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Articles 1 - 30 of 68
Full-Text Articles in Law
Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman
Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman
Washington Law Review
The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …
Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman
Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman
Washington Law Review
This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …
Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely
Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely
Washington Law Review
Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …
The Legality Of Washington Shoreline Development Moratoria In The Wake Of Biggers V. City Of Bainbridge Island, Michelle E. Delappe
The Legality Of Washington Shoreline Development Moratoria In The Wake Of Biggers V. City Of Bainbridge Island, Michelle E. Delappe
Washington Law Review
The Washington State Supreme Court struck down the temporary shoreline development moratorium at issue in Biggers v. City of Bainbridge Island, 162 Wash. 2d 683, 169 P.3d 14 (2007); yet the court fragmented on the broader question of whether a local government has authority to adopt a moratorium on shoreline development during long-term land-use planning. In light of upcoming deadlines for the state’s local governments to revise their shoreline-management plans, constraints on local authority to adopt shoreline moratoria during the planning process take on heightened importance for hundreds of local governments. The question highlights the tension between private property …
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
From Stratton To Uscop: Environmental Law Floundering At Sea, Donna R. Christie
Washington Law Review
No abstract provided.
Chumming On The Chesapeake Bay And Complexity Theory: Why The Precautionary Principle, Not Cost-Benefit Analysis, Makes More Sense As A Regulatory Approach, Hope M. Babcock
Washington Law Review
"[H]istory reveals not merely that change is real but also that change is various. All change is not the same, nor are all changes equal. Some changes are cyclical, some are not. Some changes are linear, others are not. Some changes take an afternoon to accomplish, some a millennium. We can no more take any particular kind of change as absolutely normative than we can take any particular state of equilibrium as normative .... The challenge is to determine which changes are in our enlightened self-interest and are consistent with our most rigorous ethical reasoning, always remembering our inescapable dependency …
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Recovery In A Cynical Time—With Apologies To Eric Arthur Blair, Dale D. Goble
Washington Law Review
The drafters of the Endangered Species Act envisioned a process in which a species at risk of extinction would be protected while the threats it faces are removed so that it recovers. Over the first three decades of experience with the Act, implementation has proved to be far more complex. Recovering at-risk species imposes two different types of requirements. Biologically, recovery is a demographic problem: the species's population must have increased in numbers and dispersed geographically to a point at which nature's random risks have been reduced so that the species is no longer in danger of extinction. The risk-management …
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Precaution, Science, And Learning While Doing In Natural Resource Management, Holly Doremus
Washington Law Review
Dealing with uncertainty is widely recognized as the key challenge for environmental and natural resource decisionmaking. Too often, though, that challenge is considered only from an ex ante perspective which treats uncertainty as an invariant feature that must be accounted for but cannot be changed. With respect to many natural resource management decisions, that picture is misleading. Decisions are often iterative or similar, providing significant opportunities for leaming. Where such opportunities are available and inaction is not feasible or desirable, learning while doing can provide the benefits of both the precautionary principle and scientific decisionmaking while minimizing the key weaknesses …
What A Salmon Czar Might Hope For, William H. Rodgers Jr.
What A Salmon Czar Might Hope For, William H. Rodgers Jr.
Washington Law Review
Senate Bill 5595 is denominated "Salmon Recovery Funding." It is a structural and planning law. It authorizes establishment of a Salmon Recovery Funding Board that will fix criteria and allocate funds for "salmon habitat projects" and "salmon recovery activities." The projects include habitat restoration and protection; the activities include preparation of stream corridor guidelines and programmatic permitting endeavors. The Board will work from a "habitat project list" that is to be developed by a "critical pathways methodology." This approach is defined as "a project scheduling and management process for examining interactions between habitat projects and salmonid species prioritizing habitat projects, …
The Take And Give Of Esa Administration: The Need For Creative Solutions In The Face Of Expanding Regulatory Proscriptions, Christine O. Gregoire, Robert K. Costello
The Take And Give Of Esa Administration: The Need For Creative Solutions In The Face Of Expanding Regulatory Proscriptions, Christine O. Gregoire, Robert K. Costello
Washington Law Review
Salmon play a significant role in the culture, economy, and ecology of Washington State. Their threatened extinctions have led to a string of listings under the federal Endangered Species Act. This Article considers our response to these listings and the relationship of that response to federal oversight. Part I discusses how the ESA will affect the actions and activities of state and local governments and the citizens they serve. Part II discusses the need for latitude on the part of the federal agencies in assessing the value of state conservation and recovery efforts. This Article concludes that the plight of …
Truce In The Salmon War: Alternatives For The Pacific Salmon Treaty, Karol De Zwager Brown
Truce In The Salmon War: Alternatives For The Pacific Salmon Treaty, Karol De Zwager Brown
Washington Law Review
The 1985 Pacific Salmon Treaty was heralded as an end to the ongoing international dispute between the United States and Canada over Pacific salmon fishing rights. The Treaty, however, failed to define adequately the principles and processes for allocating salmon harvests between the two countries. The parties to the Treaty have been unable to reach consensus on annual salmon harvests since 1992, fueling a growing conflict which has threatened to spill over to issues beyond the fishery dispute. This Article examines the historical context of the "salmon war," highlighting changes in international law and domestic politics that affected the formation …
How Do You Learn From A River? Managing Uncertainty In Species Conservation Policy, John M. Volkman
How Do You Learn From A River? Managing Uncertainty In Species Conservation Policy, John M. Volkman
Washington Law Review
As the Puget Sound region embarks on a new chapter in the story of the Endangered Species Act, experiences with fish and wildlife restoration efforts in other locations can be instructive. This Article reviews conservation efforts in the Columbia River Basin, and it explains the major role that scientific uncertainty plays in salmon conservation efforts. This discussion describes the debate between traditional fish and wildlife management, which focuses more on individual populations and mitigation technologies, and recent scientific reports, which urge more reliance on naturally functioning rivers and watersheds. The Article also describes a variety of learning tools that have …
Salmon And The Endangered Species Act: Lessons From The Columbia Basin, Michael C. Blumm, Greg D. Corbin
Salmon And The Endangered Species Act: Lessons From The Columbia Basin, Michael C. Blumm, Greg D. Corbin
Washington Law Review
Within the last decade, the Columbia Basin, once home to the world's largest salmon runs, has witnessed numerous listings of its signature natural resource under the Endangered Species Act (ESA). These listings have propelled the ESA into the forefront of land and water use decisionmaking across a vast landscape of the Pacific Northwest This Article examines the Columbia Basin salmon listings and their aftermath. Specifically, it considers the effect of the ESA's consultation requirements on hydroelectric, hatchery, harvest, and habitat decisionmaking. The Article draws several lessons from this examination, many of them surprising, including the assertion that the listings have …
The Role Of Rights In Benefit Cost Methodology: The Example Of Salmon And Hydroelectric Dams, Richard O. Zerbe Jr., Linda J. Graham
The Role Of Rights In Benefit Cost Methodology: The Example Of Salmon And Hydroelectric Dams, Richard O. Zerbe Jr., Linda J. Graham
Washington Law Review
Benefit cost analysis is a well-established technique for assessing the impacts of proposed actions. Accurate benefit cost analysis is essential to making informed decisions through an understanding of the trade-offs involved in alternative actions. This Article presents a methodology for improving current benefit cost techniques and hence the usefulness of benefit cost analysis to decisionmakers. The proposed methodology is based on recognition of the roles of legal rights and psychological expectations in benefit cost analysis. Proper consideration of these rights and expectations is critical to an accurate determination of how benefits and costs are measured and whose interests are included …
A Primer On Public Land Law, Marla E. Mansfield
A Primer On Public Land Law, Marla E. Mansfield
Washington Law Review
This article will examine the major missions and jurisdictions of the main federal land management systems, namely the public domain, the national forests, national parks, wildlife refuges, and wilderness areas. To introduce this examination, the constitutional provisions which justify the governing statutes will be explored. Additionally, as a prelude to the specific statutory mandates, this Article will review the system of reservations, withdrawals, and classifications. Preemption doctrine also will be addressed because states often desire to regulate activities on federal lands. Finally, the Article will distinguish between multiple use and dominant use.
Valuation And International Regulation Of Forest Ecosystems: Propects For A Global Forest Agreement, Michael B. Saunders
Valuation And International Regulation Of Forest Ecosystems: Propects For A Global Forest Agreement, Michael B. Saunders
Washington Law Review
Deforestation poses severe environmental problems for temperate and tropical regions world-wide. An international forest agreement is necessary to protect these forests. Previous international environmental agreements provide, at best, limited protection for endangered natural resources. To conserve the world's forests, an effective forest agreement must recognize the economic value of forest ecosystems. This forest agreement should define a twofold rule of responsibility: that states have a duty to protect forests located within their borders, and that other states that benefit from forests have a legal obligation to share in conservation costs.
Old-Growth Forests On State School Lands—Dedicated To Oblivion?—Private Trust Theory And The Public Trust, John B. Arum
Old-Growth Forests On State School Lands—Dedicated To Oblivion?—Private Trust Theory And The Public Trust, John B. Arum
Washington Law Review
The application of private trust principles to management of state forest lands granted to Washington by Congress in the Enabling Act conflicts with the public trust established in the state constitution and hampers efforts to preserve ecological values on these lands. This Comment explores alternative common law doctrines which courts employ to construe restrictive land grants. Principles applying to dedications of land for public use better suit the task of harmonizing the language of the Enabling Act and the state constitution to allow for protection of ecological values on state forest lands.
The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans
The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans
Washington Law Review
This Note indicates that both the district court's use of declaratory relief on the hatchery fish issue and the merits of its declaration on the environmental issue were entitled to affirmance. An analysis of the procedural history of the case suggests that the court should have decided the environmental issue. An analysis of the right to habitat protection reveals that habitat protection should be regarded as an implied term of the treaty right to take fish and that measuring the scope of the right by the tribes' moderate living needs fulfills the purpose of the treaty fishing clause. The measure …
The Northwest's Hydroelectric Heritage: Prologue To The Pacific Northwest Electric Power Planning And Conservation Act, Michael C. Blumm
The Northwest's Hydroelectric Heritage: Prologue To The Pacific Northwest Electric Power Planning And Conservation Act, Michael C. Blumm
Washington Law Review
Today's electric power system has six principal characteristics. First, unlike systems in most other regions of the country, the Pacific Northwest's system is primarily grounded on water power, although during the past decade most new generating facilities have been coal or nuclear power plants. Second, the costs of electricity have escalated rapidly in recent years, a direct result of the new higher cost thermal plants, some of which have been stillborn. Third, although the Pacific Northwest utility industry is remarkably diverse, the more than one hundred public and private utilities that serve the region are interconnected physically by a transmission …
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
Washington Law Review
Private landowners in Washington have been required to reforest land after logging since 1945. The Washington Forest Practices Act of 1974 and its predecessor have primarily affected the state's timber industry, which has long been familiar with the reforestation requirement. Many nonindustrial forest landowners, however, are unaware of the requirements of the 1974 Act. The 1974 Act requires that any owner of forest land who removes the trees for any reason, whether to log one hundred acres for income or to clear one acre for a homesite, must satisfy the reforestation requirements of the Act. Part I of this comment …
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
The Obligation To Reforest Private Land Under The Washington Forest Practices Act, Catherine Phillips Plummer
Washington Law Review
Private landowners in Washington have been required to reforest land after logging since 1945. The Washington Forest Practices Act of 1974 and its predecessor have primarily affected the state's timber industry, which has long been familiar with the reforestation requirement. Many nonindustrial forest landowners, however, are unaware of the requirements of the 1974 Act. The 1974 Act requires that any owner of forest land who removes the trees for any reason, whether to log one hundred acres for income or to clear one acre for a homesite, must satisfy the reforestation requirements of the Act. Part I of this comment …
The Marine Mammal Protection Act And The Fishery Conservation And Management Act: The Need For Balance, Terrin Child, Jeffrey T. Haley
The Marine Mammal Protection Act And The Fishery Conservation And Management Act: The Need For Balance, Terrin Child, Jeffrey T. Haley
Washington Law Review
This article presents an analysis of those provisions of the MMPA which may impede the achievement of FCMA objectives. It is important that these possible conflicts be resolved because while the United States controls off the coast of Alaska what may be the world's largest resources of fish, these same waters contain enormous numbers of marine mammals. These fishery resources, if managed rationally, can make a large contribution to the economy of the United States and to the protein needs of the world. A reasonable accommodation between the MMPA and the FCMA must be found in order to achieve that …
Wildlife And The Constitution: The Walls Come Tumbling Down, George Cameron Coggins
Wildlife And The Constitution: The Walls Come Tumbling Down, George Cameron Coggins
Washington Law Review
The federal law of wildlife has mushroomed during the past decade. Congress, in instances where certain species were suffering population crises, shed its historic reluctance to interfere with state wildlife management prerogatives. Opposition to federal intrusion has raised important constitutional issues, only some of which have been resolved definitively. Already the Congress and the courts have discarded some traditional assumptions about wildlife management, and the walls surrounding the traditional state prerogative to control resident wildlife are tumbling down. The fundamental question involves the extent to which the United States government constitutionally can regulate human activities that affect fauna and flora. …
Water Law—Quantification Of Water Rights Claimed Under The Implied Reservation Doctrine For National Forests—United States V. New Mexico, 438 U.S. 696 (1978), Michael Wrenn
Washington Law Review
United States v. New Mexico is the first Supreme Court decision to quantify reserved water rights available for the national forests. The narrow scope accorded the implied reservation doctrine as applied to the United States' claims for water for recreational and wildlife purposes reflects recognition by the Court that the implied reservation doctrine will be limited in the face of competing claims based on state law. The Court's decision limits federal interests under the reserved rights doctrine without providing adequate protection for the water needs of the national forests. The decision also deprives the implied reservation doctrine of the flexibility …
Accommodation Of Indian Treaty Rights In An International Fishery: An International Problem Begging For An International Solution, Kenneth E. Petty
Accommodation Of Indian Treaty Rights In An International Fishery: An International Problem Begging For An International Solution, Kenneth E. Petty
Washington Law Review
This comment will analyze the relative success of the various approaches taken to implement Indian treaty rights in the international fishery. It will discuss the domestic litigation resulting from these approaches and will identify the key legal issues involved. Finally, it will suggest possible means of resolving the dilemma in which the United States currently finds itself. By providing an appreciation of both the scientific complexities of managing this valuable resource and the limitations on unilateral judicial efforts in the United States, it will become apparent that the solution to this sensitive problem rests not in unilateral, but in cooperative …
The Interaction Of Federal Equitable Remedies With State Sovereignty—Puget Sound Gillnetters Association V. Moos, 88 Wn. 2d 677, 565 P.2d 1151 (1977), Bennet A. Mcconaughy
The Interaction Of Federal Equitable Remedies With State Sovereignty—Puget Sound Gillnetters Association V. Moos, 88 Wn. 2d 677, 565 P.2d 1151 (1977), Bennet A. Mcconaughy
Washington Law Review
The Washington Supreme Court held in Puget Sound Gillnetters Association v. Moos that the State Director of Fisheries did not have authority to issue regulations required by a federal court order guaranteeing treaty Indians the opportunity to catch specific percentages of various salmon runs. After attempting to act in the face of conflicting interpretations of his powers, the Director eventually bowed to the state court's determination and refused to promulgate the regulations. To implement its order, the federal court assumed control of the Washington salmon fisheries. This conflict between the federal and state court decisions raises two general questions. The …
Herring, Sardines, And Foreign Affairs: Determination Of Optimum Yield Under The Fishery Conservation And Management Act Of 1976—Maine V. Kreps, 563 F.2d 1043 (1st Cir.), Remanded, No. 77-45-Sd (S.D. Me. Aug. 26, 1977), Aff'd, 563 F.2d 1052 (1st Cir. 1977), William H. Beaver, Jr
Washington Law Review
This note will analyze the major issue of Maine v. Kreps, whether Secretary Kreps fulfilled the FCMA's requirements in her determination of optimum yield. This issue is discussed in two parts. First, the criteria expressed in the preliminary management plan are analyzed in light of the relevant provisions of the FCMA. Second, the inclusion of foreign policy considerations in the optimum yield calculations (a factor not discussed in the preliminary management plan) is analyzed by (1) inferring from the Maine opinion the proper use of foreign policy in management decisions, and (2) suggesting criteria which may affect the role of …
Protection Of Recreation And Scenic Beauty Under The Washington Forest Practices Act, Brian L. Hansen
Protection Of Recreation And Scenic Beauty Under The Washington Forest Practices Act, Brian L. Hansen
Washington Law Review
This comment examines Washington's failure to adequately protect recreation and scenic beauty from the adverse effects of forest practices. It first describes the Forest Practices Act, then discusses the absence of Forest Practices Board regulations protecting scenic beauty and recreation. It then analyzes the preemptive effect of the Forest Practices Act and its interrelationship with other laws and regulations such as the State Environmental Protection Act (SEPA) and SEPA guidelines, the Shoreline Management Act, and local regulations. The comment concludes that further administrative and legislative action is necessary to protect recreation and scenic beauty in Washington's forests.
The Fishery Conservation And Management Act Of 1976: First Step Toward Improved Management Of Marine Fisheries, Warren G. Magnuson
The Fishery Conservation And Management Act Of 1976: First Step Toward Improved Management Of Marine Fisheries, Warren G. Magnuson
Washington Law Review
The purpose of this article is to discuss three things: First, the background which led to the passage of the Act is briefly outlined; second, the content of the Act is described; and finally, I discuss the significant elements of the debate on the bill, mainly those relating to United States foreign policy.
Potential Conflicts Between A Future Law Of The Sea Treaty And The Fishery Conservation And Management Act Of 1976, Jon L. Jacobson, Douglas G. Cameron
Potential Conflicts Between A Future Law Of The Sea Treaty And The Fishery Conservation And Management Act Of 1976, Jon L. Jacobson, Douglas G. Cameron
Washington Law Review
No abstract provided.