Not in My Backyard: The Clash between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii

This article examines the uneasy truce that exists between Western property law and the original Hawaiian native gathering practices that existed before the arrival of Europeans. The author traces the development of Hawaiian law from early cases that severely restricted gathering rights to more permissive results. The article demonstrates both the strengths and weaknesses of the present system of land tenure in Hawaii and argues for the continued expansion of native Hawaiian gather rights providing such expansion takes place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii

A Bird in the Hand: Shotguns, Deadly Oil Pits, Cute Kittens, and the Migratory Bird Treaty Act

This Article is presented in three parts. Part I describes the modern application (and misapplication) of the MBTA and briefly sets out the history of the Act, including the widespread, indiscriminate killing of migratory birds for food and fashion in the 19th century that first spurred Congress to act. Building off this history and the clear Congressional intent behind the MBTA to criminalize industrial activities directed at killing birds, Part II sorts human-caused bird killing activities into three categories and proposes the appropriate MBTA liability treatment for each category based both on the original purpose of the Act and on our modern understanding of the desirability of balancing critical animal species preservation against necessary industrial activity. This Article concludes in Part III with a summary of the proposed approaches to the current MBTA liability quagmire

Not in My Backyard: The Clash between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii

This article examines the uneasy truce that exists between Western property law and the original Hawaiian native gathering practices that existed before the arrival of Europeans. The author traces the development of Hawaiian law from early cases that severely restricted gathering rights to more permissive results. The article demonstrates both the strengths and weaknesses of the present system of land tenure in Hawaii and argues for the continued expansion of native Hawaiian gather rights providing such expansion takes place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii

Troubled Water: Building a Bridge to Clean Energy through Small Hydropower Regulatory Reform

This Article is presented in four Parts. Part II outlines the history of hydropower regulation in the U.S., including the environmental, geographic, and human effects of big dam hydropower development that ultimately engendered the onerous regulations currently governing all hydropower development. Building off of this history, Part III discusses America’s hydropower potential, the available methods for tapping it, and the possible environmental impacts of these methods. Part IV provides an overview of the current regulations governing small hydropower. Part V concludes by proposing areas where the regulatory framework for low-impact small hydropower should be reformed to properly and responsibly encourage its development, including by (1) making a regulatory distinction between low-impact and more physically intrusive methods of hydropower generation; and (2) streamlining and expediting the approval process for low-impact small hydropower projects

For the Birds: Wind Energy, Dead Eagles, and UnwelcomeSurprises

Wind turbines kill birds. A lot of birds. You would be hard pressed to find someone who is happy with that fact, including anyone in the wind energy development community. But until and unless there are technological advances in wind turbine design that eliminate their deadly impact on birds, it is something we must accept. Of course, acceptance does not and should not mean issuing a blank check to wind energy developers to wantonly injure birds. To do so would violate both the spirit and letter of a host of environmental laws that have at their core a stubborn insistence that human demands on the environment must be balanced against duties of stewardship owed to all animals. Among these laws is the BGEPA, which makes manifest our commitment to preserving bald and golden eagles. It does no damage to this commitment to recognize that it must be balanced other environmental imperatives, including and especially an imperative of the scope and seriousness of global warming. The Service’s creation of programmatic incidental eagle take permits in the Eagle Permit Rule was a clear but thus far unsuccessful effort to strike this balance by allowing for the responsible development of wind energy projects in eagle habitat. By adopting the targeted changes to the Eagle Permit Rule suggested in this article, however, balance is still possible

Litigation Readiness: A Practical Approach to Electronic Discovery

https://scholarworks.umt.edu/faculty_books/1003/thumbnail.jp

Troubled Water: Building a Bridge to Clean Energy Through Small Hydropower Regulatory Reform

It is beyond credible dispute that the planet is heating up at an alarming rate and that the ecological effects of global warming pose real questions about the continued viability of human and non-human life on earth in the not-too-distant future. A primary cause of global warming is the burning of carbon-based fuels, mainly coal, natural gas, and oil, to generate electricity and for other purposes. Clearly, more must be done, and done soon, to stave off the worst impacts of global warming. Drastically reducing global carbon emissions features prominently in any serious proposal to combat global warming. However, given that humans are extremely unlikely to willingly give up the massive recreational, economic, health, and quality-of-life benefits that come from having access to plentiful, cheap, and reliable electricity, any reductions in carbon-generated electricity will likely have to be made up for by massive increases in non-carbon-based means of generation, such as wind, solar, and hydroelectricity. There is also an important role for distributed generation of electricity in this new energy future, albeit one with significant financing challenges that must be addressed. Distributed generation is the production of electricity using small-scale generation facilities at or near the point of consumption. Electricity generation from small hydro installations is a form of distributed generation. A recent study of the potential of small hydro estimated that small hydro in the U.S. has the capacity to provide more than 100,000 MW of new electricity production annually. Although wind and solar energy are driving most of renewable energy’s growth in America, adapting U.S. energy law and policy to effectively confront the trends of climate change will also require rethinking the future of hydropower, including small hydropower, which may offer a less contentious approach to tapping America’s vast hydro resource. Aside from nuclear power, hydropower is the most heavily regulated electricity generating source in the U.S. The current regulations governing small hydropower discourage investment and unnecessarily burden developers by requiring them to navigate a costly, complex, and time-consuming regulatory framework that may be appropriate for large dams given the environmental and ecological damage such dams can cause, but are regulatory overkill for the comparatively tiny impacts from a small hydro project. With low-impact small hydropower technologies offering a politically-promising approach to utilizing untapped hydropower potential in America, while also allowing fisheries to thrive, rivers to run free, and the environment to remain largely unaltered, this regulatory scheme is ripe for reform. The article is presented in four parts. Part I outlines the history of hydropower regulation in America, including the environmental, geographic, and human effects of big dam hydropower development that ultimately engendered the onerous regulations currently governing all hydropower development, including small hydro. Building off this history, Part II discusses America’s hydropower potential, the available methods for tapping it, and the possible environmental impacts of these methods. Part III provides an overview of the current regulations governing small hydropower. The article concludes in Part IV by proposing areas where the regulatory framework for low-impact small hydropower should be reformed to properly and responsibly encourage its development, including (1) making a regulatory distinction between low-impact and more physically-intrusive methods of hydropower generation; and (2) streamlining and expediting the approval process for low impact small hydropower projects