Environmental Law Commons^™

Protecting Human Health And Stewarding The Environment: An Essay Exploring Values In U.S. Environmental Protection Law, Tracy Bach

Michigan Journal of Environmental & Administrative Law

The purpose of this conference is to explore “the relationship between environmental protection and public health and how it should inform our efforts to become better stewards of the environment.” No one would disagree with the assertion that during the last forty years of federal environmental protection, air and water quality have improved and led to concomitant improvements in human health. Exploring the contours of this “relationship,” Environmental Protection Agency (EPA) Administrator Gina McCarthy said in her keynote speech that “[t]he thing is, the word ‘relationship’ is too neutral. The link between the health of our planet and the health …

Adjudications, Brigette Buynak, Darcy S. Bushnell

Water Matters!

Adjudications are lawsuits that take place in state or federal court to resolve all claims to water use in the state of New Mexico, including those of Pueblos, tribes and the federal government. These cases are required by statute to create a formal inventory of water uses and to facilitate administration of New Mexico’s surface and groundwater. The geographic scope of each case is generally described by a stream system and occasionally by a groundwater basin. By statute, the State is always the plaintiff. The mission is to formally identify and recognize all valid water rights in each area being …

Health Law As Social Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and …

Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia

St. Mary's Law Journal

It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …

The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law., Paul Hanna, Matthew Leal

St. Mary's Law Journal

Abstract Forthcoming.

Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket., Richard E. Flint

St. Mary's Law Journal

A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application. However, in response to the case of In re Columbia Medical …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried

St. Mary's Law Journal

Abstract Forthcoming.

The Accommodation Doctrine Revisited: Implications In Law And In Policy., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

New Mexico Water Law Capsules, Stephanie Tsosie

Water Matters!

This article contains a list some of the key cases decided in the state and federal courts of New Mexico with very brief descriptions of the rulings. The finalized cases have been arranged by topic. This chapter is intended to be a quick and handy reference guide and not a thorough summary of the facts and law of each case. This year we have also included a list of water law statutes.

Water Conservation, Consuelo Bokum

Water Matters!

New Mexico always has had periods of water shortages, some far more long lasting and devastating than others. As warming temperature and changing weather patterns continue to develop, the likelihood that water shortages—like those felt throughout the state from 2010 through 2013—will occur with greater frequency. These changes can and have caused significant economic and environmental damage, and the risk of more harm will not improve unless we improve our water management significant.

Drought, Adrian Oglesby

Water Matters!

New Mexico is renowned for its high deserts, mild climate, and abundant sunshine. Incidentally, these physical attributes, which make New Mexico so unique and beautiful, are also characteristic of a naturally dry environment. The state has been subjected to severe drought conditions in the past, alternating with times of uncharacteristically high supplies of moisture upon which its population has at times over-relied.

This article will provide various definitions of drought and a short history of drought in New Mexico; discuss impacts of drought on the state’s human water user communities and environment; discuss in brief the priority call and water …

Priority Administration, Ed Merta

Water Matters!

Since the turn of the twenty first century, drought conditions have frequently stricken much of New Mexico. Such intervals of extreme dryness have been a permanent, recurring feature of the state’s climate for at least two thousand years, according to tree ring data and other scientific evidence. Some of these past droughts lasted for decades, exceeding in severity the Dust Bowl of the 1930sand the great New Mexico drought of the 1950s. Today, climate change models indicate that the Southwest will likely become even hotter, potentially making future droughts in New Mexico more extreme. Managing water shortages promises to become …

Active Water Resource Management, Paul Bossert, Gregory C. Ridgley

Water Matters!

For decades, most of the waters of the State of New Mexico have been the subject of water rights adjudications to establish all the water rights. Stream systems and sub-basins geographically define the adjudications. There are twelve active cases. However, complete adjudication of all New Mexico water rights is still many years away. Meanwhile, water use in the state has evolved.New water users increasingly look to acquire existing water rights rather than developing new rights. Decisions on administration, distribution, and redistribution of water have to be made.

It was widely held, though not unanimously, that the State Engineer needed greater …

Domestic Wells, Paul Bossert, Sarah Armstrong

Water Matters!

The domestic well statutes direct that the State Engineer “shall” issue a permit for certain types of temporary or low volume wells, including wells for household use. For the past fifty-five years, the Office of the State Engineer (OSE) has interpreted this to mean that such permits are granted with no evaluation, public notice, or hearing.

Water For New Mexico Rivers, Beth Bardwell, Adrian Oglesby

Water Matters!

The Rio Grande, the Pecos, the Gila, the San Juan, the Canadian—New Mexico’s rivers are synonymous with the state’s culture and natural heritage. New Mexicans overwhelmingly care about the health of the state’s rivers and that includes flows to support fish and river dependent wildlife. Rivers, wetlands, and riparian areas comprise a very small part of our landscape—a mere 1 percent. This 1 percent plays an essential role in renewing the state’s water supply for its two million residents; for sustaining the state’s second largest industry—tourism; for producing food and fiber; and for sustaining New Mexico’s web of life. Eighty …

Inter-Basin Water Transfers, Anne Minard

Water Matters!

Inter-basin water transfers move water from one watershed to another. As droughts constrict the availability of water, and cities grow larger and thirstier, such transfers are increasingly being eyed as a solution. Although inter-basin transfers usually do not increase the overall availability of water in a state, they can move water to where it is needed most. Some of the main proponents of inter-basin transfers are pro-growth city and state governments as the re-allocation of water across watersheds allows for flexibility in planning for future growth.

Navajo-Gallup Water Supply Project, Jerold Widdison, Pat Page

Water Matters!

In March of 2009, the Congress passed and President Obama signed into law the“Omnibus Public Land Management Act of 2009". The Project is a major endeavor for northwestern New Mexico. In one sense,authorization of the project culminates years of work. In another sense, it means the beginning of many additional years of effort. There is much to be done to construct and carry the project forward to reality, including work for the federal government,the State of New Mexico, the Navajo Nation, and the city of Gallup. In view of the Project’s magnitude, this article reviews only its major aspects

The Nambé, Pojoaque, San Ildefonso, And Tesuque Pueblos Settlement, Paul Bossert, Sarah Armstrong

Water Matters!

The “Aamodt case” is a complex, long-running adjudication of water rights in the Pojoaque River watershed northwest of Santa Fe. In 1966,it was filed in federal court as State of New Mexico, ex rel. State Engineer,et al. v. Aamodt, et al. The parties include the State, through the State Engineer, about 5,600 non-Indian claimants, the Pueblos of Nambé, Pojoaque,San Ildefonso, and Tesuque, and governmental entities such as the county of Santa Fe, many acequias, the Pojoaque Valley Irrigation District, and several federal and state agencies.

Taos Pueblo Water Rights Settlement, Paul Bossert, Darcy S. Bushnell

Water Matters!

In November of 2010, the Congress passed the Claims Resolution Act and on December 8, President Obama signed it into law. Title V of the Claims Act, the Taos Pueblo Indian Water Rights Settlement Act, settles the Pueblo portion of the Abeyta case and approves an agreement signed in 2006 by officials from Taos Pueblo, the State of New Mexico, and other interested water rights owners in the Taos area. The settlement act also helps resolve the non-Indian portion of Abeyta. The measure quantifies Taos Pueblo’s water rights and protects the interests of local acequias, the Town of Taos, and …

Salt Basin, Jerold Widdison, Stephanie Tsosie

Water Matters!

The Salt Basin of south-central New Mexico presents several problems of resource utilization. The basin is a large but little-known area—dry, inhospitable—but it has a sought-after supply of groundwater and perhaps a supply of natural gas and oil. In addition, the basin features vast stretches of grassland in an essentially intact natural environment. The“hows” and the “whethers” of using and conserving these resources have been vigorously argued for several years.

Water Trust Board, Joanne Hilton, Darcy S. Bushnell

Water Matters!

In 2001, the New Mexico legislature passed the Water Project Finance Act. The stated purpose of the Water Project Finance Act is to provide a financing mechanism to promote water use efficiency, water resource conservation and protection, and fair distribution and allocation of water to all users. The Water Trust Board was created in the Act. Its purpose is to: 1) oversee and administer the Water Trust Fund and Water Project Fund; 2) review and recommend funding for qualifying water projects to the legislature; and 3)pursue additional funding opportunities.

Strategic Water Reserve, Brigette Buynak, Stephanie Tsosie

Water Matters!

The Strategic Water Reserve (Reserve) established in 2005 transforms New Mexico’s policies regarding river management. The Reserve is a pool of publicly held water rights dedicated to keeping New Mexico’s rivers flowing to meet the needs of river-dependent endangered species and to fulfill our water delivery obligations to other states. It is a tool for New Mexico to achieve sensible and sustainable water policies by balancing water use between cities, industry, agriculture, and the rivers of the state.

Fracking As A Federalism Case Study, Amanda Leiter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Deep In The Heart Of Texas: How Carbon Sequestration Will Affect Valuation Of The Subsurface., Sarah Anne Lishman

St. Mary's Law Journal

Abstract Forthcoming.

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …

Power Play: An Examination Of Texas's Anti-Slapp Statute And Its Protection Of Free Speech Through Accelerated Dismissal., Dena M. Richardson

St. Mary's Law Journal

Abstract Forthcoming.

The Texas Anti-Indemnity Act., Taylor R. Beaver

St. Mary's Law Journal

Owners, general contractors, and subcontractors enter into agreements to ameliorate risk amongst those exercising control. Some of these include hold-harmless agreements, indemnity agreements, releases, and agreements conferring additional insured status to others. Typically, parties enjoy freedom to contract as they wish. Texas has long recognized, as a matter of public policy, a party’s right to draft contracts however it sees fit. Historically, risk-shifting agreements were enforceable if they passed the fair notice requirements, meaning the express negligence rule and the conspicuousness test. The trend in recent years, however, has been to limit exculpatory clauses. In 2011, the Texas Legislature effectively …

Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach

St. Mary's Law Journal

The remedy of fee forfeiture against lawyer fiduciaries has been marginalized. Following Burrow v. Arce, Texas trial courts have frequently applied a no-fracturing rule that effectively bars a claim for breach of fiduciary duty against an attorney. Although the court in Burrow held actual damages were not a prerequisite for fee forfeiture, many Texas trial courts have not followed that precedent. Most Texas trial courts require the plaintiff to prove actual damages to survive a summary judgment motion. Others have openly asserted that not all legitimate claims for breach of fiduciary duty should be allowed as an alternative claim to …