Natural Resources Law Outline

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Natural Resources Law Outline
Natural Resources Law (University of Michigan)
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NATURAL RESOURCES LAW OUTLINE
COURSE THEMES & OVERVIEW ............................................................................................. 3

FEDERAL POWER OVER NAT. RES. MGMT........................................................................... 9
ADMINISTRATIVE AGENCIES & NAT. RES. MGMT. ......................................................... 14
INTRO TO NAT. RES. PLANNING -- PUBLIC LANDS .......................................................... 19
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)........................................................ 22
ENDANGERED SPECIES ACT.................................................................................................. 26
FISHERIES MGMT. .................................................................................................................... 32
PROTECTED LANDS ................................................................................................................. 40
FOREST MGMT. ......................................................................................................................... 47
MINING ........................................................................................................................................ 52
WATER MGMT. .......................................................................................................................... 57

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COURSE THEMES & OVERVIEW
I. course themes
a. power
b. administrative agencies
c. planning process
d. pvt rights & responsibilities
II. production/exploitation/commoditization  conservation / preservation
a. prof. mgmt. / "wise use" / "multiple use, sustained yield" (MUSY) / pinchot v.
b. conservation / muir
III. views of "nature"
a. basic tension b/t nature as pure, untrammeled v. used by man
i. cronon, toward reinventing nature (1995) (5)
1. nature = inherent essence of s/t ("native reality"); moral imperative
("natural way"); self-conscious cultural construction; commodity;
"demonic other"; "contested terrain" (disagreement as to
meaning/purpose of nature)
ii. chase, playing god in yellowstone (1987) (3) (native tribes set fires for
ecosystem mgmt)
iii. mckibben, the end of nature (1989) (no "nature" b/c humans increasingly
shape landscape)
b. biocentrism:
i. deep ecology: all things in biosphere has equal right to life & self-realization;
all things have equal intrinsic worth; well-being if all life depends on rich
biodiversity (devall et al., deep ecology (1985) (13))
ii. land ethic: individual is member of community of interdependent parts; land-
use is not solely economic problem; "a thing is right when it tends to preserve
the integrity, stability, & beauty of the biotic community. it is wrong when it
tends otherwise"
iii. "gaia" theory: earth = complex living entity (lovelock, gaia (1979) (26)
c. anthropocentrism:
i. utilitarianism: greatest good for greatest # (JSM)  "wide use" (pinchot)
1. baxter, people or penguins (1974) (17): nature has no normative
connotations  moral superiority determined by "reference to selfish
needs of human race"  exploit productive capacities until MC = MB
for envtl preservation
ii. ecosystem services:
1. consumable ecosystem goods, e.g., fishing
2. direct, non-market uses,
a. e.g., hiking
b. e.g., existence value (knowing it exists), option value (can visit
in future)
3. indirect, non-market uses, e.g., pollution control, biodiversity, water
purification, etc.

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4. CBA: contingent valuation (WTP), hedonic pricing (how proximity o

envtl values affects mkts, e.g., real estate) & replacement cost ($$ for
replacing degraded ecosystem service)
a. discount rate?
5. may be hard to capture ecosystem service values
iii. intergenerational equity:
1. e.g., rawls: "veil of ignorance"  how resources would be managed if
didn't know when / where living
2. weiss, what obligation does our generation owe to the next? (1990)
(20)
a. conservation of options (maintain diversity of cultural &
natural resource base)
b. conservation of quality (not worse off than prior generations)
c. conservation of access (equitable rights to use resources)
d. historical evolution on views of nature in U.S.:
i. wilderness as savage nature; wilderness as barrier to progress & prosperity
ii.  age of romanticism / transcendentalism; wilderness as source of vigor,
inspiration & strength
iii.  early land policy driven by need to settle, exploit land
iv.  shift at turn of 19th C.: division b/t muir (conservation) & pinchot (wise
use)
1. until 1976 FLPMA, presumption that fed land should be given away
for pvt use
e. views of nature & fed land mgmt. policy
i. conception of "wilderness" determines baseline
1. e.g., wilderness act: wilderness = " where the earth and community of
life are untrammeled by man, where man himself is a visitor who does
not remain"
2. e.g., NP purpose: "leave unimpaired(?) for enjoyment of future
generations"
ii. nat'l forest competing values: extractive (mining [non-renewable], timber,
fish, groundwater, [renewable] etc.), ecosystem services (pollution, flood
control, etc.) & spiritual / aesthetic
1. each use has diff. mgmt. challenges
IV. difficulties in land mgmt.
a. clash of values among competing interests
b. problems of the commons:
i. rational short-term decisions lead to overexploitation (TOC)
ii. free riders
iii. collective action problem
iv. open access  hard to subdivide into private rights
v. important  everyone needs to use, so difficult to restrict access
vi. note: BUT common pool resources: self-governing commons that aren't open
access (ostrom)
vii. note: BUT less of problem when effective gov't policy & enforcement
c. mkt forces / failures:

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i. "public goods": benefits shared by all, but not owned by anyone (e.g., clean
air & water)
1. hard to value
ii. direct, indirect subsidies: distort values  promote envtl destruction
iii. externalities: when transactions impose unaccounted for costs on 3rd parties
(e.g., pollution)
1. difficult to internalize?
2. note: also positive externalities  social benefits not reflected in mkt
price
iv. coase theorem: as long as property rights clearly allocated, parties can
bargain for most efficient use of resources
d. scientific uncertainty
i. solutions: better information? adaptive mgmt.? precautionary principle?
e. biophysical scale
f. political scale:
i. geographical spillovers, inter-jdx resource competition
ii. mismatched political & natural boundaries  federalism
1. e.g., geer v. connecticut (1896) (53) (finding states owned wildlife
w/in borders)
a. BUT since overruled; fed gov't regulates wildlife extensive
(e.g., ESA)
2. local v. state v. fed resource values / policies
3. RTB concerns
4. e.g., powell, report on lands of arid regions in U.S. (1962) (55):
suggesting that western political jdx be organized around watersheds
5. ecosystem mgmt. requires complex cooperation across jdx / parties
(e.g., fed, state, local, tribal, private, etc.)
a. may also be competing regulatory entities at same level
6. jdx often determined by resource ownership
a. checkerboard ownership of nat resources / split estates (vertical
& horizontal & overlapping)
b. nature of property rights & whether certain resources can be
owned
g. temporal scale
h. institutional adequacy:
i. agency capture
ii. public choice theory: policy results from special interests
1. harder to organize large groups
2. agencies not fully accountable for decision consequences
3. "rent-seeking" opportunities
V. approaches to land mgmt. / nat res allocation
a. property rights:
i. fed gov't as property owner:
ii. confer / recognize pvt rights:
1. e.g., homestead act (transfer fee simple title from fed gov't to
individuals who settle / develop land); mining law of 1872 (patent a

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claim on fed land); offshore oil & gas leases; NF timber sales; prior
appropriations water law
2. federal purchase of land or easements for conservation
iii. privatize open access resources
1. e.g., cap & trade (mix of regulation & pvt property)
b. regulation: mandates how public & pvt resources may be used
i. command & control v. mkt based incentives (e.g., tradeable permits)
ii. source of authority
1. feds  const
2. states  police powers
c. financial penalties / payments (incentives / disincentives)
i. direct payments (e.g., conservation easements in farm bill)
ii. tax credits / deductions (e.g., mining)
iii. loan guarantees
iv. liability limitations (e.g., oil pollution act)
d. public disclosure & persuasion
i. force info gathering & publication
ii. e.g., eco-labeling, NEPA, etc.
iii. BUT social license to operate
VI. federal v. state power over land & nat resources
a. chain of title / historical ownership influences present day ownership, regulatory
authority
i. acquisition of fed public lands:
1. from original colonies: westward lands ceded to fed gov't  limited
fed land (had to be purchased by fed gov't)
2. from european powers: granted directly from foreign powers to fed
gov't  lots of fed land
3. from texas: granted / sold to fed gov't  limited fed land
a. TX was interim independent sovereign before being admitted
to union
4. from indian tribes: granted first to european powers later transferred to
fed gov't or transferred directly to fed gov't
a. indian title could be extinguished by purchase or conquest
i. note: fed gov't need not compensate tribes for
extinguishing rights to occupancy
b. even though indians retain right of occupancy, fed gov't lays
claim to ultimate title
c. johnson v. m'intosh (1823) (88) (finding that only fed gov't
could extinguish tribal right to occupy land)
i. voids sale of lands by tribe to pvt party in favor of
subsequent pvt fed patent claim on same land
transferred from tribes to fed  tribes could not
transfer ultimate title to land, only right of occupancy,
so fed claim to title superior to original grantees'
d. tribal treaties circumscribe rights of occupancy

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e. tribal rights may extend to land they don't occupy (e.g., hunting
& fishing)
ii. public lands: includes all lands under fed ownership
iii. public domain: only lands that were always owned by US (not acquired from
states)
b. equal footing doctrine (EFD) (northwest ordinance):
i. pollard v. hagan (1845) (97) (finding that EFD requires only that states be
admitted as equal sovereigns to original 13 colonies, not that fed gov't be
unable to reserve fed lands in those new states)
1. subsequent states have same legal rights / powers as original states
2. note: finding that states still had authority to regulate public lands so as
to deny fed gov't plenary power over fed lands later overturned
(essentially treat fed gov't like basic proprietor)
a. e.g., kleppe v. new mexico
b. decision limited fed plenary power to enclave clause (under
which DC created)
3. note: submerged lands: to be on equal footing, new states must retain
ownership over submerged lands (as part of PTD) (no longer good
law, but survives in form of presumption)
a. presumption of state ownership of land under navigable water
(navigable in fact, capable of sustaining commerce)
b. e.g., montana v. united states (1981) (103) (finding that tribes
could not regulate hunting & fishing on river flowing through
tribal reservation b/c state not expressly deprived of ownership
in fed treaty w/ tribe)
i. BUT united states v. alaska (1997) (103) (applying
presumption less strongly in recent years)
ii. note: scrip: issued by US to pvt parties to claim ownership of certain public
lands esp. in compensation for lands lost when conflict over land ownership
iii. EFD applies to "political rights & sovereignty, not to economic or physical
characteristics" (e.g., coyle v. smith (1911) (101))
VII. limits on fed / state decision-making on public lands
a. states:
i. state constitutions & statutes
ii. fed preemption
iii. public trust doctrine (PTD)
1. illinois central RR v. illinois (1892) (105) (finding that state could not
sell submerged lands in lake Michigan to RR company for
development)
a. submerged lands presumed to be owned by state
b. states obligated to hold submerged lands in trust for the public
i. trust resources cannot be fully privatized
ii. at least some public ownership & control must be
retained
c. any state grant of trust resource to pvt party is revocable

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2. applies to: private water rights, navigation, commerce, fisheries,

recreation & aesthetics (as developed in later cases)
b. fed const
i. 5th amend, 14th amend
ii. 1st amend
VIII. fed disposition of fed resources
a. 3 main periods: disposition, reservation & mgmt.
b. disposition:
i. fed land grants to states in state enabling acts
1. fed land grants may be made in subsequent legislation too (e.g., land
grant schools, sale of fed lands w/ proceeds for education, etc.)
2. fed gov't disclaims rights of states to tax fed lands not granted in state
or for states to regulate those lands in way that interferes with fed gov't
mgmt. of those lands
ii. land grants to settlers
1. initially, surveyed land auctioned in sections  led to squatting,
conflicts over land b/t settlors & purchasers
2. preemption acts: allowed pvt claims in all public domain land
(surveyed or not)
3. homestead act: free patents on fed land if can file claim & prove
residency for certain time periods
a. subject to fraud & abuse
b. note: other acts also allowed for pvt rights in land when
developed or used in some fashion (e.g., timber culture act,
desert land act of 1877, placer act of 1870, general mining law,
etc.)
iii. land grants to RRs
c. federal land retention / reservations:
i. reservations of lands in public domain:
1. when fed gov't retains control over fed land rather than giving it states
/ private parties  doesn't necessarily preserve land for particular use
2. some statutory authorization
a. e.g., general revision act (permitting fed lands w/ timber
growth to be set aside as public reservations)
b. e.g., NP enabling acts
c. e.g., petroleum reserves
3. may be express reservation by cong., exec. reservation under delegated
authority, or unilateral exec. action
ii. executive withdrawals:
1. when exec. withdraws fed land from specified use
2. united states v. midwest oil (1915) (133) (upholding FDR's
reservation of fed land for bird reserves despite oil placer act allowing
pvt development for petroleum )
a. cong tacit approval in exec. withdrawals even if not express
statutory authorization

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b. under property clause (PC), cong has both legislative &

proprietary powers w/r/t managing fed lands
i. can exclude land for particular uses
ii. exec = congressional agent
c. note: generally broad reading of PC & exec. authority despite
lang in PC restricting proprietary role to cong
3. note: exec's implied withdrawal authority ended under FLPMA
a. BUT express authority under 1906 antiquities act endures
d. 1976 federal land policy & mgmt. act (FLPMA) = reversal in policy from giving
away lands for development to preserving them
i. note: BLM tends to manage lands w/ no specified purpose
1. FLPMA serves as BLM organic act, adopts MUSY policy
IX. outstanding fed / state issues:
a. western states lose revenues due to major fed holdings
i. fed statutes provide revenue to states to make up loss
1. e.g., timber harvests pay for education
2. e.g., payment-in-lieu-of-taxes act provides fed $$ based on formula
determined by acreage & pop.
3. e.g., proceeds clauses: % revenue from fed land sales
b. checkerboard / split estate legacy from fed land policies
i. fed / state land exchanges
1. e.g.,. FLPMA: only if "in public interest"
ii. fed purchase of state lands, e.g., land & water conservation fund (from oil &
gas leasing revenues)
FEDERAL POWER OVER NAT. RES. MGMT.
I. state power over nat. res.: police power (inherent aspect of sovereignty)
a. `10th amend  powers not granted remain in states, individuals
b. states transfer power to fed gov't
c. state limits:
i. state constitutions / laws
ii. preemption, DCC
iii. PTD
II. fed gov't: enumerated powers (in const)
a. property clause
b. commerce clause
c. treaty power
d. war powers
e. spending powers
III. fed power limits:
a. 1st amend: free speech, exercise / establishment clauses (e.g., native amer. use of
lands for religious purposes) \
b. 2nd amend: right to bear arms (even in NPs?)

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c. 5th amend: takings, EPC

d. 4th amend: privacy rights
IV. property clause (PC): "The Congress shall have power to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property belonging to the
United States"
a. note: regulatory power enhanced by ownership  may even radiate out from land
b. fed land
c. kleppe v. new mexico (1976) (148) (finding that US restrictions on taking wild
burros on US public lands preempted state law permitting livestock bd. to round up &
sell wild burros on public lands, including fed land)
i. PC = allows cong to exercise both proprietary & legislative power over public
domain  "complete power" (essentially plenary or police power)
1. necessarily includes power to regulate / protect wildlife living there
ii. rejects assertion that states need to consent to fed regulation of fed lands
1. supremacy clause: state law preempted in conflict w/ state law
iii. note: omaechevarria v. idaho (1918) (155): no dormant property clause 
states can act unless explicit conflict w/ fed law
1. e.g., most state criminal laws still in effect on fed lands
d. minnesota v. block (8th cir. 1982) (158) (holding constitutional provision in
boundary waters canoe area wilderness act implemented by regs barring use of
motorized boats w/in wilderness area, but occurring on private / state-owned lands)
i. PC = cong has power to dedicate fed land for particular purpose  necessary
incident = power to insure lands protected against interference w/ that purpose
1. cong may regulate conduct off fed land that interferes w/ designated
purpose of land
a. here, purpose is wilderness area
2. cong has primary discretion to determine what is "needful" under PC
ii. note: protection of use of land, not land itself as w/ kleppe
e. note: no real limit on cong power to regulate under PC
i. except: when limited by BORs (e.g., 1st amend)
ii. agency must also comply w/ cong intent -- i.e., what is "needful" determine by
meaning of statute
f. e.g., unlawful inclosure act: camfield v. united states (1897) (155) (finding rancher in
violation of fed UIA when placed fence around fed property, but only on private land)
i. note: NWF used law & PC powers to enjoin fence-building on pvt property
that restricted antelope migrations on public lands
V. other nat. res.
VI. commerce clause: "[The Congress shall have Power] To regulate Commerce with
foreign Nations, and among the several States, and with the Indian tribes"
a. geer v. connecticut (1896) (163) (overruled by hughes v. oklahoma (1979) (167))
(finding that CT law barring the interstate sale of game birds did not violate DCC)
i. state ownership over wildlife in state
1. taking of wildlife is local in nature, so state can regulate taking stage
even if intended for trade in interstate commerce
2. regulating takings also maintains supply of wildlife for state citizens
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b. sporhase v. nebraska (1982) (166) (finding DCC violation when state statute
prohibited export of water out of state even though legitimate state interest in
protecting its water supplies)
i. DCC test:
1. if explicit discrimination against interest commerce
a. state must show legitimate local purpose that can't be served
just as well by less discriminatory means
b. e.g., maine v. taylor (1986) (166) (upholding maine
restrictions on import of baitfish b/c no other adequate way to
protect local fisheries from parasites)
2. if not explicit discrimination & burden only incidental:
a. uphold law if burden not clearly excessive in relation to local
benefits
c. note: can burden commerce if universal application (e.g., taxes)
d. gibbs v. babbit (4th cir. 2000) (174) (upholding under CC fed regs concerning
limitations on taking introduced red wolves on pvt property in effort to bolster
endangered red wolf pop. under ESA in NC & tenn.)
i. rational basis review (lenient)  defer to cong if at all reasonable
ii. CC scope:
1. use of channels or interstate commerce
2. instrumentalities of interstate commerce, or persons & things in
interstate commerce
3. activities having substantial relation to / affecting interstate commerce
a. activity must be some "economic endeavor" (broadly
interpreted)
i. red wolves: wolf-related tourism; scientific research;
goal of restoring trade in fur pelts; impact on livestock
(can regulate b/c wolves affect livestock, not b/c
restrictions on killing necessarily promote livestock
mkt)
b. covers activities that viewed in aggregate affect interstate
commerce (if economic in nature) (1st level aggregation)
i. view potential impact on commerce b/t red wolf pop.
now & recovered red wolf pop.
ii. if red wolf program overall (e.g., regulating red wolves)
meets CC test, don't need to show that each part of
program does (2nd level aggregation)
e. BUT SEE SWANCC v. US army corpos of eng'rs (2001) (183) (interpreting the
CWA not to apply to isolated wetlands, not adjacent to navigable water  avoiding
const. Q re: scope of CC powers)
VII. treaty power: "[The President] shall have Power, by and with Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur…"
a. missouri v. holland (1920) (169) (upholding fed regs pursuant to migratory bird
treaty act making illegal killing, capturing, or selling birds identified therein)
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i. as long as action pursuant to treaty doesn't contravene express const.

limitation on gov't, then treaty power provides almost unlimited reach for fed
reg
1. not limited by art I. enumerated powers
ii. must have nexus to treaty
iii. valid treaty trumps states' ownership of / right to regulate wildlife
VIII. limitations on fed power
a. 10th amend: "The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people."
i. unclear nat. res. application  not independent limit on fed power (garcia v.
SAMTA (1985) (173)
1. BUT may narrow fed statutory interpretations
ii. e.g., limits actions that commandeer state leg. or exec. branches to achieve fed
purposes (new york v. united states (1992) (173); printz v. united states (1997)
(173))
b. takings:
i. 5th amend: "[N]or shall private property be taken for public use, without just
compensation"
ii. 14th amend: applies 5th amend to states via DPC
iii. real property (not personal property)
1. lazarus, putting the correct "spin" on lucas (195), land historically as
"touchstone of human autonomy or the source of individual freedom"
a. now highly regulated commodity (but see lucas)
iv. physical expropriations (any physical invasion of property as result of gov't
action; no de minimis exception) & regulatory takings
1. pennsylvania coal v. mahon (1922) (185) (regulatory taking when
"regulation goes too far")
2. penn central transp. v. NYC (1978) (185) (balancing test for
regulatory takings)
a. economic impact of regulations
b. extent of interference w/ distinct IBEs
c. character & purpose of gov't regulations
i. valid purpose
ii. least intrusive means
d. note: in short, whether pvt cost disproportionate to public
benefit; but dynamic, fact-specific inquiry
3. lucas v. south carolina coastal council (1992) (185) (categorical or
per se takings as result of economic wipeout of property, involving
state reg prohibiting development of beachfront parcels -- mostly
underwater, except certain times of year)
a. categorical rule: where reg causes deprivation of total
economic benefit  automatic taking
i. no balancing
ii. exception: where use would have been prohibited by
CL (e.g., nuisance)
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1. BUT still restricts state legislatures from

radically changing property rights rules
b. note: almost impossible to show all beneficial uses
extinguished (e.g., camping, payment for land conservation,
etc.)
4. temporary taking:
a. first english evangelical lutheran church of glendale v.
county of LA (1987) (195) ("where…activities have already
worked a taking of all use of property, no subsequent action by
the gov't can relieve it of the duty to provide compensation for
the period during which the taking was effective")
i. note: lucas awarded temporary taking on remand for
when development not permitted
b. BUT SEE tahoe-sierra preservation council v. tahoe
regional planning agency (2002) (196) (total economic
wipeout has both geographical / use & temporal dimensions)
i. temporary moratorium on development not per se
taking b/c doesn't obliterate all economic benefit
5. conceptual severance (size of denominator):
a. takings analysis "does not divide single parcel into discrete
segments & attempt to determine whether rights in particular
segment have been abrogated"  focus on rights in "parcel as
whole" (penn. central)
b. segmentation generally not permitted
6. timing of takings claim: can bring takings claim even if not owner at
time of regulation (palazzolo v. rhode island (2001) (197))
7. IBEs:
a. knowledge of fed regulatory powers under PC affects IBEs 
minimizes them (united states v. locke (1985) (199) (finding no
taking based on US regs affecting mining on fed lands))
b. timing of acquisition is one factor in IBEs (palazzolo)
8. exactions: when gov't imposes conditions on property owner when
gov't approval needed for land use
a. constitutional test: conditions must (1) have "reasonable
nexus" to a legitimate state interests & (2) be "roughly
proportional" to impact of development
b. nollan v. cal. coastal comm'n (1987) (197) (public easement as
condition for remodeling oceanfront bungalow a taking b/c not
sufficiently close fit b/t condition & impairment -- blocked
view)
c. dolan v. city of tigard (1994) (198) (requirement for public
greenway on property taking b/c not roughly proportional to
impact of development)
c. 1st amend: " Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof…"
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i. lyng v. northwest indian cemetery protective ass'n (1988) (201) (finding

that fed road through NF crossing native religious areas would violate 1st
amend & that 1st amend would not give tribes "de facto beneficial
ownership")
1. BUT SEE employment div. v. smith (1990) (2001) (neutral gov't
policies of general application don't violate the free exercise clause;
gov't only prohibited from coercing or directly targeting religious
beliefs or conduct)
a. BUT SEE navajo nation v. USFS (9th cir. 2008) (2002)
(interpreting religious freedom restoration act to impose lyng
compelling gov't interest test rejected in smith, though
concluding use of effluent in ski area would not substantially
burden tribe)
ii. bear lodge multiple use ass'n v. babbitt (d. wyo. 1998) (203) (finding NPS
climbing plan for devil's tower nat'l monument that recommended that
climbers not use the tower in june when tribes use area for religious reasons
did not violate establishment clause)
1. establishment clause test: not unconstitutional if gov't action
a. has secular purpose
i. doesn't mean can be unrelated to religion; gov't can
interfere w/ religious missions
1. and accommodation of religious practices is
legitimate public purpose
b. doesn't have principal or primary effect of advancing or
inhibiting religion AND
i. OK if don't deprive public of normal use of area
c. doesn't foster an excessive entanglement w/ religion
i. 3 factors: (1) character & purposes of benefited
institutions, (2) nature of aid state provides & (3)
resulting relationship b/t gov't & religious authority
ii. "question of kind & degree"
ADMINISTRATIVE AGENCIES & NAT. RES. MGMT.
I. agency existential justifications / operational character:

a. scientific expertise model: technical, specialized, scientific decisions
i. hays, conservation & gospel of efficiency (211): right people + right training
= right results
ii. outgrowth from TR's progressive era, GP's technological optimism
b. interest group representation: agencies a mini-legislatures where special interests
clash
i. balance competing interests
ii. focus on transparent, accessible, & fair process, not substantive outcomes
c. public choice theory concerns:
i. agency capture: regulated industry can influence agency decisions
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ii. agency-self interest: increase power; perpetuate agency importance w/r/t

public interest
iii. political influence
1. BUT at least some "independent" agencies
II. basic statutory framework:
a. organic acts: basic statutory blueprint describing agency's goals, policies, functions &
purpose
b. overarching statutes: APA, NEPA, ESA, etc.
i. e.g., northern spotted owl v. hodel (w.d. wash. 1988) (230) (remanding
decision not to list owl under ESA back to agency b/c conclusion not
supported by any expert analysis in record)
c. specific, substantive statutes: e.g., enabling acts
d. EOs
III. constitutional considerations:
a. judicial review (see below)
b. due process
c. SOP / non-delegation doctrine:
i. united states v. grimaud (1911) (213) (upholding congressional delegation to
DOA in FS organic act to prescribe regulations & penalties for ranchers
grazing on fed lands w/o permission)
1. cong "merely conferring administrative functions upon an agent, not
delegating…legislative power"
a. too burdensome for cong to manage these resources
2. DOA's rules constrained by "maters clearly indicated & authorized by
cong"
ii. j.w. hampton v. united states (1928) (214) (statutory language must provide
"intelligible principle")
IV. agency actions:
a. APA
i. rules: decisions that affect general class of people, establishing standards of
conduct for future activities when implementing law
1. RM'ing: process for producing rules
a. e.g., listing species under ESA
b. formal v. informal (N&C)
i. informal still requires published notice; description of
proposed rule; source of authority; opportunity to
comment; final rule w/ concise statement of "its basis &
purpose" (including response to categories of submitted
comments)
c. can challenge each procedural step
d. BUT under APA some "rules" not subject to N&C
i. e.g., interpretive rules, general statements of policy, or
when agency has "good cause" & provide statement as
to why N&C procedures "impracticable, unnecessary,
or contrary to the public interest"
ii. orders: agency decisions w/r/t specific facts
15

lOMoARcPSD|7881402
1. adjudication: process for producing orders

a. e.g., enforcement actions
b. formal (uncommon): trial-type procedure when protecting
constitutional rights (e.g., property rights)
i. statutory must have magic language
c. informal: must comply with min req'ments in § 555 (e.g., right
to counsel, right to appear before agency in proceeding, brief
statement of grounds for decision, etc.)
i. BUT agencies may tailor procedures for own needs
V. judicial review of agency actions:
a. standard of review (APA)
informal actions  A&C, abuse of discretion or otherwise not in accordance w/ law

 contrary to constitutional right, power, priv' or immunity
 in excess of statutory jdx
 w/o following procedure req'd by law
formal  substantial evidence
i. note:
1. factual determinations: A&C, rational basis
2. statutory interpretations: not in accordance w/ law
ii. A&C: motor vehicle mftrs. ass'n v. state farm mut. auto ins. (1983) (227)
1. rational connection b/t facts & choice made
2. whether decision based on consideration of relevant factors
3. whether there's clear error of jdgmt
4. A&C if:
a. relied on factors cong didn't intend agency to consider
b. failed to consider important aspect of problem
c. offered explanation for its decision that runs counter to
evidence before it
d. so implausible that it can't be ascribed to difference in view or
product of agency expertise
5. note: decision to rescind agency rule subject to same A&C std as
promulgating rule in first place
6. note: generally very deferential; agency usu. win if at least some
factual support for their decisions
a. battle of experts goes to agency
iii. judicial review must be on the whole record before the agency at the time it
made its decision
1. reviewing ct generally reviews only the record
2. citizens to preserve overton park v. volpe (1971) (227) (taking "hard
look" at agency action & remanding for failing to provide ct w/ whole
record to review)
iv. chevron v. NRDC (1984) (228) (2-step test for deference to agency
interpretations of statutory lang)
1. if statutory lang or cong intent is clear, then no deference to agency
16

lOMoARcPSD|7881402
2. if ambiguity, then uphold agency interpretation as long as based on

"permissible" / reasonable construction of statute
3. note: applicable only to formal/N&C RM'ing & formal ajdx's
a. BUT in US v. mead, can apply chevron if agency action
fundamentally like a rule
v. skidmore v. swift & co. (1944) (229) (applies to non-chevron interpretations
of statute)
1. weight of agency decision depends on:
a. thoroughness of evidence in its consideration
b. validity of its reasoning
c. consistency w/ earlier & later pronouncements
d. other persuasive powers
vi. APA remedy: always to remand to agency for further consideration, since
purpose is merely to ensure agency acting w/in bounds of law
b. APA citizen suits
i. evidence must appear in agency record, not in ct
ii. can only sue agencies
iii. std of review (see above)
iv. if no citizen suit provision, must rely on APA
v. can sue to overturn / set aside "agency action" or compel where inaction
("agency action unlawfully withheld or unreasonably delayed")
1. also stated as "final agency action" or "failure to act"
2. if inaction  comply w/ SUWA v. norton limits: a discrete action that
is legally required)
c. statutory citizen suits:
i. in contrast to APA:
1. statute requires specific substantive outcomes
2. can sue agency officials for failing to carry out "non-discretionary"
statutory duty; can sue statutory violators
3. pvt attys general: can sue both agencies & pvt violators
4. can supplement agency record w/ additional evidence in ct
5. std of review likely to be more "searching"
6. remedy:
a. may be remand, but may also be direct order to comply w/
substantive provision of law
b. may get costs + attys fees
c. may get civil penalties (payable to US gov't)
ii. substantive limitations:
1. can't sue gov't: sovereign immunity
2. some violations just not covered
iii. procedural limitations:
1. can't sue if gov't commenced & is "diligently prosecuting" civil or
criminal action or has initiated some enforcement proceeding
2. 60-day notice req'ments
a. preempted if come into compliance in that time
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lOMoARcPSD|7881402
3. must file for review in DC circuit court for APA cases; can file in dist.
cts. for citizens
d. standing:
i. constitutional req'ments:
1. injury in fact
a. sierra club v. morton (1972) (242): economic, aesthetic,
conservational, & recreational & can be widely shared by
public
2. causation
3. redressability
4. note: derives from SOP concerns; avoid generalized grievances (lujan)
ii. APA req'ment: "zone of interest" sought to be protected by statute (N/A in
statutory citizen suit)
1. e.g., pro-development Ps often can't sue under APA to enforce NEPA
b/c not concerned w/ envtl protection
a. BUT SEE bennett v. spear (1997) (243) (allowing ranchers to
sue under ESA b/c citizen suit provision applies to "any
person") (not APA case)
iii. organizational standing req'ments: hunt v. wash. state apple advertising
comm. (1977) (242)
1. one or more members must satisfy basic standing req'ments
2. relief sought = "germane to organization's purpose"
3. neither claim nor attested relief requires participation of individual
members
iv. note: level of proof for standing varies depend on stage: pleading stage less
demanding than S/J
v. lujan v. defenders of wildlife (1992) (244) (finding that Ps didn't have
standing to challenge DOI revision to ESA regs that determined that
consultations req'ments only applicable to agency actions in US or on high
seas, not in foreign country)
1. injury in fact: "legally protected interest" that is "concrete &
particularized" & "actual or imminent," not "conjectural or
hypothetical"
a. standing for regulatory beneficiary "substantially more
difficult"
b. Ps didn't have concrete plans to return to places where critical
habitat for endangered species was located
c. note: procedural injury: can have standing w/o having normal
stds for redressability & immediacy
i. but must have underlying "concrete interest"
2. redressabiltiy: must be "likely" not just "speculative" that injury will
be redressed by favorable decision (DICTA: CON only agreed w/ IIF
analysis)
3. CON (KENNEDY): doesn't foreclose "ecosystem," "animal," or
"vocational" nexus theories, though not applicable here
18

lOMoARcPSD|7881402
a. BUT concerned w/ new rights of action not associated w/

specific class of injuries & people
vi. mass. v. EPA (2007) (255) (affirming looser standing req'ments for
procedural injuries & noting that states get "special solicitude" when suing on
behalf of citizens as parens patriae to protect sovereign interests)
e. other issues:
i. ripeness:
1. abbott laboratories v. gardner: whether issue fit for judicial
resolution (factual development? agency have chance to correct
error?) & whether w/holding review will cause hardship to P
2. e.g., ohio forestry ass'n v. sierra club (1998) (257) (denying review of
LRMP where it didn't actually approve any logging, just zoned for it)
ii. exhaustion: Ps must avail themselves of all available administrative remedies
before resorting to courts
1. failure to raise issue in administrative proceeding may also bar later
raising that issue in ct
2. exceptions: where administrative process is inadequate OR where
exhaustion would be futile
3. note: agency must stay operation of adverse decision pending
administrative review
VI. note: 3rd party organizations may influence agency actions & nat. res. law generally
a. 3 roles: advocacy; think tank & expert analysis; mkt actor (e.g., buying lands to
conserve / manage)
b. e.g., lobbyists, envtl groups, scientific experts
i. advocacy groups increasingly nat'l in focus, though still diversity
ii. funding from grassroots & large foundations
INTRO TO NAT. RES. PLANNING -- PUBLIC LANDS
I. basic planning statutes: NEPA, magnuson-stevens fishery conservation & mgmt. act,
ESA, CZMA, nat'l forest mgmt. act (NFMA), FLPMA, national wildlife refuge
improvement act
II. elements:
a. process for making decisions
i. inventory
ii. classification / zoning (integrated plan)
iii. site-specific implementation (site plans)
b. substantive decision-making rule
i. based on what informational & procedural req'ments
ii. may have to resolve conflicting values ("clash of values"), e.g., MUSY
iii. scientific uncertainty
iv. mismatched biophysical & political scale
c. who makes decision:
i. planning process may be stakeholder- or agency-driven
d. binding on future agency actions
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lOMoARcPSD|7881402
i. both plan development & plan itself, which can be binding on future agency
actions, may be basis for challenges via litigation
1. statutory-specific citizen suit provision & APA
2. may need to exhaust intra-agency appeals process before filing suit
("exhaustion of remedies") (e.g., BLM independent review board
(305), FS appeals reform act (306))
III. note: NEPA, ESA may superimpose req'ments on agency planning even when they have
statutory-specific planning req'ments to follow
IV. BLM planning process: FLPMA (298)
a. resource mgmt. plan (RMPs): prepared by BLM area manager  approved by state
BLM director
i. cover multiple-use issues in individual res. mgmt. area
ii. articulate what activities may be allowed in planning area & under what
general conditions (like zoning regs)  divide planning areas into diff. mgmt.
areas & establish what future uses allowed in those areas
iii. substantive req'ments:
1. BLM must "use & observe principles of MUSY" (see below)
2. RMPs must provide for compliance w/ applicable pollution control
laws
3. RMPs should (agency guidelines):
a. establish what lands will have limited, restricted, or exclusive
use
b. resource uses that will be allowed & levels of production or use
that will be maintained
c. resource condition goals & objectives
4. RMPs must give priority to "designation & protection of areas of
critical envt concern (ACEC)"  must possess substantial resource
values in need of protection
a. plans generally include special mitigation measures for
resource-development activities in affected areas
5. RMPs may determine what lands are subject to certain uses & baseline
conditions for such use (e.g., mineral leasing, motorized vehicles, etc.)
6. note: in addition to RMPs, BLM prepares "activity-level" plans that
provide more specific direction for certain activities (e.g., habitat
mgmt. plans)
iv. process req'ments:
1. fed. reg. notice
2. public comments on RMP scoping
3. public comments on proposed planning criteria for plan development
4. fed reg. publication of draft RMP plan & draft EIS, subject to more
public comment
5. fed reg. publication of final proposed RMP & EIS, subject to public
review before final approval by state director
a. NEPA req's evaluation of different plans, considering their
physical, biological, economic & social effects  preferred alt
recommended for approval
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lOMoARcPSD|7881402
b. when RMP in place, all subsequent mgmt. decisions must be consistent w/ the plan
i. e.g., while don't approve specific activities, indicate which activities may be
approved consistent w/ the plan & often lays out minimum (but not max)
req'ments for approval
c. on-the-ground projects allowed after site-specific analysis, e.g., ensure compliance w/
NEPA, ESA, etc.
d. note: independent board for challenge to agency decisions (must exhaust before filing
suit)
V. USFS planning process: NFMA
a. renewable resources assessment & program: creates resource baseline; evaluates alt.
nat'l goals & objectives or renewable resource outputs / tentative objs for forest
planning area (nat'l level)
b. land & resource mgmt. plan (LRMP): prepared for each national forest or grassland
(though one may cover multiple)  approved by regional forester
i. articulate what activities may be allowed in planning area & under what
general conditions (like zoning regs)  divide planning areas into diff. mgmt.
areas & establish what future uses allowed in those areas
ii. substantive req'ments:
1. LRMP mgmt. prescriptions "will not produce substantial & permanent
impairment of the productivity of land"
2. LRMPs will provide for "MUSY of goods & services in way that
maximizes LT net public benefits in environmentally sound manner"
a. economics only one factor in assessment
b. regulations provide for achievement of envtl goals
3. LRMPs divide forests into different mgmt. areas w/ different priorities
(e.g., habitat for species, production of certain commodity resource,
etc.)  establish stds for future use of those areas
4. LRMP mgmt. prescriptions must meet certain regulatory req'ments for
resource protection (e.g., conservation of soil & water & not result in
significant impairment of productivity of land)
5. overall, must be consistent w/ multiple-use objectives
a. BUT agencies have a lot of discretion to determine appropriate
uses, so long as multiple are considered
6. LRMPs must identify lands not suitable for timber production
(reviewable every 10 years)
7. LRMPs must reflect FS limitations on when certain harvesting
techniques (e.g., clearcutting, etc.) can be used
8. LRMPs establish allowable timber sale quantity from planning area
over planning period based on LT sustained yield of forest capacity
a. max allowed  actual sale could be less
iii. process req'ments: fewer req'ments than BLM
1. fed reg. notice of preparation, revision, or significant amendment
a. request comments on scoping/ issues of concern
2. prepare draft LRMP & draft EIS identifying preferred alt.
a. make available for public comment for 3 months; hold some
public meetings
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lOMoARcPSD|7881402
i. methods for more extensive involvement at discretion

of FS
3. prepare final LRMP & EIS & respond to public comments
a. available for public review for 30 days before approval
c. when LRMP in place, all subsequent mgmt. decisions must be consistent w/ the plan
i. e.g., while don't approve specific activities, indicate which activities may be
approved consistent w/ the plan & often lays out minimum (but not max)
req'ments for approval
d. on-the-ground projects allowed after site-specific analysis, e.g., ensure compliance w/
NEPA, ESA, etc.
e. note: internal administrative process for challenging FS decisions (must exhaust
before file suit)
VI. norton v. southern utah wilderness alliance (2004) (307) (finding that under APA,
wilderness act & land use plan, DOI's failure to act in protecting WSA against
impairment from ORVs did not constitute reviewable final agency action; also finding no
supplemental EIS for ORV impact req'd)
a. APA's "failure to act"  must be "discrete action"
b. APA's authorization to cts to compel agency action "unlawfully withheld"  action
must be "legally required" / "required to take"
i. specific, unequivocal demand
ii. precise, definite act, involving no discretion whatsoever
c. "non-impairment" requirement for WSAs under wilderness act specific objective, but
not specific in how to achieve it
i. agency exercising lawful discretion
d. agency plan didn't have "clear indication of binding commitment"
i. also not final implementation decision on actions that require further plans,
processes, etc.
ii. land-use plan "generally a statement of priorities; it guides & constrains
actions, but [often] does not prescribe them"
e. note: supplemental EIS not required b/c no major fed action re: the mgmt. of
contested area remained
f. note: SUWA decision promotes vagueness in agency planning processes to avoid
binding commitments
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
I. information-forcing: requires agencies to consider envtl impacts of their decisions

II. no citizen-suit provision  enforcement through APA C/A
III. substantive outcomes not req'd: purely procedural (robertson v. methow valley citizens
council (1989) (261))
a. BUT must adequately consider envtl harms (calvert cliffs coordinating comm. v. US
AEC (DC cir. 1971) (261) (requiring that nuclear plant licensing agency must
consider envtl info under NEPA)
b. AND NEPA analysis must pass A&C review under APA
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lOMoARcPSD|7881402
IV. CEQs issue NEPA regs  binding on all fed agencies via EOs (robertson v. methow
valley citizens council (1989) (259))
a. CEQ regs entitled to substantial deference by cts (andrus v. sierra club (1979) (260)
b. agencies may supplement w/ own rules
c. EPA can comment on EIS
V. when EIS must be prepared
a. EIS must be prepared for "major fed actions significantly affecting the quality of
the human envt"
b. EIS must include:
i. envtl impact of proposed action
ii. adverse envtl effects that can't be avoided
iii. alternatives to proposed action
iv. relationship b/t short-term use of envt & maintenance of long-term
productivity AND
v. any irreversible & irretrievable commitments of resources involved in
proposed action
c. CEQ regs define major fed actions
d. "categorical exclusions": actions that have been found by rule not to individually or
cumulatively have significant effect on envt
i. still subject to APA review, so have to provide evidence for CE (e.g.,
heartwood v. USFS (s.d. ill. 1999) (274) (no CE for timber sales b/c agency
didn't explain action))
e. envtl assessment (EA): concise public document used to provide sufficient info to
determine if EIS is warranted & to analyze possible alts such that EIS may not be
needed
i. FONSI: finding of no significant impact
1. also mitigated FONSI
f. at end of decision-making process, agency must issue record of decision (ROD)
regardless of outcome
g. timing: must be prepared "early enough in process so that it can serve practically as
an important contribution to the decision-making process"
i. must comply w/ NEPA before agency makes "irreversible & irretrievable
commitment" of fed resources (conner v. burford) (9th cir. 1988) (finding sale
of leases to be irrevocable commitment leading to significant surface
disturbance))
h. scale of proposed action: kleppe v. sierra club (1976) (265) (finding that regional EIS
not required when nat'l & site-specific EISs prepared in coal leasing program, turning
aside objection that nat'l EIS was too general & site specific ones too narrow)
i. comprehensive EIS appropriate where related proposals have "significant
cumulative or synergistic envtl effects"  BUT w/in agency discretion
i. tiering: preparing successive EISs from broad scale to smaller
i. programmatic  overall program
ii. site-specific supplemental EISs as appropriate
j. scope of agency action: whether something significantly affects human envt & what
EIS should cover
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lOMoARcPSD|7881402
i. CEQ definition includes "connected actions" & "cumulative actions" 

avoids segmenting projects to get around EIS req'ment
ii. "small federal handle problem": whether or not EIS should cover just portion
of project that pertains to fed action or the entire project even though the fed
portion is just a small part  cts go both ways
iii. CEQ definition includes "circumstances where the responsible officials fail to
act & that failure to act is reviewable by cts" under the APA
1. BUT cts reluctant to require EIS in these circumstances (defenders of
wildlife v. andrus (d.c. cir. 1980) (267) (finding that DOI need not
prepare EIS when allowing alaska to carry out wolf hunt on fed land
didn't require action under FLMPA  "when agency decides not to
act, and thus not to present a proposal to act" never reaches point
where has to prepare EIS))
iv. "significantly"  based on "context" & "intensity": setting may affect impact
k. thomas v. peterson (9th cir. 1985) (268) (finding that EIS needed to be developed for
new FS logging road & must consider impact from timber sales, not just road itself)
i. CEQ regs: agency must consider cumulative effects in single EIS under
certain situations to avoid undermining NEPA w/ segmentation
1. "connected actions": (1) "automatically trigger other actions which
may require environmental impact statements, (2) cannot or will not
proceed unless other actions are taken previously or simultaneously,
(3) are interdependent parts of a larger action and depend on the larger
action for their justification"
a. timber sales cannot proceed w/o road & road not built except
for timber sales
2. "cumulative actions": actions "which when viewed w/ other proposed
actions have cumulatively significant impacts"
a. comments from USFWS, EPA, & idaho F&WS raise
substantial question as to cumulative impacts of local salmon
& steelhead trout & destruction of critical grey wolf habitat
ii. precedent: must prepare EIS to cover subsequent significant impacts if they
are dependent on initial action; can only avoid cumulative analysis if project
would have "independent utility"
l. note: CEQ "cumulative impact": "the impact on the environment which results from
the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions"
m. note: "human environment": impact must be primarily physical rather than social or
economic (metropolitan edison v. people against nuclear energy (1983) (275)
(psychological trauma from fear of nuclear incident not required in EIS to restart
nuclear plant))
n. note: envtl actions & NEPA:
i. some actions under pro-envt don't need EIS on theory that NEPA's underlying
purpose = envtl protection (would be redundant) (e.g., buckeye power v. EPA
(6th cir. 1973) (273))
o. note: EIS alternative:
24

lOMoARcPSD|7881402
i. "functional equivalent": other forms of envtl review may be sufficient for

NEPA compliance (e.g, merrell v. thomas (9th cir. 1986))
p. note: EIS overseas?
i. applies to int'l actions when impact occurs in US, but not when exclusive
impact outside US  presumption against extraterritorial application (EEOC
v. Arabian amer. oil (1991) (276))
ii. when impact in global commons, e.g., high seas, impact is less clear (EDF v.
massey (d.c. cir. 1993) (276) (EIS required for incinerator built in antartica)
VI. EIS content: description of proposed action & reasonable alternatives; description of
affected envt; & alternatives impact analysis, including means to mitigate impact
a. CEQ: alternatives analysis:
i. all reasonable alternatives
ii. substantial treatment of all alternatives
iii. include reasonable alternatives not w/ jdx of agency
iv. include no action alternative
v. identify preferred alternatives
vi. include appropriate mitigation measures
vii. case law: must include actions that fairly represent range of alternatives, but
not including those that are unlikely to be implemented for legitimate reasons
(e.g., california v. block (9th cir. 1982) (278)) (may include alternatives
outside agency jdxs)  look at likelihood of implementation
b. citizens against burlington v. busey (d.c. cir. 1991) (279) (finding that FAA need
not consider more than preferred & do-nothing alts in EIS for city of toledo's
application for an airport expansion plan)
i. "goals of action delimit universe of action's reasonable alternatives"
ii. agency role / process defines scope of what's reasonable
1. `can consider applicant's goals in expansion proposal
2. here, agency's role only to approve or disapprove of application
(contra when gov't has more discretionary role)
iii. DIS (BUCKLEY): agency must examine all alternatives that are
economically or practically feasible from technical & economic standpoints
whether or not those are desirable from viewpoint of applicant
iv. note: can distinguish b/t cases where fed gov't role is proprietor (range of alts
greater) & where role simply to approve / disapprove
1. function of discretion?
c. note: mitigation: avoiding, minimizing, rectifying, reducing or eliminating impacts or
compensating for them w/ replacement resources
i. NEPA doesn't require mitigation actually occur
d. note: adequacy of analysis?
i. sierra club v. US ACOE (2d. cir. 1983) (285) (remanding EIS to agency when
analysis ignored views of experts & didn't adequately assess data)
ii. BUT when have reasonable basis for EIS content, then generally sufficient
(e.g., sierra club v. marita (7th cir. 1995) (286) (not requiring application of
conservation biology in EIS for forest mgmt. plan))
iii. scientific uncertainty:
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lOMoARcPSD|7881402
1. if critical to assessment & not too hard to produce, then EIS must
incorporate information
2. BUT if too hard to produce, then need only summarize existing
credible scientific evidence
e. note: supplemental EIS
i. [not assigned, but at pp. 288-90]
ENDANGERED SPECIES ACT
I. history: bi-partisan support, preservation oriented

II. structure:
a. § 4: species must be listed as "endangered" or "threatened" to get protection
i. factors:
1. the present or threatened destruction, modification, or curtailment of
its habitat or range
2. overutilization for commercial, recreational, scientific, or educational
purposes
3. disease or predation
4. inadequacy of existing regulatory mechanisms OR
5. other natural or manmade factors affecting its continued existence
ii. § 3: species definition: " includes any subspecies of fish or wildlife or plants,
and any distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature"
b. § 7: interagency cooperation: fed gov't duty to take affirmative action for
conservation & restoration of listed species (species level)
i. § 3: conserve definition: "the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the point at
which the measures provided pursuant to this Act are no longer necessary"
c. § 7: interagency cooperation: prohibition on fed gov't action that "jeopardize the
continued existence of any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species" (species level)
i. exemption: § 7(h): god squad
d. § 7: advance consultation req'ment for fed agencies (w/ USFWS or NOAA fisheries)
(species level): " Each Federal agency shall confer with the Secretary on any agency
action which is likely to jeopardize the continued existence of any species proposed
to be listed under section 4 or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species."
e. § 9: unlawful for "any person" to cause a "take" of "endangered" species (individual
level)
f. citizen suit provision: "any person" may sue to:
i. enjoin any person from violating provision or regulation
ii. to compel Secretary to apply prohibitions set forth in or authorized by § 4(d)
[allows for regulations protecting threatened species] or § 9(a)(1)(B)
[prohibition on taking species] w/r/t taking any resident endangered or
threatened species
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lOMoARcPSD|7881402
iii. to require Secretary to comply w/ non-discretionary duty under § 4 [e.g.,

critical habitat designation; respond to listing petition w/in 90 days]
iv. note: subject to constitutional & APA standing limitations (when APA
involved)
III. "listing"
a. can only rely on scientific evidence (not economics)
b. alsea valley alliance v. evans (d. or. 2001) (356) (finding that b/c hatchery & wild
salmon part of same DPS, they need to be considered together in listing process 
exclusive wild fish listing decision was A&C)
i. NOAA fisheries interpretation of DPS w/r/t salmon: "evolutionary significant
unit" (ESU)  reproductive isolation (geographic); important component in
evolutionary legacy of species (concerned w/ genetic diversity, uniqueness)
1. further excludes hatchery fish from listing decision b/c hatchery not
part of ESU  not "essential to recovery"
2. assumes focus on "naturally spawning fish"
ii. ESA definition of DPS includes any species that interbreeds (inconsistent w/
nat. v. non-nat. distinction made by NOAA)
1. DPS is smallest unit that agency can protect under ESA
iii. APA suit: A&C  irrational to distinguish b/t wild & hatchery fish under
both ESA lang & NOAA interpretation
1. interbreed (statutory req'ment); not reproductively isolated
iv. note: remedy to remand, though didn't actually require agency to make
substantive finding in listing process
c. BUT SEE trout unlimited v. lohn (w.d. wash. 2007) (361) (upholding distinction b/t
hatchery & wild populations  ESA "polestar is viability of naturally self-sustaining
populations in their naturally occurring habitat")
d. note: listing process could present conflict b/t fed & state mgmt. programs where
listing basis is inadequacy of state regs
e. note: delisting: all "listing" factors must be satisfied
i. greater yellowstone coalition v. servheen (9th cir. 2011) (CTools) (finding
that de-listing decision based on grizzly bear recovery plan was A&C b/c it
failed to consider adverse climate change impact on whitebark pine pop., a
primary source of food for the bears)
1. "other natural or manmade factors affecting grizzlies' existence"
a. invoking scientific uncertainty not enough  USFWS must
specifically address why uncertainty regarding whitebark pine
beetle viability counsels de-listing now
2. note: never reaches Q of whether voluntary measures sufficient under
regulatory measures factor b/c determined that mandatory measures in
plan were sufficient
IV. § 4: critical habitat designation
a. critical habitat must be designated w/in 1 year of listing decision for endangered &
threatened species
i. based on both scientific & economic considerations  fallout from tellico
dam decision (TVA v. hill)
ii. need not identify if "not prudent" or habitat "not determinable"
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b. non-discretionary duty  can be sued under citizen-suit provision

i. lawsuits interfere w/ agency budget allocations, listing priorities
ii. CBD initiates a lot of lawsuits
c. only 1 in 4 species have critical habitat designations
i. BUT OK for ESA goals  never modification of critical habitat w/o also
finding jeopardy to species under § 7
d. note: designation only applies to § 7 prohibition on agency actions that modify
critical habitat (not private actors)  since jeopardize & modification of critical
habitat overlap, no problem w/ limited designations
V. § 7: fed gov't duty to take affirmative action for conservation & restoration of listed
species (species level)
a. affirmative duty: conservation requires active agency efforts to restore species to non-
threatened/endangered levels (applies to all agencies)
i. e.g., sierra club v. glickman (5th cir. 1998) (367) (relying on conservation
duties to require DOA to develop program for conserving listed species
threatened by certain agricultural & water mgmt. practices & to consult w/
USFWS on that program)
ii. note: contours of duty not fully developed
b. FWS/NOAA fisheries' recovery plans: plans for conservation & survival of species
w/ priority given to those species most likely to benefit, particularly those in conflict
w/ economic development activity
i. no deadlines for plan development
ii. don't need to have recovery plan for every species if won't promote recovery
iii. applies to both threatened & endangered species
iv. contents:
1. designation of relevant species pop.
2. required recovery actions
3. recovery criteria: demographic; criteria
4. monitoring / updating
5. strategy for eventual de-listing
v. failure to create recovery plan can't be challenged: discretionary, so
unavailable under ESA citizen suit provision & APA (SUWA)
VI. § 7: agencies must ensure they don't jeopardize continued existence of listed species or
destroy or adversely modify critical habitat of listed species
a. e.g., TVA v. hill (1978) (369) (enjoining TVA from building dam that would
eradicate subspecies of snail darter)
b. note: "god squad" exemption from § 7 req'ments: (1) no "reasonable & prudent" alts,
(2) benefits of actions "clearly outweigh" envtl costs & (3) action is of "regional or
nat'l significance"
i. rarely used
c. § 7: advance consultation req'ments: ensures no jeopardy / adverse habitat
modification
i. "informal consultation" to determine if species likely to be affected by
discretionary agency action (e.g., permits, grants, etc.)  biological
assessment (BA) done by action-taking agency (not USFWS/NOAA fisheries)
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1. note: consultation req'ment doesn't apply to non-discretionary duties

(nat'l ass'n of home builders v. defenders of wildlife (2007) (371))
ii. "formal consultation" of likely to be affected: BO preparation by
USFWS/NOAA fisheries
1. BO must suggest reasonable & prudent alts (RPAs) / mitigation
measures to be taken if jeopardy would otherwise be likely to occur
a. agency has discretion to choose among alts under assumption
that all prevent causing jeopardy, etc.
b. note: though, in theory, still subject to challenge if actually
jeopardizing species, but must overcome substantial deference
2. if activity wouldn't cause jeopardy, but would "take" individual
members, can issue ITP w/ BO
iii. note: geographical scope: BO not req'd for int'l activities, but must have one
for domestic activities & ones occurring on the high seas
1. unclear if applies to domestic actions w/ int'l impacts (374)
d. southwest center for biological diversity v. US bureau of reclamation (9th cir.
1998) (375) (upholding BO, RPA & ITP for bureau activities on lake mead / col. river
under APA where "rational connection" to facts in BO and the final RPA adopted)
i. note: suit filed under APA when ESA citizen suit provisions didn't provide
judicial review BO
1. apply state farm factors to RPA rational basis review (look at RPA in
context of statutory goals, evidence, etc.)
VII. § 9: unlawful for "any person" to cause a "take" of "endangered" species (individual
level)
a. applies to both private & public actors
b. limitations:
i. N/A to "threatened" species
1. but DOI may by regulation prohibit taking of any threatened species
under § 4
a. note: current regs apply all § 9 prohibited acts for "endangered"
species to threatened species, subject to some exceptions (e.g.,
polar bears) (385)
ii. N/A to plants, only to fish & wildlife species
1. applies only to some fish & wildlife species (listed in statute)
c. § 3: "take": "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct"
i. note: don't need specific intent; simple "knowledge" sufficient
ii. historical: reduce to possession by killing
iii. BUT statutory definition broader: includes direct & indirect takes
1. USFWS regs interpreting "harm": act that actually kills or injures
wildlife & "significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral alters, including breeding, feeding, or sheltering"
2. e.g., palila v. hawaii de't of land & nat. res. (9th cir. 1988) (387)
(finding a take when state introduced sheep into pilila's habitat &
competed w/ pilila for food sources)
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a. applies purpose-driven interpretation

b. note: bird as P could raise standing issues, but generally not
problem b/c other Ps would have standing
3. babbit v. sweet home ch. of communities for a greater oregon
(1995) (389) (upholding USFWS interpretation of harm to include
adverse habitat modification for timber activities that might impair
spotted owls)
a. plain meaning of "harm" supports indirect takes
b. statutory purposes support broad interpretation
c. statutory structure: ITP provides for mechanism to allow
incidental takes, as appropriate
d. statutory structure: purchasing land for conservation is
complementary, not exclusive, means of protecting habitat
e. note: decision seems to permit statistical evidence to be used to
show a take
f. CON (O'CONNOR): reg OK, subject to some limitations:
i. must satisfy proximate causation:
1. fairness? foreseeability?
2. BUT still strict liability provision (fault / mental
state not considered)
ii. activity must actually kill or injure individual animals
iii. in some cases, may not be appropriate (e.g., pailila bird)
g. note: jdx split re: causation std
h. note: facial challenge to regulation  just needed to find
reasonable in at least some plausible instances
i. note: both MAJ & CON agree that statute is strict liability 
differences have to do w/ causation
d. note: climate change & ESA
i. reluctance to ESA as way to address broad policy issues
1. causation limits (esp. proximate cause) may limit citizen suit
provisions involving takes & CC (e.g., ruhl,. climate change & the
ESA (381))
2. BUT may be factor in listing / de-listing decisions (e.g., greater
yellowstone coalition)
e. note: vicarious takes: when gov't permits or allows takings to occur but doesn't
perform unlawful activity itself
i. strahan v. coxe (1st cir. 1997) (409) (upholding PI to enjoin state from
issuing permits / licenses to fishermen where state regs would have allowed
fishermen to operate in manner that would threaten endangered right whales,
when sued under ESA citizen suit provision)
1. note: suit against state normally limited by S/I, but may invoke ex
parte young when seeking prospective injunctive relief
2. note: standing?
a. clear recreational, aesthetic interests in observation of whales
in natural setting
3. PI standards:
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a. likelihood of success on merits

b. potential for irreparable harm if injunction denied
c. balance of relevant hardships
d. public interest considerations
i. under ESA, public interest defined by conservation of
endangered species (presumption in favor of PI)
4. merits: ESA bans 3rd party acts that bring about the actions that cause
the taking, not just direct takes
a. causation: apply traditional CL notions of causation  taking
of whales logical result of issuing permits, not result of
independent, 3rd party actions
f. note: takings & reintroduced species:
i. §10(j): distinguish b/t essential & non-essential experimental populations
1. experimental pops.: species introduced inside historic range but
outside current range
2. non-essential: provides full ESA protections only w/in boundaries of
NPs & NWRs  no taking on pvt land
ii. difficulties in distinguishing b/t experimental & non-experimental pops.
1. wyoming farm bureau v. babbitt (10th cir. 2000) (407) (deferring to
agency rule whereby level of protection afforded for any individual
species depends on where it was found, not whether it was part of
reintroduced or naturally occurring species)
g. note: incentive schemes to compensate farmers harmed by endangered species (e.g.,
wolves eating sheep)
h. minimizing impact of take provisions:
i. incidental take permit (ITP): permit to take species so long as taking is
"incidental to, and not the purpose of, the carrying out of an otherwise lawful
activity"
1. includes emergencies, hardships, research, as well as regular economic
development activities
2. note: depending on scope, may require NEPA compliance
3. habitat conservation plan (HCP): plan approved by USFWS/NOAA
fisheries submitted by landowner that provides mitigation req'ments,
adequate funding & other req'd measures
a. likely impact on species
b. alternatives
c. subject to public comment / review
i. note: depending on HCP scope, may be subject to
NEPA req'ments
4. "no surprises" policy: landowner w/ HCP will not be req'd to provide
additional land or measures for mitigation even if not sufficient to
protect listed & unlisted species due to unforeseen circumstances
(except for "extraordinary circumstances")
a. note: incentive to cover unlisted species as well  if become
listed, then could be subject to take provisions (default under
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no surprises policy is that they aren't, but this provides greater

certainty)
5. "safe harbor" policy: landowner that takes voluntary measures to
improve habitat conditions for threatened & endangered species can
return to baseline conditions w/o penalty
a. note: must have safe harbor agreement / "enhancement of
survival permits"  requires land-use mgmt. that provides "net
conservation benefit" to listed species on property
i. safe harbor agreements run w/ the land
6. candidate conservation agreements (CCAs): states & other SHs can
protect species of concern so that they aren't listed [note: didn't really
discuss in class]
FISHERIES MGMT.
I. key themes:
a. mgmt. decisions in face of scientific uncertainty
b. resource-dependent communities:
i. balance concern for fisheries & need to preserve certain economic lifestyle
c. planning process & roles:
i. commodity producers tend to be co-equal decision-makers  COI issues?
II. fisheries collapse:
a. overutilization of resource:
i. fleet overcapacity; technological advances; subsidies; bycatch
b. habitat loss & degradation:
i. land-based marine pollution (e.g., nutrients in miss. river  dead zone)
ii. climate change / ocean acidification
iii. fishing methods
c. great lakes issues: invasive species
i. no overarching regulatory regime to manage invasive species
1. e.g., st. lawrence seaway (lamprey)  great lakes fisheries comm'n
2. e.g., chicago ship / sanitary canal (asian carp)  SCOTUS decree
governs amt of water chicago can divert from lake mich.
3. e.g., ballast water (zebra mussels)  IMOs, coast guard stds, CWA &
state laws that aren't preempted
III. fisheries science:
a. recruitment overfishing: catching fish before can spawn to replenish stock
b. growth overfishing: catching when to small
c. carrying capacity: max pop. that can be supported by given habitat
d. max. sustainable yield (MSY): highest level of catch that can be taken while
maintaining sustainable pop. size
e. incomplete data makes hard to determine MSY  errors common, survey techniques
imperfect
i. difficult to manage for ecological changes that impact fish stocks
ii. complex food web interdependencies
IV. fisheries mgmt. tools:
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a. incentives / capacity reduction

i. vessel buyback schemes
ii. fishing license retirements
iii. gear retirement
b. mkt-based approaches / limited-access programs:
i. indivi. fishing quota (IFQ) / individual transferable quota (ITQ)
1. concern re: corporate consolidation of quotas
2. concern re: initial allocation of quotas
ii. community development quotas (CDQS): reserve portion of TAC for
purposes of stimulating economic growth
iii. cooperatives
1. allocate all or part of quota via agreement among fishing & processing
parties
iv. BUT access priv’s not property rights subjects to takings claims when access
later reduced
c. regulations (see below)
i. catch restrictions: limit total allowable catch (TAC)
ii. seasonal restrictions
iii. entry restrictions (limits # vessels)
iv. area restrictions
1. e.g. marine protected areas (MPAs)  “no take” zones
v. equipment restrictions
1. e.g., restrict gear efficiency to reduce fish catches
V. note: mgmt. tool selection usu. result of planning process
VI. note: aquaculture: faming captive fish in on-land tanks or in-water pens
a. pressures on wild fishstocks
i. feed made from ground up wild fish
ii. spread disease & nutrient pollution
iii. destroy mangrove wetlands
iv. cross-breeding w/ wild stocks weakens genetic robustness of species
b. regulation occurs primarily at state-level (onland or w/in 3 miles of shore)
i. mostly focus on pollution control req'ments
VII. united nations convention on the law of the sea (UNCLOS) & jdx:
a. territorial sea: 12 miles off coast (state regulation)
b. exclusive economic zone (EEZ): 200 miles off coast (state regulation)
i. BUT must allow int'l fishing in those waters per agreements
c. high seas: > 200 miles off coast (global commons)
d. note: US not signatory, but recognizes it as binding customary int'l law
VIII. US regulatory jdxs:
a. fed, state & tribal (in some cases per tribal treaties, though USFWS may be tribal
trustee)  may be tension
i. no automatic preemption of state regulation up to 3 miles off coast
1. subject to adversarial process in DOC that determines that state laws
conflict w/ fed regs under FCMA
ii. BUT states have fishery mgmt. success stories (e.g., striped bass conservation
act, allowing states to restrict or ban striped bass fishing)
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b. great lakes: great lakes comm'n

i. not subject to magnuson act
ii. coordinates mgmt. b/t US & Canada
IX. jdx challenges: "straddling stocks" & "highly migratory" fish species
a. free riders
b. UNCLOS calls for joint state mgmt., but existing mechanisms weakened by
disagreement among member states
i. BUT straddling stocks convention / fish stocks treaty subjects high seas
fishing to conservation mandates of regional conservation organizations
c. 1995 code of conduct for responsible fisheries: voluntary
X. magnuson-stevens fishery conservation & mgmt. act (FCMA) (482)
a. applies to EEZ
b. more production-oriented
c. planning-process focused: fishery mgmt. plans (FMPs)
d. implemented by dep't of comm.
i. saltwater fish: NOAA fisheries
1. implementation responsibility delegated to regional fishery mgmt..
councils (FMCs)
ii. freshwater fish: USFWS (in DOI)
e. FMCs: responsible for creating FMPs
i. m'ship:
1. commercial & recreational fishing representatives
a. can have COI, if disclosed
b. note: nominated by state governors
c. statutory req'ment: "individuals who…are knowledgeable
regarding conservation & mgmt., or the commercial or
recreational harvest of fishery resources" in relevant area
i. "fair & balanced apportionment" of commercial &
recreational fishing interests
2. state official for state fisheries mgmt.
3. regional director of NOAA fisheries
4. USFWS, coast guard, state dep't, etc. (as non-voting members)
5. note: no req'ment for conservation interests
a. scientists / environmentalists can make views known through
public comment process
f. FMPs:
i. made on per stock basis
ii. must comply w/ "any other applicable" fed laws, e.g., NEPA & ESA
iii. process req'ments:
1. draft FMPs released for 45 day public comment period
2. consistency req'ments: FMPs revised, then sent to DOC to ensure
compliance w/ FCMA stds & other applicable laws
3. once approved, NOAA fisheries issues regulations to implement FMP
a. note: subject to APA N/C process
i. APA challenge only permissible after final NOAA
decision re: consistency determination & regs issuance
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ii. note: assume FMP approval & regs issuance happen at

same time
iii. note: can force bad FMP to be revised
4. note: backstop authority: DOC can issue emergency interim regs to
prevent overfishing whether or not FMP exists
iv. FCMA substantive req'ments for FMP (488-89):
1. measures "necessary & appropriate for conservation & mgmt. of
fishery"
a. note: FCMA sets out 10 stds under this heading that FMP must
be compliant w/ (see below)
2. assess & specify present & future MSY & optimum yield for fishery
3. describe & identify "essential fish habitat for the fishery" (EFH) &
minimize related adverse impacts
4. must have independent observer provisions
5. allocate restrictions & benefits fairly & equitably among commercial,
recreational & charter sectors
6. specify criteria for determining when stock overfished, reporting
req'ments, any limiting regulations on catch, including measures to
ensure accountability
7. fishery impact statement, including effects of conservation & mgmt.
measures & mitigation measures, focusing on impact to fishery-
dependent communities
8. std reporting methodology for bycatch & bycatch mitigation measures
v. FMC has discretionary authority to set regulations to ensure FMP goals are
met
g. FCMA FMP consistency req'ments: conservation & mgmt. measures nat'l stds (494)
i. shall prevent overfishing, identify OY
ii. shall be based on best scientific info available
iii. shall identify & minimize impacts on fishing communities
iv. must minimize bycatch
v. must promote human safety at sea
vi. stocks manged as unit to extent practical
vii. non-discrimination among residents of different states
viii. efficiency in resource use as practical
ix. account for variaitons & contingencies in fisheries
x. minimize cost & avoid duplication
h. FMPs must identify prevent overfishing, identify /OY
i. MSY: greatest harvest that can be consistently caught from year to year
1. scientific considerations
ii. OY: harvest rate that will "provide greatest overall benefit to the nation"
(defined by regs)
1. political, social & economic considerations; explicitly not scientific
measure
a. BUT no formal CBA req'd
2. factors:
a. value of food production
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b. recreational opportunities
c. protection to marine ecosystem
3. note: OY should be set at level that can return to MSY over longer
term (though need not achieve it at any given point)
a. e.g., ocean v. evans (DDC 2005) (498) (allowing stricter
fishing limits to be phased in overtime to keep fishermen in
business while allowing stocks to rebuild)
i. FMP must be based on best available science
i. show deference to agencies in this regard (e.g., nat'l fisheries institute v.
mosbacher (DDC 1990) (496))
1. i.e., can still make decision even if science not fully adequate, so long
as best available
ii. note: only applicable when other factors not exclusive
j. FMP must consider impacts on fishing communities
i. factors:
1. social & economic importance of fishery to community
2. examine sustained participation of these communities in fishery
3. assess likely positive & negative impacts of alt mgmt. schemes in short
& long term, considering consumptive & non-consumptive uses of
fishery resources
ii. north carolina fisheries ass'n v. daley (ED va. 1998) (499) (finding that
DOC decision that FMP was inconsistent w/ "impacts" analysis req'ment in
FCMA was A&C under APA)
1. state-level analysis insufficient  need to have community focused
analysis; need to look at secondary effects (e.g., up the delivery /
supply chain)
a. note: unclear what level of granularity would be sufficient
2. note: standing for trade ass'n:
a. injury : economic harm for fishermen
b. APA zone of interests; organizational standing
3. note: agency "undue burden"
a. normally cts responsive to agency resource allocation decisions
k. FMP must minimize bycatch & bycatch mortality (e.g., conservation law foundation
v. evans (DDC 2001) (501) (finding that regulations in place not sufficient to
minimize bycatch, despite significant agency discretion in implementing by catch
regs))
l. FMP cannot have economic allocation as its sole purpose  must also consider other
factors, e.g., biological or ecological evidence (e.g., hall v. evans (DRI 2001)(503)
(overturning approval where gear differentials b/t boats based solely on economic
considerations  absence of other factors in record))
m. FMP can't discriminate b/t residents of different states (BUT ace lobster v. evans
(DRI 2001) (504) (permitting disparate impact of lobster trap regulations where
rationally connected to achievement of OY or FMP & if hardship imposed on one
group is outweighed by benefits to the other) )
n. EFH req'ments:
i. must be identified in FMP
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lOMoARcPSD|7881402
1. data-intensive process
ii. if fishing activity may have harmful effect on EFH  FMC can adopt
measures necessary & practical to protect EFH
1. weigh costs/benefits
iii. consultation req'ment imposed on fed agencies if their actions may adversely
effect EFH identified
1. NOAA can recommend mitigation measures, but they are only
guidelines (not binding)
o. NRDC v. daley (DC cir. 2000) (508) (overturning agency rules implementing ideal
mortality rate where agency failed to analyze actual impacts of the regs, e.g., mesh-
size req'ments & mandatory v. voluntary allocation of TAC to bycatch  failure to
analyze was A&C)
i. req'ment to achieve MSY req's at least 50% certainty
ii. FMP must give priority to conservation measures to achieve MSY
1. only when different plans / tools achieve target MSY can economic
consequences be considered
iii. NOAA failed to determine how different plans would achieve conservation
goals & disputed TAL has 18% chance of achieve target
iv. note: chevron step 2  quota figures not set by statute & req'ment that
conservation measures be "consistent w/" & "at level necessary to assure"
achieve of certain MSY is ambiguous
1. BUT quota itself applying those req'ments is unreasonable  not
based on analysis of impact of regulations on conservation goal (MSY)
p. note: under FCMA, hard to challenge agency inaction b/c no specific deadline by
which agency must act, though decision mandatory (see norton v. SUWA)
i. may also be difficult to know when final agency action occurs  fluid
planning process
XI. marine mammals (528)

a. different than fish mgmt. model: shift from production to conservation
b. whales:
i. historically, no regulation
ii. int'l convention on the regulation of whaling (ICRW):
1. intended to ensure commercial viability of whaling
2. created int'l whaling comm'n (IWC):
a. m'ship: 1 member from each contracting gov't
3. all whales taken must be reported to IWC
4. IWC has no enforcement authority --> prosecution depends on
authorities in member states over vessels flying their flag
5. IWC schedule of regulations: lists covered whales, seasons, gear
regulations, etc.
a. amends binding on members --> need 3/4 vote
b. elements:
i. necessary to carry out ICRW objectives
ii. based on scientific findings
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iii. no restrictions on number or nationality of factory ships

or land stations, nor quota for specific operators
iv. must consider interests of whale products consumers &
industry
c. 1982 IRCW whaling moratorium under regs (still in force)
d. whaling countries:
i. iceland: w/drew from IWC
ii. norway: interposed formal objection
iii. japan: whaling under "scientific" exception
iv. note: formed alt regulatory body --> north atlantic
marine mammal comm'n
6. note: effectiveness of ICW depends on US willingness to enforce trade
sanctions permitted under pelly & packwood-magnuson amendments
to fishermen's protective act when country acting contrary to IRCW
aims --> enforcement almost never happens
a. US may also retaliate for harm to specific species under other
laws, e.g., marine mammal protection act
b. UNCLOS does not restrict right of members to enforce
mechanisms to limit exploitation of marine mammals more
strictly than in UNCLOS
7. note: whaling sanctuary created in the antarctic
8. IWC recognizes aboriginal whaling subsistence exception to
moratorium if approved by 3/4 members
a. note: makah whaling
i. US opposes whaling internationally, but under treaty w/
makah, must allow whaling, subject to significant
restrictions
iii. convention on int'l trade in endangered species (CITES): limits commercial
trade in certain whale species
1. US implementing law: trade sanctions enforcement
c. marine mammal protection act (MMPA) (549):
i. covers: seals, sea lions, whales, dolphins, porpoises, etc.
1. species identified in statute (not listed in regulatory process)
ii. MMPA manages for "optimum sustainable populations": the # of animals that
will result in the max productivity of pop. or species, keeping in mid optimum
carrying capacity of habitat & health of ecosystem
iii. moratorium on "taking" of marine mammals in US waters or on high seas (by
US citizen) & on import of marine mammals / products
1. "taking": "harass, hunt, capture, or kill, or attempt to do so"
a. note: broader than reduce to possession, but less broad than
ESA definition
2. "zero mortality" goal:
a. BUT allows for incidental takings w/r/t fishing operations as
long as isn't "to the disadvantage" of the species
b. AND can take directly if have individual MMPA take permit
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3. "stock assessments" to determine "potential biological removal level"

(i.e., MSY)
a. take reduction plan (551): sets level of allowable take level
below PBRL, in part based on best available technology
i. to qualify as incidental kill, must comply w/ take
reduction plan
b. thus, moratorium really applicable to recreational takes
iv. military exemption, e.g., for navy training exercises subject to certain
mitigation conditions
1. triggered when DOD makes determination of need for nat'l defense
2. subject to 2 year limits
3. must confer w/ NOAA fisheries
v. NRDC v. winter (2008) (554) (rejecting PI for stopping navy training
exercises using sonar where public interest weighed in favor of nat'l defense
needs, not mammal protections)
1. note: no citizen suit provision --> must sue under APA
2. statutory exemption for nat'l security puts that issue on side of public
interest
a. note: similar to tellico dam where ESA made cost/benefit
determination in favor of endangered species
b. independent of whether Ps likely to prevail on merits --> public
interest analysis is independent factor
d. note: despite focus on ecosystem under MMPA, little done to protect habitat
e. note: MMPA may not extend to US citizens acting in territory of another sovereign
(united states v. mitchell (5th cir. 1977) (556) (finding no cong intent to apply MMPA
restrictions to activities in other countries such that it overcomes presumption against
extraterritorial application of the laws))
f. note: hondo the sea lions at the ballard locks: although intentional lethal take of
mammal not permitted in commercial fishery except when in self defense or in
immediate danger, can get take permit for "individually identifiable pinnipeds" that
have significant adverse impact on salmonid fishery stocks listed under ESA
i. reflects tension b/t mammal preservation goals & health of other fisheries
g. note: dolphins in the tuna fishery
i. catching dolphins while fishing for tuna led to big declines in dolphin
populations
ii. restrictions under MMP established takings limits under incidental
commercial fishing operations; later NOAA fisheries imposed gear
restrictions & independent observers on operations
iii. reduced take by US boats, but still major int'l problem
1. MMPA amendments imposed trade restrictions on import of tuna
unless exporting nation adopted dolphin protection program &
minimized incidental take rate
2. dolphin protection consumer information act: req'd "dolphin safe"
labels on imported tuna, which imposed certain fishing restrictions &
certification req'ments
3. GATT decisions:
39

lOMoARcPSD|7881402
a. import ban & labeling req'ments ruled to violate GATT

i. quantitative restriction on imports
ii. unlawful regulation of method by which tuna caught
iii. note: later decision also found labeling to be violation
iv. int'l agreements attempt to minimize harm to dolphins from tuna fishery (e.g.,
la jolla agreement, implemented in US by int'l dolphin conservation program
act)
PROTECTED LANDS
I. the case for preservation:

a. economic value, e.g., 85% of benefits from NFs come from recreation
i. scientific inquiry, amenity seeking, biodiversity, ecological services, etc.
b. historical & cultural documentation
c. ecological value
d. moral value, e.g., intergenerational equity, biocentrism, religious beliefs toward
stewardship ethics
e. note: preservation may create local backlash
i. locks up lands from future development
ii. moves power away from local decision-makers (e.g., moab utah)
iii. changes local culture
II. protected lands  result of cong enactment or multiple-use agency-planning process
a. protected lands planning-process specific req'ments
i. organic acts (e.g., NPS organic act), agency planning acts (e.g., wilderness
act), & generally applicable laws (e.g., NEPA, APA, ESA)
b. user conflicts
III. note: early land protections from presidential reservations (see above for powers, limits,
etc.)  now permitted only under antiquities act
IV. nat'l parks:
a. "america's best idea"
b. NP system includes area of land types (e.g., NPs, nat'l monuments, nat'l recreation
areas, nat'l seashores, etc.)
c. 1916 park service organic act: NPS mission: "to conserve the scenery and the
natural and historic objects and the wildlife therein and to provide for the enjoyment
of the same in such manner and by such means as will leave them unimpaired for the
enjoyment of future generations."
i. note: separate mgmt. req'ments spelled out in individual authorizing
legislation & in planning documents prepared for each park
ii. tension b/t "use" req'ments & "unimpairment" mandate
iii. NPS preservation policy implemented in "general mgmt. plans" for
"preservation & use of each unit" in NP system
1. may be supplemented for specific mgmt. plans for specific resources
2. plans required to comply w/ NEPA, etc.
iv. note: organic act allows certain non-natural interventions, e.g., logging for
protect against disease, to protect parks
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lOMoARcPSD|7881402
v. note: lawsuits against NPS decisions under APA

d. SUWA v. NPS (d. utah 2005) (604) (upholding NPS decision in backcountry mgmt.
plan to limit vehicle traffic beyond certain point in canyonlands nat'l monument)
i. NPS regs: "impairment" interpretation: impact that, in professional jdgmt of
NPS, would "harm the integrity of the park resources or values, including the
opportunities that otherwise would be present for enjoyment of those
resources"
1. factors: which resources /values affected; severity, duration & timing
of impact; direct & indirect effects of impact; cumulative effects of
impact
ii. NPS mgmt. policy must comply w/ NP organic act & canyonlands enabling
act
1. chevron deference to "impairment" interpretation  statutory term
ambiguous
a. note: under united states v. mead corp., even if policy not
subject to N/C RM'ing, will treat as rule when agency decision
intended by cong to "carry the weight of law"  policies get
deference if like rules
2. permissible interpretation:
a. more likely to constitute impairment if interfere w/ resource /
value "necessary" to fulfill goals in enabling legislation,
organic act, & park mgmt. plans
b. NP organic act purpose: prioritize preservation of nature as it
exists; no impairment mandate concerned w/ "preservation of
resources"  conservation trumps enjoyment uses
i. plain lang
ii. leg. history
3. note: change from prior, more balanced interpretation where NPS
provided reasoned analysis for change (see motor vehicle mfrs. ass'n v.
state farm)
4. evidentiary support that vehicular traffic would result in "impairment"
based on NPS interpretation
a. NPS considered range of impacts from change to mgmt. policy
e. note: NPS policy may be used to support NPS mgmt. decisions, but may be less
persuasive in overturning their decisions (e.g., river runners for wilderness v. martin
(d. az. 2007) (613) (upholding NPS decision to allow motorized craft in grand canyon
where NPS had actually considered impacts & decided they did not impair NPs))
f. note: enabling statutes may conflict w/ NP organic act
i. e.g., NP permitted in some parks, despite presumption of NPS regulation
under organic act that hunting would be impairment
1. BUT even if hunting permitted, can NPS still prevent non-hunting
activities, like trapping?
ii. note: other laws, like pipeline siting prioritization in energy policy act, may
conflict w/ NPs non-impairment obligations
g. note: NPS mandate & property clause:
i. may be able to regulate nearby activities that would impair NPs
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lOMoARcPSD|7881402
1. e.g., boundary waters case

2. e.g., sierra club v. DOI (n.d. cal. 1974) (615) (requiring NPS to
exercise "trust responsibility" in protecting redwood NP from adverse
impacts of logging outside park boundaries) (only case finding this
extra-statutory trust responsibility)
h. note: NP designation also has CAA implications (class I air may limit emissions in
area)
V. antiquities act: nat'l monuments
a. managed by NPS, but product of presidential action
b. § 431: " authorizes the President, in his discretion, to declare by public proclamation
historic landmarks, historic and prehistoric structures, and other objects of historic or
scientific interest that are situated upon the lands owned or controlled by the
Government of the United States to be national monuments, and to reserve as a part
thereof parcels of land, the limits of which in all cases shall be confined to the
smallest area compatible with the proper care and management of the objects to be
protected"
i. note: power to designate under prop. clause  cong. can delegate power
(midwest oil case)
ii. note: NMs not limited to land; may include marine resources too
c. note: president can't designate nat'l monuments in wyo. due to 1950 legislation
d. note: nat'l monument designations politically contentious
i. deprive local communities of local control
1. e.g., clinton's grand staircase-escalante designation
ii. abuse of exec. power?
iii. DOI "no surprises" policy re: NM designations:
1. DOI sec'y visit area
2. DOI sec'd meet w/ local community
3. offer cong & local community opportunity protect area before making
NM recommendation to president
e. judicial review of NM designations:
i. note: president not an agency w/in meaning of APA  not subject to APA
challenges; c/a located elsewhere
ii. mountain states legal foundation v. bush (DC cir. 2003) (628) (finding
judicial review available for antiquities act proclamations)
1. judicial review of discretionary exec. action raises SOP concerns
2. BUT OK when statute places "discernible limits" on discretion (ultra
vires)
a. can review decision to ensure that pres. didn't exceed authority
under antiquities act
iii. tulare cnty. v. bush (DC cir. 2003) (629) (indicating extremely lenient std of
judicial review for antiquities act proclamations)
1. pres. need only identify that historic sites & objects of scientific
interest located in fed lands, not provide min. level of detail about
them
2. including non-qualifying features, e.g., ecosystems, scenic vistas, etc.,
doesn't violate terms of act
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lOMoARcPSD|7881402
3. pres. need not make any particular investigation before reaching

decision re: "smallest area compatible" w/ protecting specified
resources; lands need only be owned by fed gov't
4. rejects claim that delegation violates prop. clause
f. note: under clinton admin., BLM responsible for managing some NMs
i. created new subagency: nat'l lands conservation system (NLCS), which was
formally established by cong. in 2009
VI. nat'l wildlife refuges (NWR) (662)
a. managed by USFWS
b. NWR purpose: "a nat'l network of lands & waters for the conservation, management,
& where appropriate, restoration of fish, wildlife, & plant resources & their habitats"
c. NWR system includes: NWRs, waterfowl production areas (WPAs) & wildlife
conservation areas (WCAs)
d. NWR creation:
i. specific cong act OR
ii. general USFWS authority under migratory bird treaty act (MBTA), fish &
wildlife coordination act, 1956 fish & wildlife act, & ESA: FWS can add
lands w/o specific cong goals
iii. USFWS can purchase lands under MBTA for conserving migratory birds
1. financed via:
a. migratory bird conservation fund
b. land & water conservation fund
e. planning process: NWR mgmt. 1997 NWRS improvement act (basic organic act)
i. USFWS can only permit use if compatible w/ major purposes of given area
ii. primary purpose: fish & wildlife
1. other uses prioritized if compatible wildlife-dependent recreational,
educational, etc. uses
a. least prioritized are non-dependent compatible uses
2. establishes hierarchy of purposes for NWRS  conservation =
dominant goal
a. emphasis on "biological integrity, diversity & envtl health"
b. secondary use decisions made in writing & subject to public
comment
iii. note: no citizen suit provision, but judicially enforceable (must rely on APA)
f. USFWS promotes pub/pvt p'ships to achieve shared mgmt. objectives
i. necessary response to managing migratory species
VII. wild & scenic rivers act
a. § 1: " certain selected rivers…which, with their immediate environments, possess
outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic,
cultural or other similar values, shall be preserved in free-flowing condition, and that
they and their immediate environments shall be protected for the benefit and
enjoyment of present and future generations"
i. § 10: must be administered to protect & enhance values that caused it to be
included in river system w/o substantially interfering w/ public use &
enjoyment of those values
ii. management plans req'd for these rivers
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lOMoARcPSD|7881402
1. no citizen suit provision, so plans subject to APA review usu. focusing

on whether req'ment of limited substantial interference w/ public use
& enjoyment is followed
2. planning process substantive req'ments:
a. implementation may be at local or zoning level
b. must protect & enhance quality of watershed
c. non-interference w/ values behind designation
3. may involve pvt-pub. p'ships
b. designated via cong action or nomination by DOI
VIII. LWCF: supposed to provide funds for purchasing conservation / recreational lands using
oil & gas royalties
a. full amount ($900M/year) almost never allocated
IX. wilderness act
a. preservation focused
b. "wilderness" definition: "an area where the earth & its community of life are
untrammeled by man, where mad himself is a visitor who does not remain"
i. WA specifically provided for some wilderness areas --> rest are designated by
agencies
ii. statutory wilderness eligibility factors:
1. objective (first cut):
a. roadless area at least 5,000 acres
b. without permanent improvements
2. subjective (second cut):
a. affected primarily by forces of nature
b. imprint of man's work substantially unnoticeable
c. outstanding opportunities for solitude or primitive &
unconfined type of recreation
d. may also contain ecological, geological, or other features of
scientific, educational, scenic or historical value
c. wilderness designation process:
i. note: applicable to USFWS, NPS, FS
1. BLM lands not specifically included in WA --> BLM review under
FLPMA
ii. inventory: "suitability" / application of eligibility factors --> wilderness study
areas (WSA)
1. FS: RARE I, RARE II --> recommendations to cong
a. note: no restriction on how lands used, but cts req'd searching
NEPA process for any proposed projects
b. FS has non-impairment obligation
2. BLM: FLPMA incorporated WA req'ments + creation of WSAs
a. WSA subject to "non-impairment" mgmt req'ment until cong
acts on recommendations
i. e.g, SUWA v. norton (non-impairment legal obligation,
but only enforceable where agency imposes binding
obligations on itself)
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lOMoARcPSD|7881402
b. note: other agencies don't have WSAs, but do have non-

impairment obligations under designation process
iii. recommendation to cong: add lands to nat'l wilderness preservation system
(NWPS)
1. "hard release": bars non-designated areas for being considered for
possible wilderness designation forever or for some fixed period -->
available for other uses
2. "soft release": removes land from WSAs, but doesn't prevent
wilderness designation in future --> agency can protect through normal
planning processes
3. no-action --> puts lands in limbo
d. once designated wilderness, managed by agency w/ jdx prior to designation
e. wilderness mgmt. req'ments:
i. must preserve wilderness character of area
1. BUT can administer area for other established purposes
ii. except as otherwise provided, wilderness devoted to following public
purposes: recreational, scenic, scientific, educational, conservation, &
historical use
iii. except as provided:
1. no permanent roads
2. no commercial enterprise
3. except for administrative purposes, no: motor vehicles, structures, etc.
iv. the wilderness soc'y v. USFWS (9th cir. 2003) (649) (holding that fish
hatchery project banned as "commercial enterprise" in kenai wilderness area)
1. chevron step 1: no ambiguity: "commercial enterprise" includes
fishery enhancement project, even though fishery is outside wilderness
area & being run by nonproft
a. plain meaning (dictionary), legislative purposes, statutory
structure
b. enhancement project not designed to promote wilderness
purposes
c. not included in statutory exception to complete bar on
commercial enterprise
2. basis for challenge was special use permit --> APA challenge for final
agency action
3. purpose & effect test: nature of activity determined by its purpose &
effect --> enhancement project = commercial enterprise
a. incidental benefit to recreational fisherman doesn't overcome
primary commercial purpose
v. note: "special provisions" may allow for activities seemingly incompatible w/
wilderness mandates (e.g., cutting trees for fire mgmt, grandfathering in
livestock grazing, to promote recreational purposes, & time-limited mining
exceptions...")
f. note: case study: izembek NWR (alaska)
i. pressure to put road b/t cold bay & king cove, through wilderness area
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lOMoARcPSD|7881402
ii. riders allowing road if "in public interest" --> DOI has delayed decision; sec'y
appointment held up over it after NEPA process indicating road is not best alt
X. preservation on MUSY lands (and where no designated wilderness area): BLM, FS
a. MUSY mandate includes discretion to plan & manage for range of values, e.g.,
timber, minerals, wildlife & fish, watershed, scenic, scientific, & historical values,
etc. – to meet present & future needs of amerc. people
i. MUSY definition: "achievement & maintenance in perpetuity of a high-level
annual or regular periodic output of various renewable resources of public
lands consistent w/ multiple use"
1. combination of uses that will best meet present & future needs of
amer. ppl.
2. combination of uses need not have greatest economic return or use all
resources on land
3. w/o permanent impairment to productivity of land & quality of envt
ii. e.g., FLPMA: mgmt. decisions & land-use plan can exclude one or more of
allowable principle sues
1. land-use plans must give priority to areas of critical envtl concern
(ACECs) --> must identify them & provide for special mgmt.
measures to "protect & prevent irreparable damage to important
historic, cultural or scenic values, F&W resources or other natural
systems or processes, or to protect life & safety from natural hazards"
a. note: BUT still have flexibility in how to achieve these goals
2. can even manage areas zoned for commodity production for
conservation
iii. oregon nat. desert ass'n v. BLM (9th cir. 2008) (675) (holding that BLM
must consider wilderness characteristics in NEPA analysis for RMP b/c
wilderness is among values BLM can manage for)
1. FLMPA: requires periodic review of areas that might have wilderness
characteristics (independent of WSA process for wilderness
designations)
a. BLM req'd to identify & inventory lands w/ wilderness
characteristics on ongoing basis as part of regular planning
process --> can manage for those qualities, but need not do so
2. landscape's wilderness characteristics must generally be considered in
NEPA documents related to landscape, whether or not permanent
wilderness preservation is an option
a. must apply WA statutory factors
3. NEPA must address "fairly debatable" issues head on, e.g., info
pertaining to new wilderness characteristics
b. note: BUT utah v. babbitt (10th cir. 1998) (685): BLM reaching settlement agreement
w/ utah acknowledging that it can't continue WA wilderness inventory)
i. key issue: agency attempt to make policy through settlement agreements
ii. dealt specifically w/ continuing obligations to complete wilderness
"inventories," not obligation to consider wilderness characteristics in planning
& discretion to manage as wilderness w/o formal cong designation
XI. withdrawal of land from specific purpose / use
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lOMoARcPSD|7881402
a. contrast w/ reservation where gov't reserves land for specific purposes, e.g., NPs
b. FLPMA: grants BLM withdrawal authority from certain uses, e.g., mining, otherwise
allowed
i. if < 5,000 acres, can BLM can withdraw "for such period of time" as
"desirable" for resource use
ii. if > 5,000 acres, BLM must submit plan to legislative veto opportunity
1. constitutional problems, e.g., line-item veto (INS v. chadha)
2. limited to 20 year periods
iii. emergency withdrawals: can make emergency withdrawal for up to 3 years
w/o approval
1. requires public hearing
iv. note: need other agencies to approve when withdrawal on lands subject to
their jdx
v. note: withdrawals subject to valid existing claims
c. mountain states legal foundation v. hodel (d. wyo. 1987) (692) (finding that
suspension of mineral leasing on BLM lands was in fact withdrawal, requiring that
FLPMA process for withdrawal be followed)
i. BUT see bob marshall alliance v. hodel (9th cir. 1988) (finding that mineral
leasing act gave DOI discretion about whether to lease lands, but does not
require him to do so, thus not triggering withdrawal req'ments)
FOREST MGMT.
I. forest values:
a. timber / forest-dependent communities
b. recreation / tourism
c. cultural aesthetic values
d. ecosystem services: water quantity / quality; carbon sequestration; & biodiversity
II. mgmt. shift from production to conservation
III. key issues:
a. clear-cutting (even-age mgmt.) v. selective mgmt.(uneven-age mgmt.)
b. old growth forests (PNW)
i. ESA
ii. salvage logging
c. FS roadless rule
d. below-cost timber sales
IV. nat'l forests (NFs):
a. presidential reservations of public lands under statutory authority; power revoked in
1897 w/ law granting cong exclusive right to designate NFs
i. 1897 FS organic act
b. in eastern states, NFs created through weeks act, authorizing fed purchase of pvt
forest lands
c. NFs comprise range of systems, from timber production to NMs, NWRs, & scenic
areas, etc.
i. BUT early FS priority = clear-cutting
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lOMoARcPSD|7881402
d. WV div. of izaak walton league of amer. v. butz (4th cir. 1975) (1234)
(monongahela NF case) (finding that clear-cutting trees violated 1897 organic act
req'ing that timber sales be of "dead, matured or large growth of trees" when FS based
sale on "economic maturity" rather than "physiological maturity")
i. statutory interpretation: plain meaning; post-enactment regulatory
interpretations; historical context & legislative history (concern re: over-
exploitation of NF resources)
ii. note: outcome of case as essential bar on clear-cutting
1. led to passage of nat'l forest mgmt. act, repealing provisions at issue in
case
V. NFMA:
a. planning process (see above):
i. LRMPs  establish land mgmt. / use "zones"
1. need site-specific approval for particular activities
2. zone by designated "habitat type," not by geographical area
ii. plans revised every 15 years
iii. public participation req'd
iv. must utilize input from independent technical comm.
v. must comply w/ NEPA (though challenges to LRMPs may be harder than site-
specific decisions)
1. e.g., thomas v. peterson (268) (above) (applying NEPA to site-
specific timber sales, requiring FS to analyze range of envtl impacts
from roads & timber harvests)
2. procedural obstacles: e.g., ohio forestry ass'n v. sierra club (1998)
(314) (denying APA review of LRMP where site-specific projects not
proposed & case was not ripe for review & Ps would suffer no
hardship if had to wait for file site-specific lawsuit)
vi. 2008 regs: use best available science, but can ignore it based on "public input,
competing use demands, budget projects & other factors…"
VI. timber sales:
a. basic process:
i. identify LT sustained yield capacity (LTSYC)  upper limit on how much
could be removed annually in perpetuity
1. suitable timber base  envtl damage; land-use conflicts; not cost
efficient; can't restock?
ii. identify allowable sale quantity (ASQ)
1. amt sold over planning period
a. may establish based in part on area's non-timber use values
iii. apply ASQ to specific timber sales
iv. NEPA compliance
b. substantive req'ments:
i. MUSY: use of lands / resources that will best meet present & future needs of
amer. ppl.
1. BUT not necessarily combination of uses that will give the greatest
economic return or the greatest unit output
2. land need not have all uses
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lOMoARcPSD|7881402
3. can't permanently impair productivity of land & quality of envt

4. must achieve & maintain high-level output of renewable & non-
renewable resources on land
ii. NFMA: applicable to plans, though site-specific procedures must also comply
w/ guidelines derived from these stds (1241)
1. interdisciplinary approach
2. must comply w/ NEPA
3. watershed must be protected
4. must provide for diversity of plant & animal communities
5. envt & economics should be considered, but harvesting system can't be
selected simply b/c it will provide greatest economic return
6. plan can't produce "substantial & permanent impairment of
productivity of the land"
7. clear-cutting:
a. must be "optimum method" for achieving LRMP objectives &
req'ments
b. clear-cut methods must be "appropriate" for achieving LRMP
objective & req'ments
c. note: "proceed cautiously"
c. sierra club v. espy (5th cir. 1994) (1247) (overturning PI barring clear-cutting
except in exceptional circumstances)
i. clear-cutting is not exception to rule that req's uneven-aged selection
ii. NFMA req's only that FS meet certain substantive restrictions before selecting
even-aged mgmt.  "optimum method" & "appropriate" for achieving overall
"relevant forest mgmt. strategy" (defined by LMRP)
iii. statutory is general req'ment to "proceed cautiously" in implementing even-
aged mgmt. after close look at how that mgmt. will affect other forest
resources
1. note: but must consider uneven-aged techniques
VII. biodiversity conservation:
a. LRMP biodiversity req'ments:
i. statutory: shall provide for "diversity of plant & animal communities"
ii. regulatory (species specific):
1. ecological integrity  ensure ecosystem structure, function,
composition & integrity
2. maintain & restore diversity of ecosystems & habitat types in plan area
3. must create ecological condition in plan area sufficient to maintain
viable population of each species of conservation concern
a. if not sufficient, then must at least contribute to viable
population
b. note: incorporates ESA req'ments
iii. note: move from indicator species to ecosystem based rule (adopts approach
advocated in marita)
b. idaho sporting cong. v. rittenhouse (9th cir. 2002) (1254) (finding that FS std
allowing "proxy-on-proxy" approach to determining impact on endangered species in
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lOMoARcPSD|7881402
timber sales area does not reasonably assure "viable" populations of old-growth
dependent species at issue under NFMA / NEPA)
i. APA challenge to LRMP via challenge to timber sale itself
ii. FS proceeds contrary to its own experts  no room to find FS actions
reasonable under NFMA or NEPA analysis
c. sierra club v. marita (7th cir. 1995) (1262) (finding that wildlife resources are
controlling, co-equal factor in forest mgmt. & substantive limitation on timber
production, but not requiring FS to apply conservation biology principles to mgmt.
decisions)
i. FS entitled to use own methodology unless irrational
1. conservation ecological principles only developed in certain contexts
not clearly analogous to timber plans at issue
2. FS not req'd to undertake additional research to determine of those
principles would be applicable in case context
VIII. FS roadless rule
a. background: wilderness inventories under WA (RARE I, II)
i. continuing obligation under routine planning process to consider wilderness
characteristics under NEPA (e.g., oregon nat. des. ass'n (applying obligation
to BLM, but refers to FS cases  smith v. US (682) ("an area's roadless
character has envtl significance," which should be accounted for in NEPA
process))
1. basically just discretionary policy decision by FS  not compelled by
statute
b. clinton admin. RR: prohibited construction of roads or approx. 58.5M acres of
inventories roadless areas (nearly 1/3 of NF land)
i. exceptions: logging to improve habitat for listed or proposed to be listed ESA
species; maintain / restore ecosystem composition / structure; reduce risk of
wildfires
ii. note: broad plan meant that couldn't be challenged at LRMP stage (forest by
forest)
iii. note: implementations suspended by bush admin.
c. kootenai tribe of idaho v. venman (9th cir. 2002) (1273) (overturning PI against
implementation of 2001 RR where Ps didn't demonstrate success on merits & pub.
interest didn't weigh in their favor)
i. NEPA claims:
1. failure to follow property N/C procedure
a. BUT FS did follow sufficient procedure & allowed adequate
time for meaningful pub. participation & comment
2. failure to address adequate range of alternatives, including no action
alternative:
a. policy goal – protection of ecological & social character of
roadless areas – determines range of reasonable alternatives
i. continuing existence of roads not essential to achieving
those policy goals
ii. e.g. toledo airport case
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lOMoARcPSD|7881402
b. alts req'ment less stringent when envtl preservation is primary

goal
i. NEPA double-std when pro-envtl purpose
ii. public interest balancing:
1. where showing of probable success more likely, less hardship needed
(sliding scale)
2. here, public interest in conservation (huge public benefits) outweighs
private interest in preserving roads
d. note: had clinton RR been implemented, bush admin. would have higher burden to
promulgate new rule (e.g., state farm case)
e. RR current status:
i. clinton RR in effect everywhere, but wyo. & co.; tongass NF on separate track
IX. fire & forest mgmt.
a. shift from commodity production to preservation
b. fire as natural part of ecosystem  serves significant ecological purpose
i. limit fire suppression as mgmt. tool
c. BUT see healthy forests restoration act (1291):
i. allows large-scale logging near urban areas claimed to be at risk from fires
w/o full envtl review under NEPA
1. e.g., limits # alts req'd for "hazardous fuel reduction projects"
ii. limits judicial review of decisions falling under its purview
1. e.g., can't participate in litigation process unless participated in
administrative process
d. FS categorical exclusions under NEPA:
i. exclude certain hazardous fuels reduction activities & salvage timber sales
from NEPA compliance
ii. same rules exempted actions from N/C & appeals req'ments of appeals reform
act (ARA)
1. summers v. earth island institute (2009) (1292) (not reaching decision
re: validity of ARA rule changes b/c Ps didn't have standing)
X. economics of timber sales:
a. logging on NF generally money-losing proposition
b. individual timber sales under LRMPs often below cost
i. cost more than timber companies make
ii. FS subsidizes by selling at below cost
1. tends to estimate timber value on biological, not economic potential
2. doesn't adequately account for impact to ecological services, impact on
water supplies, etc.
c. road maintenance significant burden for FS
XI. regulation of private logging activities:
a. federal regulation: commerce clause (usu. not property clause)
i. ESA: § 9 takings prohibition
ii. CWA: BMPs for non-point sources & regulation under TMDL programs
1. silviculture activities generally don't req' § 404 permit for dredge & fill
2. CWA only applicable if subject to CWA jdx (e.g,. rapanos,
SWANCC)
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lOMoARcPSD|7881402
b. state regulation: usu. some form of state forest mgmt. act

i. sierra club v. state bd. of forestry (cal. 1994) (1310) (finding state forestry
bd. violated own rules & CEQA in approving timber harvest plans (THPs) on
record which lacked basis for determining impact of plan on old-growth-
dependent species)
1. forest practice act: obligation to give consideration to "values relating
to recreation, watershed, wildlife, range & foreage, fisheries…&
aesthetic enjoyment" in reviewing THPs
a. bd. has discretion to consider envtl impacts
2. CEQA: public agency may request require that applicant submit
sufficient information to agency to determine impact of proposal
a. note: includes substantive stds unlike NEPA
i. can't approve project as proposed if feasible alts or
mitigation measures that would lessen significant envtl
impacts
ii. all agencies that regulate private activities that affect
envt should regulate activities in order to minimize
envtl damage
iii. EA & public participation process otherwise similar to
NEPA
c. michigan state forests:
i. legacy of logging  farms  state land from tax abandonment
ii. state laws apply to forest practices
d. voluntary certification programs:
i. 3rd party certifications for silviculture / logging that adheres to certain
practices
ii. e.g., FSC (nonprofit) v. FSI (industry)
1. FSC  3rd party inspections, ecological performance measures,
indigenous community impacts
a. FSI  none
MINING
I. mining
a. contract law, property law (bundle of rights)
i. note: each "stick" in bundle potentially subject to takings clauses
b. envtl issues: climate change; acid drainage; air pollution from processing; surface
subsidence; waste management; land-use disturbance
c. public health issue: worker safety, e.g., federal mine safety & health act
II. mining on private lands
a. rights as b/t mineral estate owners
i. rule of capture:
1. e.g., common pool of oil
a. race to drill
b. any one producer can tap whole well
2. private response --> pooling agreements / unitization
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a. owners of land over well share in costs / profits from drilling

operations
b. rights as b/t surface owner / occupant & mineral estate owners
i. mineral lease, license, profit a prendre, royalty interests & mineral fee states
ii. algonquin coal co. v. northern coal & iron (penn. 1894) (1044) (narrowly
construing land purchase agreement reserving coal for "their own use" to
prohibit using that coal for commercial purposes)
iii. mineral estate dominant
1. martin v. kentucky oak mining (ky. ct. app. 1968) (1048) (construing
"broad form" mineral deed to permit strip or augur mining, which
would destroy surface estate, even though that mining technology not
contemplated when deed signed)
a. technology contemplated when signing mineral deed N/A
b. only important that intended mineral rights to be superior to
competing surface rights
i. evidenced by premium paid for broad form deeds when
signed
2. note: destruction of landscape led to surface mining control &
reclamation act (SMCRA)
iv. split estates & takings claims
1. texaco v. short (1982) (1055) (upholding indiana law providing for
automatic reversion of mineral right to surface owner if mineral estate
not used for 20 years & mineral owner fails to file statement of claim
w/ state)
a. impairment of K: not relevant under factual scenario
b. taking w/o just compensation:
i. state has power to create property interest entitled to
constitutional protections
ii. state has power to condition maintenance of that
property interest on reasonable conditions (e.g.,
statement of claim; utilizing resource)
1. owners' failure to comply w/ reasonable
conditions, not conditions themselves, deprived
owner of property
c. deprivation of property w/o due process (adequate notice?):
i. legal presumption that property owners should know of
laws affecting their property
ii. lack of actual notice not problem --> judicial system
must first make decision that didn't actually use land
before reversion
c. defining the mineral estate
i. maurice tanner (IBLA 1997) (1060) (upholding trespass claim against patent
holder under stock raising homestead act who was unlawfully removing
"humate" on public lands where humat was part of mineral estate owned by
fed gov't)
1. under SRHA, US reserved "all the coal & other minerals"
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a. case law distinguishes b/t organic & inorganic (mineral)

i. BUT distinction rooted in differences b/t animal /
vegetable matter & other substances, not req'ment that
minerals have no carbon composition
b. unlike peat moss, which is vegetative, humat more like coal
ii. note: BLM regs: minerals must be "recognized by the scientific community"
iii. andrus v. charlestone stone products (1978) (1063) (finding that water is
not considered a "valuable mineral" under 1872 general mining law)
1. rule of construction: when fed land grants at issue, generally resolve
doubts in favor of gov't, not against it
2. cong did not intend water to be considered valuable mineral under
general mining law --> would interfere dramatically w/ state water law
systems
a. avoid unnecessary fed / state conflicts
3. post-enactment history: DOI decisions soon after enactment that water
not a locatable mineral under law & private water rights on fed lands
governed by local law
iv. note: gravel
1. considered a mineral under SRHA: "...and all other minerals" (watt v.
western nuclear (1983) (1065))
2. BUT not considered a valuable mineral under 1919 pittman act
(bedrock limited v. united states (2004) (1066))
v. note: coal-bed methane (CBM)
1. history: technological innovation turns former waste substance into
valuable commercial product
2. amoco production v. souther ute indian tribe (1999) (1069) (finding
that reserved "coal" in the lands patented per 1909/10 coal acts does
not include CBM)
a. land history: tribes --> fed gov't --> settlers --> reversion of
remaining fed interest back to tribes
b. contemporary dictionaries --> common conception of coal at
time of statute did not include CBM
i. CBM viewed as dangerous waste product, not s/t to
conserve
ii. in other statutes, cong reserved "gas" explicitly
c. right to dissipate gas to access coal doesn't imply ownership
rights over gas
d. note: ignores rule that ambiguities interpreted in favor of gov't
w/r/t public lands (but arguably not ambiguous?)
e. note: app. ct. opinion didn't grant chevron deference to DOI
interpretation finding CBM not included in coal reservation -->
no indicia of rule; thus only skidmore deference warranted
3. note: BUT see united states steel v. hoge (pa.) (1075) (finding that
"coal" reservation did include CBM in private deed conveyance)
vi. note: shale gas / fracking
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lOMoARcPSD|7881402
1. issues: federal lands, CWA exemptions, CAA concerning release of

methane (net GHG emissions?)
a. state legislation all over the place (e.g., NY moratorium, PA
fracking law preempts local zoning & disclosure req'ments)
III. mining on public lands
a. chain of title important
b. 1872 general mining law:
i. applies to the public domain: lands US owned from time they became part of
US (as opposed to acquired land)
1. the acquired lands act applies to mining in eastern states
2. public domain includes much BLM & FS land; may also include
NWRs, NPs, etc., depending on enabling legislation
ii. any citizen can stake claim for purpose of prospecting "valuable minerals"
1. united states v. coleman (1968) (1081) ("marketability rule": patent
applicant must prove minerals discovered can be mined & sold under
current economic conditions at time of patent)
2. once claim staked, must use property for mining
a. note: must stake claim properly (as placer claim or lode claim),
e.g., eureka consolidated mining v. richmond (1880) (1088)
3. file patent w/ US gov't (pre-FLPMA could file w/ local gov't)
4. must make nominal regular payments to keep claim active
iii. mining claim limitations
1. note: BLM may withdraw land from mining under general mining law
in accordance w/ FLPMA procedures (see above) (20 year
withdrawals)
a. if non-BLM land at issue, must get consent from agency that
has jdx
b. e.g., withdrawal of land outside grand canyon from uranium
mining (over 1M acres) under general mining law, subject to
valid existing rights
i. protect water resources
ii. ensure sustainable long-term uranium mining
2. NPs, NMs generally don't allow mining, but may be some authorizing
exceptions
3. wilderness areas:
a. closed to mining if FS land designated as wilderness pre-1984
b. new mining not allowed in BLM WSA's, but non-impairment
mandate subject to existing mining claims / leases
4. wild & scenic rivers:
a. wild rivers closed to mining entry & location
b. scenic & recreational areas allow mining subject to strict
regulation
5. NWRs: generally closed to mining w/ some exceptions
6. other lands may be withdrawn from mining on ad hoc basis
c. 1920 mineral leasing act:
i. applies to public lands purchased from pvt landowners (e.g.,. eastern lands)
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lOMoARcPSD|7881402
1. must pay royalties to fed gov't

2. no legal process req'd to acquire title as w/ 1872 act
IV. fed envtl regulation of mining
a. FS: FS organic act allows FS to regulate "use & occupancy"
i. FS regs: mining shall be conducted to "minimize adverse envtl impacts on NF
system surface resources"
ii. BUT only req' "plan of operations" if disturbance likely to be significant &
reclamation after operations shut down
1. limited to no enforcement provisions
b. BLM: FLPMA: BLM must "take any action necessary to prevent unnecessary or
undue degradation"
i. history:
1. reagan admin.: no "necessary" mining processes could be considered
unnecessary --> no regs
2. clinton admin.: detailed plan of operations & envtl performance;
inspections; bonding req'ments for full cost of reclamation; J&S
liability; envtl performance stds
a. defined "undue & unnecessary" as anything that results in
"substantial irreparable harm" to range of values that can't be
mitigated
3. bush admin.: suspended clinton rules; reverted to reagan rules
a. upheld new rule if applied on case by case basis & applied in
way such that "irreparable harm" would be basis for denying
mining permit (mineral policy ctr. v. norton (DDC 2003)
(1174))
c. CWA permitting req'ments
i. NPDES permit if create point source discharge of pollutant (beartooth alliance
v. crown butte mines (d. mt. 1995) (1182); northern plains resource council v.
fidelity exploration & development (9th cir. 2003) (1182))
ii. § 404: valley fill for MTR operations?
1. ACOE general / nationwide permits:
a. NWP 21 applies to valley fills, requiring prior ACOE approval
i. BUT NWP 21 sets no substantive limits on valley-fill
activities; allows mining companies to avoid stream
buffer rules
b. kentuckians for the commonwealth v. rivenburgh (4th cir.
2003) (1191) (upholding ACOE authority to approve permit
under NWP 21 despite wide-spread envtl harm); ohio valley
envtl. coalition v. bulen (4th cir. 2005) (1192) (upholding NWP
21 even though ex ante prediction of minimal impacts from
valley fills were subject to significant uncertainty)
iii. citizen-suit provision
iv. note: obama admin.:
1. EPA has vetoed § 404 permits for MTR mining
2. has increased coordination b/t EPA & ACOE mining permitting
process
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lOMoARcPSD|7881402
d. other generally applicable statutes: ESA, NEPA

e. SMCRA: applies to surface coal mining operations
i. basic components:
1. permitting: surface coal mining operation must obtain permit
2. bonding & bond release – sufficient to cover cost of reclamation if had
to be performed by regulatory authority
3. performance standards:
a. restoring land to condition where capable of supporting pre-
mining or higher & better use
b. restoring approximate original contours
i. note: req'ment not applicable to MTR mining
c. plus others, e.g., using BAT to control sedimentation,
complying w/ blast stds, etc.
4. enforcement: inspections & penalties
ii. citizen suit provision: can enforce law when state & fed agencies fail to act;
can bring suits against pvt violators
iii. note: SMCRA can be administered by states w/ approved programs; else
managed by fed gov't
iv. hodel v. va. surface mining & reclamation ass'n (1981) (1189) (upholding
SMCRA against constitutional challenges)
v. citizens coal council v. norton (DC cir. 2003) (1189) (upholding DOI
interpretation that SMCRA doesn't cover subsidence caused by underground
mining, essentially allowing mining in areas otherwise off-limits)
V. state envtl regulation of mining
a. cal. coastal comm'n v. granite rock co. (1987) (1175) (upholding state power to
regulate mining on fed lands where state action not explicitly preempted)
i. FS req'd GR to seek permit from CCC for mining operation located in NF, but
w/in state's coastal zone mgmt. area
ii. lower std for upholding on facial challenge, e.g., sweet home: need only
plausible application that's lawful to uphold
iii. PC doesn't automatically displace state regulation
1. no preemption to extent that laws don't conflict w/ objectives of law /
can't comply w/ both state & fed law OR cong didn't intend to fully
occupy the field
2. state free to enforce criminal & civil laws so long as not preempted
iv. fed laws deal w/ land use; state laws deal w/ envtl regulation --> no conflict
of objectives
b. NWF v. MDEQ (kennecott mine case) (mich. cir. ct. 2011) (CTools)
i. challenge under MEPA: state "will not pollute, impair, or destroy the air,
water, or natural resources or the public trust in those resources"
ii. battle of experts as to actual envt impacts --> defer to agency where evidence
is mixed
WATER MGMT.
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lOMoARcPSD|7881402
I. CWA & wetlands:

a. wetlands: ecological importance; history of loss  efforts to protect wetlands
b. can't discharge from point source any pollutant into "navigable waters" unless
NPDES or § 404 (ACOE) permit
i. failure to obtain permit results in civil or criminal penalties
ii. note: CWA citizen suit:
1. get injunction; recover civil penalties (payable to fed gov't); recover
costs
2. note: covers suits against any person in violation of CWA & against
EPA for failure to complete non-discretionary duty
c. pollutant: includes solids such as "dredged spoil, rock, sand, & cellar dirt"
d. regulatory structure:
i. EPA administers NPDES program  state can certify it meets more stringent
state stds
ii. state administers NPDES program  EPA can veto state permit
iii. ACOE administers § 404 program  EPA can veto § 404 permit
iv. state administers § 404 program  EPA can veto state § 404 permit
v. note: where state administers program, challenge to permitting decisions in
state administrative & judicial system
e. § 404 preferences: applicant has burden of proof:
i. avoid filing wetland resources
ii. minimize adverse impacts to those wetlands that can't be reasonably avoided
iii. provided compensatory mitigation for unavoidable adverse impacts after
mitigation measures exercised
iv. note: implicit in avoidance preference is req'ment that applicant show "no
reasonable alternatives" to developing wetlands
f. note: general v. individual permits
i. general: allow certain activities, so long as conditions specified in permit are
met
ii. individual: require specific limitations & conditions that apply in particular
instance
g. CWA covers discharges into "navigable waters"  "the waters of the US"
i. navigable in fact + waters "affecting commerce" whether navigable or not
ii. BUT raises CC clause concerns
iii. rapanos v. united states (2006) (854) (split decision finding that isolated
wetlands that are not adjacent to a traditionally navigable water body & that
don't otherwise have "continuous surface connection" or "significant nexus" to
such water bodies is not covered by CWA)
1. power to regulate: commerce clause
a. presumption under equal foot doctrine that states own
bottomlands of navigable waters  fed PC N/A
b. note: BUT for navigable in fact waters, US retains equivalent
of dominant easement  not taking for adverse impacts on
private interests in navigable in fact waters
2. prior case law:
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lOMoARcPSD|7881402
a. united states v. riverside bayview homes (1985) (856): waters

of US may include adjacent wetlands actually abutting
traditionally navigable waters
b. SWANCC v. ACOE (2001) (856): nonnavigable, isolated,
intrastate wetlands that don't abut traditionally navigable
waters of US are not waters of US  CWA jdx can't be upheld
w/ migratory bird rule (cong intent not to extend CWA to full
extent of CC)
i. note: under treaty powers, might be able to assert jdx
3. issue: what does "the waters of the US" encompass?
a. chevron step 1: plain meaning : dictionary indicates that "the
waters" applies to rivers, streams, lakes & the like
i. terms connote "continuously present, fixed bodies of
water," as opposed to ordinarily dry channels w/
intermittent flows
ii. excludes channels w/ "merely intermittent or ephemeral
flows"
iii. would be absurd to exclude term broadly
b. chevron step 2: even if ambiguous ACOE interpretation
impermissible
i. expansive reading would be significant impingement on
states traditional land-use powers (SWANCC)  need
"clear & manifest" congressional statement to authorize
such intrusion into state authority
ii. rule of construction: constitutional avoidance  when
pushing outer limits of CC power, expect clear
statement from cong that it's intending to exercise full
scope of those powers
c. holding: "waters of the United States" includes only "relatively
permanent, standing or continuously flowing waters" like
streams, oceans, rivers & lakes
4. CON (KENNEDY): CWA jdx depends on "existence of a significant
nexus between the wetland s in question & navigable waters in the
traditional sense"
a. must assess in light of statutory purposes
b. requisite nexus = when wetlands "significantly affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as navigable"
5. outcome: remand to determine if jdx exists under PLU or CON std
6. note: cir. split re: right test to apply (what is narrowest holding?)
h. note: CWA: NPDES & § 404 both applicable to MTR mining
i. EPA just won case upholding veto of § 404 permit after 2 year delay
i. compensatory mitigation:
i. largely unsuccessful: new wetlands not equivalent in terms of ecosystem
services; often abandoned; hard to monitor & enforce
1. wetlands mitigation banking:
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lOMoARcPSD|7881402
a. provides for off-site mitigation

ii. stems from § 404 permit req'ment to compensate for lost wetlands whose
harm can't be mitigated
j. navigability:
i. navigability-for-title test: whether particular watercourse, in natural condition,
was capable of being used for commerce at time of statehood using then
customary modes of transport
1. if so, then state presumed to have title
ii. navigability -in-fact: whether waterway previously, presently, or in future
was/is/will be capable of sustaining commerce w/ reasonable improvements
k. takings & regulation of navigable waters:
i. federal power to protect navigation constitutes federal immunity from
compensation when submerged lands taken to promote or protect navigation
(gibson v. united states (1897) (868))
ii. navigation servitude: damage to riparian owner's property from fed activities
always subject to fed power (united states v. chicago, M., st., P. & PRR
(1941) (868))
1. US has dominant servitude
iii. similar to state immunity under PTD (e.g., illinois central)
iv. limits: servitude not coextensive w/ navigability in fact & doesn't extend to
waters navigable in fact by improvement (kaiser aetna v. united states (1979)
(870))
II. allocation of fresh water resources
a. uneven distribution: geographical, seasonal, temporal
i. e.g., in US division = 100th meridian  dry to west, wet to east
b. resource scarcity: absolute amount; technical cost associated w/ making it useable
III. water uses
a. instream uses (onsite): fish & wildlife uses, recreation uses; ecosystem service
provision; navigation, hydropower, & waste dilution
b. out-of-stream uses (off-site): irrigated agriculture, industrial purposes, & domestic
purposes
c. consumptive use: when water cannot be reused -- i.e., when one particular use of
water precludes another
d. non-consumptive use: when water can be reused (even if in different location)
IV. water users
a. communities of interest: miner-farmer-rancher coalition; environmentalists; cities;
indian tribes, etc.
b. "water communities": self-governing units for purpose of using water resources
i. e.g.,. irrigation district, flood control district, drainage district, etc.
1. obtain, store, transfer, sell water, etc.
ii. mutual: private nonprofit corporations whose customers are shareholders
iii. water districts: governed by elected boards
iv. retailing v. wholesale institutions (often nested)
V. valuing water: depends on marginal utility
a. real cost is function of opportunity cost & real cost to move water to point of use
i. may be affected by subsidies (e.g., dam projects)
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lOMoARcPSD|7881402
VI. dams:
a. mixed legacy  large benefits, but huge costs
VII. water allocation law: riparian rights v. prior appropriation
a. sax, proceedings of 2001 symposium (759): water law evolves over time to reflect
changing social needs, values
b. key issue: req'ments for developing property right in water resources & constitutional
protections that the right may or may not get once developed
VIII. riparian rights: right to use water derives from ownership of land bordering watercourse
a. natural flow theory: riparian owner entitled to have any stream flowing through land
remain in natural condition w/o diminishing its quality or quantity
i. essentially limits withdrawal to domestic purposes
b. location of use: can't use water on tract outside watershed
i. usu. applies only to properties adjacent to water  subdivision could result in
loss of rights for some parcels
1. "unity of title"  if single owner of contiguous parcels, can use water
for non-adjacent parcels
2. "source of title"  riparian rights only for land that has always had
riparian rights (can expand through consolidation)
3. more common in hybrid system; promotes appropriative rights
ii. traditionally, only riparian owners could use water
1. exceptions (in some jdxs):
a. riparian owner can't limit non-riparian use unless shows harm
b. nonriparian use OK as long as reasonable compared to other
uses & user owns at least some riparian land (even if small
amt)
2. note: can buy & sell riparian rights, subject to rights of original owner
c. right to wharf out: can build docks, piers, & wharves
d. right to use surface: can fish, boat, swim, recreate, etc.
i. depending on jdx, may have right to use whole waterbody or just portion over
bottom owned by riparian owner (though always subject to state ownership of
submerged lands)
1. if navigable water, then must share right to use surface w/ public & w/
other riparian owners
a. though riparian owners have unique right to build dock, etc. if
don't interfere w/ navigation
b. equal footing doctrine: presume state ownership of
bottomlands for navigable waters (e.g., illinois cent.)
i. BUT montana (ted turner): riparian owner may still
have exclusive right to use bottom (trepass)
2. if non-navigable water, then riparian owners may limit public access
where use would be unreasonable (even there's public riparian
ownership) (e.g., botton v. state (wash. 1966) (766))
a. riparian owners actually own bottomlands for non-navigable
water bodies  can use area of lake above own property
ii. note: state ownership of riparian right subject to same limits as other riparian
owners (e.g., botton v. state (wash. 1966) (766))
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lOMoARcPSD|7881402
e. reasonable use rule (how much can be used & what for):
i. harris v. brooks (ark. 1955) (760) (applying reasonable use rule to enjoin
excessive irrigation withdrawals that dropped lake level to point where
commercial boating & fishing enterprise was damaged)
1. reasonable use theory: use of stream or water by each riparian owner
is limited to what is reasonable, having due regard for rights of others,
above, below, or on opposite shore (correlative rights)
a. can use water so long as doesn't injure others
2. water rights principles:
a. right to use water for domestic purposes is superior to all others
b. other than domestic uses, all other uses are equal
c. when one lawful use prohibited / destroyed by another, that
destructive use must be enjoined
d. when uses simply interfere w/ each other, must enjoin
unreasonable use
i. not an "unreasoned, intuitive conclusion"  seeks to
promote greatest beneficial use of water by evaluating
conflicting interests in accordance w/ standards of
society
3. note: timing of first use irrelevant
ii. reasonable use factors: restatement of torts (864):
1. purpose of use
2. suitability of use to waterbody
3. social value of use
4. economic value of use
5. extent & amt of harm caused
6. ease of avoiding harm by adjusting method of use
7. practicality of adjusting use
8. protection of existing values of water uses, land, investments, etc.
9. justice of requiring user causing harm to bear the loss
f. riparian permit systems: general req'ment for permit except certain small categories
of withdrawals
i. permit factors:
1. whether withdrawal exceeds safe yield for water course
2. whether it's consistent w/ any applicable water allocation planning
3. whether it's reasonable
a. restatement factors, including whether in "public interest"
i. e.g., ecology, aesthetics, domestic & municipal uses,
aquifer recharge, capacity to assimilate waste, etc.
ii. if water overallocated, permit based on preferred uses (not first in time)
iii. permit transfers require state approval based on above criteria
iv. note: difficulties in converting to permit system  existing riparians must
still apply for permit, else will have abandoned of any claim to future riparian
withdrawals
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v. granco-amerc. charlaise v. OWRB (okla. 1990) (769) (finding that permit

for expansion of city riparian rights constituted a taking of existing riparian
water rights & thus statute was unconstitutional unless just compensation)
1. state has both riparian & prior appropriation water laws 
fundamental conflict
2. 1963 state law:
a. riparian rights = domestic uses + pre-existing uses
b. prior appropriation = all subsequent uses
3. riparian right = pvt property right
4. 1963 amends unconstitutional  abolish right of riparian owners to
assert vested interest in prospective reasonable sue of stream
a. mechanism for "perfecting" all pre-existing uses not sufficient
b/c doesn't recognize what is "reasonable" depends on other
uses  can't fix use or amount w/o changing basic nature of
riparian right
vi. note: decision is outlier  all other states have not recognized state law
takings in this context
1. depends on how right conceptualized
a. part of physical property OR severable
b. unlimited OR limited / fixed
2. note: fed takings likely not concern (texaco v. short (indiana mineral
law case))
g. note: mich. has permit-based system, req'ing permits for certain quantities of
withdrawal over given period
IX. prior appropriation: right to use water derives from rule of capture -- first to put it to
use gets priority use
a. driven by aridity & water scarcity; informed by mining laws  first to appropriate
water develops property right in that water
b. principles: "first in time, first in right"
i. doesn't depend on location of property
ii. senior rights holders get priority over junior rights holders
iii. generally, must actually divert water (but flow back OK)
1. instream uses vary by jdx
iv. all uses must be beneficial
1. all beneficial uses treated equally, though not all may be reasonable if
state has reasonableness req'ment
v. all manner of diversions treated equally (no req'ment to use water efficiently)
1. BUT see reasonableness of uses req'ment
vi. jdxs may or may not limit transfers w/in or outside of the watershed; no
intrinsic limit on where water used
vii. includes right to wharf out & use surface
viii. some jdxs allow appropriation of water rights though waterbody already
overallocated  permits later rights holders to get water to store only in really
high-flow years
1. may still need to show that appropriation in public interest
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lOMoARcPSD|7881402
2. could harm junior water rights holders, depending on return flow

impacts
ix. speculation / waste not permitted  must use right; may lose it if don't use
c. beneficial use / reasonableness req'ment: water is used for purpose that is beneficial
(e.g., agriculture, domestic, municipal, & industrial) & in reasonable amt
i. waste – not using the full allocation or using it for unreasonable purposes –
prohibited
ii. imperial irrigation dist. v. state WRCB (cal. 1990) (784) (upholding WRCB
decision to require IID to implement water conservation plan against takings
claim)
1. cal. const.: prohibits "water or unreasonable use or unreasonable
method of use of water"
2. beneficial use not same as reasonable beneficial use  need both to
have water right (joslin v. marin mun. water dist. (cal. 1967) (786)
a. no right to "waste" water, which is unreasonable
3. cal. const.: water resources must be put to beneficial use to fullest
extent possible
a. requires comparison of uses  depends on context, e.g.,
scarcity & need
b. water rights evolved from absolute right to comparative right,
depending on which is more advantageous
4. cal. water law responsive to changing needs  notion of vested &
immutable rights has passed
iii. note: background is how LA will get water & what it will cost
d. permit systems & public interest req'ment:
i. most prior appropriation schemes administered w/ state permit system (except
col.)
ii. permit not water right  will ripen into water right if allocation used
beneficially
1. certificate of appropriation issued when right perfected
iii. primary focus under prior appropriation is taking water out of waterbody &
putting it to use
1. BUT public interest req'ment can account for water conservation,
recreation values, & ecological considerations
2. e.g., cal. water code § 1257: allows permits to be subjected to "such
terms & conditions a…will best develop, conserve, & utilize in the
public interest, the water sought to be appropriated"
iv. public interest may also apply to water transfers
1. e.g., in re app. of sleeper, rio arriba cnty (n.m. 1st jud. dist. 1985)
(792) (prohibiting water transfer where would impact cultural values
of local peoples, though transfer was of significantly more economic
value)
2. BUT SEE PUD no. 1 of pend oreille cnty v. state DEQ (wash. 2002)
(792) (finding that public interest statute didn't apply to water transfers
b/c allocation of water has "already occurred")
e. instream flow appropriations:
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i. main strategies:
1. consider envtl & recreational impacts under public interest analysis
2. allow state agencies to condition permits on maintaining certain
instream flows or to not issue permits for those flows
3. allow water to be appropriated for instream flow
ii. note: easier for riparian states to provide for instream flows
1. more water
2. riparian doctrine generally prohibits unreasonable depletion of stream
lows
3. may also have statutory provisions setting min stream flows
f. prior appropriation & PTD / public interest:
i. note: public interest test is state executing PT responsibilities
ii. nat'l audubon soc'y v. sup. ct. of alpine cnty (cal. 1983) (799) (requiring
state agency to consider PT obligations when administering appropriative
rights w/r/t diversions from non-navigable waters flowing into mono lake)
1. in initial allocation, state indicated that it could not consider PT
impacts in determining approving appropriation
2. state has title as trustee to waterways & submerged lands
3. PT protects: navigation, commerce, fishing, as well as ecological &
recreational values (marks v. whitney (803))
a. PT is flexible  accommodates changing needs
b. Ps have standing to bring claim for this activities  looser than
fed req'ment
4. PT encompasses all navigable lakes & streams, not just tidal waters 
protects those resources from diversions of nonnavigable tributaries
5. parties holding rights in trust property hold those rights subject to the
trust  can't assert vested rights in manner harmful to trust
a. state administering / establishment of trust can't constitute
taking
6. state has continuing power to administer public trust, which includes
power to revoke previously granted rights or to enforce trust against
lands though free of trust
7. basic principles:
a. PT prevents party from acquiring vested right to appropriate
water in manner harmful to PT interests
b. water appropriations are necessary & are not fundamentally
inconsistent w/t the PT
c. BUT state has affirmative duty t take PT into account in
planning & allocation of water resources & to protect PT
resources whenever feasible
i. and as manner of practical necessity may have to
allocate rights despite harm to PT resources
ii. state has continuing duty to supervise taking & use of
trust water & can reconsider allocation decisions
whether or not they were made after due consideration
65

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of PT -- stronger reason to do so if not consideration, as

in case here
iii. note: PTD has mixed results depending on jdx
1. e.g., idaho limits PTD to state alienation of title to submerged lands
g. area-of-origin statutes: may impose limits on out-of-basin transfers
X. groundwater law:
a. historically, rule of capture: "ways of underground water were too mysterious &
unpredictable" (state v. michels pipeline contruction. (wis. 1974) (810))
b. aquifers: saturated, permeable earth materials from which significant quantities of
water can be produced
i. provide water throughout year
c. challenges w/ groundwater:
i. poorer water quality
ii. detrimental impact on surface water
1. e.g., rivers recharged w/ ground water
d. legal regimes:
i. rule of capture aka absolute dominion: landowners can use as much water as
possible
1. only limit: can't withdraw maliciously where sole purpose to harm
neighbor
a. TX: also can't negligently cause another's land to subside
2. not rule in most jdxs
ii. reasonable use (amer. rule): must be put to reasonable use AND can be used
only on land overlying aquifer unless use elsewhere causes no injury to
overlying landowners
iii. correlative rights: like surface water, reasonableness of respective uses
determined correlatively, w/ reference to other overlying landowners
1. correlative share often determined by portion of land overlying aquifer
(not just reasonableness of use)  more land, greater use rights
2. some jdx allow temporary off-site uses
iv. reasonable use (restatement): landowners can pump water for any beneficial
use, whether on overlying land or not, as long as no unreasonable harm to
other users
1. can't focus on proportion of overlying land to determine
reasonableness, b/c comparison includes off-site uses
2. reasonableness factors same as surface water riparian schemes
v. prior appropriation: first come, first serve once rights perfected
1. may result in shutting down junior wells
2. challenges:
a. allocating pumping costs
i. e.g., deeper, junior wells may put water out of reach for
senior, shallower wells, though overall enough water to
satisfy both rights  most jdxs allow senior water right
holder to enjoin junior water rights holders from
interfering w/ prescribed water & also w/ reasonable
means of diversion (pumping)
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b. determining right level of supply: how to balance withdrawal

with recharge rates & background volume
c. how to integrate surface & groundwater rights where systems
connected
i. surface water usu. first rights developed, so curtail
groundwater uses
XI. great lakes water law:
a. water quality: interstate / int'l cooperation model:
i. e.g., great lakes fisheries comm'n:
1. canadian / US representatives
2. program to control invasive species (e.g., sea lamprey)
3. note: US commissioners are agency  subject to APA challenges
ii. e.g., st. lawrence seaway comm'n
iii. e.g., 1909 boundary waters treaty: establishes int'l framework to manage
waters in common, including great lakes
b. water resources: states ultimate sovereigns over water BUT conflict
i. dispute resolution options:
1. SCOTUS under equitable apportionment clause  resolve interstate
issues re: water & water rights
a. e.g., SCOTUS degree re: chicago withdrawals from lake mich.
b. e.g,. kansas v. col. (1907) (882)
2. interstate compact:
a. e.g., great lakes compact
i. limits diversions for areas outside watershed  need
cong approval else DCC violation
ii. states must develop permit schemes to manage in-state
withdrawals
iii. states retain mutual veto rights for certain withdrawals
67

Natural Resources Law Outline

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Natural Resources Law Outline

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NATURAL RESOURCES LAW OUTLINE

COURSE THEMES & OVERVIEW ............................................................................................. 3

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COURSE THEMES & OVERVIEW

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4. CBA: contingent valuation (WTP), hedonic pricing (how proximity o

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2. applies to: private water rights, navigation, commerce, fisheries,

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b. under property clause (PC), cong has both legislative &

FEDERAL POWER OVER NAT. RES. MGMT.

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c. 5th amend: takings, EPC

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i. as long as action pursuant to treaty doesn't contravene express const.

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1. BUT still restricts state legislatures from

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i. lyng v. northwest indian cemetery protective ass'n (1988) (201) (finding

ADMINISTRATIVE AGENCIES & NAT. RES. MGMT.

I. agency existential justifications / operational character:

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ii. agency-self interest: increase power; perpetuate agency importance w/r/t

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1. adjudication: process for producing orders

informal actions  A&C, abuse of discretion or otherwise not in accordance w/ law

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2. if ambiguity, then uphold agency interpretation as long as based on

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a. BUT concerned w/ new rights of action not associated w/

INTRO TO NAT. RES. PLANNING -- PUBLIC LANDS

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i. methods for more extensive involvement at discretion

NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

I. information-forcing: requires agencies to consider envtl impacts of their decisions

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i. CEQ definition includes "connected actions" & "cumulative actions" 

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i. "functional equivalent": other forms of envtl review may be sufficient for

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ENDANGERED SPECIES ACT

I. history: bi-partisan support, preservation oriented

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iii. to require Secretary to comply w/ non-discretionary duty under § 4 [e.g.,

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b. non-discretionary duty  can be sued under citizen-suit provision

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1. note: consultation req'ment doesn't apply to non-discretionary duties

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