The Public Trust Doctrine and Private Property: The Accommodation Principle

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, transforming fee simple absolutes into defeasible fees, and recognizing pubic easements on private land titles. The article concludes that the public trust doctrine, if properly understood, can perform the important function helping to modernize property law

Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration

In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes: (1) a share of fish harvests for subsistence, cultural, and commercial purposes; (2) inclusion of hatchery fish in that harvest share; and (3) protection of the habitat necessary for the salmon that were the basis of the treaty bargain and the peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee persuaded the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third issue, declining to declare that the treaties supplied habitat protection in the absence of a specific factual dispute. Some two decades later, in 2007, the tribes and the federal government convinced United States District Court Judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting the state’s allegations wholesale. This Article examines the reasoning of both the district court and the Ninth Circuit and the path ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity. Moreover, the Ninth Circuit’s reliance on foundational rules of treaty construction to interpret the scope of the treaty right of taking fish could influence other Indian treaty cases beyond the issue of off-reservation fishing rights. Even if confined to treaties with off-reservation rights, the case represents the most significant interpretation of treaty fishing rights in nearly four decades

Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country

One of the more misunderstood concepts of Anglo-American law is the discovery doctrine, the principle by which Europeans rationalized their presence in North America. Misinterpretation of the doctrine led to unwarranted assumptions about the relationship between the federal government and indigenous tribes in the late 19th and early 20th centuries and to misinterpretations abroad, notably in Australia. These misinterpretations by judges and Congress made the discovery doctrine into what one scholar called a perfect instrument of empire. But this article maintains that this result was a perversion of the doctrine laid down in the early 19th century by the Marshall Court. The article explains that the discovery doctrine, as articulated by the Marshall Court, actually produced very little immediate effects on native proprietary rights. However, Chief Justice Marshall laid the seeds for later misunderstandings by characterizing aboriginal title as sui generis, outside the conventional system of Anglo-America property law. In fact, had Marshall been better versed in property law, it would have been quite easy to conceptualize aboriginal title in conventional terms. Had he done so in the cases in which he used the discovery doctrine to shape native property, the federal government\u27s interest in native lands would have been understood to be merely a right of preemption and the native interest to be a fee simple subject to a partial restraint on alienation. This interpretation would have been consistent with the Supreme Court\u27s oft-quoted phrase that Indian title is as sacred as the fee. The discovery doctrine\u27s effect on tribal sovereignty turned out to be much more pernicious than its effect on native property rights. The doctrine not only foreclosed relations between the Indian tribes and foreign nations and led to exclusive federal control over native affairs, it also assumed that questions about federal-tribal relations were properly left to federal courts, the courts of the conqueror in Chief Justice Marshall\u27s words. This decision on venue equipped Marshall\u27s successors to erect a doctrine of plenary federal power on questionable authority and to use it to give sanction to unilateral federal breaching of treaties and the breaking up of the Indian land base. This article aims to clarify the discovery doctrine by examining its origins, its adoption by the Marshall Court, and its ensuing effects on native property rights and sovereignty. Among the legacies of the doctrine was an impetus to treaty-making, which enabled some tribes to reserve important natural resources for their use, so the results of the discovery doctrine were not all adverse to the tribes. The article explores the relationship between discovery and treaty-making and also a modern alternative to the erosion of inherent tribal sovereignty initiated by the discovery doctrine: delegated sovereignty under federal pollution control statutes. The article concludes that while Chief Justice Marshall would never have countenanced his successors\u27 interpretation of the discovery doctrine he articulated, understanding the origins, scope, and legacies of the doctrine remains foundational to native proprietary and sovereign rights in the modern world

The Northwest\u27s Hydroelectric Heritage: Prologue to the Pacific Northwest Electric Power Planning and Conservation Act

Today\u27s electric power system has six principal characteristics. First, unlike systems in most other regions of the country, the Pacific Northwest\u27s system is primarily grounded on water power, although during the past decade most new generating facilities have been coal or nuclear power plants. Second, the costs of electricity have escalated rapidly in recent years, a direct result of the new higher cost thermal plants, some of which have been stillborn. Third, although the Pacific Northwest utility industry is remarkably diverse, the more than one hundred public and private utilities that serve the region are interconnected physically by a transmission grid and institutionally by the region\u27s large-scale wholesaler of electricity, the federal Bonneville Power Administration. Fourth, while the federal role in the generation and distribution of electric energy has been and continues to be significant, the key policy choices of the future will be made by the states, most notably through the interstate Pacific Northwest Electric Power Planning and Conservation Council. Fifth, the growth of the interconnected system has been influenced to a considerable extent by a desire to attract and maintain an aluminum reduction industry that is extremely electricity consumptive. Sixth, the principal source of electricity is federal reservoirs designed for multiple purposes. Electric power policies thus have inevitable, though not always widely perceived, spillover effects on other water uses and resources, particularly the region\u27s economically valuable anadromous fish runs

Present at the Creation: The 1910 Big Burn and the Formative Days of the U.S. Forest Service

A review of Timothy Egan\u27s The Big Burn: Teddy Roosevelt andthe Fire That Saved America (Houghton Mifflin Harcourt, Boston, 2009)

Ancient Forests and the Supreme Court: Issuing a Blank Check for Appropriation Riders

Part I of this Article supplies background on the ancient forest fight, focusing on the events leading to the enactment of the Northwest Timber Compromise in late 1989. Part II examines the Robertson litigation in the lower courts and the Supreme Court. Part III explores Robertson\u27s legacy regarding the process of making public land law and analyzes what the decision signals about Justice Thomas\u27 judicial philosophy

Palazzolo and the Decline of Justice Scalia\u27s Categorical Takings Doctrine

This Article maintains that despite the fact that the Palazzolo decision gave the landowner victories by relaxing ripeness hurdles to filing takings cases and rejecting the government’s “notice rule”—under which the existence of preexisting regulations would defeat takings claims—the chief significance of the case is the Court’s signal that it will reject attempts to expand categorical rules in takings cases. According to this view,Palazollo will be remembered for the decline of Justice Scalia’s categorical approach to takings, as reflected in his Lucas opinion, and for the triumph of multi-factor balancing championed by Justice Brennan’s Penn Central opinion. A postscript to the Article contends that the Court’s Tahoe-Sierra decision, decided while the Article was in press, confirms these predictions

Environment, Economy, and Community in the Pacific Northwest

This edited speech, delivered to a 1995 American Bar Association conference on the Endangered Species Act, drew the close parallel that has always existed between environment and economy in the Pacific Northwest. The talk emphasized forests, dams, and fish hatcheries as examples of the trade-offs that have been made and still exist. The talk emphasized discrepancies in Northwesterners\u27 conflicting views of science, economics, and sense of place and the need to find common ground