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Articles 211 - 240 of 258
Full-Text Articles in Law
Asserting Treaty Rights To Harness The Wind On The Great Lakes, Gerald Carr
Asserting Treaty Rights To Harness The Wind On The Great Lakes, Gerald Carr
American Indian Law Journal
No abstract provided.
A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath
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 …
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 …
Law And Lawyers In The Incident Command System, Clifford J. Villa
Law And Lawyers In The Incident Command System, Clifford J. Villa
Seattle University Law Review
Although the Incident Command System (ICS) has existed for some forty years, the use of ICS grew significantly in the past decade because the United States learned hard lessons from infamous failures of incident management after 9/11 and Hurricane Katrina. As such, ICS theory and practice must be understood by legal scholars and practitioners who seek to contribute to the growing fields of climate change adaptation and disaster response. Filling a gap in the legal literature, this article will provide lawyers and legal scholars with an introduction to the Incident Command System, outlining the origin, doctrines, and organizational framework of …
Blood Forests: Post Lacey Act, Why Cohesive Global Goverance Is Essential To Extinguish The Market For Illegally Harvested Timber, Sean H. Waite
Blood Forests: Post Lacey Act, Why Cohesive Global Goverance Is Essential To Extinguish The Market For Illegally Harvested Timber, Sean H. Waite
Seattle Journal of Environmental Law
No abstract provided.
Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin
Order For The Courts: Reforming The Nollan/Dolan Threshold Inquiry For Exactions, Winfield B. Martin
Seattle University Law Review
For decades prior to 2005, Fifth Amendment regulatory takings jurisprudence languished in a state of confused neglect. Rather than articulating a clearly discernable standard for determining whether a violation of the Takings Clause had occurred, Justices rebuffed government action that seemed to amount to “an out-and-out plan of extortion” and nodded in approval when they deemed the government to have “acted diligently and in good faith” or in furtherance of a “compelling interest.” In trying to parse this imprecise thicket, scholars have characterized the Court’s approach to regulatory takings as a “muddle,” in “disarray,” and “incoherent.” Professor Kent even noted …
Executive Constraint, Judicial Uncertainty, And Legislative Complacency: Washington Responds With A Progressive Approach To Climate Change, Daniel A. Brown
Executive Constraint, Judicial Uncertainty, And Legislative Complacency: Washington Responds With A Progressive Approach To Climate Change, Daniel A. Brown
Seattle University Law Review
This Comment argues that Washington's renewable energy tax incentives likely discriminate against interstate commerce. More importantly, however, it contends that although these types of tax incentives violate the Commerce Clause, Congress can and should pass legislation authorizing their use under the state police power.
Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson
Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson
Seattle University Law Review
Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encom passed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.
Dynamic Conservation Easements: Facing The Problem Of Perpetuity In Land Conservation, Duncan M. Greene
Dynamic Conservation Easements: Facing The Problem Of Perpetuity In Land Conservation, Duncan M. Greene
Seattle University Law Review
Compared to traditional, static conservation easements, dynamic conservation easements capable of accommodating change over time are better suited to serving their unique conservation purposes. As a result, they are more likely to fulfill their promise to protect the land in perpetuity. For the purposes of this Comment, a "static conservation easement" is an easement whose terms provide unchanging land use restrictions. By contrast, a "dynamic conservation easement" is one whose terms provide land use restrictions that may change over time. Part II of the article provides a primer on land trusts and their use of conservation easements and discusses problems …
The Alaska Statehood Act Does Not Guarantee Alaska Ninety Percent Of The Revenue From Mineral Leases On Federal Lands In Alaska, Ivan L. Ascott
The Alaska Statehood Act Does Not Guarantee Alaska Ninety Percent Of The Revenue From Mineral Leases On Federal Lands In Alaska, Ivan L. Ascott
Seattle University Law Review
This Comment argues that Alaska's position that Congress purposefully incorporated the Mineral Leasing Act into the Statehood Act through section 28(b), and in doing so, permanently granted the state ninety percent of the revenues from mineral development on federal lands, is legally incorrect. The text of the Act simply does not support the position that mineral-lease and royalty proceeds from federal lands are part of Alaska's "compact." In addition, the legislative history of the Act does not support Alaska's position, nor does case law that has addressed related issues. Following this Introduction, Part II of this Comment expands on Alaska's …
A Less Tragic Commons?: Using Harvester And Processor Quotas To Address Crab Overfishing, Avi Brisman
A Less Tragic Commons?: Using Harvester And Processor Quotas To Address Crab Overfishing, Avi Brisman
Seattle University Law Review
Part II of this Comment provides a brief overview of the history of the Magnuson Act. Part III describes the current status of the BSAI crab fisheries and the need for crab rationalization. In Part IV, this Comment examines NPFMC's preferred alternative—the three-pie voluntary cooperative program as set forth in its Bering Sea Crab Rationalization Program Alternatives: Public Review Draft (May, 2002) and Summary of the North Pacific Fishery Management Council's Bering Sea and Aleutian Islands Crab Rationalization Program Submitted to the United States Congress, August, 2002. Part V looks at the legal issues surrounding processor quotas, focusing specifically on …
A Call To Restructure Existing International Environmental Law In Light Of Africa's Renaissance: The United Nations Convention To Combat Desertification And The New Partnership For Africa's Development (Nepad), Leslie C. Clark
Seattle University Law Review
This Comment warns that recent, continent-wide economic development strategies have threatened the ability of Africa to combat desertification. Therefore, the existing desertification treaty, UNCCD, must be amended to ensure its ability to effectuate environmental protection.
Elimination Of The Depletion Deduction For Fossil Fuels, Wendy B. Davis
Elimination Of The Depletion Deduction For Fossil Fuels, Wendy B. Davis
Seattle University Law Review
This article argues that the depletion deduction provision is a misguided incentive that has been falsely analogized and justified, and it should be abolished in order to provide funds to protect and preserve the environment. The additional revenue generated should be used to encourage the development of renewable resources and to remediate the harm caused by the extraction and use of fossil fuels. Specifically, the depletion deduction for reduction in the supply of nonrenewable resources such as coal and oil should be eliminated to (1) ensure certain and equal treatment under the tax laws; (2) encourage development of renewable energy …
The Gap Between Informational Goals And The Duty To Gather Information: Challenging Piecemealed Review Under The Washington State Environmental Policy Act, Keith H. Hirokawa
The Gap Between Informational Goals And The Duty To Gather Information: Challenging Piecemealed Review Under The Washington State Environmental Policy Act, Keith H. Hirokawa
Seattle University Law Review
In 1971, Washington enacted the State Environmental Policy Act (SEPA), which requires agencies to make a threshold determination of whether a project is likely to significantly affect the environment and, where such impacts are likely, to produce an environmental impact statement (EIS). One problem faced in implementing the goals of SEPA is the practice of "piecemealing." Part I of this Article introduces the piecemeal problem by describing three common piecemeal situations. The first situation occurs when a project proposal is divided into such small parts that the environmental impacts from each individual part appear insignificant and the impact from the …
Salmon On The Brink: The Imperative Of Integrating Environmental Standards And Review On An Ecosystem Scale, Dianne K. Conway, Daniel S. Evans
Salmon On The Brink: The Imperative Of Integrating Environmental Standards And Review On An Ecosystem Scale, Dianne K. Conway, Daniel S. Evans
Seattle University Law Review
This Article examines the interplay between the Clean Water Act and Endangered Species Act, the necessity of applying these statutes under an ecosystem or watershed based model, and the need to coordinate and integrate standards and review processes under the acts. The concept of watershed management is summarized in Part II, and Part III gives a brief overview of the two statutes and their implementation. Part IV focuses on the opportunities for, and necessity of, streamlining and integrating the standards and review under the two statutes to support the integrated, place-based, management model envisioned by a watershed approach. We conclude …
A Trust For All The People: Rethinking The Management Of Washington's State Forests, Daniel Jack Chasan
A Trust For All The People: Rethinking The Management Of Washington's State Forests, Daniel Jack Chasan
Seattle University Law Review
In this Article, I will first point out that neither the federal Enabling Act nor the Washington Constitution explicitly requires the state to hold its granted lands in trust for the common schools or other named institutions. Next, I will argue that even if the granted lands are trusts, they are not common law trusts and therefore should not be managed under common law trust principles. Third, I will demonstrate that neither Congress nor the framers of the Washington Constitution expected the lands to generate maximum revenue. Fourth, I will show that preventing thefts and giveaways of public land and …
The Endangered Species Act: Does "Endangered" Refer To Species, Private Property Rights, The Act Itself, Or All Of The Above?, Diana Kirchheim
The Endangered Species Act: Does "Endangered" Refer To Species, Private Property Rights, The Act Itself, Or All Of The Above?, Diana Kirchheim
Seattle University Law Review
This Comment will focus on the current problems of the ESA and suggest how the ESA can be rewritten to accommodate both environmental and private property interests. Section I will discuss procedure under the ESA. In Section II, the Comment examines the controversial "harm" definition frequently arising in ESA litigation. In Section III, the Comment will dispel the myth that the ESA is currently operating as originally intended and will discuss the reasons why private property owners criticize the current ESA. Section IV will examine a proposal for reauthorizing the ESA written by Senator Dirk Kempthorne (R-Idaho) that Congress failed …
The Proposed Environmental Justice Act: "I Have A (Green) Dream", Claire L. Hasler
The Proposed Environmental Justice Act: "I Have A (Green) Dream", Claire L. Hasler
Seattle University Law Review
This Comment addresses the concept of environmental racism, the tools that have been used to fight it, and the proposed Environmental Justice Act of 1993. Part II begins with an examination of the evidence minority communities have relied on as proof that environmental racism exists. The evidence contained in numerous articles clearly shows inequalities in the amounts of environmental and health hazards minority communities bear, and this evidence validates the existence of pervasive environmental injustice in our society. Part III addresses the limited case law involving attempts by minority communities to challenge perceived environmental racism and assesses the effectiveness of …
The Concurrency Requirement Of The Washington State Growth Management Act, Thomas M. Walsh, Roger A. Pearce
The Concurrency Requirement Of The Washington State Growth Management Act, Thomas M. Walsh, Roger A. Pearce
Seattle University Law Review
When the Washington State Legislature enacted the Growth Management Act (GMA) in 1990, it established a concurrency requirement in the transportation area and authorized local governments to establish concurrency requirements in other areas such as schools, parks, and public services. This Article seeks to inform the debate as to the GMA's requirements for concurrency regulations, the key issues in implementing concurrency regulations, and statutory and constitutional limits on the implementation of regulations. After detailing the GMA's transportation concurrency requirement, the Article will discuss whether the GMA requires concurrency for public facilities other than transportation, will highlight the key issues in …
Guidance For Growth: A Symposium On Washington State's Growth Management Act, Kimberly L. Deasy, Brian L. Holtzclaw
Guidance For Growth: A Symposium On Washington State's Growth Management Act, Kimberly L. Deasy, Brian L. Holtzclaw
Seattle University Law Review
No abstract provided.
Planner's Panacea Or Pandora's Box: A Realistic Assessment Of The Role Of Urban Growth Areas In Achieving Growth Management Goals, Keith W. Dearborn, Ann M. Gygi
Planner's Panacea Or Pandora's Box: A Realistic Assessment Of The Role Of Urban Growth Areas In Achieving Growth Management Goals, Keith W. Dearborn, Ann M. Gygi
Seattle University Law Review
Over the past twenty years, Urban Growth Areas (UGAs) have become a tool of choice to manage growth. Numerous states and local jurisdictions have mandated UGAs in hope of confining urbanization, reducing sprawl, protecting open space and resource lands, and minimizing infrastructure investment. Washington State joined the trend in 1990 when it adopted the Growth Management Act (GMA), which requires certain counties to establish UGAs as a central component of its "bottom up" growth management strategy. Nonetheless, thoughtful criticisms have been offered regarding the utility of UGAs to accomplish intended growth management goals, and concerns have emerged regarding unintended consequences …
Takings Law, Lucas, And The Growth Management Act, John M. Groen, Richard M. Stephens
Takings Law, Lucas, And The Growth Management Act, John M. Groen, Richard M. Stephens
Seattle University Law Review
In light of Lucas and the recent constitutionally questionable Washington decisions, government entities charged with implementing the GMA may have a more difficult time avoiding takings liability than previously thought. Accordingly, this Article first seeks to clarify the modern takings analysis as refined by Lucas. Second, Washington takings precedent is contrasted with the federal approach and several key changes are suggested to make state law consistent with controlling federal precedent. Third, key aspects of the GMA are identified that can be expected to raise takings implications. By identifying potential trouble spots in the GMA now, hopefully some takings will …
Economic Development And Public Transit: Making The Most Of The Washington Growth Management Act, Robert H. Freilich, Elizabeth A. Garvin, S. Mark White
Economic Development And Public Transit: Making The Most Of The Washington Growth Management Act, Robert H. Freilich, Elizabeth A. Garvin, S. Mark White
Seattle University Law Review
Rapid and unplanned urban growth in the urbanizing and rural fringe areas of the United States has led to numerous problems for state, local, and regional governments. In particular, six crises are readily identifiable, each of which threatens to undermine quality of life and local competitive economic advantage. These crises include the following: (1) deterioration of central cities, first-ring suburbs, and closer-in neighborhoods, resulting in depopulation and abandonment of housing and the employment base; (2) spiraling suburban sprawl, creating massive infrastructure as well as energy costs; (3) loss of prime agricultural lands; (4) environmental crises and threats to open space, …
The Growth Management Revolution In Washington: Past, Present, And Future, Richard L. Settle, Charles G. Gavigan
The Growth Management Revolution In Washington: Past, Present, And Future, Richard L. Settle, Charles G. Gavigan
Seattle University Law Review
Since near misses nearly twenty years ago, comprehensive reform of Washington land use regulatory legislation has been simmering on the back burner. In 1989, the pot began to boil. Central Puget Sound area motorists fumed in "gridlock" traffic. They denounced dense, downtown development, fretted over soaring housing prices, and lamented the loss of forests, farms, and salmon-spawning streams. Thus, the growth management revolution was fomented not by the poor and downtrodden, nor by academic theorists, but by the middle-class suburban masses who sensed escalating degradation of community, environment, and quality of life. They demanded change. The revolutionary battles were fought …
Regulation Of Wetlands In Western Washington Under The Growth Management Act, Alison Moss, Beverlee E. Silva
Regulation Of Wetlands In Western Washington Under The Growth Management Act, Alison Moss, Beverlee E. Silva
Seattle University Law Review
Wetlands protection has long been an important issue in the central Puget Sound. With the passage of the Growth Management Act (GMA), all counties and cities within the state are now required to adopt regulations "protecting" critical areas, including wetlands. This requirement furthers the GMA's environmental goal to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." This Article will explore these and related issues arising under the wetlands regulatory scheme in Washington following the adoption of the GMA. It will show how this complex, multi-layered regulation scheme …
The Protection Of Wildlife Under Washington's Growth Management Act, Alan D. Copsey
The Protection Of Wildlife Under Washington's Growth Management Act, Alan D. Copsey
Seattle University Law Review
Will critical areas and resource lands, as implemented under the GMA, effectively contribute to the conservation of wildlife and wildlife habitat in Washington? The remainder of this Article will address that question. First, this Article briefly describes some aspects of biological diversity that must be understood before proceeding further. Second, it sets forth several central principles from modern conservation biology that are essential for maintaining habitat integrity and species viability and considers their applicability to critical areas and resource lands, as defined by the GMA. Third, it explains how these principles could be used to identify and protect habitat remnants …
Is The Growth Management Act Working? A Survey Of Resource Lands And Critical Areas Development Regulations, Gary Pivo
Seattle University Law Review
Section II of this Article begins with a summary of Washington's statutory requirements for both local resource land and critical area development regulations. Section II then reviews the circumstances under which those regulations have been adopted. Section III describes the methods used by the research team to collect and evaluate those regulations. Section IV examines whether Washington counties and cities have met their adoption deadlines. Section V describes the general approaches being taken for meeting those requirements. Section VI compares the regulations to one another in order to judge their consistency and relative restrictiveness throughout Washington. Section VII looks at …
Between Scylla And Charybdis: Growth Management Act Implementation That Avoids Takings And Substantive Due Process Limitations, Jeffrey M. Eustis
Between Scylla And Charybdis: Growth Management Act Implementation That Avoids Takings And Substantive Due Process Limitations, Jeffrey M. Eustis
Seattle University Law Review
This Article begins with an overview of the GMA. It then proceeds with a summary of recent case law under the Takings Clause and substantive due process doctrine. After laying this groundwork, this Article focuses on four particular areas of growth management control and explores how local legislation implementing these areas of control would be analyzed under the Takings Clause and substantive due process. These four areas of land use regulation include: critical area protections, resource land designations, development phasing requirements for concurrency and urban growth areas, and impact fees for public facilities and services. This Article then concludes with …
Dashed "Investment-Backed" Expectations: Will The Constitution Protect Property Owners From Excesses In Implementation Of The Growth Management Act?, Elaine Spencer
Seattle University Law Review
Section I briefly discusses the basic principles of takings law as enunciated by prior cases, as well as the United States Supreme Court's recent decision in Lucas v. South Carolina Coastal Council, and the Washington Supreme Court's recent decisions in Sintra, Inc. v. Seattle and Robinson v. Seattle. Although the Lucas decision has received considerable publicity, it advanced the state of the law rather little. The real guidance for future decisions arising out of the GMA will come from earlier United States Supreme Court decisions and the Washington Supreme Court's decisions in Sintra, Robinson, and Lutheran …
Denying Private Attorney Fee Recovery Under Cercla: Bad Law And Bad Policy, Karen M. Mcgaffey
Denying Private Attorney Fee Recovery Under Cercla: Bad Law And Bad Policy, Karen M. Mcgaffey
Seattle University Law Review
This Article argues that the Ninth Circuit decision in Stanton Road was wrong. Section II of this Article describes the majority and dissenting opinions in Stanton Road. Section III argues that the majority misread Supreme Court precedent, leading it to adopt an excessively formalistic approach to statutory construction. It argues that the majority should have used traditional approaches to statutory construction and that those approaches would have produced a different result. Finally, the Article concludes by arguing that the Ninth Circuit's decision distorts the intent of Congress in enacting CERCLA and hinders private efforts to clean up hazardous waste.