Litigation Commons^™

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Seattle University Law Review

Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely determine …

Joe M Stell Ombudsman Program - Taos Settlement Technical Work, Peggy Barroll

Publications

No abstract provided.

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck

Michigan Journal of Environmental & Administrative Law

Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …

Groundwater Challenges In Spain: Lessons From The Western Mancha Aquifer, Pedro Martinez-Santos

Publications

No abstract provided.

Statutes Of Ill Repose And Threshold Canons Of Construction: A Unified Approach To Ambiguity After San Carlos Apache Tribe V. United States, Daniel Lee

Seattle University Law Review

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and …

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and generally …

Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters

Michigan Journal of Environmental & Administrative Law

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court …

Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor

Pepperdine Law Review

In numerous federal environmental statutes, Congress gave plaintiffs the right to recover attorneys' fees when the court finds them "appropriate." In Ruckleshaus v. Sierra Club, the United States Supreme Court held that it was only "appropriate" to grant attorneys' fees when the plaintiff had at least partially prevailed on the merits. The decision ignored both the important role environmental groups play in the interpretation and development of regulatory programs through litigation and the ability of the lower courts to determine when attorneys' fees were "appropriate." The Court, instead, focused on the adversarial nature of such groups and the traditional American …

Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel

Pepperdine Law Review

No abstract provided.

Winter 2013 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Frameworks For Amending Reservoir Water Management, Ethan Mower, Leandro E. Miranda

Publications

Managing water storage and withdrawals in many reservoirs requires establishing seasonal targets for water levels (i.e., rule curves) that are influenced by regional precipitation and diverse water demands. Rule curves are established as an attempt to balance various water needs such as flood control, irrigation, and environmental benefits such as fish and wildlife management. The processes and challenges associated with amending rule curves to balance multiuse needs are complicated and mostly unfamiliar to non-US Army Corps of Engineers (USACE) natural resource managers and to the public. To inform natural resource managers and the public we describe the policies and process …

A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, University Of New Mexico - School Of Law, Zachary Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

Spatial Dynamics Of U.S. Cultural Resource Law, Robert Z. Selden Jr., C. Britt Bousman

CRHR: Archaeology

The American Antiquities Act, Historic Sites Act, Archeological and Historic Preservation Act, National Historic Preservation Act, American Indian Religious Freedom Act, Archeological Resources Protection Act, Abandoned Shipwreck Act, and the Native American Graves Protection and Repatriation Act comprise the basis of our exploration of cultural resource legislation in the United States. Since the passage of the American Antiquities Act in 1906, 1086 cases have challenged these statutes in U.S. courts. We investigate temporal and regional patterns of the case law to establish whether these laws are uniformly prosecuted throughout the U.S. Our findings suggest that case law is complex and …

Consilience: Radiocarbon, Instrumental Neutron Activation Analysis, And Litigation In The Ancestral Caddo Region, Robert Z. Selden Jr.

CRHR: Archaeology

Through the creation and analysis of databases for radiocarbon, instrumental neutron activation analysis (INAA), and law, macro-level trends are exposed that form the framework of a broader research program aimed at advancing ideas of craft specialization and archaeological theory in the ancestral Caddo region of Southwest Arkansas, Northwest Louisiana, Northeast Texas, and Southeast Oklahoma. The findings of this investigation illustrate the research potential that remains buried within the context of cultural resource management (CRM) reports and legal databases (Westlaw and LexisNexis) that is awaiting consumption within regional research designs aimed at exploring the nuances and trends that appear through synthetic …

Cool Lawsuits: Is Climate Change Litigation Dead After Kivalina V. Exxonmobil?, Mark L. Belleville

Mark L. Belleville

Can emitters of greenhouse gases (“GHGs”) ever be held liable for harms caused by climate change? That is the limited question this Article addresses. While many commentators saw the Supreme Court’s 2007 decision in Massachusetts v. EPA (“Mass. v. EPA”) as an indication that such claims may receive favorable review, recent decisions suggest that there may be no theory under which the ExxonMobils of the world can be held liable for the effects of climate change. Specifically, in September 2012, the Ninth Circuit Court of Appeals held that a native Alaskan village on the tip of a barrier reef, whose …

Ohio Oil And Gas Litigation In The New Fracking Era, Blake Watson

School of Law Faculty Publications

There is a new era of oil and gas exploration in Ohio: the horizontal “fracking” era. Although the hydraulic fracturing process has been utilized for decades, the recent development of horizontal drilling methods has enabled companies to extract oil and gas from the Marcellus and Utica deep shale formations. Horizontal hydraulic fracturing has substantially changed oil and gas drilling in eastern Ohio, as evident by the following statements taken from a complaint filed by landowners in Columbiana County:

From 2008 through 2010, few Columbiana County landowners understood the significance of the Utica shale play. ... [M]any landowners enter[ed] into oil …

The Interest Convergence Of Education Reform And Economic Development: A Response To "The State Of Our Unions", Jonathan C. Augustine

Jonathan C. Augustine

No abstract provided.

Environmental Justice In The Deep South: A Golden Anniversary Reflection On Stimulus And Change, Jonathan C. Augustine

Jonathan C. Augustine