With Litigation Guaranteed, the fate of national monuments will be uncertain for some time

Posted on September 1, 2017 by Brenda Mallory

At the end of August as the last days of summer pass, the Conservation community waits with bated-breath to learn what the Trump Administration will do to twenty-one significant national monuments and the century-old tradition they reflect. The consensus—among those who have dedicated their lives to protecting special places, the local communities whose economies have been bolstered by their presence, and a broad swath of Americans who simply enjoy having extraordinary places to visit—is that it won’t be good. The further consensus is that what the Administration is considering likely exceeds the President’s legal authority under the Antiquities Act. Both progressive and conservative voices have recently argued that the president lacks the authority to diminish or revoke National Monuments. While the motivations for making this argument may be different, the basic statutory and constitutional arguments are the same, and the significance of the president taking this uncharted path to diminishing national monument protections is recognized (in either a positive or negative light) even by the few who argue he does have the authority to do so.

The legal question begins where many of our most controversial issues today start –the scope of a law. Yet, at its foundation, a history of simmering tensions over the extent of Federal lands in the west and the Federal government’s control over those lands has fueled passions around this issue. For over 110 years, the Antiquities Act has stood as one of the most powerful tools for the protection of cultural, historic, and scientific resources. Some have described it as the first statute with an exclusively protective purpose.  The statute gives a President the discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” A key question is what does “other objects of historic or scientific interest” mean? This Administration appears poised to take on the longstanding, judicially endorsed conclusion that this phrase includes large landscapes like the Grand Canyon, and to bring to the fore the threshold question of whether a subsequent President can change the monument designation of a predecessor.

In April, President Trump signed an Executive Order instructing Interior Secretary Zinke to undertake a review of Antiquities Act monument designations since 1996. Secretary Zinke then launched the review process identifying 27 monuments that fit the EO criteria: 26 because they were over 100,000 acres and one for the purpose of determining whether stakeholder engagement had been adequate. Recommendations were submitted to the President on August 24, 2017, but have not been made public. The Commerce Secretary received a similar presidential directive and is undertaking a separate process for marine monuments and national marine sanctuaries.

Over its history, monument designations under the Antiquities Act have been challenged as inconsistent with the statute and have always been upheld. See, e.g., Cameron v. United States, 252 U.S. 450 (1920), Cappaert v. United States, 426 U.S. 128 (1976). However, no President has attempted to revoke a prior designation and there has been no judicial challenge in the previous circumstances where a President has modified the boundaries of a designation. All signs are suggesting that we are about to see both for the first time: the President is expected to revoke or substantially reduce one or more monuments and, if he does, a challenge is inevitable. While this will be a case of first impression, the overwhelming view of scholars, which I share, is that the President does not have the authority to take these actions because Congress has not delegated him the authority to undo a designation. See, e.g., a collection of articles submitted to the Department of Interior by 121 scholars and similar analysis for marine monuments. Of course, there is an alternate view.

Putting the law aside, the atmospherics associated with this early battle by the Administration are noteworthy. First, like many of its other actions, the unprecedented nature and scope of the attack is striking. While it was immediately obvious after the election that there would be some effort to challenge then-President Obama’s most controversial monument designations, with Bears Ears National Monument in Utah at the top of the list, few expected that designations completed decades ago, by three different Presidents would be under threat. Businesses and communities have grown and developed because of and in reliance on these monuments, inseparable from the benefits they bring to their local areas. Upending years of investment and expectation is stunning. Nor was it expected that the attack would include so many monuments, land and sea, or that Marine Sanctuaries, which are completed over many years and with considerable process, would be thrown brazenly into the mix.  

Second, like the Administration’s attack in other areas, the stated narrative driving the challenge to national monuments – alleged abuse of executive power, failure to consult or listen to stakeholders, ignoring elected officials, restoring balance to the use of Federal land – is at odds with the Administration’s own behavior in the process.  As noted in the above-referenced articles, revoking or substantially reducing the size of a monument is beyond the scope of the President’s authority, a clear abuse of executive power. Even conservative leaning scholars and publications have joined the ranks of those condemning the anticipated executive action as beyond the President’s authority. Moreover, Secretary Zinke has unapologetically spent his “review process” meeting primarily with opponents of the monuments and the summary of his report released last week dismisses as part of a “well-orchestrated national campaign” the 2.7 million comments generated during the review process that overwhelmingly support retention or expansion of national monuments. Next, while the Republican elected officials are getting Zinke’s attention, it is not clear that the views of their Democratic colleagues are being given the same weight. Finally, talk of balance in federal land use is in direct conflict with the newly ascribed goals of “energy dominance” and the expedited efforts to open unspoiled areas to oil and gas drilling, and other extractive activities. Taken together, it is clear that this battle is less about correcting “unlawful” designations by previous Presidents and more about aggressively shifting the policy focus on Federal lands to exploiting the natural resources. For monuments designated under the Antiquities Act, only Congress has the authority to change the designation; and Congress is the appropriate body to consider whether policy shifts warrant such changes.

Finally, the attack on national monuments is not occurring in isolation. Many other efforts to eliminate or impair environmental and conservation protections on Public lands are underway.  They encompass repealing protective measures such as the stream protection rule, withdrawing the rule regulating hydraulic fracturing; repealing the Clean Water Act Rule; eliminating the ban on drilling in the Arctic; and rescinding the Executive Order directing federal agencies to consider rising sea levels when building public infrastructure in flood prone areas. They also include process initiatives that appear designed to undermine the fact based decision-making necessary to ensure the protection of environmental and conservation measures. These initiatives include Zinke’s Order to streamline onshore oil and gas permits, his regulatory reform initiative to eliminate “unnecessary regulatory burdens,” and his Order jumpstarting Alaska Energy focused on opening the Alaska National Wildlife Refuge and the National Petroleum Reserve Area to oil and gas drilling.

With this backdrop, there is a sense of foreboding as the Administration’s monuments review process comes to an end. One thing is clear, whatever is in the upcoming announcement by the Administration, it will likely take years of litigation before these issues are resolved and this century-old law will be put to the test.         

A Win for Appropriative Water Rights

Posted on August 25, 2017 by Rick Glick

In an unpublished opinion released August 24th, the Ninth Circuit rejected a long waged effort to upend the City of Bend’s water planning by forcing it to abandon its vested surface water rights in favor of an all-groundwater supply.  As is often the case, plaintiffs chose a somewhat oblique attack on the City’s water planning, relying on NEPA and forest planning laws to force a change of direction.

Central Oregon LandWatch v. Connaughton was a challenge to a Special Use Permit issued by the U. S. Forest Service to the City to construct a new pipeline and to upgrade water diversion facilities on Tumalo Creek, within the Deschutes National Forest.  The existing pipeline also was previously constructed within the national forest under a SUP, but needs replacement.  The project drew controversy. 

Plaintiffs contended that cessation of water withdrawals by the City is necessary to preserve Tumalo Falls, whereas the City argued that the project would enhance Tumalo Creek.  To maintain pressure, the old pipeline needed to be kept full, resulting in constant diversions and discharge of surplus water downstream.  The new pipeline allows the City to withdraw water on demand, which will keep more water in the stream.  In addition, the City is working closely with the Tumalo Irrigation District to further protect the creek.

An amici group comprised of municipal and agricultural water users, intervened on behalf of the Forest Service and the City.  (Disclosure:  Our firm represents the amici, and serves as water counsel to the City, though we did not represent the City in this case).  The Oregon Water Resources Department separately intervened as an amicus.

The central concern for amici was the integrity of Oregon’s appropriative water rights law, which follows the first in time, first in right principle of other Western states.  Plaintiffs sought to upend that principle by elevating federal minimum flows in the forest planning context over state water law.  Oregon law allows the Oregon Department of Fish and Wildlife to apply for instream water rights, which would have priority from the date of application and would be treated like any other water right.  The purpose of the instream right is to prevent future appropriations, and so the “minimum” flows in the water right usually comprise or exceed the entire flow of the stream.

Plaintiffs argued that the Forest Service should have imposed minimum flows for the creek in the SUP, which they contended should be derived from the instream water established for Tumalo Creek.  The problem is that the instream water right is junior in priority to the City’s water rights.  Imposing the instream water right flows as a condition of the SUP would effectively turn appropriative water rights law on its head.  The instream right—with its aspirational flow regime—would then take precedent over the City’s right.

The court below rejected that outcome, as did the Ninth Circuit but on the basis that establishment of minimum flows are not required by rule or case law.  Further, doing so would not benefit Tumalo Creek because the City’s project would “positively impact stream flows” in one reach of the creek and “have no or minimal impact” in two other reaches, one of which is subject to Tumalo Irrigation District diversions that are not subject to the SUP.

The court also found that the Forest Service did not violate NEPA by limiting the alternatives analysis in the Environmental Assessment to just two: (1) implementation of the project and (2) a “no action” alternative based on the existing SUP.  In other words, the court was not troubled by the Forest Service assuming that continuing exercise of the City’s surface water rights represents the status quo.   The court rejected plaintiffs’ argument that the Forest Service needed to additionally evaluate an alternative scenario where the City reduces or ceases withdrawals from Tumalo Creek.  The court found that the discussion in the Environmental Assessment was adequate, and relied on language in the EA that fully supports the City’s water planning:

The Forest Service determined that the surface water formed a “critical component of the City’s dual-source [water] supply.” . . . The EA explained that groundwater-only options would “compromise the City’s ability to provide a safe and reliable water supply,” reduce water flows in other parts of the Deschutes River, be costly, and be less reliable than a dual-source system. The EA also flagged possible environmental concerns posed by the groundwater-only option, including reduced surface stream flows (which are fed by groundwater) and increased energy consumption caused by pumping groundwater. This discussion was sufficient.

A dual source water system is the dream of every municipal water planner.  That redundancy is insurance against natural or human-caused catastrophes that could disable one source.  And all water users need to be able to rely on the priority of water rights under the law.  That the Forest Service and the Ninth Circuit declined to upset the City’s long-term water planning is a victory for municipal water planners everywhere.

H.R. 23: A VERY BAD FEDERAL WATER LAW BILL—AND A WORSE PRECEDENT

Posted on August 24, 2017 by Richard M. Frank

H.R. 23 is an important and most unfortunate environmental bill currently working its way through the U.S. Congress.  Sponsored by California Republican Congressman David Valadeo—with a strong assist from House Republican Majority Leader Kevin McCarthy—H.R. 23 passed the House of Representatives last month on what was largely a party-line vote, 230-190.  It has now moved to the U.S. Senate.

This California-specific legislation would “reform” federal and California state water and environmental laws in order to provide more water from federal and state water projects in California to state agricultural interests in the state’s Central Valley.  H.R. 23 would do so at the expense of environmental values.  (That’s not mere interpretation or speculation on the part of this observer—it’s the express intent of the bill.)

Why, exactly, is H.R. 23--which has largely evaded public and media attention to date--such a flawed legislative proposal?  Let me count the ways:

First, it would reverse an over century-long tradition of federal deference to state water law regarding the construction and operation of federal water projects.  Congress made that commitment in the Reclamation Act of 1902, which transformed the settlement and economy of the American West.  Congress has reiterated this commitment to cooperative federalism in numerous subsequent federal statutes.  But H.R. 23 reneges on that promise, expressly preventing California state water regulators from imposing any restrictions on the federal Central Valley Project that would protect environmental values.

Doubling down on its preemptive effect, H.R. 23 expressly exempts the CVP (and those who obtain water from it) from application of California’s public trust doctrine, which—as is true of many other states—operates as a longstanding, cornerstone principle of California natural resources law.

Additionally, H.R. 23 brazenly exempts operation of the CVP and other California water projects from the federal Endangered Species Act “or any other law” pertaining to those operations.

H.R. 23 thus is terrible news for California’s environment.  But why should environmental attorneys from other states be concerned about the bill?

The answer is again multifaceted.  H.R. 23 represents the first serious Congressional effort of 2017 to weaken application of the Endangered Species Act.  The broad ESA exemption contained in H.R. 23 could easily be replicated in future federal legislation affecting federal, state or local projects in other parts of the country.

Similarly, if the longstanding tradition of federal deference to application of state water law is breached by passage of H.R. 23, rest assured that similar attempts will be made concerning similar projects in other states as well.

H.R. 23 is opposed by both of California’s U.S. Senators, along with California Governor Jerry Brown.  Even more notably, California’s largest water district—the Metropolitan Water District of Southern California—has signaled its opposition to the bill, declaring that it “goes too far” in elevating agricultural water interests over California’s environment.

H.R. 23: an awful bill for California, and a terrible precedent for the nation as a whole.

The Takings Line is Bent

Posted on June 26, 2017 by Brian Rosenthal

In an expansive review of regulatory takings, the Supreme Court reiterates governments must pay when overly impinging individual property rights by regulatory means, resulting in compensable takings.  The Court announces a flexible approach to analyze the private party’s parcel deemed taken by regulatory action (past or present).  Particularly, but not exclusively, when more than one parcel is involved as was the case before the Court, a new test emerges to define the taken parcel. The test includes consideration of the landowner’s expectations.  

The dissenters believe the Court for the first time strays away from its precedential findings on the whole parcel in issue as defined under state law, and predict the new multi-factor parcel review test will “tip the scales in favor of the government” for uncompensated takings by allowing the government to frame the taking as reasonable as it relates to the defined parcel and burden.

The majority is equally passionate, noting its test mitigates against the government’s unchecked usurpation and sometimes over-eager use of private property rights in the guise of the greater good.  The Court suggests “[p]roperty rights are necessary to preserve freedom” and supports its test as best suited for that protection.

The case involved a state’s restricting the development of lots on a protected river to those of a certain size, and resulted from unique circumstances where the property owners had come into possession of adjacent lots, each individually failing the development requirement.  Analyzing the facts under a multi-step review, the Court found the lots retained their economic value as a whole and supported a “no compensable taking” finding by looking at the following factors:

  1. No complete loss of economic value [might be non-compensable even if a complete loss where state property and nuisance laws would be deemed legitimately and commonly understood as a fair counterbalance to the regulatory taking (perhaps like wetlands restrictions)];

  2. Land treatment under governing state and local real estate law (how and where bounded);

  3. Physical characteristics (including topography and both its human and ecological features, such as if it were a coastal property or, as  here, a scenic river);

  4. Value (including any opportunities the burden may create, such as preserving a vista or greenspace or relationship of the lots); and

  5. Reasonable expectations of the landowners.

This case has been closely watched by both land use practitioners and regulating governments and municipalities.  Its implications reach squarely to environmental laws and regulations such as water regulations and use and development restrictions.

Public Parks in Massachusetts – Here Today, Gone Tomorrow?

Posted on March 10, 2017 by Mary Ryan

The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources  . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.

In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.

The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”

Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”

The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups. 

PS:  As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”

Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.

President Theodore Roosevelt: A Conservative for All Seasons

Posted on March 8, 2017 by Irma S. Russell

The debate on whether President Theodore Roosevelt was a conservative or a progressive experienced a recent uptick.  One example of the debate is the reception to Daniel Ruddy's new book, Theodore the Great: Conservative Crusader.  In Theodore the Great, Ruddy documents the Roosevelt presidency’s conservation achievements, including efforts to protect the Grand Canyon and other national wonders from exploitation.  Like most presidents since his time, Theodore Roosevelt had a goal of making America great.  His philosophy centered on increasing the political power of the American people and limiting the build-up of the “invisible government” of party bosses, corporate trusts, and corporate lobbyists.  President Roosevelt championed reforms that limited corporate interests and conserved public lands for future generations.  The book’s website indicates that TR “obfuscated his own legacy with populist speeches” and promises that the book’s focus on Roosevelt’s actions “clears the cobwebs and presents a real and convincing case for remembering Theodore Roosevelt as a great conservative leader.”  I am persuaded of this point without reading the book.

The term “conservative” is capacious and has many dimensions, and the model of Roosevelt as a conservative is thoroughly convincing.  The U.S. National Parks website presents the evidence of President Roosevelt’s legacy.  Among other things, he created 51 federal bird reserves that have now evolved into national wildlife refuges in every state.  But of even greater importance, he established the U.S. Forest Service in 1905 and set aside 230 million acres of public lands, with over 150 million acres of that designated as national forests.  The success and public acceptance of the Forest Service was laid out for the ACOEL by Timothy Egan in a presentation to our members about his book, The Big Burn, which chronicled the birth of the agency within the Department of Agriculture and the public’s acceptance of its value after a 1910 fire in Montana and Idaho claimed lives as well as acres of forest. Roosevelt and the USFS insured the future of our forests – both for commercial and for recreational use. As an advocate for the American people, Roosevelt worked to insure the sustainability of those resources. 

Today, conservatives seem to be taking a markedly different approach to conservation and public lands.  Last week Ryan Zinke was confirmed by the Senate as Secretary of the Interior, the principal manager of public lands.  Zinke, the former Montana representative has been compared to President Roosevelt and praised as a Roosevelt conservative.  Last fall, he resigned his position as a delegate to the Republican National Convention in protest to proposals to transfer federal lands to states and private entities. 

More recently, however, Zinke has changed his approach to the preservation of public lands.  Before vacating his seat in the House of Representatives to accept the top position in the DOI, he voted in favor of a bill that facilitates the transfer of large tracts of western state federal public lands to states, local governments and private entities.  Such transfers of federal public lands will enrich the new owners by millions if not billions of dollars in valuable land and the natural resources on the lands. 

Even if the transfers were made for a fair market price and assuming the uses of the land were to remain the same (with the same park rangers and the same memorial markers), there would be adverse consequences.  The legacy, access, and pride in the public treasures would be forever altered.  Disposing of public lands will take these assets from America and Americans to enrich commercial or state interests.  This will impoverish the country both fiscally and by severing the relationship of ordinary Americans with the lands they revere.  Such transfers may also limit public access and will inevitably deprive the country of the value of natural resources on the public lands and reduce the national security – an important rational for the creation of public lands. 

National forests, wildlife refuges and other lands provide a national conservation and recreation system like none other.  Transferring these assets from the public to other interests is a loss to America no matter what form is used for the disposition.  Private interests focused on the corporate bottom line will inevitably exploit such holdings for profit.  As corporate spokesmen often explain, the responsibilities of their corporations are to their shareholders, not the general public.  Ordinary Americans might have the ability to hike, camp, and hunt and fish, but such access is not insured, and the nature of the access would be far different if our citizens become ticket-holders to private attractions. 

The collective holdings of the nation’s public lands protect access for all to the most inspiring areas on earth.  Debating what label best describes President Roosevelt’s brand of conservative principles or conservationist zeal is trivial in comparison to the serious issue of preserving America’s heritage in public’s lands.  Even from a purely economic perspective, selling public lands would be the worst deal in history. 

Bears Ears Monument Designation Was the Right Decision at the Right Time

Posted on January 24, 2017 by Zach C. Miller

On December 28, 2016, President Obama by Proclamation under the federal Antiquities Act designated 1.35 million acres of federal lands in southeastern Utah as the Bears Ears National Monument.  That action culminated nearly a century of efforts to protect this unique, canyon-country site, which is archaeologically rich, ecologically diverse, and the ancestral homeland of a number of southwestern Indian tribes.

Immediately after this designation, the Utah governor and congressional delegation, some local officials, and various conservative pundits railed that the designation was an illegal and inappropriate “federal land grab,” was done without proper public input, will unduly impede traditional tribal and local activities, and can and should promptly be reversed and rescinded by the incoming Trump Administration.

Each of those claims has no factual or legal merit.  The most recent Bears Ears proposal was initiated several years ago by local Navajo leaders and formally endorsed by the Navajo Nation and four other tribes whose ancestors inhabited this area, as well as other local and national Indian and conservation groups.  It has been thoroughly vetted for several years and was the subject of a number of public meetings throughout 2016, including several local meetings attended by Interior Secretary Jewell.  As a result of that extensive public input, the Obama administration excluded over 600,000 acres of initially-proposed lands that contain oil and gas leases, existing and prospective uranium mining sites, limestone quarries, grazing areas, local water supply watersheds, and other objected-to areas.  The designation also expressly protects all valid existing rights, preserves access by Native Americans for traditional uses such as sacred ceremonies and gathering plants and firewood, and creates an Advisory Committee of state, local, and tribal representatives and private landowners to provide information and advice to BLM and the U.S. Forest Service in their joint administration of the monument and development of appropriate management and transportation plans.  As a result, the principal existing activities that will be restricted within the designated Monument are the ongoing illegal theft and vandalism of federal and tribal archaeological sites.

The Proclamation also uniquely creates a Bears Ears Commission consisting of an official from each of the five Native American tribes with historic ties to the area, to provide guidance and recommendations on the management of the Monument and related plans.  This is the first, and long-overdue, instance of Native American tribes being directly involved in coordinating with federal agencies to manage a monument that protects sacred sites on their ancestral homelands.

Regarding whether this action is a proper use of the Antiquities Act, it is widely acknowledged that this area contains one of the densest and most significant concentrations of archaeological and paleontological sites and specimens in North America.  It is also uncontroverted that historic sites in the area have been extensively looted and vandalized over the last century.  The FBI has conducted major enforcement actions against illegal “pot-hunters” in this area, including as recently as 1986 and 2009.  Complaints that state and local officials can better protect against such theft and vandalism ignore that most illegal pot-hunters have been local denizens and that, until fairly recently, the University of Utah museum was a major purchaser of the pilfered artifacts.  Providing federal protection to these highly-jeopardized antiquities on federal public lands is precisely what the Antiquities Act was designed and intended to do.  Far from being improper, this protective measure is long overdue.

In terms of timing and process, the Administration waited patiently until a long-pending legislative alternative proposal to protect the area failed in Congress.  That bill, introduced by Utah Congressman R. Bishop and dubbed the Public Lands Initiative (PLI), would have put 1.4 million acres into two National Conservation Areas (NCAs) and a separate wilderness area, but it provided less protection and increased state and local control over uses in the NCAs, with no direct tribal involvement.  But that bill failed to move through Congress before it adjourned.  In addition to waiting for completion of that legislative process, by reducing the monument designation from the initially proposed 1.9 to the final 1.35 million acres, the Obama Administration also largely aligned the boundaries of the final monument designation with those of the failed PLI proposal and excluded the central areas of objection.

Regarding the proposal for the incoming Trump Administration to administratively rescind this designation, there is no legal authority for the President to do so.  The Antiquities Act authorizes a President to designate an area as a national monument on federal lands when necessary to protect the appropriate sites and resources.  It does not authorize a President to rescind a designation made by some predecessor, and no President has ever done so in the 111-year history of the Act.  The Attorney General in 1938 formally opined that the Act does not provide for such rescission, and nothing has changed that would alter that conclusion.  The Congressional Research Service recently confirmed the absence of any such authority or precedent.  Republican Party members would also do well to recall that the Antiquities Act was signed in 1906 by its own conservation hero, Teddy Roosevelt, who used it to designate 18 monuments in three years, seven of which later became popular national parks, including at the Grand Canyon.  All but three presidents since that time have done the same.  As was the case with all those actions by Teddy and others, after all the immediately-following outrage and uproar, this measured Bears Ears designation will no doubt later be acknowledged as a brave, innovative, and critical action to protect this long-vandalized and currently-threatened area.

In sum, the recent designation of the Bears Ears Monument was the right decision at the right time for the right reasons, and there is no legal basis to rescind or restrict it without an act of Congress.  The incoming Administration and Congress should not heed recent partisan, emotional calls to try to undo it and should instead work with the new tribal Commission and all affected stakeholders to develop a fair and appropriate management plan for the new Monument.

The California Supreme Court Hoovers Up More Pieces of the Mining Law of 1872

Posted on September 1, 2016 by James Holtkamp

Once both a paradigm of brevity in the federal code and a fertile source of work for generations of mining lawyers, the Mining Law of 1872 has been picked away at (pun intended) for many years. The romance of throwing a pack and a pick on a mule, nailing an old tobacco tin to a post with a location notice, and wresting riches from your very own mining claim is largely gone. The restrictions in federal and state law on surface disturbances from mining have made operations by individuals on mining claims more anachronistic than ever.

On August 22, 2016, the California Supreme Court knocked off another big chunk when it unanimously held that California’s ban on suction mining for gold is not preempted by the Mining Law. People v. Rinehart, No. S222620 (Aug. 22, 2016). Mr. Rinehart was convicted of engaging in suction dredge mining for gold on his mining claim in violation of a moratorium on the practice imposed by the California Department of Fish and Wildlife. Not surprisingly, the department found that suction dredge mining has significant adverse impacts on water quality, protected species, and the environment generally.

Rinehart went ahead with suction dredge mining anyway, and when charged criminally, argued that the Mining Law preempted any state laws that would restrict his right to mine on his mining claim. He was convicted, but the California Court of Appeals reversed the conviction, agreeing with Rinehart that the Mining Law preempts any state restriction on mining on a mining claim.

The Supreme Court reversed the Court of Appeals, explaining in great detail how the Mining Law was not intended to allow mining without regard to the application of state police power on a duly located mining claim, notwithstanding that the purpose of the law is to facilitate the development of mining on public lands. The court relied heavily on precedents going back over a century, including a series of U.S. Supreme Court decisions holding that in order to displace the application of state law on federal lands, Congress must act affirmatively. The court was doubtless influenced by an extensive amicus brief filed by the United States, which agreed that the state’s moratorium was not preempted by the Mining Law.

The California decision is not surprising given the increased emphasis on state and federal regulation of the environmental impacts of mining operations, which began with the major environmental legislation of the 1970s. For example, many years ago the BLM and Forest Service issued regulations requiring permits for surface disturbances on unpatented mining claims. The federal Surface Mining Control and Reclamation Act and the various state programs operating under delegation from that statute also regulate surface impacts of mining operations. Other environmental laws, including federal and state clean water statutes, air quality laws, and waste management requirements have been applied to mining operations without regard to whether the right to mine is based on fee simple ownership, leasehold interests, or unpatented mining claims.

Opponents of the Mining Law view the law as an anachronistic give-away of federal resources but have not succeeded in repealing it. But environmental regulations such as the suction dredge mining moratorium in California and increasingly insurmountable economic challenges in operating a small mining operation are slowly strangling the Mining Law. It is death by a thousand . . . picks.

Perspectives of Twenty-four Pioneers on the Past and Future of Environmental Law

Posted on June 16, 2016 by Leslie Carothers

On Earth Day 2016, the Environmental Law Institute presented to the public a collection of 24 videotaped interviews conducted over the past five years to record the career experiences of many pioneers of environmental law.  The men and women profiled were active in the environmental movement in the sixties and early seventies.  They served as Democratic and Republican legislators, organizers and advocates for public interest organizations, administrators of national and state environmental agencies, academics producing new ideas and educating new lawyers, and legal counsel to business and government agencies contending with a host of new environmental laws.   ELI’s interviewers wanted to learn why these pioneers chose to enter the field of environmental law, what they see as its major successes and shortcomings, and how they view the health of environmental activism and public commitment today.

Among other things, the oral histories provide interesting insight into the roots of activism for early environmental lawyers and what different life experiences and motivations may influence today’s new environmental lawyers.  Practically every pioneer spoke of enjoyment of nature and the out of doors experienced through growing up on a farm or in rural areas or visiting campsites and parks on family vacations and scouting trips.  They witnessed both the beauty and the degradation of natural and scenic resources and were inspired to seek ways to protect them.  The other factor mentioned most often was the example and energy of other social movements in the sixties and seventies, first and foremost the civil rights struggle.  Personal experience and the climate of social activism combined to motivate many environmental pioneers to become leaders in the new environmental movement. 

Most of the pioneers express optimism that new generations of young women and men will take up activism and environmental law to attack today’s agenda of complex and serious problems.   But many worry that the communications technology building young people’s impressive expertise may also be keeping them glued to their screens and disconnected from the natural world.  Robert Stanton, former Director of the National Park Service and the first African American to hold the position, comments in his interview that we should not be unduly critical of young people who spend so much time inside.  He observes that when he was growing up, there were only a few black and white TV channels to compete with going outdoors!   Still, a lifelong activist like Gloria Steinem believes that excessive dependence on electronic connections can weaken the interpersonal qualities of empathy that depend on face-to-face communication and can dilute the emotional drivers for action in concert with others.  Activism means more than making a statement and pressing “send.”    The impact of technology is just one of many issues discussed in an engaging set of interviews available to all.  Visit ELI’s website at http://www.eli.org/celebrating-pioneers-in-environmental-law for a unique source of perspective on the evolution of environmental law and the prospects for further progress on pressing problems in today’s very different social and political setting.

Looking Back Over 100 Years of the National Park Service, Looking Ahead to the Future of Environmental Law

Posted on May 20, 2016 by Benjamin F. Wilson

August 25, 2016 is the 100th anniversary of the National Park Service.  The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us.  As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park.  I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.

As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession.  Why – and how – we do what we do?  What challenges will the next 100 years hold?

I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond.  Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself).  Sadly, we lost Henry earlier this year.

Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it.  We have made progress, but new challenges have emerged.  Easy answers, if they ever existed, are fewer and farther between.  So what, then, does the future hold for the next generation of environmental lawyers? 

Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals.  As an example, we can look to the past.  Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962.  Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands.  Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges.  While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities.  Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion. 

I expect climate change will dominate the agenda for the young lawyers of our current era.  They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change.  Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.

We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties.  Autonomous vehicles and drones also pose novel environmental and land use issues.  These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate.  As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions.  Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions.  Only in this way can the environmental bar forge new solutions to emerging challenges.

The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore.  From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection.  As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions.  This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.

Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response.  With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide.  With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.

Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”)I commend that article to you.  It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come.  Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference.  In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015.  The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law.  I hope it may inspire ACOEL members and others to follow Henry’s lead.

These are just a few things I think the future holds for environmental lawyers.  What trends do you predict?  How should the environmental bar and ACOEL respond?  

Contracting for Original and Renewal of Pipeline Right-of-Ways on Tribal and Allottee Lands

Posted on February 24, 2016 by Tom Sansonetti

The Department of the Interior’s Bureau of Indian Affairs (BIA) has promulgated new regulations involving the original procurement and renewal of Right-of-Ways (ROW) on tribal and allottee lands which take effect on March 22, 2016. These new rules will replace those in place since 1947, creating a series of significant problems. This post lists the problems and suggests a legislative solution.

1) Majority Consent of Life Estate Heirs is Needed for ROW to be Granted or Renewed

The new rules limit the length of a ROW to 20 years. The ROWs are not subject to state or local laws, and the new rules impose consent and approval requirements that do not appear in the current regulations. Under the current law, voluntary agreements could be struck between tribes, allottees, and a company, so long as the BIA Regional Director approved the deal. The BIA would approve if a majority of the allottee landowners consented and the amounts of money paid for the ROW were not less than the fair market value (FMV) of the allotment parcel. Under the new rules, however, the company must obtain a majority consent for the original ROW or renewal thereof, not only from the living life estate allottees, but from their heirs as well. This presents a huge obstacle, as companies will now have to find each of the heirs and then attempt to bargain with them individually. Under the current rules, if agreement could not be reached, then the company was free to use a 1907 statute to condemn the allottee land but never the tribal land.

2) Life Estate Holders Can Withdraw Previously Granted Consents

In two separate New Mexico ROW cases involving Western Refining’s pipeline and Public Service of New Mexico’s (PNM) overhead wires, the companies both originally obtained the written consent of a majority of the life estate holders who were paid fair market value for their consent. However, upon the BIA Regional Director finding a lack of a majority of heirs consenting, certain life estate holders informed the BIA that they were “unconsenting” in order to hold out for better compensation, even though they had cashed the original checks. Because the BIA allowed the holdouts’ action of “unconsenting” to stand, the companies lost their majority consent of life estate holders. Attorneys for the life estate holders are now suing PNM for trespass in federal court in Albuquerque.

3) Fair Market Value Has Become a Floor in Negotiations Rather Than an Appraisal Standard

Since the 1947 statute came into existence, the fair market value (FMV), as determined by BIA-qualified appraisers, of the allotment acreage to be crossed by the pipeline served as the negotiation basis between the company and individual allottees. The allottees, knowing that their land could be condemned under the 1907 statute dealing with ROWs, often bargained for a payment that was two or three times FMV. However, under the new regulations, FMV is a starting point, non-binding and irrelevant to an allottee who believes that the sky is the limit when dealing with large corporations.

4) The Condemnation Alternative is Under Attack Due to Tribal Ownership of Undivided Interests in Allotments

In the Public Service of New Mexico federal district court litigation, PNM sued the allottees of several allotments under the New Mexico condemnation statutes after failing to obtain the consent of a majority of life estate heirs for a 20-year renewal. The federal judge dismissed the condemnation lawsuit, because recently deceased allottees left their interests to the Navajo Nation. Even though those interests amounted to less than 1% of the entire allotment, the court labeled that interest tribal land, recognized the Navajo Nation’s sovereign immunity from suit, declared the Navajo Nation an indispensable party, and dismissed the lawsuit. PNM is appealing the dismissal to the Tenth Circuit. Without the ability to condemn, pipelines will be left only with choice of either paying ransom under the 1947 statute or facing allottee trespass actions.

Western Refining has also filed a condemnation suit against the unconsenting allottees under the New Mexico condemnation statutes. The case is before a different judge than the PNM case and is currently stayed pending a decision from the Interior Board of Indian Appeals on the majority consent of heirs issue.

The best solution to the four problems above requires the active involvement of the Legislative Branch.

Utilizing its plenary authority concerning tribal issues, Congress should pass amendments to the 1907 and 1947 statutes or create new legislation supplanting the current law that:

  1. Eliminates the need for heirs to consent
  2. Eliminates the ability of consenters to unconsent once consideration is paid
  3. Re-establishes the sufficiency of fair market value as the basis for the compensation to be paid
  4. Guarantees the right of pipeline owners to condemn allottee land regardless of partial tribal ownership

Nothing less than the free flow of energy-oriented interstate commerce is at stake. 

Ninth Circuit to federal land trespassers: Fuggedaboutit

Posted on February 2, 2016 by Theodore Garrett

Tensions ran high in eastern Oregon in early January 2016 as an armed group seized the headquarters of a national wildlife refuge. The occupation began as a protest of the sentencing of ranchers who were convicted of arson on federal lands in Oregon. The occupation subsequently became a rally for opening federal public lands to all. Entering the fray, albeit indirectly, the Ninth Circuit in its January 15, 2016 decision in United States v. Hage, held that defendants’ unauthorized grazing of cattle on federal lands in Nevada was unlawful. Contrary to the views of the Oregon occupiers that they are defending the Constitution, the Ninth Circuit held that grazing cattle without a grazing permit violated federal statutes as well as the state law of trespass, noting that a grazing permit is “a revocable privilege” and is not a “property right.” The Ninth Circuit rejected the district court’s ruling that the government cannot claim trespass if the cattle stayed within a reasonable distance of a source to which defendants had water rights. Concluding that the district judge “harbored animus toward the federal agencies,” the Ninth Circuit requested the Chief Judge of the Northern District of Nevada to assign the case to a different judge on remand. Meanwhile, back in Oregon, several of the protesters have been arrested. One was killed. 

What’s Historic Preservation Got to Do With Environmental Law?

Posted on December 7, 2015 by John A. McKinney Jr

To answer the question posed above - in New Jersey, plenty!  Under several New Jersey environmental statutes regulating, inter alia, development, the least that can happen if historic preservation issues are overlooked is a delay of the project.  The worst is a criminal indictment of the developer and/or its consultants.

Regulations implementing the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.), the Waterfront Development Law (N.J.S.A. 12:5-3), the Wetlands Act of 1970 (N.J.S.A. 13:19-1 et seq.)  and the Freshwater Wetlands Protection Act (N.J.S.A. 58:10A-1 et seq.) in effect require a historic preservation analysis in order to obtain approvals.  Using as an example the Freshwater Wetlands Protection Act Rules, (N.J.A.C. 7:7A-4.3(b)5), an applicant must first determine if the property to be developed and the surrounding properties that may be adversely affected are listed on the New Jersey or the National Register of Historic Places listed or are eligible for listing.  “Adversely affected” can be as little as compromising the view from a neighboring property.

            Anyone can look at the registers of historic places to see if a property is listed.  More often, properties are not so listed.  But an analysis cannot stop there, since an applicant must determine if the property is “eligible for listing”.  That often takes an analysis, not by an environmental engineer, but by a “cultural resources consultant” working with the developer’s counsel.  Determining if a property is eligible for listing is more of an art than an engineering analysis, as illustrated by the following highly subjective criteria for evaluation which are set forth in rules implementing the New Jersey Register of Historic Places Act (N.J.A.C. 7:4-2.3(a)(1)):

Criteria for Evaluation:  The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:

(Criterion A) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(Criterion B) That are associated with the lives of significant persons in our past; or

(Criterion C) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(Criterion D) That have yielded, or may be likely to yield, information important in history or prehistory.

As you can see from reading the criteria above, concluding that a property is or is not eligible for listing is a whole lot harder than determining if it is within a specific distance from the middle of a stream or from the edge of a wetland.  However, failure to make the determination correctly can result in significant delays and penalties. 

The upshot?  Before the applicant can obtain the necessary state approval, the applicant must demonstrate that an unlisted property is or is not eligible for listing.  That in itself can be a resource intensive effort. If it is eligible, the lawyer’s and cultural resource consultant’s real work is just beginning.  Describing that work and the legal issues arising from it may be the subject for a future blog post. 

Presidential Directive Mandates Expansive and Likely Unlawful No Net Loss Compensatory Mitigation Requirement for Most Federal Development Permitting

Posted on November 12, 2015 by Jeffrey Lepo

 

On November 3, 2015, President Obama issued a Presidential Memorandum establishing policies that are a significant departure from existing practice regarding compensatory mitigation for effects to natural resources from most federally approved projects.  The Memorandum, entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment,” applies to all permits and authorizations issued by the Department of Defense (e.g., the U.S. Army Corps of Engineers), the Department of Agriculture (e.g., the Forest Service), the Department of Interior (e.g., BLM, USFWS, Bureau of Ocean Energy Management, etc.), EPA and National Oceanic and Atmospheric Administration  (e.g., National Marine Fisheries Service (NMFS) ), including actions taken by USFWS and NMFS pursuant to the Endangered Species Act.  Although it cannot be known today how the new policies will ultimately be implemented, the Memorandum is, at least as written, both anti-development and potentially draconian. 

 

The new Memorandum states that it is establishing certain policies premised upon “a moral obligation to the next generation to leave America’s natural resources in better condition than when we inherited them.”  In furtherance of this moral obligation, the President has established it to be the policy of the identified federal bodies (and all bureaus and agencies within them):

 

·         To avoid and to minimize harmful effects to land, water, wildlife and other ecological resources (natural resources), and to require compensatory mitigation for, the projects they approve.

 

·         To establish a net benefit goal or, at a minimum, a no net loss goal for mitigation of the natural resources each agency manages that are important, scarce or sensitive.

 

·         To give preference to advance compensation mechanisms in establishing compensatory mitigation.  “Advance compensation” is defined to mean a form of compensatory mitigation for which measurable environmental benefits (defined by performance standards) are achieved before a given project’s harmful impacts to natural resources occur.  This policy preference appears to somehow contemplate that compensatory mitigation will be achieved before the project is constructed and operated.

 

·         To use large-scale plans to identify areas where development is most appropriate, where natural resource values are irreplaceable and development policies should require avoidance, and where high natural resources values result in the best locations for protection and restoration.

 

The Memorandum also establishes certain deadlines for action, principally by the agencies of the Department of Interior (e.g., one year deadline for BLM to “finalize a mitigation policy that will bring consistency to the . . . application of avoidance, minimization and compensatory actions [f]or development activities and projects impacting public lands and resources.”; one year deadline for USFWS to finalize compensatory mitigation policy applicable to its Endangered Species Act responsibilities).

 

Some federal laws (e.g., Clean Water Act Section 404 permitting for filling of waters of the United States) already have well-developed compensatory mitigation programs; however, most federal permitting schemes have not been interpreted or implemented to authorize or require compensatory mitigation, let alone at no net loss or net benefit levels.  Accordingly, to the extent that the Memorandum is intended to require net benefit or no net loss compensatory mitigation through many/most federal permitting programs, such a directive would be a significant departure from existing practice, of untested legality, and arguably contrary to existing law.

 

Moreover, to demonstrate that compensation has occurred at a net benefit or no net loss, unless the adverse effects are offset through generation or preservation of in-kind resources (e.g., a duck for a duck), the “damage” to affected natural resources must first be valued.  Accordingly, if implemented so that compensatory mitigation is broadly required, the policy could lead to an extensive, time consuming and complicated valuation process.  One worst case scenario would be for this policy to result in some form of new natural resources damages assessment, the time and expense for which would be challenging to rationalize in the context of a development proposal where cost and time are relevant (i.e., for every development project).

 

Unless the Memorandum is rescinded or feebly implemented, or its implementation is held unlawful, it has significant strategic, permitting, legal and financial implications for many, if not most, major development projects.  Of course, it is likely to be difficult or impossible to challenge the new policies established in the Memorandum, except on a project-by-project permit-by-permit basis.  As such, the pressure for project proponents to navigate (rather than litigate) the new policies will be substantial. 

Now Driving Urban Design — Driverless Vehicles

Posted on August 26, 2015 by Robert Uram

Autonomous vehicles will almost certainly supplant people-driven vehicles, the horse-and-buggies of the 21st century. Given the pace of technological change, that day is closer than you may think.

As recently as 2004, the Department of Defense’s research arm sponsored a race for self-driving vehicles over a 142-mile desert course. That year, 15 self-driving vehicles entered the race, but none made it to the finish line. The following year, four autonomous vehicles successfully completed a 132-mile desert route within the required 10-hour limit. A short 10 years later, Google’s autonomous cars have traveled nearly 2 million miles and its cars legally drive the roads of Mountain View. Testing centers for autonomous vehicles have been established in Michigan, Sweden and Japan.

Our land-use planning and zoning regimes, however, are tailored to meeting the needs of driven cars. Land-use plans and standards will need to be changed to maximize the benefits of shifts from the two-car family to the shared-driverless-car community. As many people as possible need to share his or her vision of the future as part of this process for change.

Planning rules for housing, stores and offices require parking areas. Roads and streets are sized to accommodate a flow of traffic based on models of driven cars. The needs of cars dominate cities and suburbs, and have done so for decades. Everywhere you look you see vehicles: Not just the hordes of cars moving on streets and highways, but the endless rows of cars parked at the curbs and road shoulders, and vast parking lots that envelop shopping centers, business parks, sports stadiums and other destinations. In some cities, parking makes up a quarter of the land use.

As autonomous vehicles begin displacing the ones requiring a human at the wheel, people will no longer need to keep a car parked near where they live. The parking space will no longer be a valued office perk. Parking areas around shopping centers and stadiums will begin to disappear because autonomous cars can be stored (or used) elsewhere and just come to pick up the passengers when needed. Our land-use standards do not contemplate a traffic pattern where picking up and dropping off passengers is a dominant feature of the transportation landscape and where parking is almost an afterthought.

Over time — perhaps decades, perhaps sooner — as more people turn to autonomous cars for transport from home to work, school and play, it will no longer be necessary for each person or family to own a car. The overall fleet of vehicles can be managed more efficiently to serve more people, much like what is happening with the increased use of car-sharing services and chauffeured services. Fewer personal vehicles will also reduce the need to require parking areas.

It will take a concerted effort over many years by planners, engineers, social advocates and affected communities to decide how to best address changes that will occur. Transit and social service agencies should see the development of autonomous vehicles as a laboratory for experimentation. I see great opportunities for positive change:

  • Reduced housing costs and increased capacity by eliminating the need for high rises and homes to build expensive parking garages.
  • Land for other, more productive uses as shopping centers give up vast parking areas to areas designed for efficient passenger pick-up and drop-off.
  • Improved water quality, as land now covered with concrete for parking is converted to grass.
  • More biking and walking paths as street lanes formerly used for parking are converted to these uses, and for lanes for bus rapid transit.
  • Enhanced transportation for low-income and underserved communities through use of autonomous microbuses, subsidized access to autonomous cars and other means.

Collective brainstorming will develop ideas that can be discussed, refined and eventually implemented as we enter the era of autonomous vehicles. Everyone has a stake. What are your thoughts on how to adopt land-uses to autonomous vehicles? 

______________

This article was originally published in the San Francisco Chronicle on August 16, 2015.

Dirty Dirt, Developing State Soil Reuse Regulation

Posted on March 25, 2015 by Gregory H. Smith

            Those who have tried to keep up with the development of environmental law into the second decade of the 21st century will not be surprised, as others may be, by the attention now focused on reuse of soil. Uncounted millions of cubic yards of soil are moved each year in the New England region alone. Until very recently, in the absence of contamination above regulatory remediation standards, the excavation and reuse of soils was not subject to any environmental regulation at all.

            Now with the pace of national economic activity rising, soil reuse is drawing the focused attention of State regulators in the northeast region and across the nation. EBC Nov 6, 2014 program. In particular, New Hampshire, Massachusetts, Connecticut and Vermont are all currently considering how to regulate soil reuse. In 2014, Massachusetts adopted a requirement for the development of a soil reuse policy by June 2015 and that effort is well underway.

            While New Hampshire relies on a broad definition of “contamination,” it recognizes it lacks explicit legal authority to develop a full blown regulatory program for reuse of “mildly contaminated” soil. The current definition of contamination reaches, by its terms, any non-naturally occurring, regulated contaminant “that has the potential to adversely affect human health or the environment.” N.H. Env-Or 602.07.  

            In these circumstances, New Hampshire is currently regulating on a case by case basis, limiting receiving sites to soils that do not exceed natural background levels. Solid waste regulation can be avoided by an agency waiver, or reuse can be approved with an acceptable soil management plan and soil testing protocol. The New Hampshire agency is making efforts to respond to approval requests rapidly enough to avoid frustrating market driven transactions. It  recognizes, as other regulators do, that construction projects may otherwise be forced to send lightly contaminated soil to landfills, depriving the region of essential landfill capacity, while increasing construction costs for little, if any, environmental benefit. For example, both New Hampshire and Massachusetts have recognized that unreclaimed gravel pits and quarries present potential hazards and risks of their own. They can be attractive nuisances that claim the lives of those who try to use them unwisely for recreation year after year and they can become repositories for discarded materials including stolen or abandoned vehicles. In short, they can be a locus of a range of community problems, if unattended. Rather than pay to send lightly contaminated soils to landfills, a better and more beneficial use could be found.

            The States considering such new programs recognize that their efforts to impose environmental regulation on such a substantial volume of previously unregulated activity could well have unintended and unnecessary adverse consequences for both small and large scale redevelopment projects just as the economy is gaining strength. It must be undertaken in a manner that will not exacerbate other very significant potential problems. They are coordinating among themselves the planning and development of such regulation and giving serious consideration to designing methods that will likely bear the simplicity and efficiency of general permits. Legislative action will no doubt be necessary to authorize these new programs.

            There is little question that as economic activity continues to increase, the States must establish consistent criteria setting forth the standards to be used in determining where mildly contaminated soils generated at construction projects and other developments can be disposed of at subsurface locations. Municipalities and the regulated community need to be educated about this process and engage with the regulators to ensure that the final standards are well-understood, easily implementable, and adequately ensure the environment is protected.

California Appellate Decision Could Impact Railroad–Underground Pipeline Relationships Nationwide

Posted on March 3, 2015 by Tom Sansonetti

On January 21, 2015 the California Supreme Court declined to hear an appeal from a lower appellate court, thus leaving in place a decision with the potential to impact the longstanding relationship between the nation’s railroads and pipeline companies concerning payment for use of congressionally granted right-of-ways that date from the 19th Century.

The momentous decision in Union Pacific Railroad vs. Santa Fe Pacific Pipeline, Inc. was announced by a unanimous three judge panel from the Court of Appeal of the State of California’s Second Appellate District on November 5, 2014.  The ruling overturned a Los Angeles County trial court judge’s award of $10 million for back rent, plus interest due to the Union Pacific Railroad from the Santa Fe Pacific Pipeline Company.

The pipeline company’s successful appeal centered on narrowing the scope of what pre-1871 grants from Congress to railroad companies included.  The appellate court agreed with the pipeline company that the proverbial “bundle of sticks” of property rights granted by Congress only included uses related to “railroad purposes.”  Oil and gas pipelines buried alongside the tracks were deemed not to be a railroad purpose, as petroleum pipelines were not even conceived of at the time the grants were issued, and had no link or relationship with the daily running of a railroad.

As a result of the appellate court’s holding, the true recipient of the pipeline rental payments was declared to be the United States government as represented by the Department of the Interior’s Bureau of Land Management.  The right-of-way at issue was 2014 miles in length, touched five states and was being renewed for a period of ten years.  Since the pipeline company had been making its rental payments to the railroad for several decades, the possibility looms of the United States, who was not a party to the lawsuit, seeking retroactive application of the ruling to the millions of dollars previously paid to the United Pacific Railroad.

It is anticipated that the railroad will file a petition to grant certiorari with the United States Supreme Court by its April 21, 2015 deadline.  If the Union Pacific Railroad is unsuccessful in either getting certiorari granted or in the subsequent appeal itself, then one could envision other pipeline companies, fiber optic companies and other non-railroad oriented users of the many railroad right-of-ways across the entire country seeking to suspend and not renew rent payments to railroads with pre-1871 grants.  Consequently, the United States government could end up with an unanticipated sizeable new income stream to help fill the nation’s coffers.

What? Another homage to Joe Sax?

Posted on October 22, 2014 by Jeffrey Haynes

Yes, and here’s why:  Joseph Sax’s writings remain as fresh today as when they were published. This blog — in noting his death earlier this year — described Sax’s revival of the public trust doctrine, for which he is justly famous. But some of Sax’s other studies stay relevant, and not only to the generation of environmental lawyers he taught at the University of Michigan Law School and at the University of California Berkeley School of Law.

Sax’s career focused not on the intricacies of pollution control statutes, but on the broader issues of allocation and management of scarce resources. The idea that public trust resources ought not to be diverted from public use, discussed in this blog, is the beginning. Citing Sax, the California Supreme Court in the Mono Lake decision injected public trust concepts into California prior appropriation doctrine.  As noted recently in this blog, California water allocation law continues to slouch toward the present. These issues show why Sax enjoyed teaching water law.

Sax delighted in challenging conventional views. In an early article, he exploded the myth, exemplified by supporters’ confidence in the National Environmental Policy Act, of “the redemptive quality of procedural reform.”  In 2002, he spoke at the University of Michigan about the Great Lakes. The assembled faithful expected him to reinforce their view that not one drop of water should leave the Great Lakes basin. Instead, to their dismay, he demonstrated why water allocation decisions should be based on an evaluation of alternatives, even if that meant water withdrawals from the Great Lakes. Some of the water allocation issues among riparian states that he explores in that speech were recently heard by the Supreme Court in Kansas v. Nebraska, concerning interpretation of an interstate water allocation formula, and will be considered in Mississippi v. Tennessee, which concerns pumping underground water across state borders.

One of the foundations of environmental law is the takings clause. Sax’s 1964 article, Takings and the Police Power, often cited by the Supreme Court, deserves re-reading for its lucid and compact analysis. Following the Lucas v. South Carolina Coastal Council decision, Sax imaginatively proposed an economy of nature underlying the market economy while criticizing the majority opinion in Lucas for being the outlier in takings law that we now know it to be. But Sax sympathized with the unfairness of takings law on property owners. Recently he noted that the Supreme Court has exhausted its efforts to develop a coherent takings theory. But, he said, that fact brings no solace to a late-in-the-game developer who, denied permits by a municipality that gave away the entire increment of infrastructure amenities to earlier-in-time developers, unfairly receives no compensation.

Management of public lands is a large part of environmental law. As we learned at the 2014 annual meeting, this College is embarking on a new initiative for East Africa community land use and natural resources rights. The underpinnings for such policies are found in Sax’s 1980 book Mountains Without Handrails, which proves the preservationist’s view of national park management. But management of private land adjacent to parks is equally important, as Sax explored in Helpless Giants: The National Parks and Regulation of Private Land. Sax was inspired to write this article when, after hard hiking through rhododendron “hells” in the Great Smoky Mountains National Park rising to the Appalachian Trail, he was surprised to see a luxury hotel — located on private land adjacent to the park — thrusting up beyond a forested ridge of the park.

Sax’s foray into the community values inhering in public and private art collections, Playing Darts with a Rembrandt, is echoed in the recent debate over whether the collection of the Detroit Institute of Arts should be sold to pay the city’s creditors. Although disclaiming an exact fit with the public trust doctrine, the Michigan Attorney General opined that the DIA held the art as a charitable trust for the public.

Sax received many awards and much praise. His extensive scholarship was reviewed by his peers in a 1998 Ecology Law Quarterly symposium introduced by ACOEL Fellow Richard Lazarus. He received the Asahi Blue Planet Prize in part for drafting the Michigan Environmental Protection Act, the citizen-suit statute discussed here. If these recognitions do not convince you, reading Sax in the original should persuade you of the continuing relevance of his scholarship.

The Affair of the Vicious Vegetable Seeds

Posted on August 26, 2014 by Susan Cooke

 

As August gives way to harvest time, I decided to take this blog down to earth and talk about vegetable seeds.  In particular, the news of a recent crackdown by the Pennsylvania Department of Agriculture on a local seed library.  

In honor of Earth Day, the Simpson Library in Mechanicsburg, Pennsylvania decided to start a seed lending library.  Seed exchanges are of course not a new concept.  For countless generations, seeds have been collected and saved for later planting and have been swapped as well, whether among neighbors or at such venues as county fairs.  In recent years, seed libraries have “sprung” up across the United States to preserve the genetic diversity of locally grown crops and encourage local gardening.

The Simpson Library, after consulting the county extension service, got its initiative off to a promising start, with sixty people signing up.   Program participants could “borrow” seeds before the growing season and “donate” seeds back to the library at the end of the season.  However, the Library was in for a big surprise.  On June 12 the Pennsylvania Department of Agriculture informed the Library of several requirements under the Pennsylvania Seed Act, including the need for a license to distribute or supply the seed, and the necessity of having its name appear on each seed packet.  In addition, each packet would have to be tested for purity and germination rate in accordance with rigorous requirements, with the same procedure to be followed for seeds donated back to the seed library at the end of the growing season.  The Department explained that noncompliance could result in mislabeling of seed, propagation of potentially invasive plant species, cross pollination of varietals, and introduction of out-of-state poisonous plants.

The Department’s concerns may seem like overkill, and it is open to question whether all of the Act’s requirements are in fact applicable to a library that isn’t selling seeds.  Nevertheless, such requirements are not unique.  In fact, there are similar state laws and regulations across this country and at the federal level, some even more stringent than those in Pennsylvania.  Many of the laws were adopted in the early 1900s when commercial seed companies became more prevalent, but they have seldom been applied to seed libraries.  Now several of those libraries are waiting to see if the authorities in other states will follow Pennsylvania’s lead.

At least for the Simpson Library, there seems to be a happy ending with some qualifications.  After further discussions with the Pennsylvania Department of Agriculture, the Library agreed to remove all commercially labeled seeds with expired use-by dates, and to purchase and accept only commercially prepared and labeled seeds for the current year or future growing seasons.  In addition, since the Library does not have the testing capacity or proper storage for loose seeds, it will not accept or store harvested seeds from seed library participants.  However, it can – and will - host seed swap events where individuals swap or trade their own seeds.  The Library’s website contains several of the relevant documents.

My takeaway?  Depending on your point of view, no good deed goes unpunished, or exercise caution when a stranger – or even your best friend – offers you heirloom tomato seeds, since you never know what dangerous properties may lurk within.  And for all concerned, support your local library!  

3 BR, 2 Baths, With a Spectacular View of the Northwest Ordinance

Posted on July 21, 2014 by Linda Benfield

In Wisconsin, the desire to develop prime Milwaukee lakefront property is running head on into the Public Trust Doctrine and fueling interest in the state’s earliest history.  The lands that are now Wisconsin, Ohio, Indiana, Michigan and Illinois were initially included in the Northwest Ordinance of 1787 which established that navigable waters are “common highways” and are “forever free” to all citizens of the United States.  This language was incorporated into the state Constitution in 1848, and the Public Trust Doctrine is an integral part of Wisconsin’s environmental identity. The doctrine has been interpreted over the years to ensure that beaches have public access, that the public can swim, boat or walk in any water body as long as they “keep their feet wet,” and that restaurants located along Lake Michigan offer at least one cheap meal.   

Now a developer wants to replace an ill-suited County bus garage along the lake front with a high rise development that would include a hotel and high end apartments with lovely lake views.  The problem:  under the Public Trust Doctrine, title to the Lake Michigan lake bed (as it existed in 1848) off the shores of Milwaukee rests with the state, which is required to “preserve” and “promote” the public trust. A scramble to the history books and maps ensued, and an initial memorandum from the Wisconsin Department of Natural Resources “determining” that the land in question was not part of the lake bed in 1848 was rescinded when historical maps were found showing that approximately 2/3 of the property was in the lake bed at that time.  Proponents next argued that the property in question had accreted naturally, thus exempting it under a narrow exception to the Public Trust doctrine.  When historical documents showed that any structures that would have led to accretion were placed after the property was filled (and soil borings identified fill material), these parties turned to a 1913 deal with the Chicago Northwestern Railway.  The arguments that the city conveyed this property to the railroad, and that it would have become upland by the process of accretion, and in any event was for a public purpose and did not materially affect the rights of the public, did not gain independent traction, over similar public trust concerns.  

Enter the legislature. A budget bill was initially passed, whereby the legislature, as “Trustee,” approved the 1913 transaction. However, because Wisconsin law does not allow the legislature to include private bills in budget bills, a second bill was introduced and Act 140 was signed into law on March 17, 2014.  Act 140 sets the boundary of the lake bed at the line of the 1913 transaction, bars the Wisconsin Department of Natural Resources from taking a position on the determination, and declares that the legislature’s findings are “in lieu of, and have the same effect as,” a quiet title action entered by a court. 

The new law could have a profound impact on Milwaukee’s lake front.  This month, another company offered to purchase the county parking garage in the same area; this land was also part of the lake bed in 1848 and was included in the 1913 transaction.  The private company will pay off existing debt and commit to immediate, much-needed repairs to the parking garage.  It remains to be seen whether Act 140 will survive a judicial challenge, and whether judicial confirmation of the statute will be necessary to entice any necessary funding and title insurance for the developments.

New Developments in Conservation Easements

Posted on June 16, 2014 by Philip Tabas

Conservation easements have a long been an effective tool for private efforts to protect land in the United States. But we may not be aware that there is a growing private lands conservation movement in other countries. Conservationists in those counties are adapting the conservation easement as we know it here in the United States to conservation needs in their jurisdictions. Two recent examples highlight this growing trend, one in Micronesia and one in Chile.

As you will recall, a conservation easement is a legally binding agreement between a landowner and the easement holder whereby the landowner agrees to limit the use of his or her property to protect outdoor recreation, natural habitats, open spaces, scenic areas, or historic lands and buildings. Easements have been on the rise in the United States since the 1980s because of important federal and state income tax, federal estate tax, and local property tax benefits that are available to donors of conservation easements.  Easements are usually a less expensive conservation approach than government acquisition, ownership, or land use regulation.

Conservation Easement in Micronesia

One conservation-minded family and a state agency in the small island of Kosrae State in Micronesia has just recently recorded the first conservation easement outside of the Americas and in a form that other Micronesian countries and even the United States could model.

Once a United States Trust Territory, Kosrae is one of three states that comprise the independent nation known as the Federated States of Micronesia (FSM). Its legal system is based on the United States legal system. Kosrae’s Attorney General issued an opinion that a conservation easement is a legally viable option for land protection in Kosrae, analogizing to legal principles established in the United States.

This particular conservation easement is designed to permanently protect a rare freshwater swamp forest comprised primarily of the ”ka” tree. The entire forest, named Yela, comprises approximately 400 acres and is the largest remaining ”ka” forest in the world. The undeveloped valley forest has been and will continue to be used for traditional harvests. Eels, nuts, wild pigs, and taro leaves for underground ovens or “ums” are gathered there. The easement will prevent development on the property.

The Yela deal is innovative not only because it introduces a new conservation tool to the region but it is “a new and improved” version of that tool from which states in the United States could benefit. Instead of the grantor who signs the easement sale agreement solely benefitting from the sale proceeds, as is often the case in the United States, the family in this case has invested that income into a trust fund managed by the Micronesia Conservation Trust and from which the family will derive payments over time.

The Kosraean conservation easement deal is being eyed by both Micronesians and other Pacific Islands because, unlike an outright government purchase of the land, the conservation easement model will accommodate the needs of traditional land uses and generational changes while compensating the owners for keeping the land in its natural state.

Conservation Easement in Chile

The largest and third ever conservation easement was recently created in Chile between The Nature Conservancy as the owner of the 123,000 acre Valdivian Coastal Reserve and Fundación de Conservación (FORECOS), a land trust in Chile. FORECOS will hold a conservation easement over nearly all of the acreage comprising the Valdivian Coastal Reserve, one of the world’s last temperate rainforests. To be enforceable under Chilean law, this easement is structured as an easement appurtenant. TNC will give FORECOS fee title to a small parcel of Valdivian acreage to serve as the ‘benefitted’ parcel of land which will be protected by a reciprocal easement held by the Conservancy.

The Reserve is one of the last intact temperate rainforests along the Valdivian Coastal Mountain Range. It is home to outstanding examples of endemic flora and fauna species, including two of the world’s longest living tree species, the alerce — which can live for more than 3,600 years — and the olivillo — which can live up to 400 years — as well as to numerous imperiled species of mammals, birds, reptiles, amphibians, and fish. The Reserve also contains an important marine coastal ecosystem of scrubland, coastal dune, sandy beaches and rocky coasts. In addition, there are eight river basins and five estuary systems within the Reserve that support numerous globally threatened species of plant and animal life.

At the same time that this easement was created, the Chilean Congress is continuing to consider the Derecho Real de Conservacion (DRC) legislation, which would establish a legal framework to enable the easier use of conservation easements in gross  for conservation in Chile (by removing the need for the appurtenancy requirement). The completion of this first Chilean conservation easement may encourage the enactment of the legislation. This legislation, along with a proposed Unified Donations Law that will provide tax incentives for conservation donations and make donating to conservation non-profits easier in Chile, has received strong backing from many community and political leaders in Chile.

Easements have also been used in conservation projects in Australia (there called “conservation covenants”), Canada, Guatemala, Costa Rica, and Mexico.  While these two most recent examples of conservation easements may differ in detail, they both represent the beginnings of what are likely to be increasingly noteworthy initiatives in countries other than the United States to find and develop new conservation tools to address the needs of both conservation and compatible community development.

Climate Change Litigation – Will Property Insurers Take the Lead?

Posted on April 24, 2014 by Ralph Child

Common law litigation seeking relief from petrochemical companies for causing climate change has been much touted but little successful.

The insurance industry has been warning of huge coming losses due to climate change, but has not taken aggressive action to force change.

Until now? 

In a lawsuit filed in Illinois state court on April 16, 2014, some property insurers sued the City of Chicago and a host of regional and municipal water managers for failure to provide adequate stormwater storage.  The class action suit alleges that the plaintiffs’ insureds would not have suffered so much flood damage from a 2013 storm had the defendants exercised better planning and construction to deal with foreseeable storms. 

Notably, the plaintiff insurers rely heavily on the 2008 Chicago Climate Action Plan.  The plan recognized that climate change would cause increased amounts, durations and intensities of rainfall.  Plaintiffs allege that despite the foreseen problem and having had adequate time and opportunity, the defendants failed to make the recommended and necessary improvements, leading to the injuries to the insureds’ properties.

Certainly this suit faces many challenges.  Courts are slow to override state and local governments’ complicated budgeting choices.  Moreover, courts may be ill-equipped to oversee projects such as Chicago’s Deep Tunnel Project, which was commissioned in the 1970s to address metropolitan flooding, stormwater and sewage.  After more than $3 billion so far, itwill not be completed until at least 2029.

Also, query whether such litigation will help or hurt state and local efforts to adapt to climate change.  It could deter honest forecasting of what it will take.

Still, this lawsuit could augur a new wave of common law climate change litigation – a category involving well-funded plaintiffs with provable arguments for proximate cause of real damages.

Temporary contamination – Ain’t that a non-compensable shame?

Posted on December 12, 2013 by Jeff Civins

A “stigma” is a mark of shame.  When applied to real estate, stigma refers to an unfavorable quality in a property that makes it less attractive.  Whether a landowner may recover stigma damages for temporary contamination that has been remediated in accordance with state law is an issue the Texas Supreme Court will consider when it hears oral argument in early December in the case of Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch

In that case, the lower appellate court had affirmed the decision of the trial court, following a jury trial, awarding the plaintiff almost $400,000 in damages attributable to an alleged diminution in value resulting from temporary contamination.  In arguing for reversal, Houston Unlimited has asserted that this decision recognizes a new cause of action in Texas – for stigma damages absent permanent physical injury.  Because of the ramifications of this holding, a number of Texas trade associations have filed amicus briefs in support of Houston Unlimited.1 

Houston Unlimited operated a metal-processing facility that had failed to comply with various regulatory requirements relating to the management of solid waste and storm water.  Its operations also had resulted in leaks to the adjoining Mel Acres Ranch.  The Texas Commission on Environmental Quality (“TCEQ”) cited Houston Unlimited for these violations and required it to investigate the contamination on the ranch.  

Houston Unlimited stopped the leaks and instituted steps to prevent future leaks. Its investigation showed that there was no ongoing contamination and that only one sample result – for copper in one pond – showed an excess of a TCEQ action level, which a month later had fallen below the action level. The ranch nonetheless sued for trespass, nuisance, and negligence, alleging that it had suffered permanent damage, measured by a loss in market value of the property.

The jury found that there had been no permanent nuisance or trespass, but nonetheless awarded the ranch stigma damages.  Houston Unlimited asserts that a majority of jurisdictions reject this theory of recovery and that the decision of the lower court disregards the TCEQ’s regulatory determination as well as prior case law.  The Court’s determination – whether temporary contamination ain’t a non-compensable shame – will have significant ramifications for other pollution damage cases in Texas and possibly elsewhere.  

The blogger’s firm, Haynes and Boone, represents one of those associations – The Texas Oil & Gas Association – in this matter.

Finding Common Ground

Posted on August 1, 2013 by Irma S. Russell

Last month’s decision by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District has been the subject of intense dialogue among ACOEL members and environmental lawyers around the country. The Court’s holding that the Water District violated the Fifth Amendment just compensation clause extended the Nollan and Dolan standard to the context of denial of a permit application and raised the need for land use agreements that achieve acceptable results for all involved – a tall order.

A recently published book provides a resource for lawyers and students working in the land use arena. Land In Conflict: Managing and Resolving Land Use Disputes (Lincoln Institute, 2013) by Sean Nolon, Ona Ferguson, and Patrick Field, focuses on land use disputes over the full range of zoning, planning, and development and provides a primer for professionals on all sides of land use issues, including local planners, proponents of projects, developers and their financiers. Parties involved in land use permitting can draw on the book to consider how their conduct and orientation facilitate (or, perhaps, impair) the ability of the parties to find common ground. This book provides insights regarding the public’s right to access to information about land use projects. Both proponents and opponents to projects will gain ideas from this book on interacting effectively, whether this is in the filing process of proposing or opposing a project before a local board or department with land use authority. The orientation of this work is to focus on reconciling the interests of all legitimate stakeholders in the hope of producing, as the authors note, more durable outcomes than typically achieved in the adjudicatory approach. This mutual-gains approach has wider application than land use. It is guided by principles that move decision making away from the impasse of rights rhetoric toward decisions that seek the best alternatives for all stakeholders.

Taking the Fifth on the Fifth’s Taking Clause

Posted on June 26, 2013 by Robert M Olian

…nor shall private property be taken for public use, without just compensation.

Everyone understands the Fifth Amendment’s takings clause to mean, at a minimum, the government cannot force the transfer of private property to the government even for a manifestly governmental purpose (e.g. a highway right of way, or a new airport runway), without compensating the property owner.

Tuesday’s Supreme Court decision in Koontz v. St. John’s River Water Management District is the latest in a series of Supreme Court rulings to extend the protections of the Takings Clause beyond the obvious governmental requisitioning of private property. That’s “latest,” not “last”.

Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), combine to set forth the Court’s requirements for an “essential nexus” and “rough proportionality” between conditions on land use development and the government’s underlying objectives in the permit scheme to which the property owner is subjected. Absent either nexus or proportionality, a taking has occurred, and the Takings Clause requires that the property owner get “just compensation.” So far, so good.

The facts in Koontz are to some extent irrelevant; indeed the Court’s opinion expressly disowned any determination of the merits of his particular claim for compensation. Depending on whose brief you read, Koontz wanted to develop some wetlands property but the Water Management District refused to approve his project as proposed and put forth some mitigation options that were either “extortionate demands” or “helpful suggestions”, one of which consisted of Koontz spending money to improve public lands remote from his own property. Koontz took umbrage and sued under Florida state law.  The trial court found for Koontz on the basis of Nollan-Dolan, and the intermediate state appellate court affirmed.

The Florida Supreme Court reversed for two reasons: first, it held the Nollan-Dolan standard does not apply to denial of a permit; and second, it held the standard does not apply to a requirement for the payment of money, as opposed to the impairment of a specific piece of property.

Every Justice agreed that the Florida Supreme Court got the first part wrong; that is, they all agreed the Takings Clause applies to permit denials as well as permit approvals. The majority and dissent parted ways with respect to the second question, however, with the majority again holding that Florida got it wrong and that excluding monetary exactions would allow permitting agencies to improperly circumvent the Nollan-Dolan requirements.

Now, one can agree or disagree with the majority, but the decision hardly shocks the conscience. What the decision holds is far less important than what remains to be decided in future cases:

1.    How concrete and specific must a demanded concession be to give rise to liability under Nollan and Dolan?
2.    What happens if a permitting authority merely says, “Denied, come back with something better,” and makes no other demand?
3.    Where will the line be drawn to prevent countless local land use decisions from becoming federal cases?

On these points, the majority took the Fifth.