owners of streambeds have the right to control access to the water above their streambeds
based on common law rule that “he who owns the surface of the ground has the exclusive right to
everything which is above it.”
Court finds that State Constitutional provision was meant to protect prior appropriations, not public
access
Montana Coalition for Stream Access, Inc. v. Hildreth (1984)



Interprets Montana Constitution to mean that if streams are subject to use for recreation then such
uses are protected by the state constitution
o Includes a limited right of portage around obstacles
New definition for navigability
o Recreational use
Holding: navigable for recreational use, which is independent of navigability for title
o The ownership of the stream bed is not determinative of the public navigational
rights, or vice versa
 The public may use the water above the land
State Trusts on Dry Land/Atmosphere
DRY LAND
i.
Daytona Beach v. Tona-Rama, Inc. (1974)
1.
Court held that observation tower built by private owner on dry beach was not barred by
previous public use of the land to access the wet sand and ocean
1.
No Easement: public use of the dry strip was consistent, not adverse to private
owners recreational business
2.
Even if there was an easement the tower was consistent with public recreational use
2.
Holding: The owner may make any use of his property which is consistent with
public use and not calculated to interfere with the exercise of the right of the public
to enjoy the public resource
ATMOSPHERE
Alec L v. Jackson (DDC 2012, aff. DC Cir. 2014)
 Facts: Plaintiffs say EPA and other agencies have "wasted and failed to preserve and protect the
atmosphere Public Trust assets"
Analysis – Statutes – Cases

Holding: the public trust doctrine is a creature of state law; there is no federal public trust doctrine
(Questionable conclusion). Even if there ever had been a federal public trust doctrine, any such
doctrine has been displaced by the federal Clean Air Act.
Juliana v. United States (D. Or. 2016)—CENTNER LIKES THIS BETTER
 Facts: Ps are group of young people (Earth Guardians) challenge the polices, acts, and omissions. "part
of a wave of recent environmental cases asserting government have abdicated trust obligations…"
 Argument: Say PPL was an equal footing case not public trust case
 Holding: Public Trust Doctrine DOES apply to federal government, access to a clean
environment was a fundamental right
 Public trust's unique relationship to sovereignty
 Says CWA does not displace the public trust doctrine
 Court found jurisdiction because public trust incorporates the principle that no government
can legitimately abdicate its core sovereign powers
PRIVATE LANDS
749-793 & file
Land Trusts




Land trusts are private non-profit organizations that protect land directly, by owning it
o Federal and state statutes guide these
o State statutes modeled after the Uniform Conservation Easement Act
o Federal law to constitute a “qualified organization” under IRC Sec. 170(h)(3) for tax benefits
 Only get tax benefits if the easement is perpetual and is granted to a “qualified
organization” “exclusively for conservation purposes”
Used to buy in fee simple, but by mid-1900s allowed negative servitudes that allowed owner to transfer to
government or charity right to prevent owner and all successors from doing shit on land
o “Conservation easements”
o O conveys right to some/all development
o Are a negative easements
Could allow to prepare for global warming to predict where ESA animals will be and buy that land
Nebraska Conservation and Preservation Easements Act
o Cannot make money on a CE
o For-profit developers cannot own, only government entities and trust non-profits
o They are in in gross, not appurtenant (usually neg. easements that are in gross struck down so
this is why statutes relax)
o Can be modified by petition of the owner
o Considered perpetual unless otherwise stated in the instrument creating it
 But won’t qualify for IRS stuff
o CE may be enforced at law by the state AG
o Cannot render invalid any other restriction/easement/covenant
Land Trusts
i.
ii.
Conservation organizations that focus on engaging in direct land transactions with private owners
with the goal of protecting land permanently
Tax Deductions
i.
Requirements for Tax Deduction
i.
A qualified real property interest
Analysis – Statutes – Cases
iii.
i.
The property in fee
ii.
A remainder interest
iii.
A restriction on use of the property
ii.
To a qualified organization
i.
See #2 below
iii.
Exclusively for conservation purposes
i.
Preservation of land for outdoor recreation or education
i.
Public must have regular access
ii.
Protection of natural habitats for fish and wildlife
i.
Habitat must be significant
iii.
Preservation of open pace
i.
Pursuant to federal, state, or local program
ii.
Scenic enjoyment
i.
Development would impair scenic character of the local
landscape
iv.
Preservation of historic land or structures
i.
On the national register of historic places
iv.
In perpetuity
ii.
Requirements for Land Trusts to maintain tax exempt status
i.
Avoid any action which inures to the benefit of any private shareholder or individual
ii.
Avoid political campaign activity
iii.
Not engage in substantial lobbying
iv.
Meet the public support test (requires that a substantial part of the organization’s
support comes from the general public)
Hicks v. Dows (Wyo. 2007)
i.
Coal bed methane found on land that was in a CE so new owners want to allow minding
because this was “unforeseeable circumstances”
ii.
County agreed to terminate the easement, court found that only state AG can enforce the
trust so they allowed the CE to go away
iii.
CENTNER DOESN’T LIKE
Glass v. Commissioner of Internal Revenue
 Glasses donated 2 conservation easement encumbering a strip of land between the top of the bluff and
the lake
 Claimed tax deduction of 350k
 Tax courts: said the purpose qualified, it was in perpetuity, exclusively for conservation purposes,
protection of a significant haptitate, relatively natural state
 The Glasses seem to have inflated the value of their claimed deduction
Great Northern Nekoosa Corp. v. United States (1997)
o
o
iv.
A conservation easement is not tax deductible if the grantor retains a right to surface mining
Removing large amounts of sand and gravel for construction was “surface mining” within the
meaning of the statute
Conservation Easements
i.
Legal agreement between a landowner and a land trust that protects – usually in perpetuity –
the land’s important conservation values but leaves the property in private ownership and
use
i.
Usually requires some sort of state authorizing statute to eliminate common law
impediments to placing restrictions on the use of real property
Analysis – Statutes – Cases
ii.
Uniform Conservation Easement Act
i.
Nonpossessory interest
ii.
Of a holder
i.
Must be a qualified government body or charitable organization
iii.
In real property
iv.
Imposing limitations or affirmative obligations
v.
The purpose of which include:
i.
retaining or protecting natural, scenic, or open-space values of real
property,
ii.
assuring its availability for agricultural, forest, recreational, or open-space
use,
iii.
protecting natural resources,
iv.
maintaining or enhancing air or water quality, OR
v.
preserving the historical , architectural archaeological, or cultural aspects of
the property
WILDLIFE
GOALS
Explain why we should protect wildlife
Describe a government's authority to regulate wildlife
Articulate the constitutional issues involved with preserving endangered species
Relate how the ESA achieves its objectives
Summarize the recent approach to amending the ESA
Overview
Biological Diversity (Biodiversity)
i.
“Full richness of life on earth” Reed Noss
ii.
Levels of Diversity
1. Genetic Diversity (diversity within a species)
2. Species Diversity (different species in an ecosystem)
3. Ecosystem Diversity (diversity among ecosystems & regions)
II. Reed Noss
i.
Argues that ecosystem complexity is not well understood and we should err on the side of
preservation
ii.
Argues for a shift in the burden of proof, requiring proponents of development to prove lack of
environmental harm
1. Precautionary principle: Less data, more protection
iii.
Conservation must be goal-directed. Explicit goals are better than vague goals. And ambitious
goals are usually preferable to weak goals.
iv.
Bigger blocks of habitat are better than small or unconnected. (closer, connected, larger)
III. Federal Conservation Efforts
i.
Endangered Species Act protects a very narrow group
ii.
National Parks/Forests, etc. protect larger areas, but are often no broad enough to encompass an
entire ecosystem
I.
Analysis – Statutes – Cases
Constitutional Foundations of Federal Wildlife Law
I.
Wildlife & Commerce
II. States used to regulate animal movement (Geer v. Connecticut - 1896)
i.
Dissent important, commerce clause once wildlife is killed and in hand and crosses state
lines
ii.
Rule of capture?
1. Leads to exploitation of resources
1. Think shale gas
2. Legislatures have adopted policies to end this rule
1. Limits on numbers of wild animals killed
2. Unitization for oil fields where all property owners proportionally receive
payout
Geer v. Connecticut (1896)



State owns wildlife in trust for the benefit of the people
Upheld ban on transport of game birds out of state, rejecting dormant commerce clause argument
Police power rationale – the power to protect articles of food from contamination must include the
power to preserve a common food supply
Hughes v. Oklahoma (1979) (note case)


Formally overruled Geer 7
Holding: Adopted dissent view in Geer, State holds game in trust and may regulate it, but
not in a way that offends the commerce clause
The Treaty Power
Missouri v. Holland (1920)




Migratory Bird Treaty Act protected certain migratory birds
power to make treaties is delegated exclusively to the federal government under TREATY POWER
(art. 2, sec. 2) and Migratory Bird Treaty Act ok
 Wanted to prevent enforcing 1918 MBTA
 Wildlife not mentioned in the Constitution
 Holmes overcame this argument
 Treaty power of Art 2 Sec 2
 gives Congress power to ratify treaties includes ability to carry out the treaties
th
Court rejected MO’s argument that the 10 Amendment prevented federal regulation of wildlife
 State did not actually possess the wildlife
 Court held that treaties may be made so long as they do not contravene any prohibitory
words in the Constitution
 Holding: A treaty which infringes the rights reserved to the states under the Tenth
Amendment to the United States Constitution may nevertheless be considered valid if it is
made under the authority of the United States and is thus the supreme law of the land.
Analysis – Statutes – Cases
The Property Clause – Art. IV, §3, cl. 2
The Congress shall have “power to dispose of and make all needful Rules and Regulations respecting the
territory or other property belonging to the United States.”
Wyoming v. United States (2002)



Property & Supremacy clauses allow the Federal government to override conflicting state law
regarding wildlife on federal land
The power over public land entrusted to Congress is without limitations
The complete power that Congress has over public lands necessarily includes the power to
regulate and protect wildlife living there
The Commerce Clause – Art. I, §8, cl. 3
The Congress shall have power... To regulate Commerce... Among the several states...
1. Commerce Clause test (United States v. Lopez)
i.
the use of the channels of Interstate Commerce
ii.
the instrumentalities of Interstate Commerce, or persons or things in Interstate Commerce,
even though the threat may come only from intrastate activities, and
iii.
those activities having a substantial relation to Interstate Commerce
National Association of Home Builders v. Babbitt (1997)




Facts: Two home builders associations and two California municipal governments challenged the
constitutionality of the ESA's section 9 take prohibition which prevented the plaintiffs from
constructing a new freeway because of populations of a fly
Plaintiff argued that after Lopez, the ESA could not constitutionally be applied to protect a species of
fly existing entirely in one state without present commercial value
Channels of Interstate Commerce
 Court holds that federal government has power to prevent immoral, injurious uses of
the channels of interstate commerce
 Preventing the “take” of any endangered species advances that goal
Substantial Effect on Interstate Commerce
 Each time a species becomes extinct the nation loses a resource
 Even non-commercial species have “option” value, reflecting the potential for future
uses
Gibbs v. Babbitt (2001)


Issue: whether FWS may regulate “taking” of red wolves on private land?
Holding: YES—3rd prong of Lopez test—“within feds’ enumerated powers”
 Found concrete reasons (rational basis) why prohibition on taking affects interstate
commerce
 Tourism, scientific research, trade in pelts
Rancho Viejo, LLC v. Norton (2003)
 Basically just confirms Gibbs v Babbitt
Analysis – Statutes – Cases

“To survive Commerce Clause review, all the government must establish is that “a rational
basis exist[s] for concluding that a regulated activity sufficiently affect[s] interstate
commerce.”
ENDANGERED SPECIES ACT
GOALS
Articulate the constitutional issues involved with preserving endangered species
Relate how the ESA achieves its objectives
Summarize the recent approach to amending the ESA
Definitions and Overview
I.
Purpose:
1.
Conservation for future generations
II. Statutory Organization
1.
§4 Listing
2.
§7 Consultation/Jeopardy
1.
Applies to federal government
2.
All federal agency actions (or private actions funded by federal govts) must make
sure that they won’t threaten species, must consult with Sec. of Interior through
FWS or Sec. of Commerce through NOAA
3.
§9 Take Prohibition
1.
Applies to everyone
III. Who Carries out the ESA?
1.
Dept. of Interior – via Fish & Wildlife Service (FWS)
2.
Dept. of Commerce – via National Marine Fishery Service (NMFS)
IV. Definitions and Classifications: (pg 828)
1.
Endangered Species
1.
Any species which is in danger of extinction throughout all or a significant portion
of its range
2.
Threatened Species
1.
Species which may become endangered in the near future
3.
Fish & Wildlife vs. Plants
1.
Plants receive less protection
4.
Species
1.
Three levels for designation as endangered
i.
Species
ii.
Sub-species
iii.
Distinct Population Segment (from Vertebrate Population Policy, amending
ESA) (pg 841)
iv.
Three Elements:
a. Discreteness: is it different?
I.
Significance: is it important?
II.
Status: conservation status in relation to standards for
listing
5.
What is a Take?
1.
To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or to attempt
to do any of these things
6.
Critical Habitat
1.
Areas that are:
i.
Essential to the conservation of the species AND
Analysis – Statutes – Cases
ii.
Which may require special management considerations or protection
Designate critical habitat and determine if endangered or threatened (1533a)-private
landowners need permits
i.
Habitat conservation plan is needed to provide for mitigation of a take so
prop owner can engage in activity that may take endangered species
Making Determinations
1.
Must be based on “best scientific and commercial data available” (ESA 4, 1533(b))
2.
7.
ESA §4 Listing (16 USC §1533)
Listing (ESA §4). Determination of endangered species and threatened species. (pg 830)
1. Statute:
2. Directs the Secretary to use five factors in making listing decision:
i.
The present or threatened destruction, modification, or curtailment of habitat or range
ii.
Over-utilization for commercial, recreational, scientific, or educational purposes
iii.
Disease or predation
iv.
Inadequacy of existing regulatory mechanisms
v.
Other natural or manmade factors affecting its continued existence
3. Secretary is required to use the best scientific and commercial data available
4. Critical Habitat:
i.
Secretary shall designate critical habitat
ii.
However, Secretary may exclude any area if benefits of exclusion outweigh benefits of
inclusion
1. Economic impact can be considered
iii.
Secretary must list an area as critical habitat if not doing so will result in extinction
V. Listing Petitions
1.
90 days to determine if further investigation is warranted
2.
12 months to make a decision
1.
FWS can decide that the listing is:
i.
Not Warranted
ii.
Warranted
iii.
Warranted but Precluded (Agency is too busy with other priorities to take
action)
2.
This is a final order that can be challenged in court under the APA’s
“arbitrary and capricious” standard
Western Watersheds Project v. US FWS (2007)
o FWS decided not to list greater sage grouse as endangered
o This was arbitrary and capricious because it ignored “best science”—FWS cannot show it
used best science because experts not allowed to make a decision, or recommendation
ESA §7 (16 USC §1536)
Consultation, Jeopardy, & Adverse Modification (§7)
I.
Scope
Analysis – Statutes – Cases
1.
§7 applies to any activity on federal land that could affect a listed species
2.
Applies when a federal agency funds, authorizes or carries out an activity
II. Process
1.
Agency asks FWS whether any protected species is present
1.
If No, consultation ends
2.
If Yes, step 2...
2.
Agency prepares a “biological assessment” to determine whether the species are likely to be
affected
1.
If No adverse affect found then...
i.
FWS comments on the process (the Agency generally defers to FWS), If FWS
agrees with no adverse affect finding then formal consultation is not required
ii.
This action may be challenged as “arbitrary & capricious”
2.
If Yes, step 3...
3.
Agency must formally consult with FWS, FWS prepares a “biological opinion” – states whether
the proposed action would jeopardize the species or destroy or adversely modify critical habitat
1.
No Jeopardy Finding
i.
FWS may still require mitigation/enhancement measures
2.
Jeopardy Finding
i.
FWS proposes reasonably prudent alternatives that avoid jeopardy (RPAs)
4.
Agency is not legally bound by the Bi-Op, but it ignores it at its own peril
5.
Once consultation begins, the agency may not make any irreversible or irretrievable commitment
of resources to the project
III. The Endangered Species Committee
1.
May allows exemptions from §7 if:
1.
There are no reasonable & prudent alternatives
2.
The benefits of such action clearly outweigh the benefits of alternative courses of action
3.
The action is of regional or national significance
4.
No irreversible or irretrievable commitment of resources has been made
5.
It establishes reasonable mitigation and enhancement measures necessary to minimize
adverse effects
Sierra Club v. US FWS (2001)
o Why decline to designate critical habitat
 Not prudent to do so as it would prove no additional benefit to the sturgeon beyond
what was available
o Why didn’t service’s jeopardy analysis meet the statutory requirement for signaling critical
habitat?
 Jeopardy requires finding of harm to an entire species and not triggered until species is
on edge of extinction
 Statute requires looking at recovery of species
 Regulation facially invalid
o Result of regulation?
 Restrictive interpretation of “adverse modification” is inconsistent with Act b/c
it limits it to protection against threats to the survival of species
 Fails to consider the conservation and recovery of species
o Regulations by agency that said “adverse modification” means consultation under Sec. 7
only required by an agency if it affects recovery AND survival IS INVALID—limits the
ESA’s application—Sec. 7 should be triggered by wider range of activities
Analysis – Statutes – Cases
ESA §9 (16 USC §1538-1540)
I.
§9(a)(1) Prohibits the “take” of any endangered fish or wildlife (pg 888)
1.
Protection extended to threatened species via administrative regulations
2.
No prohibition on destruction of critical habitat
II. §9(a)(2) Endangered Plants
1.
Prohibits commercial use, destruction of plants on federal land, destruction of a plant
protected by state law, destruction of plants on the property of another if that action would
constitute a criminal trespass under state law
III. Exceptions to ESA’s Sec 9 (pg 889)
1.
Permits
1.
Scientific purpose
2.
Incidental
3.
Mitigation
2.
If you take, then Conservation Plan needed
3.
Does the ESA prohibit uses of land?
1.
No, just taking (but really it can prohibit certain uses)
Sweet Home Chapter of Communities for a Greater Oregon v. Babbitt (1995)



Court holds that “harm” can include habitat modification or degradation
 Congress meant to prohibit indirect as well as deliberate takings
O’Connor concurs, but claims that §9 is limited by proximate causation principles
Scalia dissents arguing that §9 protects individual animals, not the species as a whole
Wild Earth Guardians
 Stupid prairie dog on a golf course case
IV. Exceptions to ESA’s Sec 9 (pg 889)
1.
Permits
1.
Scientific purpose
2.
Incidental
3.
Mitigation
2.
If you take, then Conservation Plan needed
3.
Does the ESA prohibit uses of land?
1.
No, just taking (but really it can prohibit certain uses)
V. Incidental Take Statements (ITS) (§10)
1.
Allows the “take” of protected species when:
1.
Action is for scientific purposes (experimental populations)
2.
Action is incidental to an otherwise lawful activity
2.
Applicant must submit a conservation plan, stating:
1.
Impact of the take
2.
Minimization and mitigation steps
3.
Alternatives and why they were not chosen
4.
Other necessary measures
3.
Secretary must:
1.
Allow for public comment
2.
Find that the take will be incidental
3.
Find that applicant will minimize & mitigate
4.
Find that applicant has funds to carry out the plan
Analysis – Statutes – Cases
5.
Find that the take ill not appreciably reduce the likelihood of the survival and
recovery of the species
6.
Find that other necessary measures will be carried out
VI. Penalties & Enforcement (§11)
1.
Strong citizen suit provisions
2.
Civil & Criminal penalties
3.
General Intent – ESA requires only intent to engage in the underlying act, not intent to
“take” an endangered species
Arizona Cattle Growers Association v. U.S. Fish & Wildlife Service (2001) (note case)

Holding: before FWS can issue an ITS it must prove that the listed species actually exists on
the land and that there is a reasonable likelihood of a take occurring
FIRE LAW
GOALS
Relate how governments should regulate fires on public property
Describe the Health Forest Restoration Act of 2003
Contrast policies before and after the Resilient Federal Forests Act of 2019
1115-1125; 1130-1135; Canvas - Edwards, Presbyterian, & Wild Watershed.
History and Overview
I. 1935: USFS institutes first fire policy
II. We still do not have a comprehensive fire policy
a. Just respond to short term objectives
III. Why are fires causing more damage?
a. Fuel buildup
b. Climate change
c. WUIs
d. Lack of sufficient restrictions through zoning and codes
IV. 3 best options for establishing policies on fire:
a. Prescribed burns
b. Mechanical treatment
c. Greater use of wildfire
V. Liability of the Federal Government: FTCA
a. The government is liable for the negligence of its employees
b. Congress felt that the losses from negligent government employees should be borne by society,
not just those affected
Rounds v. USFS
o South Dakota sues for FS “unreasonably delayed in the removal or thinning of dead, damaged,
or diseased timber…”
o NEPA and NFMA do not have private rights of action, APA does
o No final action, but failed to do mandatory action…
o APA 706(1) – unreasonably delayed a mandatory statutory duty
 Allowed court to review NEPA and NFMA
Analysis – Statutes – Cases
o
Claim allowed to proceed even though not final agency action because APA 706(1) says
“Unlawfully withheld or unreasonably delayed”—so the NEPA claims are reviewable as
arbritrary/capricious under 706(1)
Healthy Forests Restoration Act
a. Authorizes “hazardous fuel reduction projects” on some lands… using local input…
authorizes Sec. of Ag. And Interior to engage in these projects
b. Kind of conflicts with Forest Service Organic Act, NEPA, MUSYA, etc
c. “Community wildfire protection plan”
i. Should local and state officials have role in federal wildlife management
ii. NEPA concerns—need an EIS
iii. 6515/6516—eligibility for admin review process is required to happen sooner, have
to submit written comments… venue is in district court—all concerning
II. Better ideas: restrict development in fire areas, land-based firefighting tax, mandatory fire insurance,
budgetary problems
I.
Wild Watershed v Hurlocker
 ….
US v Presyterian Camp
 Adequate allegation of employment is enough
 Carrying out business within scope of employment


I.
Decker v. USFS
o Under HFRA, FS proposed to remove and salvage 2,000 acres of beetle-infested lodgepole pine
stands
o The HFRA expands iscretion of federal agencies, reduces NEPA protections by limiting
challenges…. Provisions to require FS to use “appropriate tools” and “cost effective” techniques
is BROAD
o HFRA GIVES BROAD DISCRETION TO AGENCIES SO NOT ARB./CAP.
Biodiversity Associates v. Cables (2004)
o Congress’s legislative rider to address fire and logging shit in the Black Hills was not a violation
of separation of powers because congress was simply reclaiming a delegated authority they have
under property clause
Resilient Federal Forests Act of 2019
a. Drastically scales back NEPA’s protections, allowing companies to log without first
reviewing impact on water quality
b. Allows FS to bypass consultation with the FWS when animal protected by ESA is impacted
by logging
c. RFFA says that forest management activity is NON-DISCRETIONARY so not reviewable
under Sec. 7 of the ESA
Scheele v. Rains (Neb 2016)
o
Jury decided that Rains was not negligent in a prescribed burns
WATER LAW
Analysis – Statutes – Cases
937-943; 964-969 + abridged cases (no St. Jude or Duerre) and erie
Overview
 Modern water allocation systems recognize:
o some type of private property right in water
o also communal interest in water
 Property interest in water is usufructuary, generally providing legal protection for the use rather than the
ownership of the water
o water is unique natural resource because it is a fugitive resource
o straddles the boundary between private property and a commons imbued with some sort of
public aspect
 Two broad common law systems for water law
o Eastern riparian doctrine
 Many are supplemented or replaced with statutory provisions
 Called “regulated riparianism”
o Western prior appropriation doctrine
 Federal law overlaying water rights law in recent years
o Federal reserved water rights doctrine (through Property Clause)
o Commerce clause
o Clean Water Act
o Endangered Species Act
 Nebraska has Natural Resource Districts—most funds come from property taxes (mostly manage
groundwater)
o NE has regulations in place for effluent limitations not covered by 303/301 of CWA
State Law - Riparianism
1. Riparianism
1. The right to use water is tied to the ownership of riparian land
1. Riparian Land is a tract of land that borders on a watercourse or lake
2. Split of Authority
1. Unity of Title Rule: all adjacent tracts that are within the same watershed and held in
common ownership are considered riparian if the border a natural watercourse at some
location
2. Source of Title Rule: noncontiguous tracts can never regain their riparian status
2. Natural Flow Doctrine
1. Riparian owner could make only such uses of the water that would not alter its quantity or
quality
2. Was too restrictive, replaced during Industrial Revolution years
3. Reasonable Use Doctrine
1. Riparian land owners are entitled to make reasonable use of the waters that abut their property,
subject to the reasonable use of other riparians/ does not interfere with the ability of another
riparian user to use
2. Determination is generally made through a case by case balancing process
1. Reasonableness depends on balancing several factors:
1. The purpose of the use
2. The suitability of the use to the watercourse or lake
3. The economic value of the use
4. The social value of the use
Analysis – Statutes – Cases
5. The extent and amount of the harm it causes
6. The practicality of avoiding the harm by adjusting the use or method of use of
one proprietor or the other
7. The practicality of adjusting the quantity of water used by each proprietor
8. The protection of existing values of water uses, land investments and
enterprises
1. An incorporation of some of the principles of prior appropriation
9. The justice of requiring the user causing the harm to bear the loss
3. Liability exists for unreasonable use that harm’s another riparian owner’s reasonable use
4. Difficult for courts to compare the reasonableness of aesthetic environmental and recreational
uses that may have no easily quantifiable economic value with traditional industrial uses that may
provide jobs and revenue to the surrounding community
4. Problems with Riparianism
1. In times of shortage, no rights are guaranteed
2. Uncertainty about water rights can stall development and investment
5. Second restatement of torts (pg 918)
1. Depends on state law whether riparian owner acquires more land that was not adjacent to
surface water
1. If unity of title rule, they do, if source of title they don’t
2. Reasonableness of one’s riparian use cannot be determined in isolation from other water users
3. Priority of use is one factor to be considered even in riparian doctrine
4. Restatement follows watershed rule instead of the on-tract limitation… water may be used on
both riparian and non-riparian lands
5. Riparianism is a tort-based, not property-based system
Hoover v. Crane (1960)


Court upheld an order allowing riparian farmer to take water from lake when the lake was low over
objection of riparian resort owner
However, use was limited and monitored – reasonableness is measured at level where it does
not substantially decrease the ability of the Lake to be used for recreation
Prior Appropriation Doctrine
1. Right to water is premised on use and is not dependent on the ownership of property abutting a
watercourse
2. First in time is first in right
3. Three traditional requirements for a water right
1. Demonstrating an intent to appropriate water and providing notice
2. Making a diversion of water from a natural source
3. Applying the water to a beneficial use without waste
4. Water needs are satisfied in order of temporal priority during shortage
5. No watershed rule
6. Water rights can be lost by failing to use them
Irwin v. Phillips (1855)
o
o
o
Plaintiffs wanted Cali to adopt riparian doctrine but they adopted prior use/appropriation doctrine
instead
There is no watershed rule in prior appropriation.
first to complete an appropriation of water for reasonable use has first claim
Analysis – Statutes – Cases
R.J.A., Inc. v. Water Users Association (1984)
o
o
o
o
o
RJA destroyed a marsh, resulting in more flow in the stream
Court holds that a reduction in consumptive use of tributary water cannot provide a water right
independent of the prior appropriation system
Court wants to avoid adopting a rule that would encourage widespread destruction of natural habitat
Prior appropriation usually doesn’t have much environmental consideration, only beneficial use
Judge factored the public interest in denying permit
Thornton v. Fort Collins (1992)
o
o
Court holds that the “diversion” prong of prior appropriation can be met by merely
controlling the water within its natural course by some structure (such as a dam)
Court seems to be stretching the diversion requirement to meet modern recreational &
environmental priorities
Regulated Riparianism (Florida)
I.
II.
In an effort to overcome some of the difficulties with riparianism and prior appropriation, some states
have modified or replaced traditional common law riparianism with administrative permit systems
1.
Main changes
i.
Requirement that water users obtain a permit from the state prior to making any
diversions or withdrawals
ii.
abandonment of the watershed limitation
iii.
and the requirement that permits be renewed and reconsidered on a periodic basis
Florida’s Statute (Adopted an administrative permit system in 1972 . Addresses comprehensively the use
of surface water and groundwater. Primary model for regulated riparian system.)
1.
Use must be reasonable & beneficial
2.
Use must not interfere with any existing legal water use
3.
Use must be consistent with the public interest
Village of Tequesta v. Jupiter Inlet Corporation (1979)
o
o
Florida enacted WRA that altered riparian law
 Property owners had 2 years to apply for a permit to confirm their common law rights to use
groundwater
 Jupiter did not apply for a permit and lost its correlative rights to water in the aquifer under
its property
Compensation for a “taking” of water rights is not required for a system that merely
regulates riparian rights
Southwest Florida Water Management District v. Charlotte County (2001)
o
o
Court held about common law water allocation in Florida?
 Supplanted common law, so former common law of water is no longer law of Florida
Strengths?
 Provides certainty in amount than common law riparianism
 Forward-looking
Analysis – Statutes – Cases
o
o
Weakness?
 Permit application given a de facto preference to existing uses, meaning it’s a priority system
Limitation of priority system?
 Inflexible to the detriment of environmental and communitarian values
=
Riparianism
Prior Appropriation
Regulated Riparianism CENTNER LIKES THIS
AND RIPARIANISM
BEST
Who can use
water
Riparian Landowners (rights
usually not lost due to
abandonment/nonuse)
Priority system (anyone)
Anyone
How much
Reasonable use
All that you have a permit Reasonable use (within safe
for
yield)---6R-3-01 (pg. 944)
Place of use?
On-tract or in-basin preferred Any place--see Irwin v.
Phillips, Diversion Bias-see Ft Collins
Any place --2R-1-02
Public Interest?
Environment?
Reasonable use--See Hover v. "Maximum utilization" Crane (protect lake levels)
limited instream flow
protection
Reasonable use--state
SHALL establish minimum
flows or levels--3R-2-01
Property right?
Unspecified USE with,
freedom from nuisance, See
Hover v. Crane
Permits for less than 20
years --subject to
curtailment/sharing in
times of shortage74-1-02
Ownership
Dormant Commerce Clause
Sporhase v. Nebraska Ex. Rel Douglas




Water is an article of commerce and NE cannot regulate interstate groundwater transport
from Ogallala aquifer (was a dissent that said NE only recognizes limited right to ground water…)
o State may have legit conservation and preservation interests in its water that enable it to take
actions that might incidentally burden interstate commerce
o However, NE statute’s reciprocity provision went too far so violated the Commerce Clause
leading the Court to reverse
Supports a conclusion that states can manage their waters to preserve them for use in-state
Incidental burdens on interstate commerce need to be resolved under test in Pike v Bruce Church
Limited preference for its own citizen in time of short
Surface v GW
Spear T v Knaub
Analysis – Statutes – Cases
Rights to water
 Where does a person secure a right to surface water rights
o DNRs
 Permits for water rights not recoded with property’s deed, must go to NE DNR
NPPD, In re: 2007 Admin
NRDs
Prokop v. Lower Loup Nat Res Dist.
Water Diversions
In re Central
In Stream Flow
In re 16642
Lingenfelter v Lower Elkhorn NRD
WETLANDS AND WOTUS
987-1052 +file
GOALS
Describe why we are protecting wetlands
Articulate the controversy about WOTUS
Explain the meaning of the interpretation of WOTUS by the SCOTUS
Distinguish section 402 and 404 permits
Overview
I.
II.
III.
IV.
V.
Federal Definitions
1.
EPA: “Wetlands are the link between the land and the water. They are transition zones
where the flow of water, the cycling of nutrients, and the energy of the sun meet to produce
a unique ecosystem characterized by hydrology, soils, and vegetation -- making these areas
very important features of a watershed.”
Reasons for resistance to federal regulation
1.
Federal definition counterintuitive to average citizen: Lands that are dry during a portion of
the year may nevertheless be categorized as wetlands for purposes of federal regulation
2.
wetlands laws are vast in scope, can literally regulate someone’s backyard (70% are located
on privately owned lands)
Regulatory Limitations
1.
federal government has no property clause authority to regulate the use of wetlands on
private property but must rely on its authority under the Commerce Clause
2.
federal regulators cannot simply withdraw private wetlands from development
3.
regulators use the federal Clean Water Act as a hook for the Environmental Protection of
wetlands
1.
awkward tool for the restriction of wetland filling and development
Boundary crossing nature of wetlands
1.
wet land ecosystems span legal property lines separating federal, tribal, state, and private
property
2.
wetlands reach across fears of regulatory authority as overlapping federal state and local law
may govern the use of a single parcel of wetlands wetlands are transition zones between
terrestrial in aquatic ecosystems
Wetland Functions and Values
1.
Source of substantial biodiversity
Analysis – Statutes – Cases
2.
3.
4.
produce great quantities of food that attract many animal species
atmospheric maintenance
greatly influenced the flow and quality of water
1.
filtering function
5.
maintain stream flow during dry periods others replenish groundwater
6.
store and slowly release surface water, rain, snowmelt, groundwater and flood waters
1.
flood protection
7.
provide many recreational, educational, and research opportunities
VI. Clean Water Act (pg 995)
1.
Sections 301 and 502(12) of the Clean Water Act prohibit the addition of pollutants into
navigable waters from “point sources” without a permit
2.
Section 404 authorizes the Army Corps of Engineers to issue permits for the “discharge of
dredged or fill materials” into navigable waters
1.
These sections establish an awkwardly worded prohibition against the filling of
certain wetlands with soil or other solid material without a section 404 permit
3.
when Congress enacted the Clean Water Act in 1972 it imported the historically charged
concept of navigability into the modern ecological context of wetlands protection
1.
“navigable waters” should be given the broadest possible constitutional
interpretation unencumbered by agency determinations
4.
101: Goals and Policy
1.
"to restore and maintain the chemical, physical, and biological integrity of the
Nation's waters"
5.
301: effluent limitations
1.
Except [pursuant to a federal permit], the discharge of any pollutant by any person
shall be unlawful
6.
404: Permits for dredged or fill material ---not point source
1.
[The Army COE] may issue permits… for the discharge of dredged or fill material
into navigable waters at specified disposal sites
7.
502: Definitions
1.
(6): the term pollutant means dredged spoil, solid waste….
2.
(7): navigable waters means the waters of the U.S., including the territorial seas
3.
(12): the term discharge of a pollutant means… any addition of any pollutant to any
navigable waters of the United States
8.
505: Citizen suits
VII. Army Corps of Engineers Wetlands Regulations (pg 997)
VIII.
The Clean Water Rule: Definition of Waters of the U.S. (2015) (pg 998)
United States v. Riverside Bayview Homes, Inc. (SC 1985)
 Because ambiguity in “waters,” defer to agency’s inclusion of wetlands actually abutting traditional
water
 Agency could reasonably conclude that wetland adjoined waters is part of those waters (also
confirmed in Rapanos case)
 Navigability requirement
o Congress intent for navigability to be interpreted more broadly and actual navigability is “of
limited import”
SWANCC v. US Army Corps of Engineers (SC 2001)
 Jurisdiction of corps does not extend to ponds which are not adjacent to open water
 “navigable” not read out of the statute (‘limited import’ diff than no effect at all), and
migratory bird rule doesn’t count for “substantial affect” test
o Would impinge on State’s traditional and primary power of land and water use
 Corps expansive interpretation of WOTUS not permissible
Analysis – Statutes – Cases
o
Distinction between Riverside and SWANCC?
 Riverside: Significant nexus between adjacent wetlands and larger waters, Chevron
agency deferral
Rapanos v. United States (2006)
o Issue: Does The phrase “waters of the United States” in the Clean Water Act include a wetland that
at least occasionally empties into a tributary of a traditionally navigable water?
o Plurality: held that the definitional term “waters of the United States” can only refer to “relatively
permanent standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral”
flows. Furthermore, A mere “hydrological connection” is not sufficient to qualify a wetland as
covered by the CWA; it must have a “continuous surface connection” with a WOTUS that makes it
“difficult to determine where the water ends in the wetland begins.”
o Concurrence: Wetlands need not have a continuous surface connection to a continuously flowing
body of water to be covered under the CWA, but mere adjacency to a tributary of a navigable water
is not sufficient. Instead wetlands that are not adjacent to a traditionally navigable water must have a
“significant nexus” with one. This requirement is satisfied if the wetland has a significant effect on
the water quality of navigable waters
o Dissent: Corps’s Regulations should be upheld as a reasonable interpretation of the act. The
inclusion of all wetlands adjacent to tributaries of navigable waters was most consistent with the
CWA's purpose of eliminating pollution in the nation's waters
WOTUS 2020 Rules
 There is a new 2015 proposed WOTUS rule that is preferred by liberal states because more
expansive
 Add from slides
Sec. 404 Regulations
I.
Clean Water Act of 1972 Sec 404 (pg. 1023)
1.
The “discharge of any pollutant” as prohibited by Sec. 301 without a 404 permit
2.
CWA: 1. An addition 2. Of any pollutant 3. To navigable waters 4. From any point
source
1.
“pollutant” definition includes dredge/fill material
2.
Draining is not covered by 404 permit
3.
….
Analysis – Statutes – Cases
II. Army Corps of Engineers Wetlands Regulations (Tulloch III)
Avoyelles Sportsmen’s League, Inc. v. Marsh
o Issue: Does removal of vegetation constitute discharge under Sec. 301(a)
o 402 violation….
o “NORMAL AGRICULTURE ACTIVITIES” exempted from permit requirements—404(f)(1)
 BUT EXCEPTION TO EXCEPTION: bringing an area into “NEW USE” still
requires a permit and these were new areas that they were redepositing into so they
needed a permit
o Not “mere removal,” redepositing
National Mining Association v. US Army Corps of Engineers (DC Cir. 1998)
o TULLOCH RULE STRUCK DOWN (incidental fallback can’t be regulated)
 Tulloch I – de minimis fallback okay, 98 invalid
 Tulloch II – incidental fallback not allowed
 Tulloch III (Current)- adopted 2008. incidental fallback not regulated under modern
Tulloch rule
o Corps cannot assert jurisdiction for 404 permits in activities conducted in regulated water that
results in “incidental fallback” of soil (shit that falls from a dredge bucket during excavation”
Coeur Alaska, Inc. v. Southeastern Alaska Conservation Council (SC 2009)
o Sec. 402 (NPDES) (permit for adding a pollutant to surface waters) forbids EPA from exercising
permitting authority that is provided to the Corps in 404 (dredge and fill)… so EPA can’t apply
306 performance standards to section 404, only 402
o Slide add in
o Slurry is a regulated fill material so 404 permit applies
 EPA issues a 402 permit for discharge into river lower down?
o 306 ….. add in info from slides
o DISSENT: Says 306 should apply to 404 and 402 to fulfill purposes of the CWA… this material
(slurry) should be regulated as a pollutant and have to survive 402, not just 404
Sec. 404 Permit Process




404(b)(1) gives EPA ability to promulgate criteria to guide the evaluation of applicants for permits… with
room for discretion by Corps
404(c) allows EPA to veto Corps’ decision but not used that often… only if “unacceptable adverse effect
on water, fishing, wildlife, rec areas…”
Corps must evaluate “practicable alternatives” to wetland-filling proposal and presumption is to
alternatives that are not “WATER DEPENDENT”
National Wildlife Federation v. Whisler (8th Cir. 1994)
o Corpsdid not fail to perform an adequate alternatives analysis… no net loss of wetlands… defer
to agency—project WAS water-dependent
CWA Sec 404 Permits (pg 1042)
Environmental Protection Agency 404(B)(1) Guidelines (pg 1043)
Army Corps of Engineers Wetlands Regulations (pg 1044)
Army Corps of Engineers Reissuance of Nationwide Permits (pg 1044)
 NO CITIZEN SUIT FOR CHALLENGING ISSUANCE/DENIAL OF 404 PERMIT
o 505a1—violating CWA if filling
o 505a2-failing to uphold agency duty
Analysis – Statutes – Cases
o
Could also do APA
National Wildlife Fed v Whistler
 Strategically segment project into two aspects
Fund for Animals v Rice
 Alternative plans would have filled in wetlands
 Water dependent?
o No, therefore they bore a more difficult burden of clearly demonstrating…
Court
gave deference to agency for considering alternatives
