Suchergebnisse

The Article begins its inquiry with an in-depth look at the forty-one-day long standoff between armed militants and law enforcement officials at Malheur, which means "misfortune" in French. The occupation of the Refuge ended with one death and the prosecution of over two dozen individuals for trespass, destruction of government property, conspiracy, and related charges. It all began when the Hammonds, who held grazing permits on Bureau of Land Management ("BLM") land adjacent to the Refuge, were prosecuted for starting fires on federal land.1 The Hammonds' conviction for the incident might have been the end of the story, but another notorious ranching family from Nevada, the Bundys, stepped in with their own deep-seated call-to-arms against the federal government. The Bundys' message resonated with other "Sagebrush Rebels" and members of the Patriot Movement. The result: "one of the most pivotal events in the ongoing struggle over access and control of U.S. federal public lands. Part I of this Article addresses the historic and cultural context of private interests in federal public lands and resources, using Malheur, the Badger Two- Medicine, and the Sugar Pine Mine as examples. Part II illustrates the federal government's constitutional authority for management of public lands and resources and for oversight of private claims to them. Part III discusses the federal statutes and regulations that govern private claims to public rangeland and minerals and reveals the deficiencies of such claims. Part IV goes beyond the letter of the law to tease out the socio-economic subtext underlying the tenaciousness and fervor of private claims. The heart of the Article is found in Part V, which examines the public's interest in federal public lands and the government's responsibility to protect the public's interest. Drawing lessons from over a century of both public lands law and water law, Part V reframes the conversation in a way that weaves the public interest into the myriad assertions of private rights. It considers the intersection of the public interest and the Public Trust Doctrine ("PTD"), which is an ancient common law doctrine that safeguards public access to certain public lands and resources. The analysis shows that, while the doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. The public interest standard, as informed by the PTD, becomes a robust means of managing private rights and conserving public lands and resources. Finally, the Article concludes with an optimistic, but realistic, message of convergence, where public interest factors coupled with PTD duties combine to direct decision makers, the public, and the judiciary to demand sustainable uses of federal public lands and resources through the issuance, renewal, and termination of permits, licenses, and leases.

There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the federal government to an original action before the Supreme Court. This Article shows how federal sovereign immunity stands in the way of comprehensive resolution of interstate water rights and highlights the need for reforms to facilitate meaningful participation by the United States. In particular, it investigates the merits of a waiver of federal sovereign immunity in original actions between the states. Although federal immunity is a staple of our nation's jurisprudence, it has no constitutional basis and it serves little purpose in this context. The Article concludes that a congressional waiver of federal sovereign immunity would be appropriate and would have few downsides, at least in the case of original actions between states before the U.S. Supreme Court.

During the late 1960s, the nation's attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls,' as well as Rachel Carson's haunting prose about the "strange blight"2 of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species.3 The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most significant statutes among this body of legislation.4 Under the CWA and related federal environmental legislation, the nation has made tremendous strides in improving our water quality along with the waste management practices that affect water, air, and soil.5 However, since the basic statutory framework was adopted in the 1970s, there have been many ecological, technological, social, and political changes in the United States, but Congress has adopted very few significant amendments, causing some to question whether federal environmental laws have passed their prime. This Article begins in the 1970s, when the nation's environmental framework was expressed in statutes governing a wide variety of topics, including water, air, environmental analysis, and endangered species. Part I explores the intricate interplay between the agencies charged with implementing these statutes, the federal courts, and Congress, and demonstrates how Congress routinely amended the statutes as needed to ensure that the agencies and the courts were staying true to its purposes and implementation strategies. Part II moves forward in time and looks at the dramatically different legislative landscape since 1990. Very little by way of significant environmental legislation has been enacted in the past two decades. This is so despite the fact that the Supreme Court has reviewed a surprising number of Clean Water Act cases during this era, including cases challenging the jurisdictional scope of the Act,' 5 EPA's enforcement powers,' 6 and the division of power between the EPA and the Corps of Engineers."7 Meanwhile, significant changes in the physical environment and in our understanding of the environment have occurred, without any meaningful response from Congress. Part III explores a variety of reasons for congressional failures since 1990. Congress has produced relatively little by way of comprehensive legislation across the board-notjust on environmental issues. The lack of controls on campaign financing and the corruptive influence of money from special interest groups is one reason. A dramatic increase in the number of filibusters is another. However, there have been moments of "civic republicanism" where Congress has managed to pass broad-reaching statutes to address health care, national security, banking, and several other topics.' 8 Part III explains how environmental law is different than other types of legislation, and why gridlock is so much more palpable in the environmental arena. Despite high profile catastrophes such as the BP Deepwater Horizon blowout and the failure of the levee system in New Orleans in the wake of Hurricane Katrina, Congress has done virtually nothing on the environmental front. The chronic problems posed by hyper-partisanship and campaign funding are present here, too, but there is something more afoot. Heated rhetoric, conveyed in inflammatory sound-bites-"job killing" regulatory measures and private property rights "abuse" among them-is even more evident when it comes to environmental law than in other areas. Equally troubling is congressional mistrust-even disdain-for science. Part IV considers the implications of Congress's failure to act, and explores the ways in which the federal agencies either have stepped into the vacuum or could fill the vacuum left by congressional inaction. It posits that environmental gridlock may not be such a bad thing after all. True, from the standpoint of democratic legitimacy, Congress ought to be doing its job. But from the standpoint of environmental protection, perhaps Congress should leave well enough alone (or at least we will be no worse off if it does remain silent). Neither congressional members nor their staffs have sufficient time, inclination, or expertise to craft adequate responses to modern environmental problems, many of which are far more complex than the issues faced in the 1970s. When it comes to water quality, at least, the low-hanging fruit has already been picked and the remaining issues, such as nonpoint source pollution and the protection of isolated wetlands and ephemeral streams, call for solutions that are both more nuanced and more politically charged than the basic mandates issued in the 1970s were. Congress has always been better able to deal with "macro"-level issues and pose broad-brush policy-oriented solutions, but complex problems tend to be over-simplified, for example, one is either "for or against" wetlands protection or "for or against" hamstringing the economy by regulating industrial discharges. Moreover, given that the environmental laws of the 1970s, with their lofty objectives, are the high water mark, and also that the value of safe, clean water for drinking, fisheries, and recreation remains intact, it is possible we have nowhere to go but down if Congress were to start tinkering. The Article concludes in Part V with an assessment of several "portaging strategies" that offer an opportunity to work around the congressional logjam and move the environmental ball forward through non-legislative means.19 Although comprehensive legislative reform may be the "first best" option for addressing wicked problems like climate change and even nonpoint source pollution, empowering agencies to engage in more progressive environmental action presents a viable "second best" alternative. 20 This alternative turns in part on empowering citizens to motivate agency action through petitions for rulemaking and citizen's suits, and in part on clearing away impediments to agency action while minimizing agency capture by anti-regulatory interests. A coordinated strategy of regulation, Executive Orders, and enforcement might take us beyond merely "treading water" while Congress ignores the environment.

As the nation searches for climate mitigation and adaptation strategies, the pressure to develop water resources within wilderness areas and to exploit the timber, forage, wildlife, fish, and other virtually untapped components of wilderness will become more acute. This Article makes the case that managers and legislatures should not yield to this pressure and argues that, if anything, the need to preserve untrammeled wilderness characteristics is just as imperative today as it was in 1964 when the Wilderness Act was passed The Article examines the potency of the Wilderness Act and a trio of federal water law doctrines-federally reserved water rights, the Wild and Scenic Rivers Act, and the Clean Water Act-and finds that, while no single one of these doctrines can accomplish the task alone, if implemented in a more complementary fashion, together they can be effective in protecting the wild

By making federal law supreme to state law, the U.S. Constitution gives Congress "an extraordinary power." Perhaps the extraordinarily powerful nature of the Supremacy Clause is the reason for its checkered treatment by the Supreme Court. Recent preemption decisions give lip service to federalism concerns, but in many cases state statutes, regulations, and remedies have been struck down with little regard for either federal-state comity or institutional competence. If federal regulatory regimes always accomplished optimal regulation perfect equipoise between protecting human health and promoting economic development while fostering innovation by governments and regulated entities-preemption of state law would be far less controversial. Of course, federal regulatory regimes are not always perfect, and the preemption of state laws can leave dangerous regulatory gaps. This Article sets off in Part II with an assessment of the relationship of preemption and federalism. Part III turns to the Rehnquist and Roberts Courts' treatment of savings clauses when victims seek tort remedies for harm caused by federally regulated activities or products. Next, Part IV assesses the tendency, during the Rehnquist era and continuing through the Roberts Court, to give short shrift to savings clauses when state governments seek to establish more stringent regulatory requirements than imposed by the federal floor. The Article concludes in Part V with suggestions for crafting statutory savings clauses that may survive preemption challenges, as well as more global observations on harmonizing federal objectives with state tort law and state and local regulatory initiatives. In light of the Roberts Court's apparent pro-preemption proclivity, there may be no magic language that ensures against preemption. Careful congressional drafting, however, may promote more rational, equitable results, at least in close cases.