Law Commons^™

The Power Of Reciprocity: How The Confederated Salish & Kootenai Water Compact Illuminates A Path Toward Natural Resources Reconciliation, Michelle Bryan

Faculty Law Review Articles

This article chronicles the negotiation and passage of the Confederated Salish & Kootenai Tribes Water Compact, ratified in 2020, which has created one of the most innovative water management regimes envisioned among sovereigns. The Compact’s journey toward ratification is extraordinary, as the parties over the span of three decades worked to overcome historically entrenched racism and political opposition to craft a model that would provide enough water for all peoples and the fishery. Compounding the challenge, the Flathead Reservation itself contains vast swaths of checkerboard land held by non-Indians and a major federal irrigation project that has permanently altered the …

Mitigating Malheur's Misfortune: The Public Interest In The Public's Public Lands, Sandra B. Zellmer

Faculty Law Review Articles

The Article begins its inquiry with an in-depth look at the forty-one-day long standoff between armed militants and law enforcement officials at Malheur, which means "misfortune" in French. The occupation of the Refuge ended with one death and the prosecution of over two dozen individuals for trespass, destruction of government property, conspiracy, and related charges. It all began when the Hammonds, who held grazing permits on Bureau of Land Management ("BLM") land adjacent to the Refuge, were prosecuted for starting fires on federal land.1 The Hammonds' conviction for the incident might have been the end of the story, but another …

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Faculty Law Review Articles

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …

A Next, Big Step For The West (Part Ii): Model Water-Climate Enabling Legislation With Commentary, Michelle Bryan, Zach Coccoli, Graham Coppes, Dylan Desrosier

Faculty Law Review Articles

This model legislation is the culmination of an earlier work, A Next, Big Step for the West: Using Model Legislation to Create a Water- Climate Element in Local Comprehensive Plans.' That articleargues that local governments, as the primary regulators of land use and population planning, are integral to our climate and drought response in the West. That article then calls for a new, freestanding "waterclimate element" in local government comprehensive plans that integrates the often disparate realms of land use, water use, and climate planning and better prepares communities for "managing water in wise, resilient, and collaborative ways."2 This approach …

At The End Of The Day: Are The West's General Stream Adjudications Relevant To Modern Water Rights Administraton?, Michelle Bryan

Faculty Law Review Articles

This article provides a modest starting place for exploring how adjudications in various western states function together with modern permitting and administration of water rights. By locating adjudication within a state’s broader water rights system, the hope is to elevate in our water law discourse the question of whether, at the end of the day, adjudication proceedings are meaningful in the day-to-day world of water use. Part I summarizes in broad strokes the way various western states approach the interrelated functions of adjudication, permitting, and administration. Part II then highlights some common, emerging issues among state water systems as well …

Treading Water While Congress Ignores The Nation's Environment, Sandra B. Zellmer

Faculty Law Review Articles

During the late 1960s, the nation's attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls,' as well as Rachel Carson's haunting prose about the "strange blight"2 of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species.3

The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most …

The Shallows Where Federal Reserve Water Rights Founder: State Court Derogation Of The Winters Doctrine, Sandra B. Zellmer, Justin Huber

Faculty Law Review Articles

No abstract provided.

Hitching Our Wagon To A Dim Star: Why Outmoded Water Codes And "Public Interest" Review Cannot Protect The Public Trust In Western Water Law, Michelle Bryan Mudd

Faculty Law Review Articles

This article examines the interrelationship between the public trust and water rights as it is emerging in western states.

Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.

Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.

Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the …

Assessing Institutional Ability To Support Adaptive, Integrated Water Resources Management, Sandra B. Zellmer, Christina Hoffman

Faculty Law Review Articles

No abstract provided.

Improving Water Quality Antidegradation Policies, Sandra B. Zellmer, Robert L. Glicksman

Faculty Law Review Articles

No abstract provided.

Wilderness, Water, And Climate Change, Sandra B. Zellmer

Faculty Law Review Articles

As the nation searches for climate mitigation and adaptation strategies, the pressure to develop water resources within wilderness areas and to exploit the timber, forage, wildlife, fish, and other virtually untapped components of wilderness will become more acute. This Article makes the case that managers and legislatures should not yield to this pressure and argues that, if anything, the need to preserve untrammeled wilderness characteristics is just as imperative today as it was in 1964 when the Wilderness Act was passed The Article examines the potency of the Wilderness Act and a trio of federal water law doctrines-federally reserved water …

Montana V. Wyoming: An Opportunity To Right The Course For Coalbed Methane Development And Prior Appropriation, Michelle Bryan

Faculty Law Review Articles

This article examines preliminary rulings by the Special Master in Montana v. Wyoming, a Supreme Court case posed to illuminate the water law rules applicable to coalbed methane groundwater withdrawals and to fashion a remedy that better hews to those rules.

Part I provides a brief background on the Yellowstone River Compact and the Montana v. Wyoming litigation. This part further explains the Special Master's analysis of the coalbed methane issue, as well as the Supreme Court's recent ruling on improved irrigation efficiency.

Part II then describes the magnitude of the coalbed methane groundwater pumping issues and asserts that …

Mudslinging On The Missouri: Can Endangered Species Survive The Clean Water Act?, Sandra B. Zellmer

Faculty Law Review Articles

Water quality regulations typically focus on chemical and bacterial pollutants, such as pesticides, detergents, industrial wastes, and sewage. Far less attention has been paid to the flow and function of sediments, known to most of us as mud. Sediments, however, are just as important to the ecological integrity of many rivers as the quality and quantity of the water itself. On big inland rivers like the Missouri, Mississippi, and Colorado Rivers, sediments are essential to the formation of sandbars, islands, oxbows, and floodplains, which in turn provide habitat for native fish, wildlife, and invertebrate species. Also, sediments carried by the …

Floods, Famines, Or Feasts: Too Much, Too Little, Or Just Right, Sandra B. Zellmer

Faculty Law Review Articles

The United States has a passionate love-hate relationship with water. Americans love to live beside rivers and lakes and use them for drinking water, washing, fishing, generating power, navigating, and recreation. They also love to be able to use water from rivers, lakes, and the ground beneath their property to irrigate their crops. When it's too dry, they pray for rain. But when it's too wet, they beg for sunshine, because as much as they love living as close to the water as they can get, people hate having their homes, workplaces, and crops inundated by floodwater even more. Besides …

Why Resilience May Not Always Be A Good Thing: Lessons In Ecosystem Restoration From Glen Canyon And The Everglades, Sandra B. Zellmer, Lance Gunderson

Faculty Law Review Articles

No abstract provided.

The Anti-Speculation Doctrine And Its Implication For Collaborative Water Management, Sandra B. Zellmer

Faculty Law Review Articles

The focus of this Article is whether the anti-speculation doctrine in western water law poses a continuing, insuperable impediment to collaborative, market-based solutions and, if so, whether the doctrine ought to be dismantled. The Article concludes that, although the doctrine does pose an obstacle to some kinds of collaborative agreements that attempt to harness market forces for future uses through forward-looking transactions, it continues to serve an important public purpose. The anti-speculation doctrine curbs the worst potential abuses of market forces by forcing transacting parties to articulate how and when the water will be applied to actual, beneficial uses, and …

Unbundling Property In Water, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies. The quest for sustainable management has stimulated a movement for greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International …

A Tale Of Two Imperiled Rivers: Reflections From A Post-Katrina World, Sandra B. Zellmer

Faculty Law Review Articles

Last year, hundreds of thousands of residents of the lower Mississippi River basin were forced to flee Hurricane Katrina.2 Having scattered like leaves before the gale-force winds that pounded the Gulf Coast, many are still displaced by the wreckage caused by storm surges and floodwaters.3 Those who have returned continue to experience the adverse effects of a shattered infrastructure as they attempt to rebuild their homes and their lives. The environmental calamity is profound: drinking water sources polluted by destroyed septic systems and leaking storage tanks; contaminated sediments from the bayous to the residents' backyards; decimated marshes and oyster beds-in …

Is Water Property?, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

A New Corps Of Discovery For Missouri River Management, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

Managing Interjurisdictional Waters Under The Great Lakes Charter Annex, Sandra B. Zellmer, Mark Squillace

Faculty Law Review Articles

No abstract provided.

The Improvement Of Water And Water-Dependent Resources Under The Great Lakes Charter Annex, Sandra B. Zellmer, David Gecas, Anne Kori Mann

Faculty Law Review Articles

No abstract provided.

Biodiversity In And Around Mcelligot's Pool, Sandra B. Zellmer, Scott A. Johnson

Faculty Law Review Articles

No abstract provided.

The Virtues Of Command And Control Regulation: Barring Exotic Species From Aquatic Ecosystems, Sandra B. Zellmer

Faculty Law Review Articles

The Clean Water Act asserts the ambitious goal of eliminating water pollution and protecting the chemical, physical, and biological integrity of U.S. waters. Yet the EPA, in enforcing the Act, currently exempts from regulation a significant source of pollution in U.S. waters: ballast-water discharges from commercial shipping vessels. Ballast water from commercial vessels is a primary vector for the introduction of exotic plant and animal species into U.S. waters. The invasion of these species poses an increasing threat to native biodiversity; the invaders prey directly on native fish and wildlife, compete for food and habitat, and introduce disease and parasites …

Idaho -- The Constitutionality Of A Mandatory Permit System And Denial Of A Water Use In The Public Interest, William L. Corbett

Faculty Law Review Articles

This article analyzes the development and the present status of Idaho's water appropriation system to consider the constitutional obstacles and proposes a plan for the maximization of the state's presently unappropriated water. The article suggests that a mandatory permit system is constitutional and with the proper interpretation of "beneficial use" Idaho can maximize water resource allocation in the public interest.