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1 Introduction BACKGROUND - WHAT IS NATURE?
There is no place on Earth that is not impacted by human civilization. Cf. Kareiva ("The wilderness ideal presupposes that there are parts of the world untouched by humankind, but today it is impossible to find a place on Earth that is unmarked by human activity."). So what is nature, if nothing is "pristine" or "untouched?" Cronon: "Nature" is a social construct. The term itself is contested terrain. We must do more than argue for the preservation of nature; we must translate our (culturallydefined) concept of nature into terms that other cultural grounds can understand. Cf. Kareiva ("Beneath the invocations of the spiritual and the transcendental value of untrammeled nature is an argument for using landscapes for some things and not others; hiking trails rather than roads; science stations rather than logging operations; and hotels for ecotourists instead of homes. By removing longestablished human species . . . removing unwanted species while supporting desirable species . . . and imposing fire management . . . we create parks that are no less human constructions than Disneyland."). If nothing is inherently "natural," resource decisions lose their moral valence, and become questions of costbenefit analysis. But, why not simply argue for places of wilderness, places of solitude, and places where nonhuman lifeforms dominate the landscape, on their own terms, without invoking concerns about nature?
PUBLIC CHOICE THEORY Robert C. Ellickson: "An inefficient regulatory or spending program can be predicted to emerge and endure when its (relatively concentrated) beneficiaries have more influence than the (relatively diffuse) taxpayers and consumers whose interests" it disserves. Agencies may also pursue their own selfinterest at the expense of the public. TAKINGS CLAUSE Kelo: Whether a taking is for a "public use" is reviewed on a rational basis standard. Key precedents for Kelo are from the natural resources domain:
2 Fallbrook Irrigation Dist.: Exercise of eminent domain for the purpose of constructing a (nonpublic) irrigation ditch was for a taking for "public use" because it advanced a public purpose in economic development. Highland Boy Gold Mining Co: Exercise of eminent domain to establish an aerial rightofway for a bucket line operated by a mining company was a taking for "public use." In an inverse condemnation claim, it is necessary first to determine whether the claimant possesses a property interest. Then, the question is whether the property has been taken. A direct physical appropriation or permanent physical invasion (e.g. Loretto) will certainly qualify as a taking. For regulatory takings, the question is whether the regulation goes "too far" (Mahon) in adjusting the burdens and benefits of property ownership, such that "in fairness and justice" (Armstrong) the public, rather than the individual property owner should bear the burden of the deprivation. A regulation that deprives the property owner of all economically valuable use of his property will qualify as a categorical taking (Lucas). In other regulatory takings cases, Penn Central controls: consider (1) the nature of the economic impact; (2) the degree of interference with investmentbacked expectations; and (3) the character of the government action. Two threshold inquiries for regulatory takings: (1) did plaintiff have reasonable, investmentbacked expectations; (2) was there a significant decrease in economic value. HISTORY OF PUBLIC LANDS Title to public lands obtained from Indians by purchase or conquest, 1 by purchase from European powers or Mexico, or by purchase from private owners under the Weeks Act (as in the case of National Forests in the Eastern U.S.). Today, the federal government owns about 30% of the U.S. The U.S.'s policy has evolved from one of disposal to one of retention (FLPMA definitively established federal policy of presumed retention). The public's preferred use of public lands has also evolved, with increasing preference for preserving land for recreation, wilderness, and species conservation. CONSTITUTIONAL AUTHORITY FOR PUBLIC LAND MANAGEMENT The Property Clause provides that Congress shall have the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." The Pollard Court construed this authority narrowly in 1 Johnson v. M'Intosh (The U.S. has the sole right to extinguish Indian title by purchase or conquest. Private individuals are not permitted to purchase lands directly from tribes.) Cf. Winans (stating that Indian treaty with U.S. "was not a grant of rights to the Indians, but a grant of rights from them - and a reservation of those not granted). Thus,
3 dicta, suggesting that the clause did not authorize the federal government could to police power authority over the public lands. This view was subsequently rejected. In Kleppe, the Court held that the federal government has plenary police authority over the public lands, and can reserve such land indefinitely. Per Kleppe, federal authority extends to the protection of wildlife on federal lands, and regulation of lands adjoining public lands if it serves the purpose of protecting public lands (cf. Camfield). The Enclave Clause provides that Congress shall have the authority "to exercise exclusive legislation in all cases whatsoever . . . over all places purchased, by the consent of the legislature of the state in which the same may be, for the erection of . . . needful buildings." Kleppe noted that this clause has been construed broadly to permit acquisition of jurisdiction for any legitimate governmental purpose. Kleppe indicates that absent a State's consent or cession of public land to the federal government (per the Enclave Clause), a State retains jurisdiction over federal lands within its territory; however, these laws may be preempted by conflicting federal laws, adopted pursuant to the Property Clause or other constitutional authority. EQUAL FOOTING DOCTRINE In Pollard, the Court held that the equal footing doctrine - which requires that new states be admitted into the Union on an equal footing with the original States - is a constitutional imperative. It further concluded that this doctrine prevented the U.S. from granting prior to statehood or withholding after statehood and under navigable water. The Court cited Martin v. Waddell for the proposition that "The people of each state . . . hold the absolute right to all their navigable waters and the soils under them for their common use, subject only to the rights since surrounded by the Constitution" to the federal government. The Court now recognizes that land under navigable waters2 may be conveyed by the U.S. prior to statehood. But any prestatehood grant or retention of such land must be unmistakably clear. See Utah Div. of State Lands (discussing strong presumption in favor of state ownership of land under navigable water). This is a matter of federal law, PPL Montana, although the public trust doctrine whence it derives is now considered to be a matter of state law. PUBLIC TRUST DOCTRINE
2 For equal-footing purposes, navigable waters are those that were navigable-in-fact for commercial purposes at the time of conveyance. Tidelands that are not under navigable waters are also subject to the equal footing doctrine.
4 Illinois Central held that lands under navigable waters, acquired by a state pursuant to the equal footing doctrine, could not be conveyed to a private party in a manner that would deprive the public of their use for fishing, navigation, and commerce. Thus, any grant of these lands is subject to revocation, and revocation does not give rise to a claim for just compensation. Conveyances will be upheld to the extent that they are in aid of commerce or do not substantially impair the public interest in the remaining lands. The Court has clarified, in subsequent cases, that the public trust doctrine is a matter of state, rather than federal law. A state can reject the doctrine and elect to alienate land that would fall under the traditional understanding of the public trust doctrine. In National Audubon Society, the Court held that water rights obtained by prior appropriation (including by prior appropriation of nonnavigable tributaries of navigable waters) are subject to the public trust doctrine and thus revocable without payment of just compensation. "The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect the public trust whenever feasible. *** As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect on the public trust." In Geer, the Court held that each state owned the wildlife within its borders, and its power over this wildlife was "to be exercised, like all other powers of government, as a trust for the benefit of the people." Pursuant to this authority, the state could prohibit export of game taken within its borders without violating the Commerce Clause. Subsequently, some courts interpreted Geer as prohibiting the federal government from regulating wildlife within a state's territory. The Abbey Dodge (federal statute regulating taking of sponges from the Gulf of Mexico did not apply to sponges within Florida's waters). To overcome the asserted limits on the Commerce Power, the U.S. entered a Migratory Bird Treaty; the power to implement this treaty by regulating taking of wildlife within the states was upheld against a Tenth Amendment challenge in MO v. Holland. Geer's Commerce Clause holding was overruled in Hughes v. Oklahoma. Lucas held that no compensation is due where the state merely makes explicit a "background principle of property and nuisance law" which limits an owners' title. Several cases have cited the public trust doctrine as such a background principle. (Esplanade Properties v. Seattle (9th Cir.); McQueen v. S.C. Coastal Council). If there is a public trust in wildlife, Geer, are there limits on the State's ability to convey a property right that would permit the destruction of this public trust property? Cf. Illinois Central. Could this background principle provide a defense to a takings claim based on
5 restrictions imposed by the Endangered Species Act? No court has so held; but no court has ever ruled that an ESA restriction worked a taking. COMMERCE CLAUSE Gibbs v. Babbitt upheld the application of the ESA to protect a population of red wolves within a single state on a "substantial effects" theory of the commerce power. ROBINSON TOWNSHIP The Pennsylvania Constitution provides that the state's natural resources are the common property of all the people within the state, and that the state is a trustee over these resources, and therefore is required to conserve and maintain them for the benefit of all people. The court held that, per this provision, the state is required to prevent degradation to the trust corpus, by refraining from carrying out its own actions in a way that causes unreasonable environmental degradation, and by refraining from permitting or encouraging the degradation, diminution, or depletion of public natural resources. The court held that, per this provision, "the General Assembly can neither offer political subdivisions purported relief from their public trust obligations, nor can it remove the necessary and reasonable authority from local governments to carry out these constitutional duties." Decisions concerning the environment must be tailored to local conditions under the public trust clause. A new regulatory regime cannot, consistent with the public trust clause, permit industrial uses as a matter of right in every type of preexisting zoning district. Under the public trust doctrine, a trustee can only use trust assets for purposes authorized by the trust or necessary for the preservation of the trust; other uses are beyond the scope of the trust, even where the trustee claims to be acting solely to advance other discrete interests of the beneficiary. A trustee must treat all beneficiaries equally. EXECUTIVE WITHDRAWAL AUTHORITY Midwest Oil Co. held that the President had been impliedly delegated authority to withdraw public lands from extractive use by executive order. The Court also emphasized that Congress retained the power to disaffirm the President's exercise of this authority at any time. FLPMA repealed the President's implied withdraw authority under Midwest Oil. However, the President still enjoys reserve authority under the Antiquities Act, which authorizes the President to reserve "historic landmarks, historic and prehistoric structures, and other objects of historical or scientific interest that are situated upon the public lands."
The APA The District Court's decision in Northern Spotted Owl provides an example of arbitrary
andcapricious review in the natural resources context; the court vacated and remanded the agency's decision that listing the Northern Spotted Owl was not warranted. The court concluded that it was appropriate to reject conclusory assertions of agency expertise where the agency spurned unrebutted expert opinions without itself offering a credible alternative explanation. Standing & Ripeness Sierra Club v. Morton stated that a plaintiff could derive standing from an injury to "aesthetic, conservational, and recreational" values, even if this injury were widely shared. Laidlaw held that an environmental plaintiff would have standing to seek civil penalties for an ongoing violation; Steel Co. held that a plaintiff would lack standing to seek an injunction or civil penalty where the injury it suffered was not ongoing or likely to be repeated. Under the ESA, it is an open question whether agencies outside DOI are required to comply with a Biological Opinion. Lujan suggests that they may not be bound; but Bennett upheld standing to challenge an Opinion, reasoning that although the opinion serves only an advisory function, "in reality it has a powerful coercive effect on the action agency." Lujan held that injury in fact must be (a) concrete and particularized and (b) actual or imminent. Ohio Forestry held that a challenge to the Forest Service's land and resource management plan was not ripe, because the plan itself did not approve any logging projects, and did not authorize any logging until after a new analysis and a separate decision were reached. The Court found that the plaintiffs would suffer no hardship if they were simply required to wait for a subsequent logging decision before bringing their challenge. In order to establish organizational standing, an organization must show (1) that one or more of its members would satisfy the basic standing requirement; (2) that the relief being sought is germane to the organization's purpose; and (3) that neither the claim asserted nor the relief requested requires the participation of individual members. NEPA
7 Section 309 of the CAA requires EPA to review and publicly comment on all EISs. EPA must refer any EIS decision to CEQ if it believes that it is not satisfactory from an environmental point of view. "Major federal action significantly affecting the environment," defined by CEQ to include private projects that require federal approval or that receive federal funding. Federal actions can even include an agency's failure to act, where such failure would be reviewable under the APA. Agencies may not make an "irreversible and irretrievable commitment" of federal resources before complying with NEPA. Conner v. Burford. "Scope" of action includes "connected actions" (those actions automatically triggered by the first action) and "cumulative actions" (which might be individually minor but, when taken together, have cumulatively significant impacts). For "small federal handle" actions, CEQ regulations seem to require an EIS. "Cumulative Impact" is defined to encompass "the incremental impact of past, present, and reasonably foreseeable future action regardless of what agency (Federal or nonFederal) or person is undertaking such other action." In determining whether action is "significant," consider context and intensity of the actin. In determining whether two actions are "connected," consider whether the action in question has "independent utility," whether one action will result in "irretrievable commitment" to take second action. Thomas v. Peterson held that the development of a timber road and related timber sales were sufficiently related so as to require combined treatment in a single EIS. The Ninth Circuit had previously held that an EIS must cover subsequent stages when the dependency is such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken. Categorical exclusions (CEs) are "a category of actions which do not individually or cumulatively have a significant impact on the environment and which have been found to have no such effect in procedures adopted by the agency." An EIS must consider "all reasonable alternatives," including a noaction alternative. The EIS should also include appropriate mitigation measures that could be taken. The goals of the federal action delimit the range of reasonable alternatives that must be considered (see Citizens Against Burlington). Citizens Against Burlington: When the federal government is asked to approve or deny a project sponsored by a private applicant, it need only consider alternatives to the federal action - and not alternatives that are open to the applicant but not the agency.
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