Law Commons^™

A New Moment For Indian Water Rights Settlements, Max Clayton

Natural Resources Journal

Indian water rights settlements have been the primary mechanism to resolve water conflicts between tribal governments and state, municipal, and non-governmental parties. Although scholars have for decades roundly criticized settlements for their many shortcomings, this paper suggests that a combination of forces has altered the conditions for Indian water rights settlements. Settlement remains a difficult process, but a new moment for Indian water rights settlement may have arrived. This paper explains how political conditions have changed and makes a novel legal argument to supply a strategy for tribal governments to advance their bargaining position in settlement discussions.

Introduction To Transboundary Waters Special Issue, Hannah Mink, Jenna Vonhofe

Wyoming Law Review

No abstract provided.

Epilogue: What Is The Río Silala?, Jason Anthony Robison

Wyoming Law Review

No abstract provided.

Implications Of Chile V. Bolivia For Transboundary Wetlands, Zoe H. Rosenblum, Aaron T. Wolf Oregon State University

Wyoming Law Review

No abstract provided.

Silala River Case: The Equitable Utilization Right And The Issues Of Water Commodification And Artificial Flows, Agnes Chong

Wyoming Law Review

No abstract provided.

Surrogacy In The Equality State: Lessons From The Code Of The West, James Bell

Wyoming Law Review

No abstract provided.

The Future Of Crypto-Asset Mining: The Inflation Reduction Act And The Need For Uniform Federal Regulation, Liz Guinan

Sustainable Development Law & Policy

Crypto-asset mining is energy-intensive and environmentally harmful, presenting challenges and opportunities for federal, state and local governments, regulators, and society as a whole. As of December 2021, the United States has thirty-eight percent of the global crypto network hash rate, which is the total amount of computational power used to mine and process crypto transactions, making the United States the world’s largest crypto-asset mining industry. The total electricity consumption of crypto-asset mining in the United States is estimated to be around 121.36 terawatt-hours (“TWh”) per year, which is equivalent to the electricity consumption of approximately 10.9 million households in the …

Wading Through Troubled Waters: Inequities & Improprieties Of Stream Access Laws In The American West, Alexander Johnson

University of Cincinnati Law Review

No abstract provided.

Renegotiating The Colorado River Compact: How A One Size Fits All Approach Has Led To A State Centric Future, And How The Commerce Clause Can Solve It, Erica Porvaznik

Northern Illinois University Law Review

While equitable division of water supplied by the Colorado River has been dictated by the Colorado River Compact for over one hundred years, this agreement has only served to create an inequal, power dynamic amongst all the states and parties to the Compact.

The current provisions controlling the apportionment and usage of the water are set to expire in 2026. Therefore, there is a path forward for the water to be divided in a new way, specifically, by Congress. I argue that Congress should assume authority over the Colorado River and apportion the water under their Commerce Clause power, as …

Toward A Utah Intentionally Created Surplus Program, Devin Stelter

Sustainable Development Law & Policy

The Colorado River Basin continues to face a now two decade-long drought sparked by the drastic effects of climate change on the region. Climate forecasting predicts that the adverse effects of climate change will only increase in severity in years to come. These effects have led federal, state, tribal, and private actors operating in the basin to search for innovative and effective solutions to the significant water scarcity problems that will persist into the future. A closely linked threat stemming from Colorado River water scarcity is the prospect of a “Compact call” on Upper Basin water by the Lower Basin …

Climate Litigation: The Future Is Now, Hon. Manuel I. Arrieta

Natural Resources Journal

No abstract provided.

Ute Indian Tribe Of The Uintah & Ouray Reservation V. U.S. Dep't Of Interior, Valan Anthos

Public Land & Resources Law Review

The Ute Indian Tribe of the Uintah & Ouray Reservation brought 16 claims against federal agencies and the State of Utah for alleged mismanagement of water resources held in trust and for alleged discrimination in water allocation. The United States District Court for the District of Columbia dismissed several of the claims as time-barred and others as lacking a proper statutory basis to create an enforceable trust duty. The remaining claims were transferred to the United States District Court of the District of Utah because the events occurred in Utah and most of the parties reside there.

Park County Environmental Council V. Montana Department Of Environmental Quality, 477 P.3d 288 (Mont. 2020), Holly Seymour

Public Land & Resources Law Review

The Montana Supreme Court held in 2020 that loopholes in the Montana Environmental Procedure Act ("MEPA") review process violate Montana's constitutional right to a clean and healthful environment. The holding sets a strong precedent requiring statutory protections to prevent harm to the environment before it occurs.

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 …

How A Low-Cost Method For Cumulative Water-Sampling Shows Need For Improvement Of Legal Public-Contact Standards In The United States, Samuel C. Kessler

Grawemeyer Colloquium Papers

Across the world, it is estimated that 4.5 billion people live near water sources “impaired” for use or contact. Standards for human-interaction are established by international organizations such as the WHO, and legislative bodies from national to local levels with jurisdiction over the quality of our waterways to ensure public & environmental health. Standards are often assessed from “grab-samples” taken from a waterbody at a certain time, with a minimum number analyzed. Water-quality standards in the United States are enforced under the Clean Water Act (CWA) via the Environmental Protection Agency (EPA), applying to “waters of the United States” (WOTUS). …

Restoring The Public Interest In Western Water Law, Mark Squillace

Utah Law Review

American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging …

Montana Environmental Information Center V. Department Of Environmental Quality, Anthony P. Reed

Public Land & Resources Law Review

The DEQ renewed a 1999 MPDES Permit on September 14, 2012 that allowed Western Energy Company to discharge pollutants from the Rosebud Mine into streams. Environmental groups MEIC and the Sierra Club sued, arguing this violated both the Montana Water Quality Act and federal Clean Water Act because the DEQ’s interpretation of its own regulations that exempted waters with ephemeral characteristics from water quality standards was arbitrary and capricious. The district court agreed, but the Montana Supreme Court reversed. It held the DEQ’s interpretation was lawful and remanded for further fact finding to assess how the DEQ applied the interpretation …

California Rushes In—Keeping Water Instream For Fisheries Without Federal Law, Paul Stanton Kibel

William & Mary Environmental Law and Policy Review

No abstract provided.

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

The Semicommons And Wisconsin Water Quality, David A. Strifling

Marquette Intellectual Property Law Review

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing …

Frankly My Dear, I Don’T Want A Dam: Refocusing Dam Removal Priorities To Protect Endangered Salmon Now, Skylar Sumner

Animal Law Review

Dams are a critical threat to salmon habitat and population recovery. While much progress has been made in the past few years with dam removal, the more quickly dams are removed, the greater chance that salmon can be restored to their historic ranges. In the Pacific Northwest, dams are a particular threat to salmon. Many regulatory tools can be used to bring dams into compliance, but there is often much resistance to these efforts. This Essay proposes that by targeting dilapidated private dams opposed to functional ones on public land, compliance or removal will be achieved with less resistance and …

United States V. Barthelmess Ranch Corp., Jonah P. Brown

Public Land & Resources Law Review

Application of water to a beneficial use is the decisive element of a perfected water right in Montana. The BLM claimed rights to five reservoirs and one natural pothole under Montana law. The agency did not own livestock, but instead made the water available to grazing permittees. In United States v. Barthelmess Ranch Corp., the Montana Supreme Court affirmed the Montana Water Court’s holding that the BLM’s practice of making water available to others constituted a beneficial use and a perfected water right.

The Colorado River Revisited, Jason Anthony Robison

University of Colorado Law Review

Fifty years ago, former Stanford Law School Dean Charles Meyers published The Colorado River, 19 STAN. L. REV. 1 (1966), arguably the most famous piece of legal scholarship ever written on this vital water source and the complex body of laws governing its flows-colloquially, the "Law of the River." That piece and a companion, The Colorado River: The Treaty with Mexico, 19 STAN. L. REV. 367 (1967), offered seminal accounts of the legal histories, doctrinal features, and unresolved perplexities of the Law of the River's international and interstate allocation framework. Five decades later, between thirty-five and forty million U.S. residents …

The Evolution Of Interstate Arbitration And The Peaceful Resolution Of Transboundary Freshwater Disputes, Tamar Meshel

Journal of Dispute Resolution

This Article sets out to examine the potential for arbitration to be effectively employed by states in the resolution of transboundary freshwater disputes. Part II will describe the unique nature of TFDs, briefly examine the international law principles governing such disputes as well as the main mechanisms used for their resolution, and evaluate their adequacy. Part III will suggest a new approach to interstate arbitration, intended to ‘revive’ it in the context of TFD resolution. The first element of this approach calls for a return to the original purpose and true nature of arbitration, which rather than constituting a purely …

The Significant Nexus Test: Why The Waters Of The United States Are So Murky, Micah Adkison

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Natural Resources Defense Council V. United States Environmental Protection Agency, Erick A. Valencia

Public Land & Resources Law Review

In Natural Resources Defense Council v. United States Environmental Protection Agency, the court was asked to review the EPA’s Vessel General Permit that set limits on the discharge of pollutants in a ship’s ballast water. Ballast water discharge has become one of the major contributors to the spread of invasive species, especially in the Great Lakes where short voyages allow organisms to easily survive in ballast water. The EPA’s lack of information was a problem of its own making because it prohibited the Science Advisory Board and National Academy of Sciences from adequately exploring available technology before setting the effluent …

Tulalip Tribes V. Suquamish Indian Tribe, Kevin B. Rechkoff

Public Land & Resources Law Review

In a longstanding battle between two entrenched Indian tribes, the Ninth Circuit reaffirmed fishing access doctrines established in the Boldt Decisions. Consequentially, the Boldt Decisions have been confirmed as the preeminent authority in determining tribal fishing rights in conjunction with treaties and inter-tribal conflicts. By applying the Boldt standards of “usual and accustomed,” the Ninth Circuit demonstrated its commitment to giving tribes a wide breadth in establishing claims to fishing grounds off reservation. In the future, fishing treaty litigation will continue with the Boldt standard’s low burden of proof for tribes asserting fishing access rights.

The Safe Drinking Water / Food Law Nexus, Margot J. Pollans

Pace Environmental Law Review

At 2 AM on August 2, 2014, the Ohio Environmental Protection Agency issued the following warning to the citizens of Toledo: “Do Not Drink.” The Ohio City's tap water was contaminated with microcystin, a toxin that can cause diarrhea, vomiting, and abnormal liver function. The source was an algal bloom in Lake Erie resulting from high levels of agricultural fertilizers and animal waste. For three days, Toledo residents drank only bottled water.

This is just one of many similar examples of agricultural contamination of urban drinking water supplies. Creating a physical connection between urban and rural communities, this pollution highlights …

Clear As Mud: Recreating Public Water Rights That Already Exist, Kathryn A. Tipple

Utah Law Review

“Speculation. Water monopoly. Land monopoly. . . . John Wesley Powell was pretty well convinced that those would be the fruits of a western land policy based on wishful thinking, willfulness, and lousy science.”186 PWR 107 was created to avoid water monopolization through land reservation. However, it would seem that management of public water reserves on federal lands has succumbed to some of John Wesley Powell’s concerns: management has been incomplete, ad hoc, and potentially based on incomplete hydrological data. PWR 107, as well as federal water reserves in general, pits western states against the BLM where there is a …

Bostwick Properties Inc. V. Montana Department Natural Resources And Conservation, Carolyn A. Sime

Public Land & Resources Law Review

The Montana Supreme Court upheld the law requiring that applicants for new ground water permits in closed basins show no net surface depletion and that the new appropriation will not adversely affect senior water appropriators. Where the relationship between surface and ground water is uncertain or attenuated, applicants still bear the burden of proof, even if the proposed use constitutes only a de minimis quantity. Once again, the Court acknowledged the hydrologic connection between surface and ground water and the underlying legal framework which seeks to make water available for new appropriation and simultaneously protect the water rights of senior …