NATURAL RESOURCES OUTLINE
Christine A. Klein, Federico Cheever, & Bret C. Birdsong, Natural Resources Law: A Place-Based Book of Problems and Cases (2d ed. 2009)
Chapter 1. Natural Resources Law and the Importance of Place
B. Discussion Problem: Climate Change and Natural Resources
C. What Are Natural Resources?
In re Tortorelli (p. 10)
66 P.3d 606 (Wash. 2003), cert. denied, 540 U.S. 875 (2003)
· Adopts dictionary definition of “materials supplied by nature.”
· Constitution grants States ownership of stream & lake beds
· Equal footing doctrine grants this ownership to newer states
Paige v. Town Plan And Zoning Commission of the Town Of Fairfield (p. 13)
668 A.2d 340 (Conn. 1995)
· Lower court had adopted a definition of natural resources that required “economic value”
· CT Supreme Court rejected the “economic value” test, trees and wildlife are natural resources regardless of economic value
Chapter 2. Federal Lands: An Introduction
B. Discussion Problem: Nye County, Nevada
C. Historical Background
1. The Birth of the Federal Public Domain
· Beginning with Ohio, each enabling act creating a state contained a disclaimer surrendering the state’s claim to federal public lands within its borders
Pollard v. Hagan (p. 45)
44 U.S. 212 (1845)
· Submerged lands in Alabama belong to the state, not to the federal government
· Equal footing doctrine requires that when Alabama became a state it should have the same rights to submerged lands as the existing states
United States v. Gardner (p. 51)
107 F.3d 1314 (9th Cir. 1997)
· Court rejected argument that Equal Footing Doctrine only allowed the U.S. only to hold land in trust for the creation of future states (condition of original land grants from colonies to U.S. government)
o EFD does not apply to dry land
o EFD applies only to political rights & sovereignty, not to economic or physical characteristics
4. From Grants to Management
United States v. Grimaud (p. 76)
220 U.S. 506 (1911)
· Grazing sheep without permission, violation of Forest Service Regulation 45.
· Is it alright for Congress to delegate to Forest Service, the right to make regulations?
· Upheld delegation of site specific management to administrative agencies
o This was allowed via Act of Feb. 1, 1905, § 5, 3 Stat. 628 and Property Clause.
Light v. United States (p. 80)
220 U.S. 523 (1911)
· Fred Light allowing 500 cattle to graze on Forest Reserve without a permit required by FSR 45.
· Colorado law at the time was – Fence in crops/land, or fence out cattle.
· Does Forest Reserve have to follow this law?
· No, the Property Clause governs.
5. Public Land Management and Environmental Quality
D. The Property Clause: Federal Authority and Federal Ownership
CAMFIELD v. UNITED STATES (p. 84)
167 U.S. 518 (1897)
· Property Clause is broad enough to permit federal legislation of fences built on private land for protection of the federal property.
· Congress has a power over its own property analogous to the police power of the States
· Congress may order the abatement of a nuisance, even if the nuisance is occurring on adjoining private property
· Leo Sheep Co. v. United States, 440 U.S. 668 (1979)
o Federal government does not possess an implied easement over private land to access federal land in a checkerboard arrangement
Kleppe v. New Mexico (p. 90)
426 U.S. 529 (1976)
· Issue: Whether Congress exceeded its powers under the Constitution in enacting the Wild Free-Roaming Horses and Burros Act (16 U.S.C. §§ 1331-1340)
· The Property Clause power over public lands is without limitation
o Property Clause = U.S. Const., Art. IV, § 3, cl. 2
· This complete power includes the power to regulate and protect the wildlife there, even if the wildlife stray onto private land
Minnesota v. Block (p. 95)
660 F.2d 1240 (8th Cir. 1981), cert. denied, 455 U.S. 1007 (1982)
· Congress has the power to ban motorboats on state waterways when it determines that their use would harm the adjoining federal land
· Determinations under the Property Clause are entrusted to Congress
o Law must protect a fundamental purpose of the federal land
o Restrictions must reasonably relate to that end
Chapter 3. Federal Agencies: Authority and Limits
B. The Legal Framework for Federal Land Management
1. Discussion Problem: Improving Waterflows in Everglades National Park
2. Statutory Mandates and Organic Acts
The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation (p. 108)
Robert L. Fischman
· Organic Acts
o Purpose statements, designated uses, comprehensive planning, substantive management criteria, public participation.
o Focus on issues pertinent to the management of all lands within a particular system
o Usually require management decisions to be consistent with the comprehensive plan
· Enabling Acts
o Establishment Act
o Create specific areas and may impose specific standards or limits on the areas management
· ***See her slides
3. Tiered Decisionmaking: Planning and Implementation
The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation (p. 113)
Robert L. Fischman
· Sources of Agency Rules
o Presidential proclamations, regulations (substantive/procedural), plans (tiered decision making), agency guidance.
· ***See her slides
4. The Judicial Enforceability of Plans and Statutory Mandates
Norton v. Southern Utah Wilderness Alliance (p. 116)
542 U.S. 55 (2004) (Scalia)
· APA claim can only proceed if the plaintiff asserts that the agency failed to take a discrete agency action that it is required to take
· Court holds that while the statute give a clear object (maintain the area so as not to reduce its potential for use as a wilderness) it gives wide discretion in how to reach that goal
· General deficiencies in compliance lack the specificity required
· Projections set forth in land use plans are not legally binding commitments that are enforceable under the APA
· The federal Bureau of Land Management (BLM) designated 2.5 million acres of land in Utah as “Wilderness Study Areas” under the Federal Land Policy and Management Act of 1976 (FLPMA).
· Under the Act, the BLM is required to manage this land “so as not to impair the suitability of such areas for preservation as wilderness.”
· The Southern Utah Wilderness Alliance (SUWA) and several other environmentalist groups brought suit in federal district court under § 706(1) of the Administrative Procedure Act (APA), which allows federal courts to compel government action when an agency has failed to meet its legal duties.
· SUWA claimed that the BLM had failed to take a “hard look,” as required by the National Environmental Policy Act of 1969, at the effects of off-road vehicles on the Wilderness Study Areas.
· It also claimed that the permitted off-road vehicle use was in fact damaging the study areas in violation of the agency's FLPMA obligations.
· The district court dismissed the case, holding that SUWA's charge that the bureau had failed to adequately protect the study areas was not specific enough for the court to hear under the Administrative Procedure Act.
· On appeal, a divided panel of the 10th Circuit Court of Appeals reversed the decision.
· It held that the bureau's discretion was limited to deciding how to implement the act, not if to implement it, and that SUWA could therefore bring suit to force it at least to take a “hard look” at the effects of the off-road vehicle policy.
· Does § 706(1) of the Administrative Procedure Act authorize federal courts to review the management of public lands under statutory standards and the land use plans of the Bureau of Land Management? Yes.
o Can sometimes relieve agency from creating a EIS
o Propose mitigation – to keep impacts from crossing the level of significance
4. The Scope of Analysis: Cumulative Impacts, Tiering, and Alternatives
· Scope of EIS – Scope consists of the range of actions, alternatives, and impacts to be considered in an EIS
o Usually defer to agency if scope is reasonable
· Four factors in the scope analysis:
§ Actions – CEQ § 1508.25. Scope
§ Alternatives – CEQ § 1502.14. Alternatives including the proposed action.
· See Sierra Club v. U.S., Doubois v. U.S. Dept. of Agriculture
§ Impacts – CEQ § 1508.7. Cumulative impact; and CEQ § 1508.8. Effects
§ Tiering – CEQ § 1508.28. Tiering
· Agency can go from broad to narrow but not narrow to broad
o See Sierra Club v. U.S.
· Adequacy (whether the analysis was good enough)
· Want courts to take a hard look at agency action
· But also try to defer to the agency
o Strike a balance
· Alternatives – CEQ § 1502.14. Alternatives including the proposed action.
o CEQ § 1508.20. Mitigation – Avoid, minimize and mitigate
o CEQ § 1508.25. Scope – (b) one alternative may be to mitigate
Kleppe v. Sierra Club (p. 146)
427 U.S. 390 (1976)
· Coal leasing on BLM lands
· Cumulative or synergistic environmental impact – The environmental consequences must be considered together
· Usually defer to agency
o Because agency is in the best position to gather and analyze technical information
o Do not defer to agency if acting “Arbitrary and Capricious” (A & C).
· It was not arbitrary for the BLM to conclude that it need not prepare a regional EIS on all proposed coal plans because they are not sufficiently related to each other.
· Under the Rule of Reason it was not unreasonable for the agency to decide that these actions were not sufficiently related to be considered in a single EIS.
Sierra Club v. United States (p. 150)
23 F. Supp. 2d 1132 (N.D. Cal. 1998)
· Yosemite Park – National Park Service.
· National Park Service came to a FONSI.
o Sierra club challenges this agency action/final action.
o National Park Service argues tiering.
o Argues that new lodging plans were covered in other previous plans.
· The General Management Plan EIS wasn’t specific enough to cover lodging.
· A new EIS needs to be made when a new plan is proposed that is only generally covered by the previous plan.
5. The Adequacy of the EIS
Robertson v. Methow Valley Citizens Council (p. 157)
490 U.S. 332 (1989)
· Private comp wanting to develop ski resort (mule deer) – National Forest Service
· Procedure v. substantive
· NEPA is entirely procedural – doesn’t require any particular result simply requires analysis
o Mitigation is talked about but not required
o Worst case scenario analysis is not required
· Court found that this was not necessary
· Legal basis
o NEPA § 102 – requires nothing
o CEQ § 1508.20. Mitigation – requires nothing
o CEQ § 1508.25(b). Scope – requires only a consideration of alternatives
· Extreme deference to agency