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Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood
Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood
Jonathan Wood
The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …
The Church Of Animal Liberation: Animal Rights As “Religion” Under The Free Exercise Clause, Bruce Friedrich
The Church Of Animal Liberation: Animal Rights As “Religion” Under The Free Exercise Clause, Bruce Friedrich
Bruce Friedrich
In this article, I do two things: First, I argue that a belief in animal liberation constitutes religion under constitutional jurisprudence interpreting the Free Exercise Clause of the U.S. Constitution. Thus, every time a prison warden, teacher or school administrator, or government employer refuses to accommodate the ethical belief of an animal liberationist, they are infringing on that person’s religious freedom, and they should have to satisfy the same constitutional or statutory requirements that would adhere were the asserted interest based on more traditional religious exercise. Second, I suggest that one possible solution to the problem of widespread violation of …
The Public Trust In Wildlife, Michael Blumm, Aurora Paulsen
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 …
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
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 …
Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa
Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa
Christopher Ralph Brown JD MPA
Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light …
Trout Of Bounds: The Effects Of The Federal Circuit Court Of Appeals’ Incorrect Fifth Amendment Takings Analysis In Casitas Municipal Water District V. United States, Raymond Dake
Raymond Dake
Abstract: The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test. The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to …
Wildlife Rights, David Favre
Wildlife Rights, David Favre
David Favre
Abstract: This article begins by briefly exploring the extent to which wildlife, historically and presently, have a place within our society, culture and legal system. Then, building upon the reality that wildlife, like humans, have personal interests in living their individual lives, suggests five principles for developing laws and programs to better accommodate wildlife interests in the legal system. Individuals, species and geographic groups are presented as focus points for thinking about wildlife interests. Additionally, the three possibilities of who should be the plaintiff for asserting wildlife rights are described: government, private parties and the wildlife themselves. Finally, the article …
The Pervasive Nature Of Animal Law: How The Law Impacts The Lives Of People And Their Animal Companions, Rebecca J. Huss
The Pervasive Nature Of Animal Law: How The Law Impacts The Lives Of People And Their Animal Companions, Rebecca J. Huss
Rebecca J. Huss
Faculty members at Valparaiso University School of Law who attain the rank of full professor are expected to deliver an inaugural lecture to the University community and the public at large. This article is based on that lecture, delivered on September 25, 2008. This Article begins by distinguishing between “animal law,” “animal rights,” and “animal welfare” and discussing the growth of the field of animal law. It continues by setting forth the statistics on the number of companion animals in the United States (“U.S.”) and information about the households who have companion animals. The remainder of the article analyzes some …
No Pets Allowed: Housing Issues And Companion Animals, Rebecca J. Huss
No Pets Allowed: Housing Issues And Companion Animals, Rebecca J. Huss
Rebecca J. Huss
Companionship, emotional support, assistance for disabled family members, and general health benefits are just a few examples of why people choose to keep pets in their homes. This article explores the major legal issues that arise when people desire to keep companion animals in various types of housing. The Author examines the effects of federal, state, and local laws, as well as common contracts clauses.