Wilderness Management in National Parks and Wildlife Refuges

This Article provides a wilderness scorecard of sorts for the two dominant use land management agencies-the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). Given that both agencies operate under a similar conservation oriented mandate, one night assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. However, NPS and FWS have both, at times, been surprisingly hostile toward wilderness within their systems. In NPS\u27s case, this is likely because of a concern that wilderness might disrupt visitor use and rein in its management discretion over park activities and resources. It may also be due to the perception that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by the state Fish and game agencies that exert pressure on FWS. While both agencies have issued policies supportive of wilderness preservation, only FWS has put its policies-at least some of them-in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither agency has been especially committed to wilderness planning, although FWS\u27s planning processes may have a slight edge. Both agencies could improve their wilderness strategies and practices by engaging in rule making to solidify their commitment to preserving wilderness characteristics. For its part, the Department of Interior could take steps to coordinate its wilderness strategies and its oversight over all of the wilderness managing agencies

Mitigating Malheur\u27s Misfortune: The Public Interest in the Public\u27s Public Lands

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\u27 conviction for the incident might have been the end of the story, but another notorious ranching family from Nevada, the Bundys, stepped in with their own deep-seated call-to-arms against the federal government. The Bundys\u27 message resonated with other Sagebrush Rebels and members of the Patriot Movement. The result: one of the most pivotal events in the ongoing struggle over access and control of U.S. federal public lands. Part I of this Article addresses the historic and cultural context of private interests in federal public lands and resources, using Malheur, the Badger Two- Medicine, and the Sugar Pine Mine as examples. Part II illustrates the federal government\u27s constitutional authority for management of public lands and resources and for oversight of private claims to them. Part III discusses the federal statutes and regulations that govern private claims to public rangeland and minerals and reveals the deficiencies of such claims. Part IV goes beyond the letter of the law to tease out the socio-economic subtext underlying the tenaciousness and fervor of private claims. The heart of the Article is found in Part V, which examines the public\u27s interest in federal public lands and the government\u27s responsibility to protect the public\u27s interest. Drawing lessons from over a century of both public lands law and water law, Part V reframes the conversation in a way that weaves the public interest into the myriad assertions of private rights. It considers the intersection of the public interest and the Public Trust Doctrine ( PTD ), which is an ancient common law doctrine that safeguards public access to certain public lands and resources. The analysis shows that, while the doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. The public interest standard, as informed by the PTD, becomes a robust means of managing private rights and conserving public lands and resources. Finally, the Article concludes with an optimistic, but realistic, message of convergence, where public interest factors coupled with PTD duties combine to direct decision makers, the public, and the judiciary to demand sustainable uses of federal public lands and resources through the issuance, renewal, and termination of permits, licenses, and leases

Mudslinging on the Missouri: Can Endangered Species Survive the Clean Water Act?

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 Missouri River downstream through the Mississippi River play a role in creating and maintaining the coastal wetlands of the Mississippi Delta. But sediment is also a pollutant under the Clean Water Act (CWA).\u27 Sediments can smother and destroy spawning and foraging areas. They can carry excess nutrients from agricultural and urban runoff, causing algae blooms, hypoxia, and other adverse conditions. Conflicts over the dual nature of sediment came to a head in the Missouri River basin in 2008 when the State of Missouri refused to issue a CWA 401 Certification for the Army Corps of Engineers\u27 habitat restoration projects.2 The state ordered the Corps to stop discharging sediments into the Missouri River, stating that such discharges would violate the state\u27s water quality standards.\u27 Caught between a rock-the State of Missouri-and a hard place-a biological opinion (BO) compelling habitat restoration to prevent jeopardy to endangered species-the Corps turned to the National Academy of Sciences for advice. This Article analyzes the perceived conflict between the CWA\u27s demand for clean water, which in some, but not all, cases means clear water, and the no jeopardy requirement of the Endangered Species Act (ESA),\u27 and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river\u27s uses. 4 Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA.16 Water quality standards should promote that use by recognizing that the Missouri River, and others like it, historically carried far greater quantities of sediments than are present today, and that the species which have evolved in a sediment-rich environment require sediment delivery to continue at the proper time, place, and manner. BOs issued under the ESA should, therefore, guide federal and state water quality managers in setting and approving water quality standards

The Anti-Speculation Doctrine and Its Implication for Collaborative Water Management

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 by providing an administrative or judicial check on speculative transactions that adversely affect third parties and ecological needs by depriving them of water. Moreover, exceptions for municipal planning, Indian reserved rights, and instream flow protection operate as an effective safety valve to liberate collaborative initiatives that serve important, contemporary public purposes

Charting a Course to Conserve 30% of Freshwaters by 2030

One of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history. Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered in the world due to diminished streamflows, pollution, wetlands destruction, nonnative species’ invasions, and hydrological modifications. Yet in the United States, there are extreme institutional barriers to holistic watershed management. Complexity, controversy, and conflict arise from fragmentation and long-entrenched interests, making reforms especially difficult. This Article explores federal freshwater conservation law, along with a handful of potential reforms that could advance the 30 by 30 objective without requiring statutory revisions. It covers provisions of existing federal laws that protect the quality, quantity, and integrity of freshwater ecosystems, specifically the Clean Water Act, the Wild & Scenic Rivers Act, federal hydropower, reclamation, and flood control statutes, and the Endangered Species Act. It also identifies ways these laws could be implemented more effectively to conserve 30 percent of the nation’s freshwater resources by 2030, focusing primarily on the agencies’ ability to utilize statutory planning requirements to promote biodiversity and climate resilience

Waiving Federal Sovereign Immunity in Original Actions Between States

There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the federal government to an original action before the Supreme Court. This Article shows how federal sovereign immunity stands in the way of comprehensive resolution of interstate water rights and highlights the need for reforms to facilitate meaningful participation by the United States. In particular, it investigates the merits of a waiver of federal sovereign immunity in original actions between the states. Although federal immunity is a staple of our nation’s jurisprudence, it has no constitutional basis and it serves little purpose in this context. The Article concludes that a congressional waiver of federal sovereign immunity would be appropriate and would have few downsides, at least in the case of original actions between states before the U.S. Supreme Court

Treading Water While Congress Ignores the Nation\u27s Environment

During the late 1960s, the nation\u27s attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls,\u27 as well as Rachel Carson\u27s 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 significant statutes among this body of legislation.4 Under the CWA and related federal environmental legislation, the nation has made tremendous strides in improving our water quality along with the waste management practices that affect water, air, and soil.5 However, since the basic statutory framework was adopted in the 1970s, there have been many ecological, technological, social, and political changes in the United States, but Congress has adopted very few significant amendments, causing some to question whether federal environmental laws have passed their prime. This Article begins in the 1970s, when the nation\u27s environmental framework was expressed in statutes governing a wide variety of topics, including water, air, environmental analysis, and endangered species. Part I explores the intricate interplay between the agencies charged with implementing these statutes, the federal courts, and Congress, and demonstrates how Congress routinely amended the statutes as needed to ensure that the agencies and the courts were staying true to its purposes and implementation strategies. Part II moves forward in time and looks at the dramatically different legislative landscape since 1990. Very little by way of significant environmental legislation has been enacted in the past two decades. This is so despite the fact that the Supreme Court has reviewed a surprising number of Clean Water Act cases during this era, including cases challenging the jurisdictional scope of the Act,\u27 5 EPA\u27s enforcement powers,\u27 6 and the division of power between the EPA and the Corps of Engineers. 7 Meanwhile, significant changes in the physical environment and in our understanding of the environment have occurred, without any meaningful response from Congress. Part III explores a variety of reasons for congressional failures since 1990. Congress has produced relatively little by way of comprehensive legislation across the board-notjust on environmental issues. The lack of controls on campaign financing and the corruptive influence of money from special interest groups is one reason. A dramatic increase in the number of filibusters is another. However, there have been moments of civic republicanism where Congress has managed to pass broad-reaching statutes to address health care, national security, banking, and several other topics.\u27 8 Part III explains how environmental law is different than other types of legislation, and why gridlock is so much more palpable in the environmental arena. Despite high profile catastrophes such as the BP Deepwater Horizon blowout and the failure of the levee system in New Orleans in the wake of Hurricane Katrina, Congress has done virtually nothing on the environmental front. The chronic problems posed by hyper-partisanship and campaign funding are present here, too, but there is something more afoot. Heated rhetoric, conveyed in inflammatory sound-bites- job killing regulatory measures and private property rights abuse among them-is even more evident when it comes to environmental law than in other areas. Equally troubling is congressional mistrust-even disdain-for science. Part IV considers the implications of Congress\u27s failure to act, and explores the ways in which the federal agencies either have stepped into the vacuum or could fill the vacuum left by congressional inaction. It posits that environmental gridlock may not be such a bad thing after all. True, from the standpoint of democratic legitimacy, Congress ought to be doing its job. But from the standpoint of environmental protection, perhaps Congress should leave well enough alone (or at least we will be no worse off if it does remain silent). Neither congressional members nor their staffs have sufficient time, inclination, or expertise to craft adequate responses to modern environmental problems, many of which are far more complex than the issues faced in the 1970s. When it comes to water quality, at least, the low-hanging fruit has already been picked and the remaining issues, such as nonpoint source pollution and the protection of isolated wetlands and ephemeral streams, call for solutions that are both more nuanced and more politically charged than the basic mandates issued in the 1970s were. Congress has always been better able to deal with macro -level issues and pose broad-brush policy-oriented solutions, but complex problems tend to be over-simplified, for example, one is either for or against wetlands protection or for or against hamstringing the economy by regulating industrial discharges. Moreover, given that the environmental laws of the 1970s, with their lofty objectives, are the high water mark, and also that the value of safe, clean water for drinking, fisheries, and recreation remains intact, it is possible we have nowhere to go but down if Congress were to start tinkering. The Article concludes in Part V with an assessment of several portaging strategies that offer an opportunity to work around the congressional logjam and move the environmental ball forward through non-legislative means.19 Although comprehensive legislative reform may be the first best option for addressing wicked problems like climate change and even nonpoint source pollution, empowering agencies to engage in more progressive environmental action presents a viable second best alternative. 20 This alternative turns in part on empowering citizens to motivate agency action through petitions for rulemaking and citizen\u27s suits, and in part on clearing away impediments to agency action while minimizing agency capture by anti-regulatory interests. A coordinated strategy of regulation, Executive Orders, and enforcement might take us beyond merely treading water while Congress ignores the environment

Floods, Famines, or Feasts: Too Much, Too Little, or Just Right

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\u27s too dry, they pray for rain. But when it\u27s 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 prayer, what is the prudent person to do? This literary journey begins with a bit of the history of the boom and bust cycles of droughts and floods that have played out during the course of our love-hate affair with water. The Great Plains serve as the focus for this exploration, but the journey will also tum to the Florida Everglades and the Grand Canyon of the Colorado River, where restoration projects are underway. Along the way, I\u27ll examine the usual suspects -the typical technological and legal responses to drought and floods. Finally, I\u27ll investigate ecosystem restoration as a strategy for a more sustainable relationship with water in all of its facets, through thick and thin, flood, famine, and feast