Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm, Elisabeth D. Mering

Michael Blumm

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The proviso authorizes the U.S. Environmental Protection Agency (EPA) overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual, perhaps unprecedented in environmental law. The exceptional nature of section 404(c) …

Lands Council, Karuk Tribe, And The Great Environmental Divide In The Ninth Circuit, Michael Blumm, Maggie Hall

Michael Blumm

The Ninth Circuit Court of Appeals, the nation’s largest appellate court, with jurisdiction over fifteen judicial districts and 61 million people—almost 20 percent of the nation’s population—spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court’s en banc reviews do not include all twenty-nine judges but instead only panels of eleven. Thus, en banc panels can reflect the kind of diversity of opinion they aim to reduce.

Recently, the …

The Public Trust In Wildlife, Michael Blumm, Aurora Paulsen

Michael Blumm

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine—sovereign ownership of wildlife—is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should …

Dam Breaching In The Pacific Northwest: Lessons For The Nation, Michael Blumm

Michael Blumm

Over the past dozen years, a number of large dams in the Pacific Northwest have been removed in an effort to restore riverine ecosystems and dependent species like salmon. These dam removals provide perhaps the best example of large-scale environmental remediation in the 21st century. This restoration, however, has occurred on a case-by-case basis, without a comprehensive plan. Yet the result has been to put into motion ongoing rehabilitation efforts in four distinct river basins: the Elwah and White Salmon in Washington and the Sandy and Rogue in Oregon. In all, nine significant dams have been removed, and four more—in …

Pluralism And The Environment Revisted: The Role Of Comment Agencies In Nepa Litigation, Michael Blumm

Michael Blumm

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial …

The Role Of The Judge In Endangered Species Act Litigation: District Judge James Redden And The Columbia Basin Salmon Saga, Michael C. Blumm, Aurora Paulsen

Michael Blumm

After rejecting three federal biological opinions (BiOps) for favoring federal Columbia Basin hydroelectric operations over salmon protected by the Endangered Species Act (ESA), Judge James A. Redden has retired, passing oversight of the litigation to a new federal judge. This complex case, which concerns the accommodations the world’s largest hydropower system must give to the region’s signature natural resource, has now spanned nearly twenty years and five different BiOps. For his part, Judge Redden worked closely with the parties in an attempt to arrive at improvements in salmon survival. In this managerial role, he acted perhaps as the archetypical federal …

The Real Story Behind The Columbia Basin Salmon Debacle: Preserving Dams Under The Endangered Species Act, Michael Blumm

Michael Blumm

This review of Steven Hawley’s provocative book, Recovering a Lost River: Removing Dams, Rewilding Salmon, Revitalizing Communities, examines Hawley’s claim that the best way to recover endangered Snake River salmon is by removing the four Lower Snake River dams. These dams, managed by the U.S. Army Corps of Engineers, impede access to over 5300 miles of prime salmon habitat and operate with enormous public subsidies, largely to maintain a seaport 465 miles inland at Lewiston, Idaho. Hawley’s book not only shows that additional public subsidies in the form of river dredging and new levees will be necessary to maintain the …

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the …

Present At The Creation: The 1910 Big Burn And The Formative Days Of The U.S. Forest Service, Michael Blumm

Michael Blumm

This is a book review of Timothy Egan's "The Big Burn: Teddy Roosevelt and the Fire That Saved America."

Background Principles, Takings, And Libertarian Property: A Response To Professor Huffman, Michael C. Blumm, J.B. Ruhl

Michael Blumm

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but …

The Public Trust Doctrine And Private Property: The Accommodation Principle, Michael C. Blumm

Michael Blumm

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, …

Debunking The "Divine Conception" Myth: Environmental Law Before Nepa, Michael C. Blumm

Michael Blumm

This is a review of Karl Brooks' book, "Before Earth Day: The Origins of American Environmental Law, 1945-70." Brooks challenges the standard account given in most America law school classes that has environmental law bursting onto the legal scene in the "environmental decade" of the 1970's. Like the "miracle in Philadelphia" in the summer of 1787, this "divine conception" theory of the genesis of environmental law is a myth, as Brooks ably demonstrates. He discusses the struggle to pass environmental statutes in the late 1940's like the Fish and Wildlife Coordination Act, as well as successful block developments like Idaho …

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …