NATURAL RESOURCES LAW

I. INTRODUCTIONA. Consider:

1. Why should the US, directed from DC, own millions of acres so far away? – And who should it be managed for – who should be the beneficiary?a. the idea is for the good of the nation, for the future ppl. But there is also the sense that we

living in the present should be the beneficiaries. Tension b/w managing for our present benefit and also preserving for the future.

b. Religious aspect – this is a trust, given to us by God – humans should protect the earthc. I think, too, at the start there was so much bountiful resources, so much land, it was easy

to make generous statements about how we will use and protect it. Now that the resources are more limited, there is more tension, but also more urgency and need to protect the land, and to use it wisely

B. Why focus on federal lands in the West1. most significant natural resources are on federal lands. 2. government law, agency rules determines mgmt of the lands. Economics/market do not

determine mgmt (in contrast to private land)3. We own these lands

C. History1. Two story lines

a. How Native Ams were deprived of the lands once owned. b. Acquisition and disposition of the federal public domain by federal govt crazy quilt

2. Ownership of landa. US owned 0 land when became independent. now, about 80% of US has at one time been

owned by fedsi. at one point, feds owned everything west of Appalachians (except Ky. and Tex.)

(a) Texas was independent, annexed by US but feds get land.ii. four states carved out – Maine, Vt, Ky and W. Va.

b. US gets its first land: Thirteen colonies – claimed all land west to the Mississippi River. 1789 agmt that would cede to feds most of the land west of Appalachians i. expectation = US to settle/sell the land and raise revenue to pay for the warii. fed govt seen as long term owneriii. land = substitute for cash – THEME iv. owning land transformed the US govt power.

c. Continued growth of US ownershipi. Louisiana Purchase – central section of countryii. Mexican War ceded most of Southwest (inc. Ariz, Col, Wyo, Utah) to fedsiii. Gadsdon Purchase – bought strip of land Ariz/NM – area south of Gila Riveriv. Alaska Purchase – bought from Russia

D. Meaning of US ownership of public domain1. When US acquires land it gets

a. Legal sovereignty – under jx of US courts, power of eminent domain, laws govern the lands. i. this is true of all land, even Texas

b. When land is part of public domain, however, US also acquires the fee simple title to the land

E. Tension: b/w creation of a state and fact that US owns public domain w/i the state1. Ohio was the first “new” state – saw the tension there. 2. Tension problems with the Supremacy Cl. the state can’t regulate use of the federal lands,

can’t tax the lands. States with federal public domain land have less power than states with no fed pub. dom.

3. Territories lobbied unsuccessfully to acquire the public domain before becoming a state, but when they were territories, had no vote in Congress. a. It continued – creation of state had no effect on the ownership of the land – fed govt

retained titleb. every state upon admission had to have a disclaimer – not claiming title to fed land

II. LAND UNDER NAVIGABLE WATERA. At statehood, new states received the lands underlying navigable waters that were within their

boundaries. 1

1. Pollard v. Hagan – (S. Ct. 1845) states own land underlying navigable watera. facts

i. Ala. was created out of federal public domain (from land ceded by original 13 – Va and Ga)ii. land @ issue = coastal marshland, tidelands.

b. While Ala. was a territory, US govt had all the power, not share them with the state govt (b/pre-statehood). When Ala. became a state, the Ala. govt got all the powers except those reserved for fed govt (idea of limited fed govt, only those delineated in Const.)

c. Equal footing doctrine. When Al. became a state, she received all the same rights of sovereignty , jx and eminent domain as other states. The only thing the feds still own is the public lands. Equal footing does not mean that the feds must relinquish all land in Al., just b/feds not own any land in Ga.

d. However, Tidelands are different from all other public landsi. lands underlying navigable rivers ordinary real estateii. fed govt retains fee simple title in regular landiii. But because of inherent aspect of sovereign (rivers and tidelands can’t be bought and

sold b/owned by the King) Ala. owns these lands under navigable waters because received them as a sovereign right – just as every other state (equal footing doctrine)

2. Notes on Pollarda. Bothersome idea of a super common law – that gives a power to the state as sovereign – not

in Const. or federal lawb. Only narrow holding – ownership of nav. water land remains of Pollard. Court had used some

sweeping language about U.S. ≠ retaining or mging public lands in new statesc. Federal definition of navigable = streams and lakes that are navigable in fact. When used, or

susceptible of being used, in their ordinary condition, as highways for commerce. Trade and travel may be conducted. Doesn’t matter what type of boat – even flatboats. It doesn’t matter that may be difficult to navigate, or whether it is actually useful for commerce

d. U.S. may reserve land under navigable water prior to statehood (Utah case)3. Ill. Central v. Ill – when state admitted to Union, per equal footing doctrine, state receives title to

all lands under nav. waters. Land = held in trusta. facts: Ill. granted to RR a large part of Chicago waterfront on Lake Mich., inc. the submerged

harbor lands.b. Court: State can’t sell or give away this landc. The title to the land is held in trust

i. public trust – the state is the trustee, the beneficiaries = publicii. the purpose of public trust = commerce, fishing, navigation

d. Prohibition on alienation absolutei. might be able to give away small parts, as long as it doesn’t substantially reduce public’s

ability to engage in commc, fishing, nav.ii. may perhaps give away/sell/lease parts if it would benefit public’s ability to cmmc,, fish,

nav (eg enabling company to build public docks)B. Arizona & land under nav. waters

1. AZ ignore fact that it owned the land, let ppl build homes, gravel operations2. 1985 – ACLPI v. Hassell - state filed suit claiming it owned bed of Verde River near Cottonwood

b/Verde was navigable when AZ became a state in 1912. Landowners scared, so turn to the Leg bill to renounce state claims to any riverbed property along Gila, Salt, Verde for just $25/acre. Gave up the rest of the state river beds (except Colorado) for $0. AZ Ctr for Law in Public Interest sue. a. ACLPI allege – violate no-gift clause in AZ Const. ; violate public trust doctrineb. AZ argued – rivers ≠ navigable (except for Colorado). State says – selling a doubtful claim.

Not navigable. Just clearing cloud on title. state isn’t giving up anything c. Superior Court rejected ACLPI claims. d. 1991– Ct. App. reversed

i. navigability of rivers not so in doubt that Leg could give the land up for nothingii. Did not actually find the rivers were navigable in 1912, b/not enuf evidenceiii. Did say, that in order for Leg to disclaim the land

(a) disposition must serve valid public purpose(b) state must receive fair consideration for the property(c) disposition must be for purposes consistent w/public’s right of use and enjoyment of

trust resources + satisfy state’s obligation to maintain the trust for use/enjoyment of present & future generations

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iv. Court reversed sup. ct. b/found that Leg ≠ meet second condition – fair consideration – because had not determined value of the land. Also not meet third condition for the same reason

3. Case Leg create the Az. Navig. Stream Adjudication Commission to gather info, hold hearings, deter mine which rivers were navigable @ statehood. a. 1994, Commn. determined that Salt River was navigable Leg didn’t like that, so reduce $

and scope b. Leg adopted presumptions to guarantee no rivers would be found navig.

i. river could only be found navig. if it was used or susceptible of being used for both commercial trade and travel.

ii. must be navig. for sustained trade and travel, both upstream and downstreamiii. such trade and travel must have supported a profitable commercial enterp.iv. and vessels such as keelboats, steamboats or powered barges must have been usev. if there were any impediments to navigation or if fed govt did not regulate the waters

course under Rivers & Harbors Act or if transp. in proximity to the watercourse was usually bey means other than boat not navig

vi. Also, if any portion of the river had previously been determined non-navig then entire rivers should be presumed non-nagiv

vii. All ephermal streams must be found to be non-navigableviii. Presumptions could only be overcome by clear and convincing interest to contrary

c. Under these rules, Commn. found all rivers non-navig. d. AZCLPI back to court

4. Defenders of Wildlife v. Hull i. Court – criteria is bogus. Fed law says what navigable means. (odd b/state has inherent

power, but the qs of whether the river is navigable and state has power over it is initially a federal question)(a) fed defn – ordinary condition etc. (b) A river as a whole can be navigable even if parts aren’t(c) trade and travel ≠ both required(d) ephemeral streams can be determined to be navigable(e) impediments to navig. nor primary use of other methods of travel ≠ make a river

non-navig.5. State created a new commission – found Lower Salt River navigable.

III. HISTORY OF FEDS SELLING, GRANTING AND MANAGING LANDSA. Fed power over lands; not limited to just selling the land

1. enabling acts – made very clear that state gain title to land. a. still assumption that fed govt would eventually dispose of the lands

2. U.S. v. Gratiot (S. Ct. 1840) a. facts

i. statute authorize Prez. to lease fed lands to mining companies, who would pay fed govt a royalty

ii. Under art. IV, § 3, Cl. 2 – Congress shall have power to dispose of and make all needful rules and regulations

iii. leases $ to pay Revolutionary War debtiv. defs = not pay royalty to feds for lead they mined. Challenge the const’ly of the statute

b. defs objection to leases: fed govt is supposed to be a temporary owner, supposed to sell the lands. Leasing sets up the govt as more long-term owner

c. Court: i. this is territory; “territory” = lands. Cong has same power over these lands they are

leasing as over any other U.S. property. Power w/o limitii. No limitation or requirement in the Const. saying that fed govt has to sell the land. iii. Fed govt has power over public lands, this power is vested in Congress without limitation

(a) (Dred Scott is the only case where Court said Congress’ Property Cl power should be read narrowly; that it had only the power to make needful rules and regs

B. Statehood Grants1. Creating the checkerboard

a. For each state, fed govt made grants – Enabling Acts checkerboard patterni. at first, just for scls, then increase the different purposes – higher ed, jails and public blgs,

internal improvements (other than roads).3

b. Land Ordinance 1785 (pre-dates Const.). Set up a survey system for mapping land. Created 6 sq. mi. townships, divide into 1 sq mi sections and number, wrapping back and forth.

c. Gave certain # sections to the state to support public schools (School Trust Lands) land as substitute for cash

d. Not all land is surveyed yet there is land out there that belongs to state, but don’t know it yet.

2. In lieu selectionsa. fed govt had done something else with the land (e.g. Navajo Reservation, parks) by the time

got around to surveying it and determining which squares belonged to state State got to select other land as a substitutei. more valuable b/could choose contiguous portions, better more valuable landsii. This is why AZ is not the checkerboard quite like Utah. AZ chose big blocs of grazing lands

in the southeast part of the state as in lieu selections.(a) from the ranching lobby. wanted to lease land from state for grazing

b. state in holdings – opposite of in lieu. There is a survey, state gets its squares and then the federal govt does something else with the land. So there are isolated sections of state-owned land within a park. problem b/state is supposed to sell the land for $, not conserve it

c. In lieu is still an issue – Escalante Natl Mon. in Utah had to provide for state in lieu selections.

3. Public Trust Land v. State School Trust Land (often called state trust lands)a. Similarities: both are state property; both in form of trustb. Differences:

i. Legal instrument that creates each is different(a) Public trust land is created through English common law, Illinois Central. No statute

involved. Difficult to tell which lands involved b/must look at navigability at statehood(b) Scl trust land – comes from federal Enabling Act for each state. Statute says which

lands, what purpose lands to serve. No difficulty in determining which lands are included.

ii. Beneficiaries are different(a) public trust – ppl using the river for navigation, commerce, fish(b) scl trust – kids

iii. Used and treated differently(a) public trust – maintain the river is the goal, provide the benefits that naturally come

with the river. Can’t be sold(b) scl trust – can be sold and leased. Ordinary real estate

i. can sell if a prudent and good usea. some states have sold virtually all their trust land.b. in AZ, still much trust land left, esp. rural areas

4. State trust land purposei. at first, very liberal about what land could be used for. Later, with Okla, NM and Ariz

much more particular about what could use the land for(a) courts have enforced the specific purposes – the Enabling Act language is “special

and exact.” State can’t decide to use some of the $ for something else(b) however, if grazing issue if the state makes $ from the land to give to scls by

leasing the land for grazing. It would be tough to argue that state can’t lease it to non-profits to not graze the land. The $ is the same

(c) land exchanges Ariz. ct has allowed state to exchange scl trust land for private land (against wishes of enviros)

(d) To what extent does the trust emphasis on $ prevent state from managing the state trust land for recreation, wildlife and wilderness? does state trust land mean must favor short term gains over long-term effects?

b. conserving trust landsi. conservation gp must buy at full valueii. conservation gp can request land sales be suspended in certain area so can raise $ to buy

itiii. conservation gps have also successfully gotten grazing leases, so could conserve the land

(in AZ and Idaho, court cases)

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iv. Forest Guardians v. Wells – State Land Dept. cannot outright reject conservationists’ bid. May be a good reason to reject the highest bid (may want pipelines, fences that ranchers will install but conservationists won’t)

c. SLD made regs about what conservation gp must do to get grazing lease, and Guardians have gotten some

d. Acting as trusteei. when state makes regulations on using natural resources, clean air reduces value of

state trust land. U.S. S. Ct. rejected argument – have responsibilities beyond SLD – as long as pass uniform regulations that apply to all lands, can enforce them on trust land too

5. What kind of sense does this make, for western states to be governed by centuries-old federal statues?a. It would take a change to federal statutes + amend state constitutions to release the statesb. would it be a good idea?

i. trust land laws have prevented states from unwisely selling a bunch of land and wasting the $

ii. without the land sales, would have to raise property taxes to get more $ for schoolsiii. However, it would be good for western states to be able to conserve this land rather

than constraining the state, the laws are forcing states to sell land that perhaps would be better conserved

C. Grants to Settlers1. Preemption = preferential right of settler/squatters to buy their claims at modest prices without

competitive bidding. Or, to be paid compensation for whatever improvements they made2. General Preemption Act 1841

a. Auction land $2/acreb. Preemption Acts = If you are already there, feds will sell $1.25/acre rather than auctioning

the landc. Sales of land served 2 policies:

i. raise $ii. national policy of western settlement (for political and military reasons)

d. goals conflict b/want to sell but ppl can’t afford even a $1, esp. if buying dryer arid lands b/need more land to make productive farm. Can’t get a loan b/not as productive. Harder to pay off debt

e. Congress kept loosening land sale termsi. more credit, drop price as the land stays on the market

3. 1862 Homestead Act – land is free!a. establish residence on farm. 1/family. Max 160 acres. + Cultivate for 5 yrs get fee simple

(i.e. patent)b. Problems w/Homestead Act

i. even 160 free acres productive. No irrigation.ii. ppl cheat to get more than 160 acresiii. ppl want to instead raise livestock but even then need more landiv. fraud, failed homesteads after dry yearsv. in arid areas, ignore the acreage limitations

c. But, in a sense it worked – moved a lot of land into private handsd. Stock-raising homesteads -

D. Grants to Railroads1. get some of the checkers – expect RR to sell it for $2. Not work always – can’t sell desert land.3. In AZ, already RR in place when became a state and so AZ get in lieu selection

IV. RESERVATION AND WITHDRAWAL OF FEDERAL PUBLIC DOMAINA. Supreme Court says Congress has the power to establish a federal park – (under Gratio)

1. backgrounda. Cong. constitutionally required to sell public domain, but did so in the 1800s. b. Late 1800s idea the fed govt could have long-term role

i. 1872 – create Yellowstone as a pleasuring ground for the public 2. Gettysburg Electric RR (S. Ct. 1896)

a. govt condemned private land for historic park

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b. plfs allege feds didn’t have authority to do so is it proper for the feds to own land and use it as a park?i. Gratio – said can hold onto land permanently. However, dispositive in Gettysburg

because in Gratio, held the land and leased it to private parties for $. Narrow holding – feds can hold onto land to lease it for revenue.

ii. Still, in Gettysburg, court says even without $, Congress has power to create park as inspiration to the nation, remind the nation of its history. This is a public use, for the welfare of the republic, preserving the whole country

iii. The power to condemn the land for a park ≠have to be from one particularly specified power. “Any number of those powers may be grouped t/g” and infer a power from all of them

B. Yellowstone – as a pleasuring ground. The beginning of the modern federal lands systemC. General Revision Act 1891 – Forest Reserves Act

1. Authorized Prez to set aside and reserve certain lands in public domaina. make lands unavailable for homesteading, in lieu selections, RRb. Called “Forest Reserves” (now called National Forests System)

2. Different from mining lease laws because here, Cong gave Prez discretion to choose which land would set aside. Continuing authority a lot of Forest Reservesa. Broadly usedb. First by McKinley – designate 50 mill acres Forest Reservesc. FDR – 150 million acres

3. Limitations on power are very fewa. land must be covered fully or in part with timber or undergrowth

i. didn’t quite work – there are lots of lands that are not forested – Superstition Mtns in the Tonto National Forest just has some desert vegetation and still was reserved

b. not matter whether commercial value or not (are there lands that don’t qualify? – no glaciers, rocky peaks perhaps)

c. to set aside and reservei. not conservation – timber, grazing other activities go on in the Forest Reservesii. are land exchanges sometimes, but very limited # times when Forest Reserve land

private hands.(a) however, Congress has the power, so can get land for a private person

4. Puts timber on the forest reserves under US Forest Service

V. ORGANIZING FOREST SERVICE, NATIONAL PARKS and UNRESERVED LANDSA. Forest Service Organic Act of 1897

1. created the first federal land mgmt agency with statute as to how to manage the land2. Has Sec of Int manage the Forest Reserves, reserved by the Prz, and to issue regs for the use

and occupancy of the Reserves3. Terms

a. Managing timber – must have continuous supply (sustainable logging)b. Secure favorable conditions of water flow – affects timber because they trees suck up water,

but if cut too many, then can lead to erosion and change course of water, also more evaporation, quicker snow melt and faster runoff. Watershed mgmti. vegetation = stabilizing factor on water flow. However, can now use dams to get a more

standard flow of water4. Missing terms – recreation. wildlife and fish protection (has since been corrected)

a. Updated in Multiple Use Sustained Yield Act of 1960 to 5 purposes: recreation, range (grazing), timber, watershed and fish/wildlife. -

5. Broad grant of authority to make rules and regulations to regulate the occupancy of the reservations and preserve the forestsa. led to creation of National Forest Service to make these rules/regs. and also to write criminal

penalties (making law). b. model for later delegations to agencies

B. Supreme Court on National Forest Service Authority to Regulate Forest Reserves1. Light v. United States – Congress has broad authority on federal public lands

a. facts: ranchers used to grazing how they wanted. One of the first things Forest Service did was require permits and fees to graze. i. Light grazed in National Forest without a permit and Feds sought to make him stop. He

refused, saying no fence ∆ no trespass action was possible6

b. Light arguedi. Unless feds put up fences, can’t say I trespassed. Colo. law – responsibility of private

landowner to put up fences to keep cattle outii. Unconstitutional for Congress to create Forest Reserves without state consent

c. Courti. Just b/grazed there for a long time ≠ give you a vested right. Govt can withdraw its tacit

consent to your grazingii. **US can withhold and reserve land indefinitely, not for private use, but for the Ppl. iii. Congress has very broad authority, not for courts to say how trust be administered

(a) Court saying to Congress – you are the trustee for the land, can do what you want (diff. from state trust and public trust lands)

(b) This is a trespass, regardless of the lack of a fence, because Light wasn’t doing something by mistake; he willfully put his cattle onto govt land

2. United States v. Grimaud a. facts

i. plf grazed on Forest Reserve w/o permit. ii. different from Light – here Govt prosecute Grimaud criminally

b. Grimaud arguesi. Challenges Forest Reserve Act delegation – it wasn’t Congress that made it a crime to

graze without a permit; the Forest Service did. Says Cong can’t delegate legislative power

c. Court:i. Cong. set out its general will and now the agency is just filling in the details

(a) impractical to have Cong deal with every meadow and creeki. there is a line b/w delegating legislative power and delegating administrative

authority to make rules accg to Act of Congress. The will of Cong. is expressed in the act; Sec of Agri just filling in the details

(b) do you buy it? not very specific directions here(c) long line of cases challenging similar vague delegations; nearly all upheld

C. National Park Service Organic Act of 19161. Views - Pinchot & Mather: How the FS and Park Serv. Got That Way

a. Pinchot = resp. for est. USFS. Mather – for Park Serviceb. USFS is a utilitarian uses. NPS is for preservationc. National Park

i. the Sierra Club and Muir fought the Hetch Hetchy dam that would provide water to S. Fran. Pinchot wanted the dam – a lake would be better than the swampy floor of the HH Valley

ii. Dam was built, but the fight support of National Park Service Actd. Pinchot became Chief of newly estab. USFS focused on use of forest reserves. Greatest

good for largest # of ppl in ht elong run. Opposed new parkse. Mather was the opposite – did believe in some development (roads, hotels, encouraging RRs

to bring visitors to the parks). But he would not suffer too much developmenti. Mather ≠ seem to see conflict b/w preservation and ppl’s enjoyment

f. Rivalry b/w NPS and USFS creation of wilderness areas, starting in the 1930s. B/NPS carved new parks and monuments out of national forests USFS to start its own pgm of recreational development and safeguarding scenic resources.

2. Created after Yellowstone3. Differences from National Forest

a. no authority given to Prez to create national parksi. Prez can designate public domain lands as national monuments under the Antiquities Act

(a) places of historic or scientific interest(b) , which often mnged like national parks. But not under Nat’l Park Serv. Org. Act

because that Act only is for managing parks created by Cong.i. However, NPS does manage these monuments (except by specific Prez order –

for ex. some that Clinton created)ii. basically chaos – no complete statutes on how monuments fit into scheme

b. within Interior Dept (National Forest in Dept of Agri)c. To be managed for –preservation and –human enjoyment

i. conservation + enjoyment have been interpreted by Park Service to mean no logging, grazing, oil drilling. B/these are extractive uses. This has meant Parks ≠ a battleground for resource development, unlike Natl Forests

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ii. there has been controversy b/enjoyment (snowmobiling in Yellowstone) has conflicted w/preservation

4. Terms of Act § 1a. Fundamental purposes – conserve scenery and natural and historic objects and the life

therein. Enjoyment in such a manner as to leave them unimpaired for the enjoyment for future generationsi. use “purpose” even though there seems to be 2 purposes – preserve and human

enjoyment (conflict b/w them – e.g. snowmobiles)ii. Priority seems to be conservation – because of manner/means language.

5. Yellowstone Park & Snowmobilesa. Park Serv. allowed snowmobiles in Yellowstone since 1963. Groomed roads for that purposeb. 2001 –Clinton issued rule to phase out snowmobiles b/noise, air pollution, adverse effect on

wildlifec. 2003 Bush rescinded the 2001 Rule allow up to 950 snowmobiles/dayd. Lawsuits a/both rules

i. D.C. D. Ct. Fund for Animals – found 2003 Rule ≠ justified b/of Park Serv. previous determinations about damage to the Park. Reinstated 2001 Rule

ii. Wyo. D. Ct. Snowmobiles Manufacturers Assn. two months later. Enjoined 2001 Rule b/would cause irreparable harm to biz and communities.

e. Can use of snowmobs be reconciled w/Park Org. Act? lots of other things – camping, roads, hotels etc. have adverse affect on Parks. Act has dual purposes. Perhaps needs revision b/likely when made, not have as much tension b/w these two purposes. Now we do.

D. The Great Leftovers and Grazing. The End of Homesteading1. 1934 – after land transferred to private hands, and other vast tracks reserved permanently for

federal ownership, and other areas for Indian Reservation left overs2. Type of land left over

a. not good for farming (or homesteaders would have taken it)b. not forested – or would have been in Forest Reservec. It is

i. Nevada, half of Wyoming and Utah, 30% of N.M.; 20% of Ariz. and Ore.d. The land is arid, far from RR, rivers, no valuable minerals, some okay grazing lands

i. tragedy of commons. overgrazing, soil erosion, water pollution, loss of wildlife habitat3. Bad sand storm recognition that public lands must be improved 4. Taylor Grazing Act 1934

a. called for some mgmt of this unrestricted, unclassified federal public domaini. BLM mged the unreserved lands governed by Taylor

b. Big turning point i. b/ before this, saw these lands as just waiting for auction. Now govt is taking responsibility

for them(a) controversial b/ppl used to free access to the land(b) However, show govt going to own for awhile – going to promote highest use of the

public land pending its disposal. (not perpetual ownership like Forest Reserves)(c) Taylor may not mark end of disposing fed lands, but already this had happened. Most

land had been withdrawn. 1934 map similar to today’sii. b/ represented admission that remaining federal public lands were not suitable for farming

c. termsi. Authorize Sec of Int. to classify lands as available or unavailable for homesteading or in

lieu selections. i.e. allowed to take off auction bloc(a) Sec basically removed all remaining land from homesteading act

ii. Authorize Sec of Int to designate grazing districts in areas chiefly valuable for grazing. public process. (a) Sec of Int found most fit this category

iii. Authorize Sec of Int. to create permits and charge fees (more detailed delegation than Forest Reserve Act)

iv. Sec. can do land exchanges5. 1935 – Prez exec order withdraw all western lands from homesteading – really mark end of

homesteadingE. BLM is born

1. 1946 – Truman merge Grazing Service (within Int. Dep., administer Taylor) with the General Land Office that oversaw mining Bureau of Land Mgmt

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2. BLM have enough statutory authority. Ppl using lands for recreation, and BLM unable to control b/just have authority over grazing and mining

3. 1964 Classification and Multiple Use Act – gave BLM ability to manage land for many uses – recreation, wildlife, watershed. was a temporary act

4. 1976 Federal Land Policy and Mgmt Act “BLM Organic Act” a. § 17901(A)(1) – retain fed lands in fed ownership, unless there is a national interest in

having the land in state or private hands big turnaround from 1800s sell-the-land policyb. (A)(12) – priorities are minerals, food, timber, fiber, protect scenic and archeological.

i. places “green” values alongside grazing. Even though Taylor remains on books. Some conflict

ii. balance short and long term needs. Mng public land so best for local resident and future homeowner. Supposed to prioritize diff’t needs. Not necessarily mng for the most income

iii. without permanent impairment of the land or environmentc. Tell BLM to manage for multiple use § 1702(c)[definition]; § 1732(a)– is this a real

direction? or more feel-good “apple pie” platitudes? It does show a different policy from Taylori. B/Taylor was just about classifying lands for homesteading or no, and grazing or no. FLPMA

mentioned other values; forward looking – for the future needs of Am. ppl. Make judicious use of the land – not just using it for the most $ now.

d. §1712 – have comprehensive planning projects. develop consistent with land use plani. *new idea of fed govt to have broad land-mgmt authority

5. Why did BLM get its organizing act 70+ years after FS and Park Serv?a. b/of power of ranchers who wanted to graze on the lands, be left alone?b. Because the lands were less beautiful, special than Park lands?c. B/were desert, arid areas, in the less-populated West. Not as visited – not near D.C.

VI. FEDERAL/STTE DIVISION OF AUTHORITYA. Enclave Clause Art. I, §8, cl. 17

1. Feds have exclusive legislation (meaning jx) over certain federal enclaves – includes D.C., certain military bases. (p. 173)a. Not include BLM, wildlife refuges, USFS, NPS

B. Property Clause Art. IV, § 3, cl. 21. power under which all statute that we have discussed are passed

a. “Cong shall have Power to dispose of and make all needful Rules and Regs respecting the Territory or Other Property belonging to the U.S.”

b. i.e. Power to dispose of and make all needful rules and regsi. power to make rules is an absolute right, not subject to limitations – Pollard, reaffirmed in

Gibson (after Dred Scott had said there were limitations)2. Two extreme interpretations (neither of which is currently the law

a. Broadest view – feds have complete jx overall federal lands. State cts, police, state laws apply.

b. Narrowest view – fed govt is the owner and therefore can make decisions about who can come in, under what conditions. However, state laws applyi. means fed lands would be subject to state eminent domain, adverse possession, zoning,

property taxesC. Feds ordinary landowner. But, have much less than exclusive jx

1. Utah Power & Light – (US 1917)a. state allowed private utility companies to condemn pvt land if need it for electric/utility

facilities. Utah Power & Light tried to condemn federal landb. State alleged – under the Enclave Cl., there was no cessation of the state’s jx, so state still

has jx c. S. Ct.: No. Feds determine who can use fed lands. State power to give private corp. a

property interest in federal landi. state may have jx for criminal and civil over federal lands, within limits

(a) it can punish murder on fed lands, tax private property – like cattle- on the fed lands. But state not have jx to tax the land themselves

(b) just b/the land is within the new state does not take from Cong their power to control the occupancy, and use of the lands, and prescribe conditions for someone to get a right to the fed land (even though some of this may be called “police power” which is typically a state power)

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ii. this jx ≠ extend to any matter that is not consistent with the full power of the US to protect its land, control their use and prescribe the manner in which others may acquire rights to the fed lands

2. Hunt v. United States a. state hunting laws. USFS thought overpopulation of deer. AZ disagrees and wouldn’t issue

hunting licenses to USFS.b. USFS shot deer. AZ Game and Fish suedc. S. Ct.: If feds need to kill deer to protect its land, then can do so and state can’t stop it

3. Kleppe (US 1976)a. facts

i. federal Wild Free Roaming Horses and Burros Act – says that they are wildlife, integral part of federal land, even though non-native, protect them more than other wildlife(a) the Act authorizes Sec of Int or Agri to make regulations, agmts w/landowners and

states in order to further the purpose of the Act. ii. There was an amgt b/w feds & NM Livestock Bd to evaluate the private claims to own

horses and burros(a) NM Bd says it would regulate the animals; and asserted right to impound and sell

stray animals.iii. Ranchers complained about the burros NM Bd removes the burros on federal land and

sells them(a) Directs state to round them up and auction them off may be to glue factory(b) BLM asserts its jx get those burros back. NM sues

b. Issue: Direct conflict – feds to save them and state to allow them to be killedc. NM argues Supremacy Cl. not apply because the Act ≠ valid, Congress exceeded its power.

i. distinguishable from Hunt – fed govt needed to get rid of deer to protect its land, but here, no allegation that burros are causing harm.

d. Courti. burros on federal and. Cong Power to regulate is without limitations on federal land (fed

govt not ordinary landowner).(a) doesn’t have to be damage to the land in order for US to assert its regulation

ii. refer to US .v. Camfield(a) case said Prop Cl. is broad enough to allow feds to regulate fences built on private

land adjoining public land when the regulation is for the protection of public land(b) Cong can exercise police power so long as power directed solely to own protection

i. no suggestion of a limitation. The message, rather, was that power under Prop Cl broad enuf to even reach beyond territorial limits

(c) Both Camfield and Hunt show that fed govt ≠ an ordinary landowner; has broader rights than that. e.g. ordinary landowner can’t violate state law by killing game that is damaging his land (what the fed govt did in Hunt).

iii. ∆ Cong may get jx over lands from a State’s consent or cession, however, Cong ≠ need state consent to retain power over the federal lands within a state

D. Sagebrush Rebellion; States rights, back to Equal Footing arguments1. 1970s – increasing enviro restrictions on using fed lands movement to claim ownership of fed

lands in the West. a. ranchers were angry b/see grazing privileges as being reduced. b. Western states passed laws asserting they owned the BLM managed land, and even national

forest land tooc. Got Reagan behind themd. Court never reached merits on the casese. 1990s again, another sort of rebellion, anti-feds movement (states not join this time).

2. US v. Gardner (9th Cir 1997)a. Gardner graze on Nat’l Forest Land without permit. Feds had closed the land to grazing so it

could recover after a fireb. Gardner argued – US owned the land as a trustee and as soon as Nev. became a state, US

had duty to transfer the land to Nev. or private owners. Relies on Pollard – said that US has duty to eventually sell all public lands

c. Court:i. Pollard language was dicta. Other cases limit Pollard to its factsii. in any case, US not automatically lose title to the lands

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iii. Equal Footing applies only to politics, and land underneath navigable waters. States will never by physically or economically equal. Just have same police powers, same # senators etc.(a) furthermore, to become a state, Nev. disclaimed title to public land. US, however, did

not need this disclaimer from Nevada b/US already had title to the land. The disclaimer was just a recognition of this

iv. US retain the land when Nevada was created and ∆ US ≠ required to hold the land in trust for Nevada.

3. Arizona Revised Statutes 1980a. Basically trying to regulate BLM land in Arizonab. prohibit sale after1980 unless have authorization by AZ Leg. Meaning that if bought land

from fed govt, that sale or lease or permit is void according to this lawE. Preemption

1. State does still have authority on federal lands, as long as no conflict w/feds. State can enforce criminal law on federal lands

2. State law is preempted in four waysa. Explicit

i. Cong passes statute and says state law preempted ii. valid as long as acting under Const. clause (Commerce, Property etc.)

b. Direct conflicti. incompatible, can’t obey both state and fed lawii. Kleppe for example – conflicting things supposed to happen to horses

c. Frustrating the purposei. enfcmt of state law would tend to defeat purpose of some federal lawii. hazy b/depends on interpretation of Cong’s intent

d. Occupying the fieldi. Cong’s regulations show intent to be complete and comprehensive, ii. very difficult to determine – many areas are heavily regulated by feds, but still allow

states to add regulations3. Granite Rock (S. Ct. 1987)

a. Issue = Does fed regulation preempt Cal. permit requirement for unpatented mining claims in national forest?

b. factsi. Granite Rock Co. has mining claim, unpatented. ii. Forest Service approved GR’s mining plan of operation (FS did an EA on the plan,

recommended modifications and approved the plan w/mods). iii. GR started to mine iv. GR gets a letter from Cal. Coastal Comm’n saying need a state permit before can start

mining in coastal zone. v. GR’s strategy - It could apply for Cal. permit and sue if denied. or Just start mining and

fight if Cal. prosecutes or, as Granite Rock did - go straight to fed ct for declaratory j’ment(a) declaratory j’ment is useful for future permits. It is a facial challenge, so GR may get

funding from other mining companies. Also, GR would get a broader judgment than if it fought the Cal. permit on just its one mining operation. Also, a facial challenge avoids the hassle of getting a permit and also the risk of criminal penalties for mining.

(b) The downside is, expensive litigation, harder to win a facial challengec. Granite Rock argues: feds have occupied the field. Requiring state permit frustrates purpose

of feds because prevents feds from allowing what it sees as envly-sensitive miningi. feds already have enviro regs for unpatented mining claims. ∆ the state land use planning

is preempted. ii. admits, however, that ML ≠ express legislative intent on enviro regs. No sense that Cong

meant to preempt state environmental rules (≠ an issue back in 1872)d. Court says: state and federal regulations don’t conflict.

i. FS regs appear to assume that submitting plans of operations will comply w/state lawsii. Look at intent of Congress, however agencies are given large role in interpreting that

intent. (a) FS regs explicitly require all operators to comply with state air, water quality laws,

and solid waste disposal rules in states11

(b) FS says it will approve plans as necessary for timely compliance w/federal and state laws

(c) also, regs say that if operator shows approval state agency found operation complies with a state reg that is similar to a federal reg then that satisfies compliance w/fed reg

(d) Finally, in GR plan, FS said GR must obtain any necessary permits from Cal Coastal Commn

iii. ∆ FS regs show meant to work w/state regs, no intention to preempt state regse. GR argues that federal land mgmt statutes show Cong intent to limit States to purely

advisory role in fed mgmt decisions, ∆ preemptionf. Court

i. 2 acts regulate unpatented mining claims: FLPMA (BLM regulate mineral resources) and NFMA (FS regulate surface impacts of mining)

ii. Cal. ≠ trying to deprive GR of its right to mine under the federal statutes. Rather, only seeking to regulate the given mining

iii. There is a difference b/w planning and regulation. Land use planning chooses particular uses for a land. Enviro regs ≠ mandate a particular use, but rather, require that the use ≠ damage environment more than a certain amount.

iv. Permit is not a y/n qs. Variety of conditions that Cal. may place on permit (dust mitigation, waste mgmt etc.), and certain conditions may be consistent with what the feds require

v. Cal can do environmental regulation, but not engage in land use planning, b/land use planning on fed lend = fed responsibility(a) reject facial challenge – Cal. reg ≠ per se pre-empted by federal law. (b) Property Cl broad power to Cong., however, despite this broad power, state law is

preempted only when conflicts with the operation or objectives of federal law, or when Cong evidences intent to occupy a given field

g. Dissent – artificial line. Env. regulation implicitly carries with it ability to stop activity all together i. sees a conflict b/fed govt already balanced the benefits and harm to the Forest of GR’s

mining and determined that benefits > harm granted the permit. Cal. can’t undo that. 4. Looking at Granite Rock

a. Was a narrow decision just said GR had to apply for the state permit. Not address how far the state could go in regulating the mining – what conditions it may place on the permit

b. so state can’t really deny the permit, b/saying can’t mine here would be land use planning. State also can’t say how much mineral can remove b/feds control that.

c. What about if environmental reg is so costly that it makes it unprofitable to mine is that land-use regulation?

d. Consider – under US v. Coleman – marketability test for valuable mineral for discovery. IBLA decision in Great Basin Mine Watch says that if enviro regulation, including state laws, makes mining ≠ profitable then fails the marketability test not a valid mining claim

VII. NEPA (1970)A. Looking at levels of statutes – NEPA is the granddaddy

1. simplest ones deal with one agency and one resource – Taylor Grazing2. others deal with one agency and all the resources it manages – Organic acts, National Forest

Mgmt Act3. Others apply to one resource, and to all federal agencies – ESA, Mining Act4. NEPA – applies to all resources, all agencies (even if aren’t involved in resource mgmt)

B. Purpose of NEPA - § 1011. Cong. directs that to the fullest extent possible. Policies/regs/laws of US should be interpreted

accg to NEPA2. All federal govt agencies shall

a. use a systematic, interdisciplinary approach. Integrated use of natural and social sciences. Use environmental arts in planning and decision making

b. identify and develop methods, procedures to ensure that presently unqualified environmental amentieis and values may be given appropriate consideration, along with economic and technical considerations

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c. include in every recommendation or report for proposed legislation and other major fed actions signf’ly affecting quality of human enviro – Env. Impact, adverse env. affects, alternatives, rship b/w short term and long term productivity, irreversible and irretrievable commitments of resources that would be involved in this action

3. DON’T FORGET TO LOOK @ CEQs IN SUPPLEMENT a. esp. § 1508.27 – what the agency must consider to determine the context and

intensity of the action C. Positives and Criticisms

1. Benefits of NEPA a. agencies do care what public thinks and hesitate to do something if have to write a report

saying that doing X will be an environmental disasterb. provides evidence of violations of other laws

i. case suing BLM for violating Wilderness Act – all evidence came from BLM’s own EISc. reports provide public information

i. maps of areasd. stop, think, slow down – only thing that makes agency what doing and why.

i. makes agency more accountable – pin things downe. public notice of what agency going to dof. public comment – only time public gets to air concerns

i. gives opponents a foot in the door a way to argue against it. ii. Gives opponents a bargaining chip – if you change your operations, we will drop NEPA suit

g. model for private agencies to use2. Criticisms of NEPA

a. Does not actually require agencies to protect the environmenti. are a few provisions that say should, but courts have not enforced –say are too vague

b. delay federal agenciesc. expensived. leads to litigatione. many EA/EIS are just mindless boilerplate

3. Is NEPA action forcing?a. it is fairly easy to make a technical, boilerplate decision. Really what is action forcing is the

People – watching what the agency does. I think NEPA is more a foothold for Ppl rather than any sort of control on agencies.

4. Does NEPA really force agency to do something different? It depends on who is working on it – if the person/dept is inclined to consider env’l effects, then will, probably regardless of NEPA.

D. Operation of NEPA1. Triggered when there is a “major federal action that could significantly affect the quality of

the human environment”a. must be a discretionary decisionb. includes legislation, regulations

2. Exemptions from EIS a. categorical exclusions –

i. USFS exempts routine cutting of hazard trees. Not sig affect on human env.ii. seasonable road closuresiii. small timber sales (up to 100K board feet)

b. If do EA and Finding of No Sig. Impact (FONSI)c. Also, if Congress or President does something, not have to follow NEPA, b/NEPA is only

addressed to agenciesi. Dept. of Env. Quality is not an agency either, so if it revises the CEQ, it doesn’t have to

follow NEPA3. Direct to EIS

a. nuclear power plant being constructedb. land use plan (until recently. Bush said promulgation of forest plans by USFS may not

require EIS)4. Litigation topics

a. Must prepare an EA or EIS and didn’tb. EA/EIS did not adequately measure affects

5. Difference b/w EA and EISa. pretty much the same in terms of providing infob. more procedural steps for EIS – draft, public comment, final

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c. EIS usually much longerd. requirements of EA – determine if do EIS; consider alternative actions

6. What isn’t covered by NEPAa. when fed govt authorize private party to do something is under NEPA b/considered federal

actionsb. Presidential actionsc. CEQs themselvesd. Purely environmental regs, permits dealing with environmental impacts – such as Clean Air

Act and Water Act permits – 7. CEQ – standing presidential executive order requiring all federal agencies to follow they just

about part of NEPAa. could argue CEQ needed by NEPA; or could say that certain measures are implied in NEPA

itselfb. was a DC Cir. case before CEQ finding that under NEPA, agencies must at least document

their conclusion when find no EIS necessary. c. Defines

i. categorical exclusion – is a category of actions that individually or cumulatively ≠ sign effect on environment. Agency can decide to do an EA, even if not required. Must provide for extraordinary circumstances, where an action under a CE may have sig env. effect

ii. EA – analyze evid about whether is a sign. impact (and ∆ need an EIS. Also helps do the prep work for an EIS)(a) other purposes aid agency in complying with the act even when no sign. impact(b) consider alternatives(c) gets agency to consult with others

iii. Effects – inc. direct and indirect effects that are rbly foreseeable. May include affects on growth, changes in the pattern of land use, population density, (a) effects = impacts synonymous

iv. Major Federal Action – include times when officials fail to act that failure is reviewable by courts or admin.(a) include new and continuing activities, including pgms that agency has a part in(b) do not include funding assistance solely in form of general revenue sharing funds

with no federal agency control over the subsequent use of the funds(c) Does include adoption of official policy, plans, programs and specific projects

v. Significantly: requires consideration of context & intensity(a) context – affect on society as a whole and regional, local interests(b) intensity – same as severity. (c) May have sign effect even if the agency thinks that as a whole, the action will be

beneficial. Must consider the unique characteristics of the geography, whether the effects are likely to be highly controversial, highly uncertain or involve unique or unknown risksi. whether going to establish precedentii. effect on endangered or threatened species

vi. Tiering(a) when do broad EIS and then later narrower EIS statements(b) appropriate when: 1) first do a broader EIS and then a smaller scope, site-specific EIS.

Or when the EIS done first is at an earlier stage, and the agency wants to address only the issues that are ripe. Later supplement with another EIS for the other issues, as ripen

8. Issues with security – does it make sense to have EIS if public can’t see the info b/security risk. Secret army base?a. exempt the border wall?

E. Cumulative Impacts/ Connected Actions Single EIScumulative impacts defined in CEQ §1508.7 – is the impact on enviro resulting from incremental impact of the action when added to other past, present and rbly foreseeable future actions (regardless of whether these other actions are takenThomas v. Peterson (9th Cir. 1985)1. facts

a. plfs challenge decision to build road in Jersey Jack area of National Forest.

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b. FS created forest plan, include some timber harvesting but not mention road. Did EIS for the plan. EA for each component (“tiering” – LOOK @ CEQ §1508.28 for when Tiering is appropriate)

c. FS solicit public comment on proposed road. Did EA FONSI for the road (not discuss impact of timber sales)

d. 1 EAs for 2 timber sales. Approved both.2. Plfs: purpose of NEPA is to analyze action and here, EIS just said general logging in this area,

and ppl could assume would need roads there. Not include length of road, size, paving material plfs therefore say the EIS not fulfill NEPA because can’t analyze impacts of road if don’t even say where road will be

3. FS argues: it was too speculative to say timber sales going to happen. a. court responds – if timber sales are certain enough to justify blg a road, then certain enuf to

justify doing an EIS4. Court – Single EIS when have Connected Actions

a. required when collective impact (otherwise, agencies could avoid doing EIS by dividing each project into little bits and doing EA and FONSI for each)i. cumulative effects worried about here: erosion, sedimentation. roads interrupt wolf

migration and hunting patterns. ii. can have acceleratory effect – one timber sale and one road, aren’t so bad, but when have

several disrupt the forest, block off habitatiii. USFS said would keep track of these effects, but didn’t because wrote each EA as if

nothing else going oniv. Connected actions change cost/benefit analysis

b. Council on Env’l Quality (CEQ) Regsi. connected actions must be considered t/g in single EISii. connected actions =

(a) automatically trigger other action that may require EIS(b) cannot/will not proceed unless other actions taken before or at same time(c) interdependent pars of a larger action; only justification for doing X is b/want to do Y.

c. Applied to this case – no reason to build road unless going to sell timber connected actions

5. Court – Single EIS when have cumulative actionsa. CEQ – actions viewed as having cumulatively significant impactsb. Applied to this case – timber & road t/g have cumulatively significant impacts.

i. lead to sediment in river, which affects fishii. destruction of Gray Wolf habitat

6. Single EIS – supported by 9th Cir precedenta. Trout Unlimited v. Morton – one EIS when would not take first step without planning to do

the second step too. i. applied to this case: it would be irrational to build road and then not sell timber to which

road gives accessb. Independent Utility Test Daly – can only avoid doing single EIS if can say this segment of the

road is an independent unit, meaning this road segment is useful on its own, without the rest of the roadi. look at action in isolation – if it has indep. utility then not require EIS looking at cumulative

impacts7. Timing of EIS

a. Point of EIS is to force to consider env. impacts when making decision Must be integrated into agency planning at earliest possible time

b. must do before road or timber sales (because once build road, obviously going to proceed with timber sales, b/interdependency)

F. Timing of EIS Metcalf v. Daley

1. factsa. 1995 – US agrees to work w/Makah Tribe to obtain whaling quota from Int’l WCb. After mtg, NOAA prepares internal report evaluating merits of Makah proposalc. 1996 – NOAA seek agmts with other agencies to support Makahd. NOAA enter written agmt w/Makah committing NOAA to make proposal to IWC for a quota,

cooperate with Makah to manage hunt, and to revise its regs to allow whalinge. US presents formal proposal to IWC (later withdrawn)

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f. US receives letter alleging NEPA violation, so drafts an EAg. new agmt NOAA and Makahh. Final EA and FONSIi. US and Russia submit joint proposal to IWCj. NOAA issues notice saying amending regs

2. Issue = at what point was there a “proposal for action” that required EA or EISa. before commitment that makes whaling a gob. can’t invoke NEPA every time agency talks to another agency about an idea, every decision.

Many ideas never come to fruition and so would be a waste3. Court

a. assessment must be done early enuf that can practically serve as important contribution to decisionmaking, not just rationalize decisions already made

b. do at feasibility stage – when can still choose not to go ahead. c. Before any irreversible and irretrievable commitment of resourcesd. EA must be a hard look. Agency may have bias (it proposed the action in the first place) bust

still must do objective evaluation4. applied to this case

a. Worked w/Makah for 2 years before doing EA. Already committed to support Makah in writing. Pulling out would be breach of K too late

b. written commitments slanted EAi. greater pressure to achieve whalingii. NEPA depends entirely on involving environmental considerations in initial

decisionmaking5. Remedy – do a new EA, objectively now.

a. odd because if the first EA was late, then this one is even laterb. no evidence that the first EA wasn’t objective

6. Dissenta. Objectivity NEPA requirement

i. majority says EA was slanted without evidence. ii. Should focus on text of the EA, not agency’s motivationsiii. forcing objectivity just nudges bias underground wink/nod

b. timing – no irreversible commitmentsi. K w/Makah was dependant on IWC appvl or whalingii. first K was a promise to support, and was doubtful IWC would approve.iii. second K – obligated Makah to follow federal regs but not obligate NOAAiv. Ks likely not enforceable any way

c. remedy – no finding that first EA was inadequate so why require a secondi. First EA unlikely to change agency’s mind, however, it had other purposes

(a) mobilize opponents political pressure on agency(b) educate the agency, perhaps to modify the plan(c) educate the agency about interests/concerns it hadn’t considered(d) persuade Cong to stop agency action (e) public information and evaluation

7. Consider – if govt violated NEPA, was the remedy imposed appropriate or effective? Not really b/just doing another EA. So invested, likely make the same decision

8. Did the court just order a new EA to be punitive? To have some remedy when had to defer to agency so could not say no whale hunting?

G. Scope of EA – how detailed? What is the threshold of significant effect need EIS1. Blue Mountains Biodiversity Project (BMBP) v. Blackwood

a. factsi. area for timber salvage sales. EA FONSI

(a) but EA only identify 1 of the 4 timber sales(b) not give #s fro timber quantity, acreage, roads to be built

ii. salvage logging = controversial because(a) already a delicate situation with the fire, have soil erosion. Then come in with big

machines – may make situation worse(b) however, if leave the timber out there too long then it rots and not useful(c) timber industry also cuts trees that are not ruined – are “in danger” of being killed

b. court

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i. Plfs must show in order to get agency to do EIS: must raise substantial questions as to whether there will be significant degradation(a) plfs must raise the qs, and up to the agency to answer them. burden on agency

i. “An agency’s decision to not do an EIS is unreasonable if the agency fails to give convincing statement as to why potential effects are insignificanta. puts agency on the spot to do an EIS unless can justify why notb. i.e. if plfs raise subst. qs and agency not supply convincing answers then

agency must do EIS ii. NEPA “significant impacts on environment” means agency must consider

(a) –how controversial the effects will bei. meaning is there a dispute about the size, nature or effect of this major

federal action (doesn’t mean just, are there ppl opposed to it)(b) how uncertain the risk are, unknowns

iii. In this case(a) “highly controversial”

i. plfs show controversy by bringing up the independent report that said no salvage logging in sensitive areas, and that rapid response will have terrible consequences

ii. this is about scientific controversy, not political iii. Forest Service’s failure to consider this indep. report contributes (not in and

of itself determinable) contributes to finding that FS ≠ give hard look(b) “highly uncertain or involve unique/unknown risks”

i. no documentation about effects of logging such as sediment, effect on fish. Relies on best practices, but those practices were developed in non-burned areas

ii. general statements saying some risk ≠ hard look. (c) Reject tiering argument

i. forest plan ≠ obviate need for project-specific EIS(d) Remedy

i. injunction until FS complies w/NEPA.a. Rather than requiring another EA, the court here requires an EISb. (seems like punishment – if the FS had done a better EA w/more #s to show

no sign. impact then could avoid doing EIS)c. Also, consider that by this time, the timber is probably rotted

i. is this the purpose of NEPA? to allow enviros to tie up a case in court so long that salvage logging impossible? Wasn’t it really to help agencies make better decisions?

2. National Audubon Society v. Hoffman (East, diff circ. from Blue Mtn)a. a case where NEPA really makes the agency do something to protect environmentb. facts

i. FS going to build road, log in Green Mtn Forestii. GM forest plan. iii. EA FONSI. Pick alternative that involves some clear cut and also individual. Mitigation

for the black bears – only do construction at certain times, use berms to prevent ATVers from going into bear habitat, not cut the trees that the bears use

iv. Plfs allege that FS not take into account sign. effects on birds and bears(a) b/plan would increase edge effects make birds more susceptible to predators(b) b/plan would increase humans in areas harm bears making

c. Court:i. When it is a close case, than need an EIS. Only can avoid doing EIS if can show will not

have significant effect ii. As for what the EIS has to cover, have a forest plan and then must do EA (or EIS) for each

specific project. iii. Standard of Review: the agency has discretion in determining whether there is a

significant effect(a) role of the court is to ensure

i. agency gave it a hard lookii. agency decision ≠ arbitrary or capriciousiii. Δ the court does a a searching and careful inquiry, but w/ ltd scope

iv. Can use mitigation to avoid reaching threshold level of significant impacts that requires an EIS. However, must show that mitigation really lowers the level of impact

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(a) here, FS not provide enough data that mitigation will work. Must provide a convincing case, with analysis, evidence, experiments to show that berms will in fact keep ATVers away

(b) Considering the lack of info to show that mitigation will lower significant impacts, the FS’s decision to not do an EIS was arbitrary/capricious

d. Remedyi. FS must go back and look at the effects of its mitigation strategies

(a) not necessarily have to do an EIS(b) Could just do a better EA FONSI(c) why? because NEPA is a procedural statute and it gives the agency discretion, so its

decisions are largely insulated from judicial review3. Conflict in Remedies b/w Hoffman & Blue Mtn

a. In both, the EA was inadequateb. However, in Blue Mtn, court ordered an EIS, whereas in Hoffman, the agency could get by if

did a better EA showing mitigation workedi. this does show that 9th Cir. is harder on the agency

H. Can’t just whitewash your “hard look”1. Kraayenbrink (D. Idaho 2006)

a. facts: BLM i. “ARC-DEIS” – an internal report – was sent to state offices with a memo saying we need

your response w/i 10 days, b/going to publish the proposed rule in 3 weeks ii. The ARC-DEIS admitted that the rules were going to have bad enviro. impacts. iii. The ARC-DEIS was leaked

b. Court saidi. Agency ≠ take NEPA seriously. Just going through the motions

(a) desire for quick comments shows that the EIS process ≠ have impact on decision making. Had already decided to publish the rules

(b) One group had written the rules, and some other folks were assigned to make the EIS shows not using EIS to inform themselves of the env. impacts of the rules

(c) critical comments in the ARC DEIS about the rules shows that offices not coordinatingii. Court –BLM not paying attention to criticisms. Not resolving conflicts

c. development – govt appealing injunctiond. does this case show NEPA working? or not? Enviros were able to use, and Court did tell

agency to do a hard look. However, the only reason able to sue was b/got leaked document. The lesson to BLM may be in the future – don’t let ppl disagree, read your internal docs, have fewer internal docs and avoid leaks

I. Is NEPA worth it?1. is it just red tape and paperwork? Or does it really make the agencies more thoughtful, honest?2. Supreme Court has taken a narrow view of NEPA refuse to allow environmental

considerations to determine what the govt does 3. There are other planning statutes now, too, like FLPMA, Nat’l Forest Mgmt Act

VIII. ENDANGERED SPECIES ACT (1973)A. Format

1. § 4 – deals with listing an animal as threatened or endangered. Defining critical habitat 2. § 7 & § 9 – tell you what protections

B. Definitions1. endangered species =

a. any species in danger of extinction i. including subspeciesii. distinct population segment (like a tribe – Rocky Mtn. Grey Wolf, Mexican Grey Wolf;

different “runs” of salmon are endangered)(a) leads to controversy – how finely do you define the population

b. throughout all or a significant portion of its rangec. ≠ inc. insects that are pests (not inc. other pest animals)

2. threatened species = a. species likely to become endangeredb. in foreseeable futurec. throughout all or a significant portion of its range

3. Difference b/w the two is a matter of degree. Doesn’t make too much of a difference18

4. May be threatened or endangered b./of natural things; not manmade. still can be listed § 1533(a)(1)(E) – other natural or manmade factors affecting its continued existence

5. Critical habitat = areas the species really needs. The species may not actually live there - §1535(5)(A)(ii).

6. “Secretary” = divided up b/w the Fish & Wildlife Service and the National Marine Fisheries Service (now the NOAA Fisheries)a. NOAA Fisheries : Oceanic species, saltwater fish, marine mammals, salmon (b/live in the

ocean, just spawn in fresh water – odd b/then the NOAA deals with grazing permits in Idaho etc.)

b. FWS – continental (land)animals, freshwater fishC. Rules

1. If species listed as threatened Sec. of INt. issue regulations to provide for conservation2. If species in endangered it is illegal to import/export, remove the species, sell or deliver it,

ship it, take it etc. 3. § 7 v. § 9

a. §7 only applies to federal agencies. § 9 applies to “any person” including corporations, and fed or state agencies

b. § 7 – procedural requirements. Agencies have to do stuff in order to evaluate impact of their actions on species v. § 9 – specific list of prohibitions. More explicit – a list of prohibitions for animals and another for plants. i. §7 list of procedures that agencies must do. But for §9, there are prohibitions, but all the

consequences require – if you get caught . . Don’t have FWD officers watching. Govt has discretion whether to prosecute

ii. In comparison, §9 procedures give enviros traction for suing.iii. § 7: After procedure, must ensure that any action that is authorized, funded, or carried

out by agency ≠ likely to jeopardize the continued existences of end/thr species. iv. § 7: Cannot destroy or adversely modify critical habitat. But must have harm to individual

animal – harm to unborn species ≠ count. (a) only protects uninhabited habitat on federal land; not on private land

c. § 7 – when it says species, means the population of creatures v. § 9 – when it says “species” means more the individual animal

d. § 7 says it applies to both end. and thre. §9 seems to only apply to endangered. However, §1533(d) says that when FWS lists a species as threatened, the Secreaty may prohibit any of the actions under § 9. This has been turned into a presumption (except for fish)

4. Violating §7 but not § 9a. if bulldoze a road through habitat that does not contain a species but makes it less

hospitable to a species this violates § 7 b/jeopardizing the continued existence of the species or adversely modifying critical habitat. However, not violating §9 because not taking – no species actually there

5. Plantsa. less protected. Can dig up an endangered plant on private property. Only applies to

removing/destroying etc. on federal landb. state law, however, may prevent you from digging up an endangered plant in your own law.

If it is against state law then is also against ESA ( bigger penalty, in federal court)D. § 7 Case: jeopardizing continued existence of the species:

1. Tennessee Valley Authority v. Hill (US 1978)a. facts

i. TVA built a dam. NEPA do an EIS and discover snail darter, listed as endangered and declare critical habitat.

ii. operating dam would totally destroy the snail darter critical habitat (violate §1536)iii. TVA argues that Congress didn’t intend ESA to bar operation of dam b/gave the dam $,

millions. b. Court holding: ESA requires halt operation of the dam

i. §7 is very specific – agency must insure actions authorized, funded or carried out do not jeopardize continued existence or result in destruction of habitat of the species(a) opening the dam gates = carrying out an action that is authorized and funded by

federal agency(b) no exceptions here – can’t be interpreted to not apply to projects that are already

underway. Doesn’t matter that it may see unrbl, crazy

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(c) § 7 language shows that Cong intended endangered species to be highest priority, over $100 million dam. i. had statutes before ESA and species were going extinct, from habitat

destruction (and hunting). ii. §1531(c) – seek to conserve species – all necessary means to protect

endangered speciesiii. Cong. foresaw some conflicts, so allowed hardship exception, but this

exception ≠ apply to Tellico damii. Just b/Cong. appropriated $ to dam, and said we don’t think ESA will stop dam ≠ mean

that ESA cannot bar the dam(a) Cong. can of course exempt the dam from ESA, but can’t do so by implication – must

be explicit2. Aftermath

a. Congress added § 1536(e) – (h): Created the Endangered Species Committee (God Squad). huge committee that includes federal Secretaries and rep. form the state grant exemptions to §7 i. cannot however make exception to §9, or de-list speciesii. restrictive criteria for making § 7 exemption

(a) must be no other reasonable/prudent alternative to the agency taking the action(b) the benefits of the agency action must clearly outweigh alternatives(c) agency must show it did not already make irreversible/irretrievable commitment of

resources prohibited by (d)i. i.e. agency can’t act and then try to get an exemption

b. This Committee ≠ grant exemption to Tellico Dam b/the economic benefits weren’t that great. So, Congress put a rider on a bill to specifically exempt dam

c. How do we value a species?i. Burger in TVA said that endangered species = incalculable. However, we put $ value on

other natural resources, on pollution/clean air. Is it good policy to have incalculable value?

E. Critical Habitat1. basics

a. defined = minimum amount needed to avoid short-term jeopardy, or amount needed for immediate interventioni. § 4(a)(3) – crit hab should be designated to extent prudent when listingii. what is prudent? if species has very little habitat left, and is often hunted/harassed then

designating habitat may just point the hunters where to go. iii. Court – critical habitat does provide additional protection; gives info to the public and

scientific organizations. Designation of the habitat should focus on recovery, not just survival.

b. Crit hab often not designatedi. designating is expensive, laborious b./have to consider all the economic and other impacts

§ 1533(b)(2), + do EIS. Also, it is a political problem b/ppl get upset when their land is designated as crit hab. (a) taking into account the economic impacts is unusual. When listing the species,

economics ≠ part of decision. Only consider economics here and in exemptions for §9 by God Squad

ii. designating as “crit hab” ≠ help that much b/already barred from jeopardizing by modifying key habitat under § 9. Δ very few listed species have design. crit hab(a) However, this leads to litigation b/FWS often not design. crit hab. (b) Also, what if court orders crit hab, but FWS ≠ have $ to do it?(c) Some have said should eliminate this req.

c. Actual impact of crit. hab. designationi. if area designated crit hab. on your land, but no actual endangered species there at the

moment then you can bulldoze etc. b/not taking any of the speciesii. Only place when it really matters is § 7 – agency action can’t modify crit. hab. not apply to

private person general(a) however, if you need a federal permit (like bulldozing wetlands etc.) then crit. hab.

and § 7 would bar the agency from giving you a permitF. § 7 (a)(2) – Consultation Requirement

a. § 7 Procedures

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i. Which actions it applies to: only applies to discretionary agency actions. If a private party is controlling the action (not just applying for permit/license) , then the federal agency doesn’t have to go through the process

ii. Three possibilities when agency considering action:(a) If action agency determines its action will have no impact on listed species or crit hab

No consultation w/FWS required(b) Must first find out from FWS whether species present. If species is present action

agency creates a BA concludes in BA that action ≠ likely to adversely affect a listed species. then it may do informal consultation with wildife agencyi. After informal consultation, FWS may 1) issue a concurrence w/BA. or 2)

suggest modifications to the action so that the action agency could avoid likelihood of adverse affects on listed species

ii. If, after informal consultation, FWS decides that not going to concur w/BA (i.e. determines that action is likely to adversely affect listed species/crit hab) then FWS and action agency do formal consultation

(c) If action agency BA concludes that action will likely adversely affect a listed species/crit hab. then must formally consult w/FWS BO (which assesses whether action likely to result in jeopardy to species or destruction/adverse mod of crit hab)i. Biological Opinion to answer the question: would act violate § 7 by

jeopardizing continued existence of species or adversely modifying the critical habitat of species?

ii. Jeopardy ≠ defined in ESA. FWS regs define it as “to engage in an action that rbly would be expected, directly or indirectly, to reduce appreciably the likelihood of survival & recovery of listed species by reducing reproduction, #s, or distribution in wild

iii. BO may have three responses: no jeopardy; jeopardy w/rbl and prudent alternatives; or jeopardy w/no alternatives.

iii. If BO says action will jeop/advr. modify then agency not supposed to do action(a) However, agency may feel FWS is wrong. It can go ahead with the action, but that

would be foolish b/may violate §7 and then open to criminal prosecution + lawsuit by private conservation org.

(b) Also, if FWS finds yes it is supposed to give agency reasonable and prudent alternatives ( § 9(d)(3)(A). [this ties into God Squad job – if the FWS provides rbl/prudent alternatives, then no exemption for agency]i. even though ESA says FWS supposed to give opinion + alternatives, often,

FWDS just gives alternatives (pol’l reasons – Court has said FWS can’t do this)iv. If no jeopardy finding agency is not completely off the hook. Must still worry about §9

violation – taking individual members of the species. Salvation = incidental take statement(a) statement = this taking won’t jeopardize the species(b) the Secretary provides this statement.

i. also specifies rbl & prudent measures necessary to minimize the impact on the species (notice – agency does rbl & prud. alternatives to action; FWS does rbl & prud. measures to minimize)

ii. sets terms in order to implement these minimization effortsiii. this gives FWS some control over actions that don’t jeopardize the species.

If the agency ≠ comply with minimization, then can still be prosecuted (unlikely DOJ would)

b. Diff. b/w ESA procedure and NEPA procedurei. At the end of ESA, have a substantive provision. Can’t just go ahead and violate § 7.

Whereas w/NEPA can do act even if find significant effectii. In ESA, the FWS is involved, whereas with NEPA every agency writes its own EAs/EISs

(a) less likely to be whitewashed b/FWS is oriented to protect animals, not just get projects done

iii. No public comment w/ BA or BO, as with EAs and EIS(a) the 2 do work t/g though. agency may provide alternatives in EIS and the FWS can

choose one of these when giving alternatives in its BO2. Failure to comply w/§ 7 procedure injunction: Thomas v . Peterson (9th Cir. 1985)

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a. plf landowners and conservationists allege FS did not formally consult w/FWS for building its timber road in forest

b. Court holding: i. Failure to comply with the ESA procedure. IT does matter – not de minimis. ii. Failure to do BA is just like failure to do EA Δ enjoin road building b/presume irreparable

damage is the result of failing to properly evaluate environmental impact of federal action

iii. compare ESA to NEPA. ESA is more stringent b/its procedures are designed to make sure not harm species.

3. When have to consult: Pacific Rivers Council v. Thomas (9th Cir. 1994)a. facts: FS had not consulted w/NOAA Fisheries about effects on Chinook salmon of Land and

Resource Mgmt Plans (these are forest wide guidelines, standards for projects; id areas suitable for timber, how much, schedule for road building)i. When Chinook listed, FS did BAs

(a) for a ton of projects show likely to adversely affect the fish, so suspended those projects.

(b) 1700 other projects found ≠ likely to affect so FS enter informal consultation with NOA, but during consultation, continue the projects. FS thought it could do so b/not causing irreversible/irretrievable commitment of resources.

ii. Enviros sue: FS not go through § 7 procedures for implementing the Plans – says that plan= agency action(a) makes claim regarding the Plans b/too much work to sue over each of the thousands

of actions that may affect Chinookiii. FS argues – the Plans were adopted before Chinook listed and Δ Plans ≠ actions under

ESA(a) + even if are actions, FS has already started informal consultation to make

amendments to Plans so don’t need to re-start consultationb. Court

i. Plans = continuing agency action Δ consultation required. injunction(a) implementing the Plan = action (just like in TVA)(b) Just b/an action is ongoing doesn’t mean immune to ESA. Construe agency action

broadly (c) The § 7(d) language about irreversible/irretrievable only applies after agency initiate

§7(a)(2) consultation. FS hasn’t started that yet so can’t continue actionii. Remedy

(a) FS must initiate consultation on the Plans. Once initiated, while waiting for an answer, it can determine if actions can continue while consult – take note though, timber sales are irreversible/irretrievable commitment of resources

c. Notes on Pacific Rivers makes ppl uneasy b/do agencies have to stop what they are doing every time a new species is listed? i. e.g. when Mexican spotted owl listed Court stop any timber harvesting in Arizona until

BO complete. This leads to a lot of anger b/seems excessiveG. § 9 The “Take” Prohibition

1. Babbitt v. Sweet Home Chapter (S. Ct.)- challenge the Sec.’s definition of taking as “significant habitat modification or degradation where it actually kills or injures wildlife”a. Regulations

i. § 9(a)(1)(B) – illegal to take any speciesii. §1532(19) defines “take” = harass, harm, pursue, hunt, shoot, wound . . . iii. Interior Dep. defined “harm” = an act which actually kills/injures wildlife. May inc. sign.

habitat modif/degradation that actually kills/injures by significantly impairing essential behavioral patterns, inc. breeding, feeding or sheltering(a) this is saying that if chop down tree even when owl is away then harming and is a

take. This matters b/ § 9 taking provision applies to individuals (not just agencies). Affects what ppl can do on their land – draining ponds, plowing fields etc.

(b) Plfs argue that harm must mean only willfully harm b/Congress made §5 which allows the Sec. to buy private land to protect species. That means that other §s were not meant to make ppl’s lands into preserves. If the govt wants to protect a species on private land, it should buy the land

b. Court: Sec. definition of “harm:” is reasonable i. Ordinary meaning of the word “harm” doesn’t mean that action has to be willful or direct.

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ii. Use of other words besides harm – harass, hunt etc.—indicate that Cong. meant each to have a different meaning (this is opposite the Ct. App. ruling striking down the regulation b/ all the words must have similar meanings b/all t/g)

iii. Interpret ESA broadly for its purpose(a) if harm only meant willful acts then if someone could knowingly do something that

would lead to extinction of the species, as long as didn’t do the act with the intention of extinguishing the species, then wouldn’t be a take goes against the purpose of ESA to protect

iv. Sec. has ability to give incidental take permits (§ 10) – meaning need a permit if you may take a species without meaning to. Wouldn’t need such a permit if harm only meant willfully harming a species

v. Rejecting the § 5 govt buy land argument – just b./govt can buy land to protect species doesn’t mean it must. It may be cheaper and provide more protection, but that doesn’t mean it has to

vi. Basically, harm = ambiguous, and as long as the agency interpretation is reasonable, we will uphold it

c. O’C concur: still must show proximate causation (not strict liability), so private parties only held liable if death/injury of animals is foreseeable result of their actions

d. Dissenti. regulation violate ESA b/(1) not limited to foreseeable effects; (2) include omissions that

lead to death of animals; (3) includes injuries inflicted on populations b/of reference to breeding; (4) would include times when take action without knowing that killing/injuring endangered species

2. Thinking about Sweet Homea. Foreseeable to the average person or the trained biologist?b. Often difficult to tell what killed the animals – could be entire global happenings, like climate

changec. Inaction can violate ESA – if state not stop ppl from driving on beach during turtle nesting

seasond. state can also be held liable for not limiting the amount of lighting, or for giving licenses to

have gillnets and lobster potsH. Incidental Take Permits

1. Are a kind of insurance against being found guilty of violation of §9.2. Added by Cong. 1982 3. Are limited – certain date/time of year/place4. only exempted if the take is incidental to otherwise lawful activity (like building a condo

development). Can’t go out and kill the owla. this is different from §1539(a)(1)(A) permit – allows you to purposefully go get the owl for

scientific study5. How to get a permit (at discretion of Sec.)

a. must submit a habitat conservation plan (HCP) (§10) that specifiesi. how going to mitigate impact, and fund mitigationii. other methods that the Secretary may say you need that means let’s make a deal!iii. Sec. can negotiate with you to get the developer to set aside land for preserve, or leave

wildlife corridors, or create new habitat (controversial – ppl say the wetlands you create not as good as those that developed) etc. Maybe even a trade – protect a different species(a) may focus on listed or unlisted species b/landowner wants protection from new

regulation(b) No surprises policy under Clinton/Babbitt to encourage landowners to enter into

HCPs: under certain circumstances, govt would not ask more from the landowner while the HCP lasted, as long as no unanticipated problems

b. In order to issue the ITP, Sec must findi. that HCP has steps to minimize, mitigate impacts of the incidental take to the maximum

extent practicableii. that incidental take will not appreciably reduce the likelihood of survival/recovery of

species 6. Federal agencies also get inc. take permits.

a. fed agencies ≠ do HCPs. b. Instead, get incidental take statement in BO, as part of § 7 process

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c. BO says: FWS (or NOAA Fisheries) concludes that any taking of a listed species incidental to the agency action ≠ likely to jeopardize the listed species, or result in destruction or adverse mod. of crit. hab. §1536(b)(4)(B)

d. Remember, also have to obey rbl and prudent measures that the FWS says must do in order to minimize take

7. Arizona Cattle Growers Assn v. FWS a. facts

i. case #1 (a) BLM grazing permits. FWS BO says permits would not likely jeopardize/adversely

modify crit habitat. (b) However, BO gave IT statements for 10 species; reasonable and prudent measures to

mitigate effect on the endangered species.ii. case #2

(a) Grazing on FS land(b) FWS had found that for ~ 1000 allotments, grazing ≠ affect listed species. Did find

that grazing would incidentally take members of some protected species on 22 allotments IT statements for each of these

iii. ranchers challenge the IT statements(a) In case #1, FWS never made a finding that grazing would lead to incidental take.

Can’t put the rbl/prud. measures on us without finding would be a take(b) In case #2, challenge FWS finding that would be incidental take for some animals

because those animals ≠ present on the grazing allotmentsb. Court: reign in FWS: Can’t impose minimization measures unless find there will be an

incidental taking.i. The point of incidental take is to resolve the issue when there will be no violation of § 7(a)

(2), but the proposed action will nonetheless lead to some taking of species, in violation of § 9(a) “Take” means the same in both §7 and §9.

i. FWS had argued that §7 should be more broad than §9. ii. Court said that if take was more broad in § 7, then the FWS could prohibit all

grazing, even if there was not chance of taking individual members of species(b) BO – has a powerful coercive effect on federal agency actions. ∆ If no §9 violation,

FWS can’t issue ITS and coerce agency conductii. When FWS must issue an ITS

(a) only appropriate when action rbly certain take (not when there is a small possibility). This comes from the fact that Congress said ITS must specify “the impact of such incidental taking” § 1536(b)(4)(i).

(b) HOLDING #1 ∆ Absent rare circumstances (migratory species) it is arbitrary and capricious to issue ITS when no rational basis to conclude incidental take will occur.

iii. Looking at ITS – where they rational?(a) In case#2, no sightings of the razorback sucker, infrequent impact on the fish from

cattle, however, FWS issued ITS for the fish. said that grazing, fences, stock tanks of nonnative fish, activities in the watershed take, even though could not determine how manyi. FWS evidence of the fish existing is speculative insufficientii. no evidence that there would be a taking even if the fish were present

(b) Court: rather than doing ITS now, FWS should reinitiate formal consultation if the razorback appears.i. CFR allows Feds to retain authority if

a. exceed the amount/ extent of taking specified in ITSb. or if new information reveals effects that were not previously consideredc. or if action modified so that affecting species/crit habd. Or if new species listed, or crit hab designated

(c) HOLDING #2 Arbit. and Capric. to issue ITS for razorback when FWS speculation on the existence of fish ≠ supported by record

iv. HOLDING #3 However, for the loach minnow, which was present, the ITS statement was acceptable, even though the ITS ≠ state an authorized number of “takes” but rather, stated a limit of conditions. Required improvement in conditions, or would be violating ITS. There was a rational cxn here b/w harm to loach minnow and the grazing(a) FWS can use a condition rather than a #

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i. however, the conditions must have a causal connection to the takingii. must not be vague. Agency must be able to gauge its performance of the

condition; otherwise, completely up to FWS as to whether met conditioniii. the conditions in this ITS make FS and Cattle Growers responsible for

improving the rangev. Can’t say there will be an incidental take if animals ≠ present on the allotment

c. Remedy: no measures. If the species appear, then reinitiate consultation8. NOTES on ACGA

a. Is Court saying that FWS can make conditions to avoid jeopardy to species, but not to help recovery of the species. – i.e. FWS can’t engage in “widespread land regulation even where no § 9 liability could be imposed”i. If cattle have been significant factor in decline of species that are now endangered, why

shouldn’t FWS be able to impose mgmt through §7 process and ITS conditions?ii. Is it too hard for FWS to be able to show rational cxn b/w the conditions it imposes and the

protection of the species?b. Really, if the animals are not present on allotment, may still have situation where grazing

pollution of stream downstream hurt the fish. This would be a taking if you can show cause-effect. This is difficult thoughi. this relates to dams too – change temperature and flow and quality of the water

I. Two Endangered Species1. Northern Spotted Owl

a. Pacific NW, old growth Douglas firb. injunctions under ESA, and also under NFMA, NEPA and FLPMAc. 1990 – Cong enact approp. rider to allow some timber sales to go forward despite court

injunctions upheld by S. Ct. Later the rider expiredd. 1992 – new fed ct decision halt timber sales b/FS’s EIS was inadequate. Another b/BLM

resource mgmt plan ≠ adequately consider the owle. 1993 Timber Summit Clinton establish Team to make new plan for forest mgmt in the

region, considering diversity of species, burden of protecting species, help for displaced timber workers. drastic reduction in timber harvesting. EIS upheld

2. Salmona. several stocks/runs listed as endangeredb. listing a species = finding that something is seriously wrong w/the animal’s environment.

i. Not just overfishing of salmon, but also, environmentii. also: hatcheries (produce monoculture fish that can out-compete the wild fishiii. hydropower – turbines grind up fish; make passage more difficultiv. harvest – commercial harvest of the fish in the oceanv. habitat – timber harvesting, cattle, roads etc.

c. There have not been big enough changes for the salmon J. Recovery Plans for Listed Species

1. 1978 amendment to § 4 – require Sec Int. to develop & implement plans for conservation and survival of species (unless finds plan would not promote such conservation)a. must give priority to those most likely to benefit from such pansb. site specific mgmt actionsc. measurable criteria for determining when can be delistedd. estimate time and cost for measurese. immediate steps

2. These steps are recommended not mandatorya. so when grizzly bear listed as threatened, the Act suggested a variety of methods to

conserve them, but did not. Ct upheld the plan for recovery b/noted that he Act suggests a ariety of methods. But none are mandated. ∆ ESA gives FWS flexibility to recommend a wide range of mgmt actions on a site-specific basis

K. Reintroducing a species1. May do “fully protected reintroduction” (capture wolves and release in Yellowstone)2. § 10(j) – less than full protection

a. reintroduce as experimental non-essential population. Can be exempted from § 9. (for political reasons)

b. same with augmenting a population – the population is not wholly geographically separate from the existing, non-experimental population. Besides, trying to enforce this would be a nightmare b/can’t tell if wolf that was taken was old or new population

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i. court upheld in Yellowstone case. There may have been a few lone wolves in Yellowstone before, but 1 wolf ≠ population. Δ 10(j) designation okay

L. Thoughts about ESA1. the only environmental act that really works? or a disaster?2. does it focus too much on single species that are in the emergency room? without focusing on

preserving significant ecosystems?

IX. MINING LAWA. Divide minerals into 3 types

1. hardrock – mostly metal2. dual –

a. fossil fuels – coal, NG, oilb. chemical minerals – phosphates, sulfur, sodium

3. common minerals – building stone, sand, gravelB. ML Basics

1. used to have all three types under Mining Law of 1872 (ML), but then removed them and put them other under statutesa. Mining Leasing Act for fossil and chemicalb. Common Varieties Act 1955 – common minerals (mineral sales contract – buy them from the

govt). declare them not to be valuable minerals2. What Land is Open to ML Operation?

a. applies to “lands belonging to the US”. However, much of this land has been withdrawn from operation of ML. Also, lots of land (even though not withdrawn) is not under the ML – for example, no mining at Capitol, National Cemetary, National Parks or military reservations. i. ML only applies where the US has indicated lands are held for disposal under land lawsii. requires explicit decision that fded would dispose of the land for fee titleiii. acquired lands (about 10% of ded lands) are generally off limits to the ML b/these lands ≠

available for disposal. b. Withdrawals

i. Really only relevant to mining and mineral leases b/other withdrawals – for homesteading – have been repealed

ii. may be temporary or permanentiii. Definition under FLPMA: § 1702(j) as withholding area from settlement, sale, location or

entry . . purpose of limiting activities under certain land laws in order to maintain public values in the area, or reserve for particular public purpose. Or transfer jx from one dept to another

iv. classification – land mgmt agency makes a decision about the category of land and how it can be used(a) Withdrawals are usually large-scale – by Cong, Prez or heads of agencies. In contrast,

classifications are for parcels, administrative fine tuningv. Congressional withdrawals

(a) retained sole power to withdraw and reserve certain lands – such as National Parks can be created only by Cong.

(b) Only Cong can designate National Wilderness Preservation areavi. Executive withdrawal

(a) power delegated by Cong for certain purpose – like Forest Reserve Amendment of 1891

(b) Exec may also claim inherent withdrawal power – ex. military reservations established by exec order. Also, Indian Reservations. Also, Roosevelt reserve Pelican Island for migratory bird refuge. However, FLPMA abolish Prez implied withdrawal power

vii. FLPMA tried to get @ problem of hodge-podge withdrawals by having Sec Int. review existing withdrawals from mining laws and report to Prz and Cong. Must determine whether and how long to continue the withdrawal - § 1714(l)(a) Sec. Int. itself can revoke withdrawal as normal biz, different from termination that is

pursuant to review in §1714(l). viii. Withdrawal for specific natural resource

(a) Mineral Leasing Act 1920 withdraw oil, gas, coal from operation of ML on public lands

c. It can be difficult to determine what land is open the general rule is26

i. Is the fed land generally available for disposal?ii. If not, has Cong said this land is open to mining? (national forests, and BLM land)iii. Has the land been withdrawn by Congress (wilderness areas), or by Executive?

d. About 400 million acres of fed land (mostly BLM and FS) are still open to ML 3. ML characteristics

a. self initiate – go out there and find some minerals on federal lands that are open to miningi. free and open to exploration ii. allowed onto all land except otherwise provided a lot of land has been withdrawn from

operation of ML(a) withdrawn – first national parks. Then nat’l monuments, wilderness areas, national

wildlife refuges. (b) Now, really just BLM and FS land

b. almost free – very small fees per acrec. can get fee-simple title (except Cong has not disallowed patenting)

4. Operationsa. BLM administers – collects the fees, manages the minerals. FS in some areas may manage

the landi. tricky – in 1974, FS enacted regulations to minimize impact of mining on National Forest

land(a) rather than just saying what you can/can’t do on mining claim (like can’t build an

unrelated structure – Rizzinelli) – here, saying how you can mine(b) FS overstepping bounds?

i. FS says its authority comes from Organic Actii. Regulations affirmed in Weiss (see below)

b. Sec. of Int. can withdraw lands (under FLPMA). Can only delegate this power to someone who is appointed by Prez

c. limit on # acres that can be withdrawn (i.e. narrowly prescribed power5. How to Locate a Mining Claim

a. Discoverb. Post your claim (name, address, date, “I claim”)c. Stake the claim (four corners)

i. size – about 20 acres max. However, can claim as many as you wantd. Record your claim (like a deed)

6. Mill Sitesa. mill site = non mineral claims, located as ancillary facilities. Limited to 5 acres – must be

noncontiguous with mining claims. Must be locaned on non mineral federal land open to MLi. must show mill site ≠ have mineralsii. 1 millsite per claim. However ML attacked this restrictin Cong rider that exempted

many operationsiii. some companies have use mining claims for millsites. Others have tried to “slice and

dice” cutting up their claims into smaller pieces so can have more millsites. iv. mill site issue – purpose was to encourage mining, but did not intend mill site acreate

limit to be ignored. Not allowed to patent or claim unlimited amount of public land for waste dumps and spoil piles

7. Changing boundaries of mining claima. may be that when start mining, the mineral is not necessarily just under staked area must

relocate or amendb. Have a right to mine the vein as it continues out of the area where staked. But ≠ have right

to land above this excavation of the vein. Can only continue to the end of the vein. C. Validity of Mining Claim – Must have Actual Discovery

1. Castle v. Womble (Op. of Sec. Int. 1894)a. “discovery” means must present facts, not maps and tests that say probably will discover

something in the future b. “valuable” means must have evidence of such a character that a person of ordinary

prudence would be justified in further expenditure of his labor and $ w/reasonable prospect of success in developing valuable minei. i.e. ordinarily prudent person would justify doing more labor and spending $ because

expect it to become a valuable mineii. look at quality and quantity

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iii. discovery means must have some in hand. Valuable must mean there is enough of this stuff to continue developing a mine

2. Coleman (S. Ct. 1968)a. Feds deny patent to Coleman b/say he didn’t have a valid mining claim – no discovery of

valuable mineral. (He drew attention by building a mansion on it)b. Coleman claimed he was mining quartzite as blg stonec. Feds say: can’t mine quartzite for a profit Δ ≠ marketable Δ ≠ valuabled. Court: Marketability Test (it is complementary to prudent-man test)

i. fleshing out prudent person test – b/prudent person wouldn’t mine something couldn’t make a profit doing

ii. means that mineral ≠ valuable mineral deposit b/stone could not be marketed at a profit. iii. (this test means that can actually ban mining of a certain type of mineral by just making

it uneconomical to mine it w/so many restrictions – Great Basin Mine Watch iv. marketability includes cost of complying w/Fed and State laws, including environmental

laws. If environmental regs make it uneconomical unprofitable not valuable. Great Basin Mine Watch (IBLA 1998) (**this doesn’t seem to be consistent w/Granite Rock )

3. Discovering – can just go start digging. But to use mechanized equipment, need a BLM exploration permit. This means you have to get the BLM to approve your plan of operation

4. When you do one of these things triggers govt to determine whether your claim is valida. apply for patentb. after you have filed your claim, the land is withdrawn from ML

i. you are grandfathered in – so can keep your claim, but must prove is validii. may be really tough if the claim was validated a long time ago

c. have a dispute with someone else – someone starts digging on your claim – violating your right to exclude others

D. FLPMA 19761. The BLM organic act, basically 2. problem was that no way to see if the claims were valid (if person had done the discovery, post

and stake), recorded in little courthouses everywhere. BLM trying to sell its land and has a tough time saying if there are any valid mining claims there

3. So add requirements §1744a. Applies to all mining claim (was a 3-yr grace period for old mining claims)b. Initial filing

i. file w/BLM within 90 days of locating claim c. Annual filing to maintain the claim

i. notice of intention to hold or affidavit of assessment workii. Must file prior to Dec. 31 of each yeariii. US v. Locke – filed on Dec. 31 rather than before and so lost his claim

(a) statutory language is clear. Clear congressional intent to rid fed lands of stale mining claims; have centralized collection of up to date info on the status of unpatented minig claims.

(b) **Mining claim is a different kind of property. i. Cong. has great power over it so if you don’t follow the fed regs, the govt gets

it back – not a taking b/it was your failure to follow rbl regulations that led to loss. Govt just caught the title as it fell.

4. Cong should withdraw or designate Fed lands for specific purposes. §1701(a)(4)5. 1702(j) – meaning of withdrawal6. 1714(a) – Sec. can make, modify, extend, revoke withdrawals

a. however, 1714(c) – For 5000+ acres, Sec must notify Cong of withdrawal, reasons for it, effects of withdrawal etc.

b. 1714(d) – if less than 5000 acres, can withdraw for period for resource use. For any other use – 20 years max

c. 1714(e) – emergency withdrawals to preserve. 3 yrs max7. Meaning of “assessment work”

a. the goal is to stop speculators by requiring miners to continue to develop claim after discovery

b. Must do $100 worth of labor or improvements each year to keep your claim (unless patented)

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i. now you can pay $100 a year in lieu of work; FLPMA requires annual filing many ppl abandon claims when have to pay for them every year

ii. if you forfeit the claim, you can get it back by resuming work before someone else comes and claims it

E. Patenting Claims1. Process

a. pay $5 per load claim (hard rock); $2.50 for a placer (sifting through sediment). b. prove spent $500 in improvements or labor c. show valid, maintained the claim get a patent (not discretionary (no NEPA))

2. Having a patent doesn’t matter too much b/can mine without one, have to pay state taxes either way.a. benefits - fee simple means can do other things besides mine, such as ski resort

i. don’t have to file every year with FLPMA, no assessment req.b. downsides – liability b./you own the land

i. more taxes b/now pay taxes on the land, not just the mineralsii. land use regulations, zoning apply may make it un-mineable (if not patented, then

federal land rules apply b/of Supremacy Clause and Granite Rock)3. End of Patents

a. Babbitt get attention w/stunt, big check b/company going to make millions mining goldb. 1994 – Cong use rider on approp. bill to stop patents

F. Mining Claim as Property1. Locke (above)

a. much more tenuous form of property. Can lose it more easily; govt has more controlb. if you lose your claim, then a claim jumper may come in and file it before you get back out

there and relocatec. Plus, there may be restrictions on the land now that prevent you from relocating – may be

withdrawn from ML2. Attempts to get immunity from regulation b/ML says miners have “exclusive right of possession

and enjoyment” §26a. US v. Rizzininelli

i. facts – def had saloons on unpatented mining claim.(a) regs require a permit to occupy, have an enterprise in the national forest, unless

patented or the operation/enterprs. is necessary to develop the mineii. Crout

(a) defs have possessory title only. Govt = paramount owneri. US has right to protect its interest (reversionary interest)ii. US interest = conserving value of the land, preventing injury and wasteiii. Govt power comes from FS Organic Act 1897. Under this Act, can require

permits for grazing, issue regulations. Can say no structures or enterprises except those necessary for development of the claim

(b) Meaning of ML “exclusive enjoyment” means just to enjoy mining, not all other purposesi. purpose of ML is to encourage ppl to assume the hazards and go mineii. drastic narrowing of the statute. Able to do this b/

a. interp. words in context of the law’s purposeb. grants in rights of public land are construed narrowly

b. US v. Curtis-Nevada Mines Inc. (9th Cir. 1980)i. facts – Curtis has claims, tries to exclude ppl from forest trails

(a) claims he has mine worth millions, although he hasn’t dug yet(b) here, uses § 26 to say he can exclude, determine what ppl can’t do on his land (as

opposed to Rizzinelli who used § 26 to try to say what he could do on his land)ii. Court

(a) rather than ruling on §26 (could have said under Rizzinelli – the govt has ability to prevent miners from using their claims for purposes other than mining in ways that interfere w/other uses of land)

(b) Instead, court looked to Surface Resources Act §4(b)(c) SRA codified Rizzinelli – only entitled to use mining claim for purposes reasonably

incident to miningi. US retains right to manage, dispose of vegetative resource on the claim (i.e.

govt can sell timber, issue grazing permit)29

ii. Any claim is subject to the right of US, its permittees and licensees, to use as much as surface as necessary or for access, so long as not endanger or materially interfere w/mining

(d) Meaning of “other surface resources”i. includes recreation ii. The purpose of Multiple Use Act was to stop ppl from making mining claims

with the intent to just get the surface rightsa. problem was that ppl were using surface, getting timber, blocking access to

other lands, water, fed agents to manage the landb. Δ purpose of MUA = open land to more varied uses, and requiring a permit

≠consistent with that goali. BLM or FS can require permits, but don’t have to in order for ppl to be

“permittees and licensees” able to go on unpatented mining claimsii. ie. the public has an implied license (important b/ML said land is free

and open to mining. Now have a case – free and open to hiking)3. Meaning of “vegetative resources” in SRA?

a. can a mining claimant clear cut the forest?4. Ppl have tried to use mining claims to get govt to pay them off when the govt wants to build

something on the land (Central Ariz. Project, Yucca Mtn)G. Environmental Regulation of Operations @ Unpatented Mining Claims

1. FS: Authority to regulatea. 16 USC § 478 – can’t prohibit entry to a mine. But miners have to comply with the rules and

regs on the national forestb. 16 USC §551 – Sec. of Agri shall make provisions to protect national forest from fire,

degradations + make rules regulating occupancy and use to preserve forest from destruction

2. FS: Rulesa. require hardrock miners to file notice of intent before disturb the surfaceb. if it looks like there will be a significant disturbance of surface resources can require

miner to file a plan of operations must be acceptable, must include ways to protect environment, reclamation + bond to cover damages

c. while pending approval, ranger can allow miner to mine, as long as minimize environmental impacts

d. If FS not like your plan – thinks it would not minimize adverse impacts then FS come back to miner w/suggested improvementsi. no right to actually say “no mining” b/have a right to mine.

e. this is a big change because before, didn’t need any approval3. FS: Authority of regulations challenged Weiss (9th Cir. 1981)

a. Summary: FS has right to regulate mining, but no authority to say no miningb. Weiss – owns unpatented mine in FSc. FS – have competing interest, they are not parks set aside for nonuse – established, rather,

for economic reasonsi. so can’t regulate mining to the point of prohibitionii. so if a mine would cause significant impact, FS can’t regulate to prohibit the mine

4. BLM: Authority to regulate in FLPMA §1732(b)a. FLPMA ≠amend ML, or impair rights of miners

i. more narrow than FS Organic Act, which says can regulate but not prohibit. Here it says can’t even impair (i.e. regulate?) the rights of any locators or claimants

ii. This means BLM has very little authority less than state, b/in Granite Rock, court says state can regulate (impair) as long as not prohibit

b. However, Sec of Interior shall take any action necessary to prevent unnecessary or undue degradation of the lands

5. BLM: Rules 1980, govern hardrock mining “3809 regs”a. Like FS regs, However, were Diffs. BLM rules:

i. not require plans of operations if mine disturb <5 acres/year (this is actually a pretty high limit)

ii. not require bondiii. define “unnec. or undue degradation” by industry standards

(a) surface disturbance greater than a prudent operator usually wouldi. diff. from FS – that said “minimize adverse impacts” – i.e. be as clean possible

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ii. could say FS is raising the industry standard, while BLM is accepting itiii. however could say are about the same. With BLM, if the harm can’t be

mitigated, and it is substantial irreparable harm that is unnec/undue degree. and we can refuse your mining claim

(b) failure to initiate and complete rbl mitigation measures or failure to comply with environmental protection statutes = unnec. or undue

b. Int. opinion: Sec. has right to reject plans of op. that would cause substantial and irreparable harm to significant scientific or cultural resourcei. basically right to say no ii. 2000 regs incorporate right to say no

(a) also add bonding requirement(b) get rid of 5 acre/year exemption(c) redefine unnec or undue as if violate environmental laws, that is unnecessary or

undue degradation (if the violation happens on a claim made after FLPMA passed)iii. Bush W. weaken the 2000 rules no right to say no (undue and unnecessary mean the

same thing, “undue” doesn’t give Sec. right to say no)(a) Bush W, also rescind the Clinton/Babbitt disapproval for gold mine

X. MINERAL LEASINGA. Basics

1. Used for non-metal mining, non-hardrocka. fossil fuels like oil, gas, coal

i. flow ii. can still be substantial surface disturbance – one well every 40 acresiii. impacts from trucks, drill padsiv. towns spring up more pollution

b. fertilizer and chemical minerals – phosphate etc.c. all minerals on outer continental shelf (really only oil and NG)d. geothermal resources

2. Important b/a. many minerals are under thisb. seen as an alternative to ML

i. enviros say everything should just be leased3. Differences b/w ML and Leasing

a. govt controls time. extent of the lease. So it decides when to offer the lands (ppl can request). This means no self-initiation. Need permission to prospect and develop

b. Govt can put limitations on the leasesi. can require diligent development or you lose the lease

c. Competitive bidding (by offering bonus of upfront $)i. also pay royalties on what you extract

d. BLM administers, but any lease must be consistent w/FS plani. FS can designate an area on a plan as no leasing BLM can’t lease it (different from

hardrock mining under FLPMA, where can only be withdrawn by presidential appointee, here, much more govt discretion) areas can be easily taken off the table

4. Ways Pres can control leasing w/o actually changing the regsa. tell your staff to go slow, or tell them to lease all you canb. affect via # employees hired, budget

B. Operation1. After get lease, have an area that may contain oil/gas2. very few of leases drilled, fewer of those full development. Many dry holes3. Lease restrictions

a. No Surface Occupancy (NSO)i. can drill from the side, but not from aboveii. standard lease implied right to drill. So govt can’t just say no drilling

C. Leasing & NEPA1. leasing itself ≠ environmental impact. Would be a waste to do EA for each when so often, no

drilling results2. However, when get application to drill, unless it is an NSO lease, then can’t stop the drilling.

Also, if do EA for each APD that is piecemeal, missing cumulative effects3. Unresolved by S. Ct.

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a. Park County (10th Cir.) – i. accepted govt’s EA FONSI for leasing b/lease itself doesn’t have an impactii. may be distinguishable from Peterson, b/EA here was extensive

b. Sierra Club v. Peterson (9th Cir.)i. FS said it would do an EIS when lessee asked for APDii. Court: when lease made a commitment ∆ must do EIS and consider what environ.

impacts would be if fully developed(a) unless is an NSO b/there, the govt reserves right to say no(b) Kohlman v. Bob Marshall Alliance (9th Cir.) went further have to do EIS even before

do an NSO lease b/must consider no-action option – i.e. not doing any lease at all. Lease opens the door to potentially harmful activities

D. Is Decision to Not Authorize Leasing = a Withdrawal?1. FLPMA made withdrawals formal - detailed process. So now must determine whether decision

to not lease, or to not give an APD = withdrawal2. Mountain States Legal Foundation

a. Withholding action on oil/gas lease (pending roadless rule determination) = de facto withdrawal and ∆ have to comply W/FLPMAi. not doing an auction effectively remove large areas of federal land from leasing and

operation of MLii. decided not to do the auction in order to maintain public values (wilderness preservation) iii. These are the very definition of w/drawal under FLPMA (intent of FLPMA was to enable

Sec. of Int. in his discretion to remove large tracts of public land from public laws)3. Hodel

a. Deciding not to lease ≠ a withdrawal b/Sec has discretion to refuse lease on any given tract (basically rejecting Mountain States)

b. There are 3 ways Sec. can close land to miningi. decide not to grant leaseii. withdraw area from mining leasingiii. declare land unavailable for leasing in the land use plan

4. Notesa. is it just about the size of the land that is off the table?b. not leasing, in Feller’s opinion, ≠ withdrawal b/withdrawal is defined as no sale, settlement

location or entry. That doesn’t include no leasingc. Can the Exec just assert inherent power to withdraw, regardless of FLPMA?

i. has done it and sometimes upheldE. CBM Leasing

1. CBM = recent energy source. methane found in a bed of coal. b/of deepness of coal, get more energy by drilling fro the methane than mining the coal.a. effects

i. pump out a lot of water water table decline and harm local wellsii. erosion from the flow of water. Can even change flow of streamsiii. water quality in area may suffer. Makes streams saltyiv. Also requires drill pads, roads, pipelines, powerlines

b. Wyoming and Montanac. Push by Bush for more development of fossil fuels

2. Pennaco Energy v. US Dept of Interior (10th Cir. 2004)a. facts

i. BLM auction 3 leases for CBM in Powder Basinii. Need to do EIS before lease? Interior Bd (IBLA) says yes.

(a) there were 2 Resource Mgmt Plans, with EISs i. Buffalo – oil and gas leases in the areaii. Wyodak – EIS for group of CBM leases, however in a different area. Also, the

leases had already been given and so did not consider no-action as alternative(b) Says needed to do new EIS; failed to take a hard look because Buffalo ≠ look at CBM

impacts. Wyodak did not look at Powder Basin or no-lease alternativeiii. Pennaco intervenes as interested third party D. Ct. Environmental groups intervene to

argue that the BLM did not comply with NEPAb. Court

i. CBM has different impacts than oil/gas (BLM itself said so in Wyodak) and ∆ the Buffalo EIS ≠ good enough

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ii. Can’t just combine Buffalo and Wyodak because no-action option ≠ examined in Wyodak iii. As far as deference to agency determination, here, IBLA (the highest decision-maker of

the agency) said violated NEPA and so deference to agency here means that IBLA right, BLM violated NEPA(a) IBLA decision ≠ arbitrary capricious – enough evidence to support its conclusion that

CBM water impacts are very different than water impacts from oil/gas(b) also, evidence that CBM unique air quality impacts

XI. TIMBER & NATIONAL FORESTSA. Basics

1. hardwood = deciduous, broad-leaf. Aspen, oak, maple a. better for furniture, more expensive

2. softwood = evergreen, spruce, pinea. grow faster

3. Trees on federal landa. very small % of wood is from national forest land.

i. why? b/on private lands, cut down more trees and plan more shorter rotation periodii. even though there is a lot of commercial forest land on private land, much of it doesn’t

belong to industry, hard to harvest b/dispersed small plotsb. more softwood than hardwood b/Western lands have little hardwood

4. National Forestsa. FS, within the Dept. of Agri.b. Organic Act 1897 created FSc. had a lot of support before 1950s b/able to keep everyone happy – timber, recreation

demands were light (fewer ppl out West)d. WWII housing boom demand for timber increased and private lands were exhausted

huge increase in board feet from FS until the 1960se. Drop off

i. running out of old growth (200-400 yrs old) best, most valuableii. old growth also has best scenic appeal, wildlife habitatiii. ~80% of old growth in Northwest has been cut (some areas is more like 90%, in AZ too)

5. Multiple Use Sustained Yield Act (MUSY)a. Under Organic Act, FS to manage timber, water, production of forests (476)b. But FS was already managing for more, broader uses (wilderness movement, recreation)c. MUSY clarify and broaden the FS mission

i. National Forests established for outdoor creation, range, timber, watershed, and wildlife fish

ii. Sec of Agri to develop and administer renewable surface resources for mult. use and sustained yield(a) multiple use = mgmt of all renewable surface resources so used in combination that

best meet needs of ppli. some land will be used for less than all of its resourcesii. use without impairment to productivityiii. consider the relative values of the resources (not just go for the use that

makes the most $)(b) sustained yield of the several prods and services = achieve and maintain

i. in perpetuityii. high level of annually. regular output of various renewable resourcesiii. without impairment of the productivity of the land

6. Multiple use mandate also for BLM (under FLPMA)a. pretty much the same as MUSY, but a few differences

i. more open ended, rather than listing 5 uses (“including but not limited to recreation)ii. lists natural scenic, scientific and historical values as considerationsiii. present and future needs of ppliv. act to avoid “permanent impairment of the productivity of the land and the quality of the

environment”b. What do these differences imply, if anything?

B. National Forest Mgmt Act (NFMA)1. Clearcutting

a. problem = costly, local resentment33

b. Created guidelines = “Church” cc guidelinesc. Monongahela case - Church rules allow cc and cc violates FS Organic Act;

i. Org. Act says trees must be marked and designated before sold. + only allows dead, matured or large trees to be sold

ii. purpose of Org Act was to preserve forests, ∆ only sell the trees that aren’t going to grow any more

iii. Clearcutting means cutting every tree no matter size, maturity, no marking ∆ violates Org. Act

d. Monongahela creation of NFMAi. remove language about only dead old trees allow ccii. However,. puts limits on cc (so really revived it, but more restrictive than before

Monongahela2. Timber mgmt

a. cutting trees must protect streams, prevent erosion, dispose of fallen limbs and stumps, restock the trees

b. very very specific (compared to Org. acts) 3. § 1604 = centerpiece

a. Each Forest must develop a Forest Plan accg to regulations that FS will issueb. FS regs should do these things ….

i. So indirectly dictate timber mgmt practicesii. Forest Plan components

(a) designate suitable timber base where going to cut and where wont(b) Standards or guidelines for timber mgmt. May have: (SEE more BELOW)

i. rotation periodii. Wildlife protection guidelines – no cutting w/I X miles of owl nestiii. buffer for scenic vistasiv. stream protection – no cutting w/I X of trout streamv. slopes – erosion – no cutting on X-degree slope or greatervi. may have timber sale schedule – still tentative

4. Summary: How NFMA worksa. Planners determine what land is suitable

i. exclude areas that are fragile, used for other things (like wilderness) or not commercially good (less than a certain amount of wood/acre)

b. Calculate amount of timber to cuti. volume; rotation period; calculate future growth

c. Method for harvesting and restockingC. Determining Suitability of Lands for Timber Harvest

1. § 1604(k): Sec. shall identify areas not suitable for timber production considering physical, economic factors and other feasibility factors

2. Physical suitability §1604(g)(3)(E) insure that timber harvest only wherea. ≠ cause irreversible damage to soil, slope, watershed

i. assurance that lands can be adequately restocked within 5 years after harvest(a) this is a big deal in SW where very dry. trees may only germinate in wet years

b. protect streams, etc. i. protection from detrimental changes in water temperature

(a) if lose shade temperatures increase can kill fish that need cold water(b) also, erosion may widen the channel shallower heat up quicker

ii. blockages of water – landslides, deposits of sedimentc. Restocking

i. not enough $ to do thisii. a lot of agency discretion if could restock in 5 years, then that qualifies

d. Hard to challenge FS suitability determination b/agency has a lot of exerptise, ti is a complex determination + agency has a lot of discretion

3. Economic Suitability a. This was aimed @ below cost timber sales (b/have to comply with NEPA, survey, mark, build

roads)b. § 1604(l) – FS must make a process to compare costs & revenue from timber salesc. Ended up not really mattering FS can do timber sale for other reasons – improve habitat,

decrease fire risk, roads are good for recreationi. where the disagreement is when cut old growth trees

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ii. fire risk is a real reason for cuttingiii. also, local ties – keep the timber mill goingiv. plus, keep their jobs timber sales require $, power, staffingv. Cases saying Not just about $vi. Thomas v. Peterson (9th Cir.) – FS can cut timber even if cost of blg the road exceeds $

from timber sale(a) FS argued other benefits of the road – motorized recreation, firewood gathering,

access by local residents(b) NFMA says economic prudence, but doesn’t mean can’t build a timber road even if

cost not justified by timber salevii. Citizens for Env’l Quality (D. Colo.)

(a) § 1604(k) provides FS ample discretion to look to factors other than $(b) However, FS does need to say what other factors it is relying on and why

4. Lands identified as not suitable for timber § 1604(k)a. if not suitable no timber harvest for 10 yrs (except for salvage, cutting necessary to

preserve other multiple uses)b. review classification decision every 10yrs

D. Diversity1. §1604(g)(3)(B)

a. provide for diversity of plan and animal communitiesb. preserve diversity of tree species similar to that controlled by the plan

i. odd – saying tree diversity should be what it isii. Basically – don’t turn into monocultures

c. But have weaseley words “where appropriate, to degree practicable, for steps to be taken to preserve diversity of tree species similar to that in the region”i. meaning no monocultures, at least not too many, not too often, probably

2. Law & old growtha. depends on how define the area. If look at forest as a whole, old growth is rare. If look at a

particular patch, may be a lot of old growth ∆ is a qs of scalei. if cut the old growth trees in a patch then homogenizing forest by making this patch like

the rest of the forest3. Use Management Indicator Species (MIS) – to estimate diversity

a. MIS – must include endangered & threatened speciesi. species with special needs that may be significantly impactedii. species that are often hunted/fishediii. species of special interestiv. basically, species that are good indicators of other species

b. controversy – which species choose. For example, if choose certain owl that lives in old growth then setting aside more land as unsuitable

4. Sierra Club v. Marita a. FS made forest plans, EISs for 2 forests in Wisc.b. FS to treat wildlife as controlling, co-equal factor in forest mgmt c. In this case, FS

i. gather data about plant diversityii. Then identified MIS determine minimum viable population for each MIS make plans

for forests(a) in Nicolet Forest – harvest big hardwoods and softwood(b) in Chequamegon – recreation, harvest saw timber and aspen

d. Sierra Club argues: FS not use Conservation Biology to make the plans (idea that can only maintain diversity if a species population is a certain size. If you make the forest a patchwork then areas are not large enough to sustain a diverse population.)i. consv. bio – large habitat is more than the sum of patches b/edge effects, isolation

concerns, disturbance in a patch can wipe out entire speciesii. need to protect old growth in order to maintain diversityiii. lack of consv. bio FS failed to take a hard look at the environ. impacts

e. Court - i. consv. bio ≠ required by NFMA, b/was an established idea when draft NFMA and NFMA not

mention it ∆ not necessary(a) also, consv. bio. developed on islands, NW not necessarily apply to Wisconsin, that

is why FS says conv. bio. is uncertain 35

ii. FS method did not ignore diversity, It has discretion as to how going to promote diversity, and it doesn’t necessary have to protect old growth

5. CFR on diversity are more strict, protectivea. inventory must include #s for prior and present conditions. How species will be affected by

possible land usesb. can only reduce diversity if must do so in order to meet multiple use objectives

i. *Regulation – CFR “Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area §219.19

ii. regulation revised by Clinton, repealed by Bush. iii. Had played important role in forest mgmt iv. these are more protective than ESA – protect all vertebrate species, not just endangered

ones(a) e.g. – existence of goshawk in area has limited timber sales, even though goshawk ≠

endangered(b) protected Northern Spotted Owl injunction a/old growth timber cutting before

species listedv. no exemptions process –no God Squad

(a) Even if have exemption under ESA, this regulation still applies c. defines diversity as distribution and abundance of different plan and animal communities

and species within the area covered by the pland. manage fish and wildlife habitat to maintain viable populations of existing native and

desired non-native vertebratesi. stricter than ESA b/include non-nativeii. very powerful (but no longer in effect – repealed by Bush)

(a) was used to stop old growth cutting in order to protect northern spotted owl before owl listed under ESA

iii. however, still has effect b/most forest plans written while it was still enforcee. Now CFRs are much shorter, less reviewable. No more MIS, viable species – SEE BELOW

E. Clinton Reforms - - Revised Forest Planning Regulations1. What fixing: NFMA planning was slow, expensive, unresponsive to public comment

a. So made new rules – public participation, efficiency, relations w/Indian Tribes; extensive use of scientific principles (esp. ecological sustainability & species diversity)

2. Ecological sustainabilitya. Regs

i. first priorityii. is to maintain or restoreiii. for the long-0term

b. Criticized as not conforming with FS’s multi-use mandatei. however, NFMA does say FS should meet requirements of our ppl in perpetuityii. using ecological sustainability healthy ecosystem benefits

3. Species diversitya. guidelines

i. must provide ecol. conditions high likelihood that can support over time the viability of native and desired non-native species

ii. well distributed throughout their ranges within the plan4. Bush W

a. reject these regulationsb. Focus more on productivity (see FS Planning Regs in Second Supplement)

i. FS can choose not to do an EIS when revise a forest plan(a) as long as plans don’t authorize site-specific actions and not expected to have sign.

evn/ effects that haven’t already been addressed in an EA/EISii. replace viability of species w/more vague, general reqs

(a) Talk about interrelated elements: social, economic and ecologicali. When looking at ecol. sustainability,

a. First look at whether would provide diverse ecosystemb. Only if determine would not provide ecol conditions for thre/ending. species,

or species of concern/interest then must include provisions for those species

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c. those provision must be consistent w/ltd agency authority, capability, multiple use objectives

5. Despite Bush, Court has still found that § 1604(g)(3)(B) has force.: Ecology Ctr v. Austin (9th Cir. 2005)a. FS wants to cut old-growth in burned area. b. FS ≠ provide proof that the thinning would not harm old-growth dependant species ∆ violate

NFMA b/not show reliability of scientific methodsc. proposing cutting more old growth in forest = arbitrary and capricious. (analogy to FDA, like

approving drug without knowing whether safe or effective)d. Why were plfs, using vaguer language than plfs in Marita, won when they lost in Marita?

i. different circuits; different panelii. this opinion is just much more skeptical about FSiii. In Marita, plfs said FS should use consv. bio. Here, plfs said the FS is doing something and

not backing it up with scientific reasoning – (not saying must use our scientific reasoning)

F. Roadless Initiative1. Inventory Roadless Area Review & Eval (RARE II) to id areas that might potentially be

designated as wildernessa. 20% of the FS are designated wildernessb. Criteria for RARE II

i. must be roadless(a) roadless area goes right up to the edge of the road

ii. 5 acres+c. Found ~ 60 million acres (about 30% of total). (about 50% of FS land is roaded)d. Most roadless areas are in Alaska, Idaho, Montana are near the top. Ariz. is at bottome. Even without the RR, decrease in roadblg b/of litigation, economic factors, ESA f. Clinton declared (purpose= peace?!?): all RARE II identified lands closed to road blg and

timber harvest i. no reconstruction eitherii. are exceptions when can build, but pretty narrowiii. Other reasons for the RR

(a) FS can’t even maintain the roads it has(b) protect from erosion(c) less roadkill – protect animals(d) more unbroken habitats support healthy ecosystem by helping a/spread of

invasive speciesi. animals depend on non-fragmented forests

(e) scenic, cultural resources and sacred sites(f) recreation(g) have been blg roads for 150 years, and these areas are still roadless ∆ don’t really

need roads herei. don’t need new road for fire control

iv. Arguably still satisfy MUSY b/allow many activities that don’t require new roadsg. Rule itself

i. can’t build in roadless area, except if(a) health/safety need, must be imminent threat(b) need to realign road to prevent irreparable resource damage, or need to improve

road b/hazardous conditions(c) need the road to continue mineral lease, but must minimize effects, must destroy

road when no longer need itii. can’t cut, sell or remove timber

(a) except small diameter timber need to cut for ecosystem mgmt2. Bush W

a. stayed implementation of Roadless Ruleb. However, in May 2001, allowed the rule to go into effect ∆ put into position of defending

it. i. not really a big deal b/no roads planned in most of these areasii. in lawsuits, the enviros intervene in order to vigorously defend the rule

(a) Iowa – court enjoined implementation of the rule b/violated NEPA

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(b) 9th Cir. – Kootenai Tribe (2002) - reverse injunction b/plfs can’t likely show NEPA violation

(c) Wyoming fed district court find NEPA violation enjoin (2003)i. Enviros appeal 10th Cir

iii. 10th Cir. (a) while pending, govt changed the RR state petition rule 10th Cir dismiss as moot

(2005) c. State petition Rule

i. states can petition fed govt to have roadless rule in the state.ii. Not really giving power to states, because FS could still say no. Also, states can always

ask the FS to do things – don’t need a special rule saying soiii. 5 states have petitionediv. CA lawsuit N.D. Cal. injunction (Sep 2006)

(a) state petition rule violated NEPA b/not do an EIS(b) interesting b/the state petition rule is basically the no-action alternative

v. So now, the Roadless Rule is back all over the country

XII. GRAZING (mostly BLM land)A. Statistics

1. Most of land not being used for grazing is ungrazeable. 2. 60% nat’l forest land under grazing permits. 3. allowed in areas where no other commercial activity is – eg wilderness areas, national wildlife

refugesa. not allowed in national parks (are some exceptions)

4. Beef production as % of total in U.S. is very small (8% of beef inventory)5. Measured in terms of AUM – need about 160 acres to support 1 cow per year (more in dryer

areas)B. Benefits/Drawbacks of grazing

1. some say – it reduces dead vegetation, spurs growth; tramples seeds into ground2. Edward Abbey – it is awful – pollution; damage land; eat the good grasses; kill native plants

C. Pre-FLPMA: Common Law & Taylor Grazing Act 1. Cong. had allowed ppl to graze on public land

a. Buford v. Houtz – cattlemen seek to stop shepherds from trespassing on their interspersed private land to reach public landsi. Court: there is an implied license (from yrs of custom) that the public lands are open an

unenclosed. (a) govt tacit consent implied license(b) however, this license is revocable

2. FS Organic Act begin to impose permits, prescribing # of cattle, fees3. Granger Tie Act – said FS should have permits and fees (not really matter b/FS already had fees

and permits)4. 1934 – Taylor Grazing Act

a. Ended the open, unregulated range gave BLM authority to do what FS was doing – designate lands, divide into allotments, issue permits & charge fees

b. seek to promote highest use of public landsi. stop overgrazing, soil deteriorationii. use, improvement, developmentiii. stabilize livestock industry

c. Sec of Int divide lands into grazing districtsd. Sec. (BLM) Issue permits

i. accg to preference (a) prefer those who are landowners, or owners of water rights that are in or near

grazing district + had grazed range for 5 yrs prior to Taylori. i.e. “base property system” – amt land owned : amt grazed was variable.

(b) second preference to those who did not have prior use(c) third preference – those who didn’t own private land (nothing left for them)

i. this was a cattleman victory b./sheepherders didn’t own land usually(d) notice difference from allocation of other resources hardrock – whoever finds it.

Oil, gas, timber – whoever bids most at auctionii. permits issued in terms of AUMS;

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iii. valid for 20 yrs, renewed usually(a) through preference system, get perpetual preference for permit. Families pass down

the permitsiv. Conditions on permits

(a) Dep can modify, refuse to renew or canceli. can cancel if permit holder overgrazes, loses control of herd, not comply with

the rulesii. Can reclassify land or withdraw it from grazingiii. can reduce the amount of grazing allowed

a. may say can’t graze if down to 3” of stubbleD. Grazier’s Legal Interest in the Public Land – Property?

1. What happens if you sell your land?a. when base property sold preference included. However, the buyer doesn’t necessarily get

a permit. Can’t actually sell the permit, even though that may be the most important part of the land buyi. such a strong presumption, that inc. price per AUM (animal unit month)

2. Red Canyon Sheep Co. v. Ickes a. facts: permittee had grazed sheep on land, permit. Sec. of Int. propose land exchange and

the grazier tried to stop itb. Court: the valuable nature of the privilege to graze makes it suitable for equitable protection

rancher wins3. Similar facts, Different result: LaRue v. Udall

a. Court upheld Sec’s view that grazier ≠ have a right. ∆ Sec. not have to show that the land exchange will benefit the range

4. Dispute settled in US v. Fuller (US 1973)a. facts – govt going to flood the land, including ranch. Condemned the land.

i. Fuller argues – he should get $ for the land. ii. US argues – no – it can revoke grazing rights. Only get $ for base property, 0 for the

grazing permit(a) doesn’t matter that Fuller bought the ranch w/expectation of grazing permit, and that

he paid much more for the ranch b/of permitb. Court

i. Govt doesn’t have to pay Fuller for a value that the Govt itself created by granting the permit

c. note – if the govt revoked the grazing permit for no reason that could violate FLPMA preference system, but would not violate 5th Am. taking lawi. e.g. ranchers with water rights only, if their grazing permits are revoked, have argued that

govt “taken” their water rights, b/without grazing, the water rights are useless. Have mostly lost in court

E. FLPMA & Grazing1. Gave BLM, for the first time, the Express, permanent authority to mng its lands for multiple use

and sustained yield 2. Cong found rangelands in bad condition and getting worse3. Created planning process for BLM lands

a. 10 yr term for permits/leasesb. can renew so long as

i. lands available for grazing stillii. permitteee complied with rulesiii. permittee accepts new terms of lease

4. Allotment Mgmt Plana. make this in consultation w/permittees set the manner, extent of grazing

5. Annual grazing schedulea. which areas to graze, to rest. b. may supplant the Allotment Mgmt Plan and permit conditionsc. specify # cattle can put on the land

6. §1752(c) – Preferences, terms & conditions for grazing (applies to FS and BLM) (c) and (a)7. When permit/lease cancelled permittee receives a reasonable compensation for the adjusted

value of the permanent improvements he made to the land8. 2 yrs prior notice for cancellation (unless emgcy)9.

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F. Environmental Issues & Public Rangeland Mgmt1. BLM must comply with NEPA

a. at first, BLM argues it didn’t need to do EA/EIS for grazing permits b/they were handed out before NEPA. Renewal ≠action b/not changing anything

b. Morton i. facts: BLM had already started thinking it had to do something to comply w/NEPA. So did a

nationwide grazing EIS – general effects of grazing. Said would do EA/EIS if take action (change something) on particular allotment

ii. National Res. Def. Council – must do EA/EIS every time renew permitiii. D. Ct. can group allotments t/g for an EA. But must have specific info about each plot.

Nationwide EIS ≠ satisfy NEPAiv. this was revolutionary b/the idea for a long time had been that grazing = status quo

c. compromise: 100+ site-specific EISs on grazing pgm over several years i. by resource area – meaning 1 million acresii. schedule to do these. iii. However, FLPMA passed in 1976, and it included requirement that BLM do land-use plans

for all its lands so combined “Resource Mgmt Plan” for each grazing district and an EIS with it

d. These plans were a disappointment to enviros b/were boiler plate. Don’t know what the grazing impacts are, so we will keep grazing & gather data

2. Resource Mgmt Plans saying need more data found to Comply with NEPAa. NRDC v. Hodel

i. Judge said the land use plan ≠ look good. ii. But the agency has so much discretion; they can say they need more dataiii. The EIS is very broad, and vague, but its scope is determined by the land use plan, and

that is vagueiv. Don’t have to look @ no-grazing alternative for so many acres b/that would be so

extreme as to not be reasonablev. 9th Cir. aff’d

3. NEPA & FLPMA challenge Comb Wash Case (Nat’l Wildife Federation v. BLM ) (IBLA 1997)a. facts

i. BLM decided to renew grazing permit for this finger canyon wash (smaller area than in Hodel & Morton)

b. Argued (Feller case): The EIS for the larger resource area said almost nothing about these canyons – wildlife habitat, archaeological value, water quality. i. NEPA argument

(a) here, doing a specific action by renewing the permit and that requires a more specific EIS, per Morton (Hodel was just a detour, dealing with the RMPs). ∆ While may not have to do a separate EIS for each permit, do have to have an EIS that has specific info about this permit area

ii. FLPMA argument(a) BLM did not consider whether allowing grazing is really in best interest of the

American ppl, given the small # of cattle and the enormous scenic resources and mandate under FLPMA for multiple use, consider relative values of resources, best interests of Am. ppl.i. not saying judge must decide; just that BLM must ask the qs

iii. Asked for(a) order BLM to do EIS for the lot(b) ask BLM to make reasoned and informed decision as to whether grazing in the

canyons meets multiple use mandate(c) relief – order no grazing in canyon until BLM does EIS, decision

c. IBLAi. agreed with enviros!!ii. BLM drafted EIS, didn’t even consider whether to allow grazing. Never did final decision

(a) the RMP/FEIS was too general, for too large an area. Not site-specific did not look at the forage, condition of vegetation. Did not look at the relative values of resources in the canyon - no harm/benefit consideration of grazing

(b) BLM not do a reasoned nor informed decision – BLM officials admitted they did not weigh the benefits/harms of grazing in the canyons, say relied on the guy in the post below, even though that dude ≠ expertise in canyon

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(c) FLPMA ≠ require an economic cost/benefit analysis, (d) However, BLM Must, under FLPMA, balance competing resource values to ensure

public lands mnged in manner to best meet present and future needs of Am. ppl4. Result of Comb Wash

a. BLM didn’t appeal the decision IBLA has little precedential valueb. However, both FS and BLM start doing EAs for grazing permits. c. Congress undid the holding – if the agency not do an EA before renew the grazing permit,

can just renew w/same conditions as before, and when you have time, comply with NEPA. Basically, don’t let NEPA get in the way of grazing permit renewals. i. this shows the problem with suits to protect rangeland

(a) tough to bring the suit and grazing allotment is small(b) may win and still, goes back to the agency to come up with a better justification for

renewal(c) livestock lobby is strong

ii. however, b/ppl like recreation in riparian areas more pressure for BLM & FS to do NEPA, regulations

G. Rangeland Reforms1. Clinton

a. One of 5 reform efforts by Clinton (also roadless, snowmobiles in Yelst., Nat’l Forest Planning regs, Mining regs).

b. Resource Advisory Councilsi. replace rancher-dominated advisory councilsii. each state must have one of these RACsiii. reps from all different groups of public land usersiv. would advise each state on how to set the state/regional standards and guidelines

c. Minimum standards for rangelandi. standards

(a) riparian areas should be functioning condition(b) diversity of plants(c) sufficient vegetation to hold soil in place(d) tend to be broad, but have minimum economic standards

ii. big deal b/NEPA, MUSY etc. ≠substantive standards. This says – degradation not allowed below X (like NFMA)

iii. Standards were in 2 tiers(a) national fundamentals of rangeland health. in the regs(b) tells each state to enact their own standards & guidelines to supplement national

regsiv. If not meet standards BLM must take action before start of next grazing yr. - address

the problem, change mgmt practices(a) Still leaves wiggle room b/not have to take action until BLM itself decides standards ≠

met. + BLM has choice of what action to take2. Rangeland Reforms Challenged Public Lands Council v. Babbitt (US 2000)

a. Challenge Sec of Int’s authority to create 3 grazing regs.b. Court: 3 regulations violate the Taylor Act, Sec Int exceed authority

i. Sec has always under Taylor been able to suspend AUMs or reduce. The suspension carries a promise that will be removed when conditions improve

ii. FLPMA incr. Sec’s ability to remove/add land to grazing use. Modify the land use plan. c. Reg #1 challenged: change definition of “grazing preference”

i. Before, preference = superior position to get certain # AUMs (a) (this had happened over time, where preference went from priority to preference for

1000 cattle. BLM used the language too – would “suspend 300 cattle of your preference.” Came to be important to ranchers; sell ranches based on #AUMs)

ii. 1995 change – preference meant have preference for getting grazing permit(a) omit specific quantity (b) defines “permitted use” as AUMs permitted, as guided by the land use plan i.e.

“active preference”(c) can forage under guidance of applicable land use plan

iii. Ranchers claim: History expectations of security of grazing pvl. Statute requires Sec. “safeguard” that reliance. New regs threaten stability of ranches

iv. Court answers – no41

(a) Duty to safeguard qualified in statute by reference to Act’s goals: “so far as consistent with the purposes and provisions . . . grazing pvlgs . . . shall be adequately safeguarded”i. also says that issuance of permit create right, title etc. ii. Also, Cong require land use plans to preserve and improve the range –

conform with Taylor Act’s goals. So referring to those plans in the definition not violate Taylor

(b) Second, pre-1995 AUM system give absolute security: Sec could reduce permit’s AUMs.; Sec can reclassify and withdraw rangelandi. Moreover, New definitions automatically diminish the security of grazing

pvlgesii. new definitions cancel preference. Merely clarify terminologyiii. Besides, Sec has always had power to use land use plans to determine

grazing. fact that the new regs tie grazing more closely to land use plans not change anything

(c) In addition, permittee can always later challenge the effect of new Definition on his own pvlges

(d) In summary: holding: Given the statutory leeway the Sec. has, and the less than absolute security that permittees have, the small changes in definitions violate law

d. Reg #2 Non-ranchers getting permits – no holding on this issue b/10th Cir. struck it down and US ≠ seek S. Ct. review on the matter (see Buyouts Below)i. New reg permit those who are not in the livestock biz to get grazing permitsii. Ranchers claim: Taylor limits permits to settlers, residents, and other stock owners. New

rule deletes “livestock biz” from the regulations. That means that non-stock owners, or those with very few animals, will get permits even though don’t intend to graze

iii. Sec argued @10th Cir: Regulations can’t change statute, so Taylor and the livestock biz language still stands. Stock owners continue to get preference. In addition, the regs specify that permits are for grazing, and can be suspended if ppl don’t graze

e. Reg #3 Ownership of improvementsi. Statutory changes:

(a) Taylor Act provides that permittees can make improvements either pursuant to a cooperative agmt w/US or a range impvt permit

(b) pre-1995 regs for cooperative agmts gave US full title to nonstructural and non-removable permits (spraying weeds, wells). For fences, stock tanks, pipelines share title b/w US and permittee in proportion to the respective contributions to construction

(c) 1995 regs change the rules for range impvts made pursuant to cooperative amgt. For permanent range improvements (made in the future), such as fences, walls and pipelines, title to US

ii. Ranchers argue: violate law that says no permittee allowed to use range improvements constructed and owned by a prior occupant until the new permittee pays the prior occupant. That means a prior occupant owns the improvements, not the government.

iii. Ct: power to authorize improvements is greater power, and gives him right to set conditions(a) Also, the statute only says that future permittee must pay prior occupant. That is in

the event that Sec. decided to grant title to the prior occupant

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3. Notes on Babbitta. What right were the ranchers saying they had? And how did they claim the BLM violated that

right? Pretty unclear because not arguing they had a property interest in the AUMs, and not denying that BLM had authority to reduce their grazing pvlges

4. Implementing Rangeland Reform Issuesa. Grazing regs require each state BLM office to prepare standards and guidelines (s&g) for

rangeland health, in consultation w/local RACs Sec. approvali. Int. Sec. rejected N.M. s & g as inconsistent with rangeland reform b/would have required

BLM consider socioecon. impacts in determining whether federal rangeland in good health. This could lead to BLM putting more cattle on poor lands to serve short-term local econ. This would violate FLPMA – multiple use requires “without permanent impairment of the productivity of the land and the quality of the environment” + avoid “unnecessary or undue degradation”

b. Challenge to Delay in Implementing Rang. Ref.: Idaho Watersheds Project v. Hahn (9th Cir. 1999)i. enviros allege that BLM violate law by unreasonably delaying compliance with

fundamentals of rangeland health regulations. (a) want injunction against hot-season grazing(b) want order BLM implement changes in grazing mgmt by 2000 grazing season

ii. facts: BLM had made the triggering determination in 1997 that grazing in these allotments ≠ meet standards. BLM failed to issue final decision to modify grazing permits before start of next grazing year

iii. BLM argues – only have to start implementing changes before start of next grazing season

iv. Court: BLM wrong. (a) Must complete changes & issue final decision by start of next grazing year(b) the goal of reform is to have change; measured in terms of concrete outcomes, not

little procedural steps. H. Buyouts

1. Possible solution to fight b/w ranchers and enviros? conservation gps buy grazing permits in order to retire thema. land benefits: (1) restore riparian area health, help wildlife; (2) give govt managers ability to

cope with drought, fire and insect outbreaks (3) achieve visible enviro improvements in a short time, less contentious

b. benefits to ranchers: Tough economic times for ranchers, competing with recreationists, conservation rules are being more strictly enforced. This allows them to cash out, retire from ranching or ranch in less contested areas

2. Drawbacksa. those spending the $ have no assurance that federal lands will be permanently retired from

grazing (except in National Parks, where grazing grandfathered in, so can’t start anew)i. Usually, public land managers have amended land use plan to show no more grazing.

However, that is only good as long as plan in placeii. allow up to 3 yrs nonuse then lose your grazing permit iii. preference goes to ranchers and so if conservationist not grazing, then not get prefer.iv. Also, BLM regs allow rancher to graze on allotments that other ranchers are not using

considered rude in ranching world, but they don’t mind doing it to conservationistsb. Local pressure – may want grazing back. miss the jobs. family traditionsc. loss $ to agency b/ranchers pay $/per cattle they are grazing. (not much $ though)d. ranchers mourn loss of a lifestyle; don’t want conservationists as neighborse. Notion that grazing permits is part of public planning process; now substituting private

market. Essentially defeating govt’s plan for the land; doing thru $ what can’t accomplish in court

3. Analogies a. this has also happened in timber: Sierra Club bid on timber sale and refuse to cut timberb. oil/gas – enviro group may try to buy oil lease and not drill. defeating Congressional

purpose: we want to develop oil resources4. Examples

a. Grand Canyon Trust make agmts to remove cows from 480K acres of national monuments, parks, recreation areas and wilderness areas in southern Utah

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b. In Nevada, Conservation Fund work with ranchers and federal managers to retire permits in and around Great Basin National Park

c. Congress has taken notice - Great Basin National Park bill to sponsor a provision to allow grazing permittees to donate or exchange their permit inside the park.

5. Clinton’s Reform– authorize issuance of grazing permits for conservation non-use – struck down by 10th Cir. Public Lands Council v. Babbitt. a. Sec argues: there is a longstanding practice of resting land. Also, part of Taylor is to

preserve the land and its resources from destruction and unnec. injury. In addition, permits for conservation serve the mult. use & sustained yield mandate in FLPMA.

b. Court disagreesi. Taylor authorized Sec. to issue permits to graze livestock. No other purpose listed. Sec. ≠

authority to issue grazing permit to person who will not graze livestock for entire duration of permit

ii. Moreover, FLPMA defines “grazing permit” as any document authorizing use of public lands for the purpose of grazing domestic livestock

iii. Now, BLM can impose temporary non-use or reduction in AUM to protect the range. But the presumption is there that when conditions improve grazing levels will rise again(a) The new regulations reverse this presumption(b) rather than annual evaluations to determine what grazing levels should be, this rule

authorizes placement of land in non-use for entire duration of permit(c) Can’t do that b/Taylor tells Sec. to designate land “chiefly valuable for grazing

livestock.” Under conservation rule, this land will be excluded from grazing even though range conditions good enuf for grazing

XIII. WILDERNESS (Wilderness Act 1964)A. Statistics

1. About 4.5% of land area in U.S. is designated wilderness. Majority in Alaska. Only about 2.5% of Wilderness is in the lower 48.

2. Often there are arbitrary lines – two wildernesses right next to each other. 3. Largest in lower 48 – Of No Return in Idaho – 2.4 million acres. Has some smaller wildernesses

next to it 3.9 million acres4. Biggest in AZ is Cabeza Prieta National Wildlife Refuge – about 300 thousand acres.

B. History1. Many had advocated for a wilderness agency, but existing agencies opposed it2. The agency that had the land before continues to manage it; special wilderness overlay3. FLPMA extended wilderness to BLM. Told it to look for lands suitable for wilderness

a. this is another way that FLPMA brought BLM lands into parity with other federal lands – are valuable, have resources may want to protect

b. however, very few wilderness areas have been designated on BLM land – only AZ and Cal.i. did do a study 15 yrs ago. “wilderness study areas” That BLM must manage in a way so as

to not impair their potential as wilderness areas(a) i.e. – no roads, oil/gas leases

4. The only big category of fed lands don’t have wilderness on is Dept. of DefenseC. Designations

1. By act of Congress. Usually on a state by state basisa. The big battle ground is in Utah – a lot of that red rock country is undeveloped. About 3.2

million acres of wilderness study areas. 2. Wilderness Act itself designated ~ 9 million acres in Forest Service lands. 3. More to designate yet: roadless areas in FS identified as wilderness potential

D. Wilderness & Natural Resources1. Grazing is permitted subject to reasonable regulations that are deemed necessary § 1133(d)(4). 2. Logging – not expressly prohibited in wilderness areas, but the provisions to ban roads and

motorized equipment make it clear that not supposed to log3. Mining –

a. §1133(d) – nothing in Act prevent prospecting for the purpose of gathering info about minerals, if carried on in manner compatible w/preservation of wildernessi. Give 20 year window to miners to operate in those areas, expired 1984. then all

minerals in wilderness areas were withdrawn from operation of MLb. Clouser v. Espy (9th Cir. 1994)

i. FS can refuse to allow motorized access to mining claims until validity established. 44

ii. Also can prohibit any motorized access to valid mines unless they were essential to mining activities

iii. FS can also require pack animals be sued if motorized access ≠ essentialc. Cong has made some exceptions to allow mining in a few areas. d. e.g. River of No Return Wilderness in Idaho is open to cobalt mining indefinitelye. developers have tried, unsuccessfully, to lease to mine geothermal resources in Wilderness

areas b/the Act was enacted before the Geothermal Act so doesn’t mention that such mining is prohibited in mining areas. The Geo. Act ≠ mention wilderness areas either

f. Overall, though, very little mining in wilderness areas (although such areas have been gerrymandered to not include areas w/mining potential)

E. What being a Wilderness Area means1. § 1133(c):

a. Starts out with 2 exceptionsi. except as specifically madeii. existing private rights

(a) include mining claims, existing rights of way, existing oil/gas leases(b) means own the land or own a right of way.

i. no existing use easements. e.g. case in Alaska – ppl landing float planes on the lake for 50 years. Became a wilderness no right to continue. Just because been doing it for 50 years.

b. Rules: i. No commercial enterprise. ii. No permanent road

c. Additional prohibitionsi. no mechanized equipment

(a) no motor vehicles, planes, boats, bike, motorized, hang gliders. Skis are okay. (b) What about bringing a boombox? tape players, CDs have a motor in them. But radios

and Ipods are in – no motor.i. Remember, WA displace FS and BLM ability to regulate, so even if WA not

prohibit boomboxes, the FS or BLM could pass a rule banning them. For example, WA ban camping in wilderness areas. But the agencies can ban camping in those areas.

ii. no structure or installation (a) fixed anchors for rock climbing

d. + exceptions – emergencies, administrations, health, safety2. Access to Non-Federal In-holding § 1134(a)

a. Sec Agri must give ppl who own private land (or state who has state land) that is completely surrounded by wilderness the right to adequate access. Or, allow an exchange of equal value.

b. Choice b/w these 2 options is up to the Sec – c. If the sec. allows access, then it shall impose reasonable regulations consistent w/wilderness

3. Water Resourcesa. Act – leave to the Prez whether to authorize water resource development projects and

facilities. Has never been used. b. leg history suggests intended to allow only small scale water projects

4. Commercial Enterps. and Servicesa. 1133(c) – general ban on them in wilderness areasb. prohibits structure or installation, except to meet minimum requirements for administration

of the areac. 133(d)(5) – can have commercial services performed int eh wilderness to extent necessary

for realizing the recreational or other wilderness purposes – so you can be a ribver guide, backpack outfitter etc.

5. No buffer zones for wilderness areas. F. Barnes v. Babbitt (D. Ariz. 2004)

1. Arrastra Mtn Wilderness. Barnes own land. Both Enviros and Barns sue the BLM challenging 2 BLM decisions about the Arrastra Mtn Wilderness

2. Holdings = a. 1) Barnes failed to show implied way of necessity created when patent for the property was

issued to those who owned the land before.

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b. 2) Condemnation of access across federal lands was not necessary or appropriate under AZ statute

c. IBLA was wrong to say Arrastra ≠ meet wilderness definition. That is up to Cong to decided. Separate EA for grazing on ranch, access routes and range repair and maintenance =

improper segmentation of env’l review under NEPA3. facts:

a. and sue BLMb. When the wilderness was designated, it was closed to motor vehicles. c. There were 5 grazing allotments w/i the Wildernessd. Barnes had bought ranch and grazing. They had an inholding in Peeples Canyon, with a blg

on ite. Cattle were not allowed in the canyon b/of unique water resources. There was a history of

access into Peeples, but the road was in disrepair. Before, had used the inholding to get water and then use that for grazing livestock

f. However, there was no more livestock by the time the Barnes bought the ranchi. Barnes had requested grazing, bu the enviro plfs protested BLM did an EIS

XIV. PRESENTATIONS1. National Monuments

a. 16 USC § 431-433 The Antiquities Act of 1906 – Signed into law by Teddy Roosevelti. Section 2: The President is authorized, in his discretion, to declare historic landmarks,

historic and pre-historic structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government

ii. Section 2: They may reserve these lands . . . the limits of which in all cases, shall be confined to the smallest area compatible with proper care and management of the objects to be protected.

b. National Monument designation started off small, then got larger and largeri. First National Monument (1906) – Devil’s Tower (Roosevelt)ii. Grand Canyon (1908) – 800,000 acres (Roosevelt) iii. Katmai National Monument (1918) – 2.8 million acres (Wilson)iv. Jackson Hole National Monument (FDR)

(a) Highly Criticizedv. 1978 – Carter designated 15 national monuments in Alaska – also controversialvi. Grand Staircase Escalante (1996) – Clintonvii. During the last five years of his administration, Clinton created 16 new national

monuments. 10 were over 100,000 acres. One was over 1 million acres.viii. Papahanaumokuakea, in Hawaii (2006) – 90 million acres – Bush

c. Tulare County v. Bush i. The appellate court held that the Antiquities Act did not require that the President identify

specific details about what the national monument was enacted to protect, or require the president to make a detailed investigation into the land being protected

d. Issue remains whether the Antiquities Act should be amended or reformed.i. Too much power/discretion in the hands of the President?

2. Wolvesa. Main Issue – whether the appropriations rider delisting the wolf was properb. Tester Simpson Rider was attached to a must pass appropriations bill. Its purpose was to

reissue the 2009 rule which had been rejected by the Court because the ESA does not allow listing or delisting of sub-parts of a DPS (the rule did not delist in Wyoming – arguably because of fear of hunting back to extinction) and it found that the delisting was politically based, not science base.

c. Argument – unconstitutional; violates separation of powersd. Judge Molloy found that it was constitutional because the rider amended the ESA, although

he did so extremely reluctantly.3. Grazing Buyouts

a. Tragedy of the Commons – users of a common resource don’t take social effects of use into account; strong incentive to get it while you can; results in overgrazing, environmental degradation, and inefficient land use

b. Taylor Grazing Act i. Ended free, uncontrolled use of public lands for grazingii. Allocated public lands to ranchers via permits

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iii. Sec. of Interior granted power to regulate grazing districtsc. FLPMA required that the United State receive “fair market value for the use of the public

lands and their resourcesi. Multiple Use, Sustained Yield, Management 43 USC § 1701(a)(7)

d. Public Range Improvement Act of 1978i. Increased rangelands maintenance, management, and improvement programii. Tied grazing fees to cattle costs of production rather than market value of the use of the

rangelandsiii. Fee based on value to the rancher

e. NEPAi. Requires EA/EISii. Agency action includes creation or renewal of grazing permitiii. “A properly prepared EIS ensures that federal agencies have sufficiently detailed

information to decide whether to proceed with an action in light of potential environmental consequences.”

iv. EA/EIS not required for each individual allotment within that Grazing District(a) But see Comb Wash decision

f. Federal Grazing Permit Feesi. Formula – Base fee of $1.23; consider 3 factors: 1) current private grazing land lease rates;

2) beef cattle prices; 3) cost of livestock productionii. Cannot fall below $1.35/AUM (current)iii. Any increase or decrease in the fee cannot exceed 25% of the previous year’s fee

g. Multiple-Use Conflict Resolution Act (MUCRA)i. Section 4(a): Waiver of Existing Grazing Permit or Lease – “a permittee or lessee may

waive to the Secretary, at any time, a valid existing grazing permit or lease authorizing commercial livestock grazing on Federal lands.”(a) Basically, a rancher can give up their permit

ii. Section 4(b): Cancellation of Waived Grazing Permit or Lease – “the Secretary shall cancel grazing permits and leases waived under this section and permanently retire the associated grazing allotments from commercial livestock grazing, notwithstanding any other provision of law.”(a) If you give up your permit, it is cancelled, and the allotment is permanently retired

from grazingiii. Section 4(c): If there’s not enough money to cash everyone out, there’s a procedure on

who’s first.iv. Section 5(a) requires compensation at $175 per AUMv. Section 5(d) reiterates that there is no property rightvi. Section 6(a) authorizes donations of the permitvii. Section 7(a) – you don’t get paid for range improvementsviii. Section 7(c) – this doesn’t affect your other rightsix. Section 8 – public land without permits or leases is also retired from grazingx. Section 9 provides that you don’t have to graze your land to comply with your permit

h. Environmental Impacts of Grazingi. Public lands are not environmentally conducive to grazing (dry, arid)ii. Recreational and historic value of western public landsiii. Devastating environmental impact of grazing

(a) Soil erosion(b) Water issues(c) Prevention of access to water and food for native animal species

iv. Numerous potential benefits of removing livestock grazing from the land(a) Assist the recovery of threatened and endangered species(b) Improve water quality and quantity(c) Increase big game on public lands, including elk, deer, bighorn sheep, bison and

pronghorn(d) Promote recovery of western riparian areas(e) Improve forest health(f) Aid restoration of natural fir regimes(g) Increase biological diversity, especially bird species(h) Reduce soil erosion

i. Arguments against MUCRA47

i. Grazing is Compatible with Healthy Environments(a) Cattlemen make many contributions to the environment and the public land

allotments(b) Rotation systems utilized(c) Positive influences on vegetative and soil resources

ii. Grazing minimizes the risk of fireiii. Negative Impacts on Local Economies

j. Economic Arguments Support MUCRAi. Grazing is cheaper than it should be given opportunity and external costsii. Taxpayer expense is more than justified by future savingsiii. Promotes fairness by compensating ranchers for their interests (even though ranchers

have NO property right in the land)k. Note:

i. Totally Voluntary4. Wildlands Policy

a. Historyi. 1964 – Wilderness Actii. 1976 – FLPMAiii. 1991 – FLPMA’s WSA process expiresiv. 2010 – S.O. 3310 issued by Sec. of Interior

(a) Dec. 22, 2010 – S.O. 3310 issued(b) Mar. 1, 2011 – House Natural Resources Committee hearing on 3310(c) Apr. 14, 2011 – Congress passes Act denying funding for 3310(d) June 1, 2011 – Secretary suspends 3310’s manuals

b. S.O 3310i. Purpose

(a) Sec. 1 – protecting wilderness characteristicsii. Authority

(a) Reorganization Plan No. 3(b) FLPMA(c) NEPA(d) Alaska National Interests Lands Conservation Act – authorizes the Secretary to

identify lands in Alaska that are suitable for designation as wilderness, and may make recommendations to Congress

(e) Wilderness Act – authorizes 1) the creation of the National Wilderness Preservation System; 2) the Secretary to make reports to the President on certain additional lands suitable for preservation as wilderness

iii. Background & Policy(a) Benefits of lands with wilderness characteristics for resent generations

i. Rare opportunities for solitude and personal reflectionii. Culturally significant, even sacred, sites for tribal communitiesiii. Hunting/fishing, observing wildlife, hiking, and other non-mechanized

recreationiv. Observation of scientific, cultural, and historic objects which further our

understanding of human/natural history (including human impact on the world)(b) Policy

i. Lands with Wilderness Characteristics (LWCs) – protected during public land use planning procedures until decision is made to impair the wilderness characteristics of these lands (if that is the decision)

ii. If impairment is determined to not be appropriate – through public land-use planning, these lands shall be designated as “wild lands”

(c) After land use planning decisions are made:i. For lands that will keep their wilderness characteristics:

a. Designate these lands as “wild lands”ii. For lands that will allow other uses that would impair their wilderness

characteristics:a. Managed as regular BLM landsb. With the necessity of taking measures to minimize the impairment to the BLM

landsiv. Implementation & Effective Date

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c. SS 3310 is Constitutional i. SO 3310 is a lawful exercise of the BLM’s authority under FLPMAii. SO 3310 does not allow public lands with wilderness characteristics to automatically be

elevated to wilderness statusiii. Less than 10% of BLM land is either Wilderness or WSA landsiv. SO 3310 does not grant the BLM with legislative power; only Congress has the discretion

to either designate WSA lands as part of the NWPS or to release them for other usesv. The Wild Lands Policy provides for a process of updating the current inventoryvi. SO 3310 will not act as an automatic denial for any and all land use proposals. And the

compatibility of other uses on public lands will be considered.vii. Outdoor recreation is an important part of nation’s economyviii. Oil and gas development will continue to be an important part of the BLM’s multiple use

mandateix. Livestock grazing is not incompatible with the Wildlands policyx. SO 33110 is an interpretive rule. The APA’s notice and comment requirements didn’t

apply.d. Arguments against SO 3310

i. Lands with Wilderness Characteristics are essentially the same this as other designated wilderness areas. The Secretary doesn’t have the power to create them in this way.

ii. Only Congress can designate new wilderness areasiii. Violates BLM’s organic act (FLPMA)

(a) Not authorized outside of Sec. 603(b) Incompatible with MUSY(c) Because the rule is not interpretive, it follows that notice and comment procedures

are required pursuant to the Administrative Procedures Acte. Norton Utah Settlement

i. BLM’s inventory of public lands in UT under the Wilderness Act generated a lot of heatii. The state of UT sought a temporary restraining order and preliminary injunctioniii. Under its “re-inventory” 2.3 million acres of additional land were identified as potential

WSA’siv. The state revived its lawsuit, which was quickly settled.

5. Frackinga. Fracking - Hydraulic Fracturingb. Safe Drinking Water Act prohibits underground injection without a permit; the injection

cannot endanger drinking waterc. Issue – whether hydraulic fracturing is an underground injection for the purposes of SDWA

i. LEAF I – 11th Circuit says yesd. Issue – whether EPA can approve Alabama’s UIC program under an alternative/more flexible

approval process reserved for secondary and tertiary recovery of natural gas under the SDWA; whether hydraulic fracturing falls under Class II injection wellsi. LEAF II – EPA’s interpretation that hydraulic fracturing is analogous to secondary and

tertiary recovery of natural gas is correct; EPA’s classification of hydraulic fracturing as Class II-like fails to comply with the SDWA; Hydraulic fracturing falls under Class II injections

e. Energy Policy Act of 2005 – excluded hydraulic fracturingf. Why Regulation

i. Without federal statutes the regulation of fracking is left entirely to the state governments. And some decline to regulate

ii. The absence of regulation would not be of great concern if fracking is a relatively benign practice that is adequately controlled through the general permitting process, but because fracking seems to have significant environmental and public health impacts, the lack of regulation is problematic

g. Supported by the Interstate Oil and Gas Compact Commissionh. A congressional investigation proved that parties (including Halliburton) in the MOA had

violated the agreement not to use if diesel in their fracking fluids and had been doing so for years

i. Often the operator, drilling company, and fracking company injecting fracking fluids do not know the content.

j. Benzene and radioactive elements such as radium are in some of the fracking fluid cocktails

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k. Other radioactive elements are being brought up from the bedrock in the backflow which are being released into rivers, streams, lakes and water wells

l. Contaminated water wells have been found to test positive for thermogenic methanem. There is a proven relationship between hydraulic fracturing and seismic activityn. Conclusion – 1) repeal the SWDA exemption; 2) strong federal role – increased regulation by

repealing the SWDA exemption is probably not enough to effectively protect the public from the potential harms from hydraulic fracturing and a very strong federal role is needed.

o. Arguments in support of frackingi. Creates jobsii. We need the natural gasiii. Revenue from taxesiv. Will help the US get off foreign supplyv. Allow states to take over – state regulation is bettervi. Industry is able to self regulate

6. Deep Water Horizon History Late 1800's - first land based oil rigs

Oil used to be animal fat; could be expensive and hard to come by; petroleum was much cheaperBest oil fields - close to water

1897's - first offshore oil rig goes up on a pier in Santa Barbara1910 - high demand for oil; with development of cars

Seismology 1940's marked beginning of off-shore drilling industry1947 - United States v. California - federal gov't owned continental shelf1953 - Submerged Lands Act - gave states the rights to these lands up to three miles offshore

OCSLA - authorized Sec. of Interior to lease1969 - Santa Barbara offshore rig (6 miles offshore); Platform A - 188 feet of water; oil rig blew up; marked first major oil spill (210,000 gallons/day)

Devastating to wildlifeNational Environmental Policy Act, Clean Water Act Deepwater Horizon Oil Spill in Gulf of Mexico - April 20, 2010 March 2008 - BP purchased rights to the Macondo WellFebruary 2009 - BP filed EI plan - unlikely for an accidental oil spill to occurApril 2009 - Dept of Interior exempted BP from providing a detailed EISJune 2009 - BP warned of potential collapse under high pressureOctober 2009 - Transocean begins drilling Macondo WellNovember 2009 - Hurricane Ida damages Transocean Marianas enough to be replaced.Feb 2010 - BP resumed drillingMarch 2010 - minor accidentApril 2010 - BP warned about use of cement - against best practices - MMS approves anywayApril 17 drilling completedApril 18 - gas problem reportedApril 20 - explodes; worst oil spill in historyMay 12 - 20,000-100,000 barrels per day leaking into oceanMay 27 - moratorium on off-shore drillingJuly 15 - oil spill finally cut off. 4.9 million barrels were spilled totalLaw suit to recoup cleanup costs Legal and Policy Issues US gov't losing lots of money in royalty and rent payments. Outer Continental Shelf Lands Act - 1953

Governs federal offshore oil and gas leasing and drillingStage 1 - development of a five yr program of OCS lease sales by MMS to best meet the nation's energy needsStage 2 - lease sale itself, in which leases are offered and awarded through a competitive sealed bid

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 Authority for Moratorium - 43 USC 1334(a)(1)(b) Reasons for moratorium

Collecting data and information about the causes of the spill in conjunction with new safety measuresAssessment of wild well intervention and blowout containment resourcesThe submission of evidence by operators demonstrating that they have the ability to respond effectively to a potential oil spill in the Gulf 

Moratoriums Correct Decision?No, the first moratorium was not factually or legally justified

1. Violation of OCSLA - statute requires an individualized assessment of each activity or operation ; this was not done here; gov't couldn't show that the operations of the other companies posed any harm

2. Ignored the Safety records of other wells - inspections revealed minor problems and no factual findings of any systemic noncompliance; to punish everyone is asinine at best, BP is the culprit

3. Ignoring own committee - expert committee was assembled to determine causes of the spill and what plan of action; committee recommended a moratorium on wells greater than 1,000 feet, not 500 feet. i. Under State Farm standard, an agency is required to articulate why it is taking action and

there must be a rational connection between the facts found and the action taken4. Lack of precedent

i. If this was truly an emergency, then the Obama administration should have acted under that power, and not tried to act under the OCSLA. - No because he is commander in chief of the military not the country or the environment.

5. Immediate and irreparable effects on economy i. Economic loss sever - losing jobs, tax dollars, etc.ii. Environmental loss was not severe, doomsday predictions were wrong

Steps Administration should have taken1. Moratorium applies to activities that are similar to the BP oil well, wells in over 5,000 feet. 2. Statutory fix - amend the oil pollution act of 1990.

1. Currently $75,000,000 - too small and needs to be increased.2. Company liability needs to be increased.

Conclusion - The US government should have listened to its own expert committee and issued fact specific guidelines to prevent this type of accident. Innocent parties did not need to suffer. Also need to look at policies - why was BP exempt from EIS in the first place. (categorical exemption) Support of Moratorium Sec. had authority to impose the moratorium

Secretary has broad discretion - 43 USC 1334(a)Court lacked authority to review the agency decision

OCSLA requirements: 1) 60 day waiting period, or 2) immediate affect on legal interestNo legal interest at issue, it was a financial interest

APA - authorizes judicial review of final agency action where there is not other remedyMoratorium is not a final action - it is a waiting period

Preliminary injunction was not appropriatePreliminary injunction is extraordinary remedy -

1. Substantial likelihood of prevailing on the merits2. Substantial threat of irreparable injury3. Threatened injury outweighs any harm that will result to the nonmoving party if the injunction is

granted 4. Injunction will not disserve the public interest

Action was not arbitrary or capricious There was a reasonable basis for the decision. We didn't know why the explosion occurred. What if it had something to do with best practices, common equipment, etc.

Post moratorium optionsSuit for damagesPetition for lease extension - oil will still be there

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