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Volume 2013, Number 6




The Public Trust in Wildlife
Michael C. Blumm, Aurora Paulsen

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine-sovereign ownership of wildlife-is also an ancient public property doctrine inherited from England State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This Article claims that these two doctrines should be merged and that state sovereign ownership of wildlife means that wildlife-like navigable waters-is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states the authority to manage their wildlife populations, but also the duty to do so, and would equip members of the public with standing to enforce the states' trust duties in court. This Article shows that the public trust in wildlife has already been employed in California and several other states and suggests that it deserves more widespread judicial recognition, particularly since-as the Authors demonstrate-no fewer than forty-eight states have used trust or trust-like language in describing state authority to manage wildlife.

2013 Utah L. Rev. 1198 | (Download PDF)

Environmental Regulatory Nukes
Brigham Daniels

Regulatory nukes are regulatory tools that can prove extremely destructive to regulatory targets and have an element of political taboo surrounding their use. The Article discusses how and why Congress proliferates regulatory nukes. It explores the way regulatory nukes shape the contours of environmental law and define important aspects of various environmental enactments, including the Clean Air Act, the Clean Water Act, RCRA, CERCLA, and the Endangered Species Act, among others. The typical narratives we find surrounding environmental regulatory nukes, that either focus on regulatory Armageddon or dust settling on nukes in their silos, only tell part of the story. These narratives neglect the ways in which regulators us environmental regulatory nukes to prod, cudgel, and extract regulatory concessions from their potential targets. Seeing regulatory nukes in this light helps us better understand that regulators use these weapons not only by firming them but also by brandishing them and even merely possessing them.

2013 Utah L. Rev. 1199 | (Download PDF)

Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management
Noah D. Hall, Benjamin L. Cavataro

As demand for freshwater increases and surface water supplies diminish, states increasingly tap groundwater to meet their water needs. Like rivers and lakes, groundwater aquifers cross state lines and create legal challenges for allocation and management. For over a century, the Supreme Court has applied its equitable-apportionment doctrine to allocate shared surface water supplies among states. The Court has not yet been faced with an equitable-apportionment action for groundwater, but several disputes are emerging around the country that may soon command the Court's attention.

This Article examines how the equitable apportionment doctrine can be applied to an interstate groundwater dispute, using the Snake Valley Aquifer shared by and Nevada and Utah as a case study. Equitable apportionment is a viable doctrine for resolving interstate groundwater disputes, but it is not ideal. Instead, interstate compacts provide a constitutional mechanism for cooperation by which states may protect and utilize a shared natural resource. There are over twenty interstate compacts currently in effect, covering major interstate waters such as the Colorado River and the Great Lakes. Some of these compacts address connected groundwater, but none to date are focused on sustainable aquifer management. Recently, Nevada and Utah have developed a proposed agreement to manage the Snake Valley Aquifer. While the proposed agreement was rejected for political reasons, and the Snake Valley Aquifer dispute itself seems headed for litigation, the agreement provides a model for sustainable and cooperative transboundary aquifer management.

2013 Utah L. Rev. 1200 | (Download PDF)

The Architecture of Ignorance
Gregg P. Macey

This Article develops an approach to environmental law that I refer to as "data-intensive regulation." The origins of data-intensive regulation lie in the public's ability to gather, for the first time, data at spatial and temporal scales of its choosing. This capability, and the knowledge-building efforts it supports, will eclipse the theoretical and computational procedures that guided environmental law's enactment. As environmental law evolves from a data-starved to data-rich enterprise, pollution control and ecosystem management will need to respond in two ways, focusing less on data supply and more on the demands of data users and the data's underlying architecture. Legal scholars neglect these questions, offering proposals to bridge and fill gaps in data. At the same time, environmental law has surrounded itself with supportive structures to accommodate these gaps, which are useful in data-limited contexts. I explore this architecture, and its next phase of evolution, through case studies of citizen monitoring arrays, hazardous substances and microenvironments, and disaster planning and peer-to-peer response. Data-intensive regulation promises to recast debates over regulatory design and federalism. It calls for the coordinated use of previously neglected regulatory tools. And it addresses a wider range of transaction costs, and their influence over responses to environmental harms, than costs related to data supply. 

2013 Utah L. Rev. 1201 | (Download PDF)


Unintended Consequences: Lucas, the Public Trust Doctrine, and the Erosion of Private Property Rights Under the Takings Clause
Timothy M. Bagshaw

This Note considers the relationship between the public trust doctrine and private property rights under the Takings Clause. Traditionally, the public trust doctrine vests authority in state governments to protect navigable waterways and related lands. But in recent years, state governments and state courts have begun to use the doctrine to achieve broader environmental ends. While increased environmental protection at the state level serves vital public interests, it is not an unambiguous good. Under current takings analysis, the public trust doctrine constitutes one of several affirmative defenses to just compensation liability; where state governments invoke the public trust doctrine, they are not required to pay just compensation to property owners, even for complete takings. The expanded public trust doctrine can therefore frustrate constitutionally rooted private property rights. This Note proffers some recommendations to resolve the tension between states' interest in environmental protection and private property owners' constitutional guarantee of just compensation. Under a codification and declaration regime, states can continue to expand their public trust doctrines while at the same time providing property owners more meaningful protections.

2013 Utah L. Rev. 1202 | (Download PDF)

Water Securities: Rights to Use, Used as Collateral

John Robinson Jr.

If water markets were really as simple and beneficial as most academics suggest, then the West would be overrun with them. Water market scarcity in the United States illustrates how even really good ideas proposed by very talented minds, often stagger the lurch toward acceptance and implementation. This Note looks at the water-rights market and suggests that some deficiencies result from the unique manner in which the law treats water rights. Utah, for instance, considers water rights as a form of real property. Yet abandonment and forfeiture annihilate water rights completely, while other forms of real property cannot be destroyed. This disconnect-between two forms of property that are functionally different but legally similar-adds abstraction and uncertainty to the marketplace, which in turn impedes further development of the marketplace itself.

2013 Utah L. Rev. 1203 | (Download PDF)


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