Journals
Winter 2006, Vol. 46, No. 1
Essay—Sight the Gun High
Laura Pritchett
He’ll admit that he’s not the typical rancher and five seconds in his kitchen confirms this. BUSH MUST GO reads the bumper sticker on his fridge, COWS NOT CONDOS, WORLD PEACE, and SELECTED NOT ELECTED with Bush’s name X’d out. I’ve been in a lot of ranchers’ kitchens, but not one like this, not with organic soap next to the sink, a Christmas card from John Kerry, a peace sign on the wall. And unlike other ranchers I’ve known, he’s chatty on the phone, which rings about every five minutes—he’s running for the Colorado State Senate as a Democrat—and given the political feelings out here, there’s probably a lot of talking to do. While he takes one such call, I glance around his kitchen, at the wood stove keeping the room warm on this rainy fall day, the wooden floors and walls, the huge windows.
There are 1300 acres out there—mountain meadows that comprise his base ranch that borders the Elk River. Close by, Red Angus bulls rest, knees folded under hulking bodies, chewing their cud, and far beyond, the pines of Routt National Forest slope upward and give way to waves of mountains. We’re pretty far north here, past the boutiqueized Steamboat Springs, past the ranchettes, past the fancy houses, into country of round hay bales, pickup trucks, and horses that, invigorated by the cool fall weather, gallop across pasture.
Jay Fetcher is a lithe man in a fleece jacket, khaki hiking pants, and comfy-looking moccasin shoes, and to be honest, he looks like he belongs a little closer to town than out here. He’s been ranching his whole life, though, and with an advanced degree in animal genetics and a reputation for progressive practices, he seems an interesting mix of tradition and new-school science and ideology. I figure if any rancher is open to the possibility of ranching alongside wolves, it would be him. And he’s going to be one of the first to do that, as the gray wolves migrate from Wyoming into the top portion of the state. He and his neighbors are the testing ground, basically, for wolves in northern Colorado, and I’m curious what he and others are going to do when they come.
Lobo Returns from Limbo: New Mexico Cattle Grower’s Ass’n v. U.S. Fish & Wildlife Service
Edward A. Fitzgerald
The Mexican wolf was exterminated by the federal government. In 1998, Mexican wolves were reintroduced into Arizona and New Mexico as a nonessential experimental population. The livestock industry brought suit. The federal district court in New Mexico Cattle Growers Ass’n correctly rejected industry allegations of Endangered Species Act and National Environmental Policy Act violations. The translocation of wolves and the discovery of hybrid pups continued the litigation. The federal district court in Coalition of Arizona/New Mexico Counties properly upheld the reintroduction. Nevertheless, the program remains under siege. The reintroduction of the Mexican wolf is an important victory for environmental groups in the War for the West.
Public Accountability and Conservation Easements: Learning from the Uniform Conservation Easement Act Debates
Mary Ann King & Sally F. Fairfax
In drafting the Uniform Conservation Easement Act, the National Conference of Commissioners on Uniform State Laws (NCCUSL) focused on conservation easements as part of a private ordering system. Doing so did not accurately reflect the public nature of conservation easement use at the time, and in the 20 years since the NCCUSL’s debates, the need for greater public accountability for conservation easements has become more apparent. As Congress ponders restricting the deductibility of donated easements for federal income tax purposes, the land trust community is reforming its practices to regain public confidence in itself and its conservation easements. The NCCUSL debates provide a trove of insights into mechanisms that could be of significant utility to establishing greater public accountability for land trusts and conservation easements.
The Dog That Didn’t Bark: Assessing Damages for Valid Regulatory Takings
Kenneth Salzberg
If land use regulations that go “too far” are really takings under the Fifth Amendment, one would expect there to be a large number of cases discussing the appropriate way to calculate the “just compensation” for those regulations that are otherwise valid. Oddly there are none. This article explores the reasons for that lack. The lack of any such cases and the problems with any such compensation remedy stem from the confusion in contemporary “takings” jurisprudence. In analyzing the hundreds of cases that discuss “regulatory takings,” it becomes clear that the courts recognize that any remedy granting compensation for such “takings” would present more problems than it might solve. Most of this confusion would be resolved by treating “regulatory takings” as violations of the Due Process Clause rather than the Takings Clause.
The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Freshwater Resources
Owen McIntyre
Notwithstanding the recent elaboration of a number of global and regional conventional instruments expressly concerned with the environmental protection of international watercourses, certain rules and principles of customary international law have developed in recent decades that continue to have a significant role to play in this regard. In recent years, debate has raged over the precise legal status and normative content of many international environmental norms and principles, some of which are often assumed to enjoy binding force in customary international law. While some commentators characterise these norms as “declarative” rather than customary law, suggesting that their usefulness may be limited in relation to third-party dispute settlement by courts and arbitral tribunals, this characterisation possibly ignores the fact that such norms have an important role to play in terms of voluntary compliance and in terms of bilateral and multilateral negotiations. Further, certain international environmental norms contained in treaty instruments, though declaratory in nature, can be expected to play a significant role in informing the rules and principles, in particular those relating to the equitable and reasonable utilisation of watercourses and the prevention of significant harm to other watercourse States. More specifically, trends identified both in the treaty practice of States and in soft law guidelines defined by international institutions can be taken into consideration to define more concretely the material contents of “due diligence.” Of course, the consistent inclusion of normative rules and principles in the declarations and resolutions of international organisations contributes significantly to the process of custom generation. This process might be expected to have made a particularly significant contribution to the development of international environmental law where the use of soft law declaratory instruments has been so widespread. The single most important source of rules and principles that may have crystallised into generally binding norms of customary international environmental law is the accumulated corpus of relevant multilateral and bilateral treaty provisions, many of which contain elaborate environmental rules. In turn, the inclusion of certain rules and principles in treaties must greatly enhance their status as established or emerging rules of general customary law. This article outlines the results of an extensive survey of international conventions and soft law instruments, State, judicial and arbitral practice, and academic commentary relating to the normative development and substantive content of each of these purported customary environmental rules and principles and to their application in the area of shared freshwater resources. Ultimately, it aims to highlight the role of such rules and principles in ensuring, by means of their detailed elaboration and normative sophistication, that an appropriate weighting is allocated to considerations of environmental protection in determining an equitable regime for the utilisation of shared international water resources under well-established rules of international water law.
The Senegal River Basin: A Retrospective and Prospective Look at the Legal Régime
Margaret J. Vick
In 1963, the four states along the Senegal River organized for the common development of the basin. In 1972, the states of Mali, Mauritania, and Senegal formed the Organization for the Development of the River Senegal, which has been lauded as the most progressive of river institutions. However, development of the Senegal River resulted in devastation to the health of the riverine population and the ecology of the basin. This article provides a retrospective and prospective look at the river basin institutions, examining the effect of the 2002 Water Charter, which again incorporates the most progressive principles of the law of international watercourses.
Trout Unlimited
Grieta Gilchrist
In April 2004, a Colorado federal district court ordered the U.S. Forest Service to reconsider a 50-year easement that had been granted to the Water Supply and Storage Company (WSSC). This easement allowed the WSSC to store water on 390 acres of federal land. The easement, however, had been granted without the imposition of bypass flows. The Colorado federal district court held that the Forest Service had authority to impose bypass flows as a condition of a renewal of a special permit. The district court reversed the easement granted to the WSSC. This article explores the arguments and authorities that the district court relied on when it held that the Forest Service had the authority to impose bypass flows in the easement granted to the WSSC. This article also presents counter-positions to the arguments relied on by the federal district court.
Book Review—Essay The Global Environment: A Review Essay
John Walton
Environmental scientists are now able to take core samples from alpine and polar glaciers, return them still frozen to the laboratory, and read them like tree rings for the CO2 content of air pockets in distinct layers of yearly snowfall going back centuries. CO2 detectors placed for decades on remote mountaintops provide complementary data. Prior to the industrial revolution, CO2 concentrations were 275 parts per million, by 1960 they measured 315, and today they stand at 380. Carbon dioxide levels and temperature are perfectly and positively correlated. The world is warming. Scientists are in virtually universal agreement, moreover, that the warming trend is accelerating. CO2 concentrations increased 15 percent from pre-industrial times to 1960, a period of roughly 200 years, but 21 percent since 1960. Speaking to the American Geophysical Union in December 2005, eminent NASA scientist James Hansen warned, “The earth’s climate is nearing, but has not yet passed, a tipping point beyond which it will be impossible to avoid climate change with far-ranging undesirable consequences. These include not only the loss of the Arctic as we know it, with all it implies for wildlife and indigenous peoples, but losses on a much vaster scale due to rising seas.”
