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Full-Text Articles in Natural Resources Law

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Josh Eagle

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Eric Biber

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter Jan 2020

Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter

Natural Resources Journal

No abstract provided.


Markle Interest, L.L.C. V. U. S. Fish & Wildlife Service, Peter B. Taylor May 2018

Markle Interest, L.L.C. V. U. S. Fish & Wildlife Service, Peter B. Taylor

Public Land and Resources Law Review

This action is an appeal of a grant of summary judgment to the United States Fish and Wildlife Service on the designation of critical-habitat for the dusky gopher frog under the ESA. Landowner appellants originally sought declaratory and injunctive relief against the Service, the Department of Interior, and agency officials challenging the designation of their private property as critical-habitat for the dusky gopher frog. The court’s holdings recognize loss of property value as a “particularized injury” for standing under the ESA in addition to addressing the landowners’ three principal arguments: 1) the critical habitat designation violated the ESA and ...


Bait And Switch: Taking Native Species On And Off The List Due To Invasive Species, Connie Mccarthy May 2018

Bait And Switch: Taking Native Species On And Off The List Due To Invasive Species, Connie Mccarthy

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Water Is Life: The Native American Tribal Role In Protecting Natural Resources, Susan M. Larned May 2018

Water Is Life: The Native American Tribal Role In Protecting Natural Resources, Susan M. Larned

Environmental and Earth Law Journal (EELJ)

No abstract provided.


From Land Or From Air: Why A Unified Energy Resource Scheme Is Necessary When The Answer Is Both, J. Brent Marshall May 2018

From Land Or From Air: Why A Unified Energy Resource Scheme Is Necessary When The Answer Is Both, J. Brent Marshall

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Rethinking "Imminent Harm" As It Relates To Asian Carp In Lake Michigan And Other Invasive Species, Philip S. Traynor May 2018

Rethinking "Imminent Harm" As It Relates To Asian Carp In Lake Michigan And Other Invasive Species, Philip S. Traynor

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer May 2018

Balancing Marine Mammal Protection Against Commercial Fishing: The Zero Mortality Goal, Quotas And The Gulf Of Maine Harbor Porpoise, Mary M. Sauer

Maine Law Review

Marine mammals and commercial fishermen come into direct conflict when marine mammals become entangled in commercial fishing nets. Since marine mammals must come up to the water surface in order to breathe, they will die if they cannot break free of an underwater net. This conflict is exemplified by the plight of the harbor porpoise in the Gulf of Maine. The federal regulatory framework that attempts to balance the competing interests of commercial fishermen and marine mammals is currently in flux, and its final form may determine the fate of species like the harbor porpoise. This Comment will examine the ...


An Argument To The State Of Maine, The Town Of Wells, And Other Maine Towns Similarly Situated: Buy The Foreshore - Now, Orlando E. Delogu May 2018

An Argument To The State Of Maine, The Town Of Wells, And Other Maine Towns Similarly Situated: Buy The Foreshore - Now, Orlando E. Delogu

Maine Law Review

This paper has its roots in the finality of what have come to be called the Moody Beach decisions. In the last of these two cases, Maine's Supreme Judicial Court, sitting as the Law Court, held that the public's right to use the intertidal zone was limited to those uses and activities spelled out in the Colonial Ordinance of 16411647: “We agree with the Superior Court's declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in ...


Native Ecosystems Council V. Marten, Rebecca A. Newsom May 2018

Native Ecosystems Council V. Marten, Rebecca A. Newsom

Public Land and Resources Law Review

In Native Ecosystems Council v. Marten, the Ninth Circuit found that the United States Forest Service did not violate the Endangered Species Act, National Forest Management Act, or National Environmental Policy Act, when it proposed the Lonesome Wood Vegetation Management 2 Project in the Gallatin National Forest of Montana, even though the decision was inconsistent with the United States Forest Service’s reports. The Ninth Circuit’s holding demonstrated the wide amount of deference the courts will give the Forest Service when determining the best available scientific data.


Toward A National Conservation Network Act: Transforming Landscape Conservation On The Public Lands Into Law, Robert B. Keiter May 2018

Toward A National Conservation Network Act: Transforming Landscape Conservation On The Public Lands Into Law, Robert B. Keiter

Utah Law Faculty Scholarship

The United States has made a remarkable commitment to nature conservation on the federal public lands. The country’s existing array of national parks, wilderness areas, national monuments, wildlife refuges, and other protective designations encompasses roughly 150 million acres, or nearly 40 percent of the “lower 48” federal estate. A robust land trust movement has protected another 56 million acres of privately owned lands. Advances in scientific knowledge reveal that these protected enclaves, standing alone, are insufficient to protect native ecosystems and at-risk wildlife from climate change impacts and unrelenting development pressures. Abetted by existing law, conservation policy is now ...


The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan May 2018

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in ...


Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii May 2018

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta Apr 2018

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land and Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation ...


Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey Apr 2018

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land and Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution actions ...


Hawai'i Wildlife Fund V. County Of Maui, Lowell J. Chandler Apr 2018

Hawai'i Wildlife Fund V. County Of Maui, Lowell J. Chandler

Public Land and Resources Law Review

In Hawai’i Wildlife Fund v. County of Maui, the Ninth Circuit held that the plain language of the Clean Water Act provides jurisdiction over indirect discharges of pollutants from a point source into groundwater that is shown to be connected to navigable waters. The court found that studies confirmed pollutants entering the Pacific Ocean were fairly traceable to the County of Maui’s sewage disposal wells. In affirming the district court’s ruling, the Ninth Circuit held that Maui County violated the Clean Water Act by discharging pollutants into a navigable water without the required permit. The court also ...


Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly Apr 2018

Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly

Public Land and Resources Law Review

Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.


"Bears Need Room To Roam": The Ninth Circuit's Questionable Interpretation Of Critical Habitat Designation, Katherine Lee Apr 2018

"Bears Need Room To Roam": The Ninth Circuit's Questionable Interpretation Of Critical Habitat Designation, Katherine Lee

Boston College Law Review

In February 2016, in Alaska Oil & Gas Ass’n v. Jewell, the United States Court of Appeals for the Ninth Circuit upheld a decision by the U.S. Fish and Wildlife Service to designate 187,000 square miles in northern Alaska as critical polar bear habitat. The Ninth Circuit rejected the reasoning of the District Court for the District of Alaska which found that the FWS failed to meet the “standard of specificity” required by the Endangered Species Act in determining what geographical areas constituted critical habitat. Rather, the Ninth Circuit focused on the ESA’s broad statutory purposes of ...


Muddying The Chevron Waters: The D.C. Circuit Lacks Doctrinal Clarity In Waterkeeper Alliance V. Epa, Christopher Crocker Apr 2018

Muddying The Chevron Waters: The D.C. Circuit Lacks Doctrinal Clarity In Waterkeeper Alliance V. Epa, Christopher Crocker

Boston College Law Review

Chevron deference is one of the most contentious and misunderstood doctrines in administrative law. Justice John Paul Stevens’ opinion in the watershed 1984 case Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. established a two-step framework for courts to use in evaluating agency rule-making authority. That clear two-step process has undergone rewording and revision over the years that has resulted in a lack of doctrinal clarity. On April 11, 2017, the U.S. Court of Appeals for the D.C. Circuit decided Waterkeeper Alliance v. EPA, a challenge brought by environmentalists to an EPA rule that exempted farmers from ...


The New Mexico Professional Corporation, Robert J. Desiderio, Hugh J. Ault, James W. Smith Apr 2018

The New Mexico Professional Corporation, Robert J. Desiderio, Hugh J. Ault, James W. Smith

Robert Desiderio

No abstract provided.


Recent Case Decisions Apr 2018

Recent Case Decisions

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Neil Gorsuch: On Energy And Environmental Law, Benjamin Warden Apr 2018

Neil Gorsuch: On Energy And Environmental Law, Benjamin Warden

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Murr V. Wisconsin: A Necessary Evil?, Sha’Kera Trimble Apr 2018

Murr V. Wisconsin: A Necessary Evil?, Sha’Kera Trimble

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Interpreting The Oil Pollution Act Of 1990 (Opa 90) As Inapplicable To The Natural Gas Industry And Deepwater Lng Ports, Patrick R. Pennella Apr 2018

Interpreting The Oil Pollution Act Of 1990 (Opa 90) As Inapplicable To The Natural Gas Industry And Deepwater Lng Ports, Patrick R. Pennella

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Frac Sand, Hydraulic Fracturing, And Implied Covenants: The Potential For Liability, Slate Olmstead Apr 2018

Frac Sand, Hydraulic Fracturing, And Implied Covenants: The Potential For Liability, Slate Olmstead

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Quaking In Their Boots: Oklahoma Landowners And Regulators Left With An Uncertain Future After Murr V. Wisconsin, Collin Mccarthy Apr 2018

Quaking In Their Boots: Oklahoma Landowners And Regulators Left With An Uncertain Future After Murr V. Wisconsin, Collin Mccarthy

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Oil States Energy Services V. Greene’S Energy Group: The Future Of Inter Partes Review And Its Impact On The Energy Sector, Megan Douglah Apr 2018

Oil States Energy Services V. Greene’S Energy Group: The Future Of Inter Partes Review And Its Impact On The Energy Sector, Megan Douglah

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


The Death Of The Joint Venture Exemption In Oil And Gas Securities Regulation, Megan Conner Apr 2018

The Death Of The Joint Venture Exemption In Oil And Gas Securities Regulation, Megan Conner

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.


Editor's Introduction, Mason W. Smith Apr 2018

Editor's Introduction, Mason W. Smith

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.