Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Land

The past decade has seen the D-4 Caterpillar bulldozer become a significant tool for those seeking to challenge federal land management agencies\u27 authority to protect resources federal lands by reducing access. The power of the bulldozer is both symbolic and pragmatic. It cuts an iconographic image of local officials standing up against federal control over vast areas of land in the rural west. But it also, in many cases, provokes litigation, allowing claims to property rights to receive judicial attention that might otherwise evade them. Underlying each of these protagonist\u27s legal positions, if not their motivations, is a right-of-way grant enacted as part of the Mining Act of 1866: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” For 110 years, from its enactment in 1866 until its repeal in 1976, this obscure statute known as R.S. 2477 granted the right-of-way across unreserved federal public lands for the construction of highways. For most of its lifetime, the terse and obscure grant caused little stir, except for the occasional claim that now private lands are subject to R.S. 2477 rights-of-way established during earlier public ownership. Since its repeal, however, R.S. 2477 has become a flashpoint in the ongoing battle for control over western public lands and the resources they harbor. Throughout the west, states, counties, and even individuals and groups pushing for unrestricted motorized access to remote public lands are using R.S. 2477 to try to frustrate environmentally protective measures imposed by federal land managers. Some of these groups are seeking to establish R.S. 2477 highway claims in order to preclude the potential future designation of public lands for protection under the Wilderness Act of 1964. An overlooked aspect of the R.S. 2477 controversy has been the allocation of responsibility among federal courts and federal land managers--specifically, the Department of the Interior (“DOI”)--for resolving disputed R.S. 2477 claims. Whether courts or federal land managers have primary authority to interpret and apply R.S. 2477 is more than a question of mere procedure or choice of forum. It is central to the ability of federal land management agencies to administer the obsolete land grant in a way that harmonizes the intent of the Congress that created it and the intent of Congresses that have since repealed the grant and mandated the management of public lands for various uses, including protecting their primitive condition. This Article argues that federal land management agencies should replace the courts as the institution with primary responsibility for resolving issues that arise from R.S. 2477 claims. In this view, DOI should be accorded the opportunity to interpret R.S. 2477 and to make an initial determination of the validity and scope of claimed R.S. 2477 rights-of-way. The judicial role, though still substantial, would be limited to that customary in administrative law cases, namely, the review of agency action for abuse of discretion and impermissible resolution of statutory ambiguities. Agency primacy would ensure the consistency and uniformity of R.S. 2477 decisions and, if the process is properly structured, ensure that the unique problems presented by this antiquated grant are, at long last, finally settled in a manner that both permits public participation and interpretation of R.S. 2477 in the proper context of the modern public land management regime

From Food Miles to Moneyball : How We Should Be Thinking About Food and Climate

Since Michael Pollan polarized the push to eat local food in his bestseller, The Omnivore’s Dilemma, the concept of “food miles” has been something of a rallying cry and an organizing principle in the marketing of the local food movement. Among locavores and their sympathizers, the term seems to encapsulate all that is wrong with the food system. Fresh grapes from Chile make their way to supermarkets from Maine to Minnesota, and even California. Major food conglomerates process commodity ingredients like corn, soy, and wheat into packaged food that travels across the country and across oceans before landing on a dinner plate. In a time when climate change is emerging as a widely accepted threat—perhaps the biggest threat—to the world as we know it, the concept of “food miles” alluringly invites us to take satisfying personal action where national and international governance have failed to forge an effective response to the warming planet. The term suggests that by acting locally, by eating locally, we can each do our own small, individual part to confront the enormity of his global problem—that shopping at the farmer’s market is a virtuous act of global citizenship. This Essay seeks to demonstrate the limits of that notion and to suggest a different way of thinking about food and climate. Whether or not it is true that food travels an average of 1,500 miles before it reaches the American table, the concept of “food miles” is not one which we should construct policy around to address the food system’s contribution to global warming. This Essay seeks to bring to the discussion among American legal scholars and local food activists what is becoming increasingly clear to ecologists and other scientists who study the farm, while it may be a part of the climate change puzzle, is not a keystone. Fossil-fueled transportation accounts for a relatively small portion of the food system’s contribution to climate change. Far more important than transportation are the ways that faming is done, particularly the efficient uses of nitrogen fertilizer, the management of manure and livestock, and the clearing of forests for cultivation to provide food and energy (biofuel) to a growing world population. This Essay will proceed in two main parts. In order to choose the most effective policies it is essential to understand what is known about the impact of the food sector on climate change. Part I places “food miles” in context by describing the ways in which agriculture (the cultivation of food) contributes to global warming. It does so not just by looking at today’s emissions from agriculture, but also by considering the climate impact of food production in future decades. Part II suggests a pragmatic policy approach to addressing climate change though the food and agriculture sector. It outlines a series of proposals, primarily to be undertaken on the international scale, that focuses on “low hanging fruit” by focusing on the sector’s most significant greenhouse gas emissions. It identifies five “Moneyball” strategies for smartly addressing the climate impacts of food production in coming decades

The Grid and the Grouse: Cooperative Federal-State Conservation Planning in the Ages of Obama and Trump

This essay reviews two habitat conservation and planning initiatives undertaken by the Obama administration that relied on and envisioned extraordinary cooperation between the federal and state governments in order to overcome, or at least lessen, the disruptive impacts of jurisdictional lines on effective and comprehensive habitat conservation. These initiatives are the Desert Renewable Energy Conservation Plan (DRECP) in California and the sage grouse conservation planning effort across eleven western states. Both initiatives embraced the common sense goal of coordinating development and conservation management across jurisdictional boundaries. In both initiatives, however, cooperation was motivated and sustained by specific legal and policy imperatives that commanded a joint effort. In the Trump era to date, these imperatives, which are described below, remain mostly unchanged, notwithstanding shifts in federal policy favoring traditional energy development on the public lands. In a rational world unmanipulated by politics, these imperatives should operate to further promote-or, at the very least, to maintain intact-these collaborative conservation efforts

From Food Miles to Moneyball : How We Should Be Thinking About Food and Climate

Since Michael Pollan polarized the push to eat local food in his bestseller, The Omnivore’s Dilemma, the concept of “food miles” has been something of a rallying cry and an organizing principle in the marketing of the local food movement. Among locavores and their sympathizers, the term seems to encapsulate all that is wrong with the food system. Fresh grapes from Chile make their way to supermarkets from Maine to Minnesota, and even California. Major food conglomerates process commodity ingredients like corn, soy, and wheat into packaged food that travels across the country and across oceans before landing on a dinner plate. In a time when climate change is emerging as a widely accepted threat—perhaps the biggest threat—to the world as we know it, the concept of “food miles” alluringly invites us to take satisfying personal action where national and international governance have failed to forge an effective response to the warming planet. The term suggests that by acting locally, by eating locally, we can each do our own small, individual part to confront the enormity of his global problem—that shopping at the farmer’s market is a virtuous act of global citizenship. This Essay seeks to demonstrate the limits of that notion and to suggest a different way of thinking about food and climate. Whether or not it is true that food travels an average of 1,500 miles before it reaches the American table, the concept of “food miles” is not one which we should construct policy around to address the food system’s contribution to global warming. This Essay seeks to bring to the discussion among American legal scholars and local food activists what is becoming increasingly clear to ecologists and other scientists who study the farm, while it may be a part of the climate change puzzle, is not a keystone. Fossil-fueled transportation accounts for a relatively small portion of the food system’s contribution to climate change. Far more important than transportation are the ways that faming is done, particularly the efficient uses of nitrogen fertilizer, the management of manure and livestock, and the clearing of forests for cultivation to provide food and energy (biofuel) to a growing world population. This Essay will proceed in two main parts. In order to choose the most effective policies it is essential to understand what is known about the impact of the food sector on climate change. Part I places “food miles” in context by describing the ways in which agriculture (the cultivation of food) contributes to global warming. It does so not just by looking at today’s emissions from agriculture, but also by considering the climate impact of food production in future decades. Part II suggests a pragmatic policy approach to addressing climate change though the food and agriculture sector. It outlines a series of proposals, primarily to be undertaken on the international scale, that focuses on “low hanging fruit” by focusing on the sector’s most significant greenhouse gas emissions. It identifies five “Moneyball” strategies for smartly addressing the climate impacts of food production in coming decades

Panel discussion presentation: Everything is connected — Why Mexico’s problems are everyone’s problems on the Colorado River, and the other way around

Panel Discussion: U.S.-Mexico Transboundary Perspectives Colorado River Compact: Allocates water among Upper Basin and Lower Basin - 7.5 maf for each basin - Extra 1 maf for lower basin Supplies Mexico first from surplus above total apportionment to upper an lower basins - If surplus insufficient to supply Mexico, then Mexico’s share supplied equally by upper and lower basins Upper division states “shall not cause” flow to lower basin to be less than 75 maf in 10 year

Séances, Ciénegas, and Slop: Can Collaboration Revive the Colorado Delta?

Issues of transboundary allocation of water resources and its environmental effects are, virtually by their very nature, ones that require collaborative solutions. In the absence of international law norms and institutions to resolve sovereign claims to the waters of international rivers, much of the decisionmaking is left to the collaborative, or negotiated, arrangements between the countries involved and their respective domestic stakeholders. This Article examines collaborative efforts to allocate waters in the Colorado River basin as they relate to the lowest reaches of that great river, the ecologically important but very fragile Colorado River Delta in Mexico. Collaboration is sometimes promoted as preferable to environmental decisionmaking through formal legalistic mechanisms and institutions. Its purported advantages include the flexibility to include stakeholders who might be disempowered in a formal legal context, the ability to develop a widely agreed upon information basis for resolving factually complex questions, and the potential for elevating shared values over contested ones. This review does not seek to contest any of those points, but it does sound a cautionary note--namely, that solutions reached by collaborative processes are not necessarily beneficial for the environment or for those constituencies that promote or benefit from its protection. Collaboration alone, without structuring the legal and economic framework for policymaking to provide specifically for the goal of protecting the delta, is unlikely to move much water downstream to where it\u27s needed to save the imperiled delta

Mapping the Human Right to Water on the Colorado River

Colorado River systems-both ecological and legal-are facing a coming crisis. The river snakes its way from the Rocky Mountain crest to the Gulf of California, draining 245,000 square miles encompassing parts of seven of the United States ( U.S. ) and two Mexican states. The river and its tributaries provide drinking water for growing population of thirty million in an even larger area because some of its water is diverted to serve out-of-basin demands in both the U.S. and Mexico. Aside from bringing life-sustaining water to people for personal use, it provides irrigation water for some of the most valuable agricultural lands in the world. Dams on the river system generate enough power to supply the partial needs of some nine to twelve million people. Quite simply, the Colorado River is the lifeline of the region, both literally and economically. It is increasingly clear that the Colorado River is not likely to sustainably provide enough water to satisfy all of the uses demanded of it under the legal regime currently allocating its water. Already, its natural systems have been severely degraded by the manipulation of water by an extensive network of dams and diversions. Research in recent years has demonstrated that the river historically has produced considerably less water than is presently allocated under the Law of the River, including, most notably, the Colorado River Compact of 1922 and the 1944 treaty between the U.S. and Mexico. Wellfounded predictions of the impacts of climate change on the Colorado River basin draw an even gloomier picture. The predictions suggest that average flows on the river will continue to decline even as droughts become more frequent, and that declines in runoff will result in amplified reduction of water stored in dams on the system. At the same time, a growing population will likely demand more water from the over allocated system. All this leads to the inescapable conclusion that the Colorado River\u27s water budget is broken. The purpose of this paper is to consider the allocation of water in the Colorado River basin from a human rights perspective and to assess the human rights implications of the most significant fault lines in the coming crisis. Just as the basin-wide conditions on the Colorado River are evolving and the Law of the River is evolving in reaction, so is the notion of a human right to water in international human rights law. This paper attempts to take stock of where these two issues might intersect. To do this, Part I will provide a summary overview of the Law of the River, a complex and evolving set of legal rules derived from interstate compacts, Supreme Court decrees, administrative decisions, and other sources. This overview will show that a legal system that was based on overly optimistic understandings about the availability of water continues to bend, and may eventually break, as climate change lays bare the mistaken assumptions of its foundation. Part II will then identify four fissures already roiling the Law of the River and discuss the issues they present relating to the human right to water

From “Food Miles” to “Moneyball”: How We Should Be Thinking About Food and Climate

Since Michael Pollan popularized the push to eat local food in his bestseller, The Omnivore’s Dilemma, the concept of “food miles” has been something of a rallying cry and an organizing principle in the marketing of the local food movement. Among locavores and their sympathizers, the term seems to encapsulate all that is wrong with the food system. Fresh grapes from Chile make their way to supermarkets from Maine to Minnesota, and even California. Major food conglomerates process commodity ingredients like corn, soy, and wheat into packaged food that travels across the country and across oceans before landing on a dinner plate. In a time when climate change is emerging as a widely accepted threat—perhaps the biggest threat—to the world as we know it, the concept of “food miles” alluringly invites us to take satisfying personal action where national and international governance have failed to forge an effective response to the warming planet. The term suggests that by acting locally, by eating locally, we can each do our own small, individual part to confront the enormity of this global problem—that shopping at the farmer’s market is a virtuous act of global citizenship. This Essay seeks to demonstrate the limits of that notion and to suggest a different way of thinking about food and climate. Whether or not it is true that food travels an average of 1,500 miles before it reaches the American table, the concept of “food miles” is not one which we should construct policy around to address the food system’s contribution to global warming. This Essay seeks to bring to the discussion among American legal scholars and local food activists what is becoming increasingly clear to ecologists and other scientists who study the impact of the food system on climate: The distance between American fork and farm, while it may be a part of the climate change puzzle, is not a keystone. Fossil-fueled transportation accounts for a relatively small portion of the food system’s contribution to climate change. Far more important than transportation are the ways that farming is done, particularly the efficient uses of nitrogen fertilizer, the management of manure and livestock, and the clearing of forests for cultivation to provide food and energy (biofuel) to a growing world population. This Essay will proceed in two main parts. In order to choose the most effective policies it is essential to understand what is known about the impact of the food sector on climate change. Part I places “food miles” in context by describing the ways in which agriculture (the cultivation of food) contributes to global warming. It does so not just by looking at today’s emissions from agriculture, but also by considering the climate impact of food production in future decades. Part II suggests a pragmatic policy approach to addressing climate change through the food and agriculture sector. It outlines a series of proposals, primarily to be undertaken on the international scale, that focuses on “low hanging fruit” by focusing on the sector’s most significant greenhouse gas emissions. It identifies five “Moneyball” strategies for smartly addressing the climate impacts of food production in the coming decades

Adjucating Sustainability: New Zealand\u27s Environment Court

New Zealand\u27s Resource Management Act of 1991 (“RMA”) placed the island nation on the world\u27s cutting edge of environmental management by making sustainability the law of the land. The RMA also presents an opportunity to examine a less heralded New Zealand innovation in environmental governance: a specialized, expert court that is focused exclusively on resolving environmental disputes. The Environment Court is a critical institution in New Zealand\u27s effort to move toward sustainable management of the environment. Exercising broad powers to review most of the fundamental issues arising under the RMA, the Court is the primary arbiter of whether activities and policies affecting the environment meet New Zealand\u27s standard of sustainability. It is a rare institution, a specialized court of law composed of judges and technically-trained laypersons vested with the power of de novo review of government policy and both governmental and private actions affecting the environment. The court issues decisions of binding effect on particular disputes and potentially far-reaching precedential effect on crucial legal, factual and policy issues arising under New Zealand\u27s law of sustainability. New Zealand\u27s experience with its Environment Court is instructive both for nations that have mature traditions of environmental governance and adjudication and for countries that have nascent systems of environmental law. For the United States, this experience represents a road not taken. At the advent of America\u27s era of modern federal environmental statutes, Congress directed the President to analyze “the feasibility of establishing a separate court, or court system, having jurisdiction over environmental matters.” Upon the Justice Department\u27s negative recommendation, no federal environmental court system was established. Rather, environmental disputes continue to be decided by courts of general jurisdiction applying principles of general and administrative law. For other jurisdictions less bound by settled traditions, New Zealand\u27s example might provide a blueprint for environmental governance. In either case, understanding the role of New Zealand\u27s Environment Court within that country\u27s system of environmental governance brings into focus some important policy choices inherent in granting a court of law such sweeping powers under a legal regime based on sustainability. This Article examines the New Zealand model and reflects on the policy choices that it encompasses