Instructions:
There are 4 pages to this exam and 3 questions. There is one drawing and one photo. Please look over your exam and make sure you have all the pages.
This is a 24-hour take-home open-book final exam. You must return this exam within 24 hours of picking it up. Late exams will not be graded.
This is an open-book exam. You may refer to your notes, your textbook, your outline, commercial outlines, dictionaries, the class wiki, and other course materials. Consultation with other materials (websites, regulations not included in the book, etc.) is not permitted. Although
I recommend including citations to cases, statutes, and regulations when appropriate, bluebook formatting is not required.
This exam is designed to take four hours (or 240 minutes), and there are 240 total points on the exam. That is not a coincidence. I recommend using the points in each section as a guideline of how much time you should spend on that question. There is also a word limit for each question.
These word limits are ceilings—not floors—and you should not feel obliged to reach the limit.
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Question One [100 points] [word limit = 1000 words]
Lola inherits parcel 1 (see drawing). She decides to use the land to fulfill her dream of farming organic cotton. Currently, however, much of the property is wetlands and unsuitable for agriculture. The wetlands begin 500 feet from the Rainbow River (an undisputedly navigable waterway). Lola plans to begin preparing the parcel for her crop by clearing the land. She has purchased a special land-clearing machine that sucks up dirt and plants like a big vacuum. She plans to vacuum the wetland and then deposit the collected material on another piece of property she owns (parcel 2). She will then till the land and plant cotton.
A local environmental group (Wetland Lovers Unite or “WLU”) has learned of Lola’s plans, and the group seeks to challenge her activities. What arguments should WLU make and what will
WLU need to do to show it has standing? How should Lola respond, and who is likely to prevail?
Question Two [ 80 points] [word limit = 800 words]
Although dryland cotton farming has been successful in some areas, Lola wants to irrigate her crop. She wants to use water from the Rainbow River to irrigate her crops. The Majestic
National Forest (established in 1974) is downstream from Lola’s land. The U.S. Forest Service asserts that minimum flows must be maintained in the river to provide habitat for the Rainbow
Trout.
1 Many visitors come to the Majestic Forest each year to fish for trout in the Rainbow
River. Members of the neighboring tribe (whose reservation was established in 1894) have also traditionally fished trout in the portion of the Rainbow River that is now part of the Majestic
Forest.
Based on the above facts, will Lola be able to use the river water to irrigate her crops if her state follows the version of the Riparian Doctrine found in the Restatement of Torts? How much water will she be able to use? Would the outcome be different in a state that follows the
Natural Flow Riparian Doctrine?
1 The Rainbow Trout is not endangered or threatened (i.e. not a listed species under section 4 of the Endangered
Species Act).
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Question Three [60 points] [word limit = 600 words]
Paco is out walking on BLM one day and sees what looks to be a hunk of silver in a rock (see photo). Excitedly, he starts to set up flags on the land and posts a notice of his intent to mine the land. Over the next two years, Paco continues to visit the site on weekends with a pickaxe to look for more silver. He has yet to find anything, but he remains hopeful.
Paco is hoping to eventually get a patent for this land because even if he can’t get rich off the silver, it would be a nice place to build a mountain home. Explain what steps Paco will need to take, issues he’ll need to consider, and his likelihood of obtaining a patent.
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