Natural Resources Law Commons^™

Protecting The Oceanic Gardens Of Eden: International Law Issues In Deep-Sea Vent Resource Conservation And Management, Craig Allen

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This article seeks to stimulate the nascent discussion on legal questions presented by access to, and use of, deep-sea hydrothermal vent sites and resources and to help guide ocean policy analysts in their efforts to formulate and implement appropriate conservation and management measures adapted to the unique multiple-use conflicts posed by the vent phenomena. The inquiry is timely and important for the vent communities, some of which are already showing signs of the human footprint—a footprint that may in the not too distant future include the tracks of submarine bulldozers as they set about the job of seabed mining.

The …

Managing State Trust Lands For Ecosystem Health: The Case Of Washington State's Range And Agricultural Lands, Gregory A. Hicks

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The protection of ecosystem health and wildlife habitat on state trust lands has received increasing attention in public lands literature. This article is meant to contribute to that discussion. It is focused on recently adopted land management policies in Washington state which are intended to restore ecosystem health and wildlife habitat on the 1.1 million acres of range and agricultural trust lands in the upland interior of the state's Columbia Plain. The lands in question are lands originally granted to Washington at statehood by the federal government for the support of the common schools and other public institutions. Those lands …

Protecting And Promoting Wildlife And Habitat On State And Private Land In Washington's Arid Interior, Gregory A. Hicks

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The object of this paper is to describe efforts now under way in the interior uplands of Washington State's Columbia Plain to restore and protect upland wildlife habitat and wildlife species in a busy and intensively used agricultural and range landscape. It is a landscape of greatly diminished ecological integrity, dominated by private land holdings, and where the remaining public lands are recovering from earlier periods of farming or grazing or still dedicated to productive use under lease or permit. Recent ecosystem assessments make clear that there are few areas of the Columbia Plain's original grass and shrub land which …

Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier

Articles

Self-help is a largely neglected topic in American legal studies.1 With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if anything, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants.

The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal

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The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of …

A Book Review—Or What You Never Wanted To Know About Bibliographies, Penny A. Hazelton

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Reviewing Joe Stephens, Law, Natural Resources, and Land Use: The Environmental Collection of the Paul L. Boley Law Library (1986).

Freedom From Freedom Of Contract: The Enduring Value Of Servitude Restrictions, Stewart E. Sterk

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The article examines the legal and policy implications of enforcing contractual servitudes that bind successors-in-interest to land, arguing that unrestricted enforcement could lead to significant externalities and transaction costs. While Richard Epstein advocates for maximal contractual freedom, the analysis highlights the need for doctrinal limitations to protect future generations and public interests. The article critiques existing doctrines like the touch and concern requirement, changed conditions doctrine, and durational limitations, proposing reforms to balance private autonomy with broader societal concerns.

Czm In California, Oregon, And Washington, Richard G. Hildreth, Ralph W. Johnson

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Twenty years ago coastal zone protection was merely a gleam in the eyes of a few west coast visionaries. A flurry of state and federal laws in the late 1960s and into the 1970s changed this. Today, broad coastal management programs are in place in all three west coast states, with a special one for San Francisco Bay. Each program is unique, and at the same time shares significant qualities with the others. This article identifies the major attributes of these four programs and offers insights into the strengths and weaknesses of each. In comparing and contrasting the four programs, …

Comment, Bernard H. Oxman

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No abstract provided.

Building Theories Of Judicial Review In Natural Resources Law, William H. Rodgers, Jr.

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In the specialty of natural resources law, there is no reason to expect our tasks of description and prescription to be any easier. We deal, after all, with the allocation of scarce resources where there are winners and losers. This leads us quickly into substantive justice theories based on entitlements, needs, and deserts and process justice theories extending to each loser his due.

Justice theory is implemented through judicial review, and what courts do depends importantly upon behavioral assumptions about people, agencies of government, and empirical proof. The sources of these assumptions and evidence are often the sciences, and I …

Bringing People Back: Toward A Comprehensive Theory Of Taking In Natural Resources Law, William H. Rodgers, Jr.

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This Article attempts to bring people back into legal analysis by drawing upon behavioral preferences of human beings suggested by the laws of biology. Biological theory offers no all-encompassing explanations of legal outcomes, although it offers important, and much neglected, partial explanations.

That the law can be explained in this light suggests that courts have a view of human nature departing from the caricatures of much contemporary legal theory. We take as our setting an issue faced by each society in every era-property rights in natural resources.

Part I takes up the task of theory development by recanvassing property theory …

Harbor Lines And The Public Trust Doctrine In Washington Navigable Waters, Ralph W. Johnson, Eileen M. Cooney

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Since 1971 the Shoreline Management Act (SMA) has been the dominant legal tool for managing the Washington coastal zone. However, use of state-owned beds of navigable fresh and salt waters below low tide or the low-water line is still controlled largely by the harbor line system established in the 1889 state constitution. Almost no attention has been paid to the harbor line system in the legal literature, or to its relationship to the other laws concerned with coastal zone management. This article briefly analyzes the relationship of the harbor line system to the SMA, to the various federal laws concerned …

Recreation, Fish, Wildlife And The Public Land Law Review Commission, Ralph W. Johnson

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Scanning the entire Report of the Public Land Law Review Commission (One Third of the Nation's Land: A Report to the President and to the Congress (1970) will make a back country hiker swallow twice, call his congressman to quash the Report, and head for the hinterland for one last look before the loggers, miners, golfers, farmers, and house builders arrive. Although the Report does not say so in so many words it ends up as a kind of potpourri, where everyone gets something. It attempts to say all things to all people, to suggest that everyone will be gainers-that …

Federal Organization For Control Of Weather Modification, Ralph W. Johnson

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This article is designed to explore the optimal institutional structures that might be adopted by the federal government to manage weather modification. Should all federal weather modification activities be managed by a new department? Should these activities be carried out by one of the existing mission agencies, or by a new one? Should the various weather modification functions of research, operations, data collection, monitoring, coordination, comprehensive planning, project review, regulation, licensing, and indemnification all be carried by one federal agency, or should they be scattered among a variety of agencies? Should some be assigned to new entities not yet created? …

The Japan-United States Salmon Conflict, Ralph W. Johnson

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This article will briefly describe the events that followed the signing of the International Convention for High Seas Fisheries of the North Atlantic Ocean (the Tripartite Treaty) and the recent negotiations attempting to replace or modify that treaty. After describing the current state of negotiations between Japan and the United States, the article will then examine several key issues that form the focal points of the disagreement.

Was Japan coerced into signing the Tripartite Treaty in 1952? What is the meaning of the Protocol and the abstention line at longitude 1750 W.? What is the standing of the abstention principle …

Recreational Rights And Titles To Beds On Western Lakes And Streams, Ralph W. Johnson, Russell A. Austin Jr.

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What rights do riparians, their licensees, and the public have to use the small lakes and streams of the West when the beds are privately owned? This is the question which this Article attempts to answer. However, to do this, an analysis had to be made of which lake and stream beds were privately owned. Thus, the Article covers both the questions of title to beds and rights of surface use. This Article represents the first time that an effort has been made to systematically and comprehensively survey the lake and stream surface use cases of the Western part of …

The Japan-United States Salmon Conflict, Ralph W. Johnson

Articles

This article will briefly describe the events that followed the signing of the Tripartite Treaty and the recent negotiations attempting to replace or modify that treaty. After describing the current state of negotiations between Japan and the United States, the article will then examine several key isues that form the focal points of the disagreement.6 Was Japan coerced into signing the Tripartite Treaty in 1952? What is the meaning of the Protocol and the abstention line at longitude 1750 W.? What is the standing of the abstention principle in international law? What are the policy arguments for and against abstention, …

Regulation Of Commercial Salmon Fisherman: A Case Of Confused Objectives, Ralph W. Johnson

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To be blunt, the salmon boat fisherman is as obsolete as the buffalo hunter. The "secret'"—traps and weirs; they make salmon catching absurdly easy and can be operated at 1/20 to 1/30 the boat-catching costs. Hunting for salmon on the high seas is like chasing bees in a meadow. Why not wait until the bees return to their hive, or until the salmon return to their spawning stream? Hunting for salmon with boats makes economic sense as a temporary palliative to an unemployment problem; it makes economic nonsense as a permanent industry in a competitive society in a …

Freedom Of Navigation For International Rivers: What Does It Mean?, Ralph W. Johnson

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Is the principle of free navigation, as applied to international rivers, relevant to present-day political and economic reality? Ordinarily, the first thing to be done in an article such as this is to define the principal term, i.e., "free navigation," or "navigational freedom." In this case it is impossible to give a single definition. The term, idea, concept, or rationale is a chameleon, changing its meaning from place to place and from time to time. A number of the following pages will be devoted to tracing these various meanings and showing the confusion that arises from their existence. Briefly, there …

Washington Timber Deeds And Contracts, Ralph W. Johnson

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The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which recording …

Washington Timber Deeds And Contracts, Ralph W. Johnson

Articles

The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which recording …

The Right Of Fishing, Ralph W. Aigler

Articles

While the man engaged in fishing is ordinarily more concerned with the supply of fish and their susceptibility than with his right to be doing what he is, not infrequently the latter question is thrust upon his attention. Popular notions on this matter are not to be relied upon. "In country life a multitude of acts are habitually committed that are technically trespasses. Persons walk, catch fish, pick berries, and gather nuts in alieno solo, without strict right. Good natured owners tolerate these practices until they become annoying or injurious, and then put a stop to them," ADAMS, J., in …

The Right Of Fishing, Ralph W. Aigler

Articles

While the man engaged in fishing is ordinarily more concerned with the supply of fish and their susceptibility than with his right to be doing what he is, not infrequently the latter question is thrust upon his attention. Popular notions on this matter are not to be relied upon. "In country life a multitude of acts are habitually committed that are technically trespasses. Persons walk, catch fish, pick berries, and gather nuts in alieno solo, without strict right. Good natured owners tolerate these practices until they become annoying or injurious, and then put a stop to them," ADAMS, J., in …

The Right To Divert Water To Non-Riparian Land, Ralph W. Aigler

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Though at one time in England there may have been some doubt as to the character of a riparian owner's rights in the waters of the stream, it must be considered as definitely settled by a series of cases that the doctrine of reasonable use by all the proprietors on the stream is the rule of the common law, and that the matter of priority of use or appropriation is, under that system, immaterial, unless, of course, a question of prescriptive right is involved. Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 3 B. & Ad. 304, …

Surface Water In Cities, John R. Rood

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It is evident that no one hard and fast rule could be applied to all cases, either in city or country, without producing injustice and impolitic results. The needs and conditions in city and country are different. They usually differ widely in different parts of the same city. These considerations have induced the Supreme Court of New Hampshire to adopt the flexible rule, that: "In determining this question all the circumstances of the case would, of course, be considered; and among them the nature and importance of the improvements sought to be made, the extent of the interference with the …

Title To Lands Under Fresh Water Lakes And Ponds, Thomas M. Cooley

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In the Northwestern States there are innumerable lakes and ponds, which are largely resorted to for pleasure, and for the opportunities they furnish for the taking of game and fish. The scenery about them is, in most cases, picturesque and inviting, and they become favorite locations for residence. On some the navigation is valuable for business purposes; others are navigated for pleasure only. In surveying the public domain for the purposes of sale, the government caused all that were too large to be embraced within a single subdivision of a section, to be meandered at the water line, and the …

Incidental Injuries From Exercise Of Lawful Rights, Thomas M. Cooley

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In the present paper those cases will be considered in which one person suffers an injury in consequence of the exercise by another person of his legal rights. Many such cases occur in which, although the injury may be severe, the law will award no compensation, there being no tort in the case because there is an absence of that wrong the concurrence of which with damage is essential to an action. Negligence might supply the wrong, but we now speak of cases of which that is not an element.

Incidental Injuries From Exercise Of Lawful Rights, Thomas M. Cooley

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In the present paper those cases will be considered in which one person suffers an injury in consequence of the exercise by another person of his legal rights. Many such cases occur in which, although the injury may be severe, the law will award no compensation, there being no tort in the case because there is an absence of that wrong the concurrence of which with damage is essential to an action. Negligence might supply the wrong, but we now speak of cases of which that is not an element.