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

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

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

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

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