Law Commons^™

30 By 30, Areas Of Critical Environmental Concern, And The Protection Of Tribal Cultural Lands, Michael Blumm, Greg Allen

Faculty Articles

Among the most innovative provisions of the Federal Land Policy and Management Act (FLPMA) of 1976 were those called for the Bureau of Land Management (BLM)to designate public lands as “areas of critical environmental concern” (ACECs) for protective management. In fact, FLPMA made it quite clear that national policy was to give ACECs priority in public land planning. Nearly a half-century later, the ACEC program has failed to achieve its promise, beset with inconsistent management and lacking even programmatic regulations. BLM did attempt to revitalize the program in revised planning regulations the agency promulgated in 2016, but Congress exercised its …

The World’S Largest Dam Removal Project: The Klamath River Dams, Michael Blumm, Dara Illowsky

Faculty Articles

The Klamath River, draining some 12,000 square miles in southern Oregon and northern California, was once the third largest salmon stream on the West Coast, the life force of Native Americans. The river runs 263 miles from headwaters in Oregon and flows through the Cascades to the Pacific Ocean south of Crescent City, California. The river is unusual in that its origin is near the arid deserts of eastern Oregon and proceeds to run through temperate rainforests of California through a considerable amount of federal and Tribal lands.

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

All Faculty Publications

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

Raping Indian Country, Sarah Deer, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

In this article, we have examined the policies of the Trump Administration as they relate to extractive development on and near Indian country, and policies related to the protection of Native people from rape and sexual assault. As demonstrated above, the Administration’s policies are likely to increase both the environmental and physical vulnerabilities of Native people. Native people will not only likely face exasperated physical insecurity, but their environments will likely be increasingly stripped on natural resources. As a result, the raping of Indian county continues. But, this article is not without hope. At least two ways forward, improvements upon …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Trust Or Bust: Complications With Tribal Trust Obligations And Environmental Sovereignty, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Traditional Ecological Rulemaking, Anthony Moffa

Faculty Publications

This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill …

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Indian Treaty Fishing Rights And Habitat Protection: The Martinez Decision Supplies A Resounding Judicial Reaffirmation, Michael Blumm, Jane Steadman

Faculty Articles

In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a "servitude upon every piece of land." We have described this servitude …

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Agenda: The Climate Of Environmental Justice: Taking Stock, University Of Colorado Boulder. School Of Law

The Climate of Environmental Justice: Taking Stock (March 16-17)

On March 16-17, The Climate of Environmental Justice: Taking Stock conference gathered 125 academics and practitioners from around the country to consider the pressing issues facing low-income and/or communities of color that continue to be subjected to a disproportionate share of environmental maladies.

"Some people are more equal than others when it comes to bracing ourselves for the impacts of climate change," said conference organizer Professor Maxine Burkett. "Whether it's because poor folks lived in the lowest areas of New Orleans when Katrina floodwaters rushed in, or are less able to afford the cooling bill during increasingly frequent heat waves, …

The Mirage Of Indian Reserved Water Rights And Western Streamflow Restoration In The Mccarran Amendment Era: A Promise Unfulfilled, Michael Blumm, David H. Becker, Joshua D. Smith

Faculty Articles

Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights reserved from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established. Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called …

Tribal Sovereignty Over Water Quality, Jessica Owley

Articles

No abstract provided.

Blame It On Rio: Biodiscovery, Native Title, And Traditional Knowledge, Matthew Rimmer

Aboriginal Policy Research Consortium International (APRCi)

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter- locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular , it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, …

Ancient Forests, Spotted Owls And Modern Public Land Law, Michael Blumm

Faculty Articles

This article is a revised version of a 1991 speech on the battle then looming over ancient forests and timber harvests in the Pacific Northwest. It discusses the biology and ecology of old-growth forests and their relationship to the northern spotted owl. It also explains the legal framework governing federal timber harvests, including the National Environmental Policy Act, the National Forest Management Act, and the Endangered Species Act. Finally, the article examines several then-pending and legal challenges to continued industrial timber harvesting, including Seattle Audubon Society v. Robertson, Northern Spotted Owl v. Hodel, and Marble Mountain Audubon Society v. Rice. …

Native Fishing Rights And Environmental Protection In North America And New Zealand: A Comparative Analysis Of Profits A Prendre And Habitat Servitudes, Michael Blumm

Faculty Articles

This article examines the legal rights of native peoples in the United States, Canada, and New Zealand to protect and maintain traditional fishing cultures and economies. The article maintains that native fishing rights are real property interests - profits a prendre - which have received significant judicial recognition and protection in the three countries. Although the native right to fish has evolved separately in the three jurisdictions, each country not only recognizes that the native fishing right includes an allocated harvest share but also there is increasing recognition of habitat protection necessary to maintain the fisheries. In the U.S., judicial …

The Law Of The American West: A Critical Bibliography Of The Nonlegal Sources, Charles F. Wilkinson

Publications

No abstract provided.

Fulfilling The Parity Promise: A Perspective On Scientific Proof, Economic Cost, And Indian Treaty Rights In The Approval Of The Columbia Basin Fish And Wildlife Program, Michael Blumm

Faculty Articles

This article, written as a kind of brief to the Northwest Power Planning Council as it was considering recommendations for the Columbia Basin Fish and Wildlife Program, argued that Congress expected the Council to defer to the recommendations of the region's fish and wildlife agencies and Indian tribes, which had submitted joint comprehensive program recommendations. The article examines several statutory provisions that produced this conclusion, a position which was largely affirmed by the Ninth Circuit in its decision in Northwest Resource Information Center v. Northwest Power Planning Council in 1994 (35 F.3d 1371).