Natural Resources Law Outline

Professor Hiesel – Spring 2006

I.  Overview / Introductory Material

  1. The Tragedy of the Commons – Garrett Hardin, 1968
  2. When a resources is open to exploitation by all, individually beneficial actions lead to destruction of the common resource
  3. Two possible solutions:
  4. Private ownership
  5. Government regulation of common areas
  6. The tragedy of fragmentation
  7. When critical habitat is privately owned in small parcels no individual owner will be able to develop a viable conservation plan
  8. Bioregionalism (region defined by similar naturally occurring characteristics) may be an answer
  9. What is a natural resource?
  10. In Re Tortorelli (2003)
  11. Adopts dictionary definition of “materials supplied by nature
  12. Constitution grants States ownership of stream & lake beds
  13. Equal footing doctrine grants this ownership to newer states
  14. Paige v. Fairfield (1995)
  15. Lower court had adopted a definition of natural resources that required “economic value”
  16. CT Supreme Court rejected the “economic value” test, trees and wildlife are natural resources regardless of economic value
  17. Conservation
  18. Utilitarianism
  19. Focus is on using natural resources in a profitable, but sustainable manner
  20. Championed by Giford Pinchot in the Progressive Era
  21. Focus on scientific management
  22. Current example: U.S. Forests
  23. Preservation
  24. Focus is on saving wild nature
  25. Championed by John Muir and the Sierra Club
  26. Current example: U.S. National Parks
  27. Public Trust Doctrine (Overview)
  28. Natural resources are held in a trust for the benefit of humankind
  29. Trustee has a fiduciary duty to beneficiaries
  30. Inter-generational equity: future generation have equal rights to natural resources as the current generation
  31. Some argue that Trust metaphor is inadequate because it gives the current “trustees” too much discretion to sell or exploit natural resources in the name of economic development that will benefit future generations

II.  The Public Trust Doctrine

  1. Test for Navigability
  2. Navigability for Title
  3. Did a tract of submerged land pass into state ownership at the time of statehood?
  4. “Highway of Commerce” test
  5. See Pollard v. Hagan
  6. Navigability for Public Access
  7. Does the public have the right to float downstream?
  8. Differs from state to state
  9. Some use navigability for title
  10. Some use susceptible to recreational use test
  11. Some use a historic approach, asking “Was the stream used to float logs?”
  12. Navigability for Commerce Clause purposes
  13. Is a watercourse subject to federal regulation under the Commerce Clause?
  14. Highway of Commerce test
  15. See The Daniel Ball
  16. Navigability for Admiralty Jurisdiction
  17. Does a legal dispute fall within the maritime jurisdiction of the federal courts?
  18. The Public Trust Doctrine
  19. Martin v. Waddell’s Lessee (1842)
  20. Under Colonial system, King held public waterways in trust for the people – rights to these waterways did not pass in colonial land grants
  21. U.S. Constitution divided sovereignty between Federal and State governments
  22. State governments control submerged lands and fishery rights
  23. Illinois Central Railroad v. Illinois (1892)
  24. States may not give away public trust resources
  25. Alienation only valid when the action will:
  26. Promote the public interest, OR
  27. Will not result in any substantial impairment of the public interest in the lands and waters remaining
  28. Submerged Lands
  29. The Daniel Ball (1870)
  30. For Commerce Clause purposes, the federal government may regulate rivers that are “navigable in fact” which means they are used or are capable of being used as “highways for commerce” between states or foreign countries.
  31. Even and intra-state route on a river that runs between states is subject to federal regulation
  32. Rejects old English rule which defined navigability as influenced by the tide
  33. Utah v. United States (1971)
  34. Whether a State owns the bed of a waterway depends on whether the waterway was navigable at the time of admission into the Union.
  35. If navigable then the State holds title under the Equal Footing Doctrine
  36. If non-navigable then ownership is determined by state law and private ownership is possible
  37. Test: Whether the lake was physically capable of being used in its ordinary condition as a highway for floating and affording passage to water craft in the manner over which trade and travel was or might be conducted in the customary modes of travel on water at that time
  38. Not a difficult test meet, does not require that any navigation actually have taken place
  39. Phillips Petroleum Co. v. Mississippi (1988)
  40. Toothpick Floating Test: any water influenced by tide that can be reached by a toothpick floating uninterrupted is “navigable” for title purposes, even if the water is not navigable in fact
  41. Navigability in fact supplements the common law tidal rule, it does not supplant it
  42. Authority & Duty of the States
  43. Defenders of Wildlife v. Hull (2001)
  44. State could not disclaim its rights to streambeds by using a more restrictive navigability test than the “Highway for Commerce” test
  45. State has fiduciary duty to the public to maintain such lands
  46. Submerged Lands Act of 1953
  47. Recognized State rights to navigable streambeds that existed in 1950
  48. Reserved power of Federal government to undertake projects for flood control, power, navigation, etc.
  49. Kootenai Envtl. Alliance, Inc. v. Panhandle Yacht Club, Inc. (1983)
  50. Upheld state alienation of trust land for use as a private marina
  51. Two Part Test:
  52. Is the grant in aid of navigation, commerce, or other trust purposes?
  53. Does the grant substantially impair the public interest in the lands and waters remaining?
  54. There is no requirement of legislative action, BUT:
  55. Administrative action will be more closely scrutinized
  56. Administrative process must be open to the public
  57. Factors the court will examine:
  58. the degree of effect of the project on public trust uses, navigation, fishing, recreation and commerce
  59. the impact of the individual project on the public trust resource
  60. the impact of the individual project when examined cumulatively with existing impediments to full use of the public trust resource
  61. the impact of the project on the public trust resource when that resource is examined in light of the primary purpose for which the resource is suited
  62. the degree to which broad public uses are set aside in favor of more limited or private ones
  63. Valid Trust Purposes
  64. National Audubon Society v. Superior Court (The Mono Lake Case) (1983)
  65. Water rights on a lake were granted to LA at a time when the state water board believed it did not have the power to protect the Lake b/c the State had declared municipal use to be the highest use of water
  66. Court orders an administrative reconsideration of the decision that takes into account public trust obligations, including preservation and conservation
  67. Neptune City v. Avon-by-the-Sea (1972)
  68. Public trust resources must be open to all state residents on equal terms
  69. City could not charge non-residents a higher fee to access the high beach because that prevented the public from having equal access to the wet sand and the ocean
  70. Recreational Boating
  71. People v. Emmert (1979)
  72. Land under non-navigable rivers are subject to private ownership
  73. Private owners of streambeds have the right to control access to the water above their streambeds based on common law rule that “he who owns the surface of the ground has the exclusive right to everything which is above it.”
  74. Court finds that State Constitutional provision was meant to protect prior appropriations, not public access
  75. Montana Coalition for Stream Access, Inc. v. Hildreth (1984)
  76. Interprets Montana Constitution to mean that if streams are subject to use for recreation then such uses are protected by the state constitution
  77. Includes a limited right of portage around obstacles
  78. State Trusts on Dry Land
  79. Daytona Beach v. Tona-Rama, Inc. (1974)
  80. Court held that observation tower built by private owner on dry beach was not barred by previous public use of the land to access the wet sand and ocean
  81. No Easement: public use of the dry strip was consistent, not adverse to private owners recreational business
  82. Even if there was an easement the tower was consistent with public recreational use
  83. The owner may make any use of his property which is consistent with public use and not calculated to interfere with the exercise fo the right of the public to enjoy the public resource
  84. Grayson v. Huntington (1990)
  85. Alienation of park land in NY requires governmental approval
  86. Encouraging the construction of affordable housing is sufficient legislative approval

III.  Water Law

  1. Riparianism
  2. Restatement of Torts
  3. Riparian Land is a tract of land that borders on a watercourse or lake
  4. Unity of Title Rule: all adjacent tracts that are within the same watershed and held in common ownership are considered riparian if the border a natural watercourse at some location
  5. Rejects alternative Source of Title Rule: noncontiguous tracts can never regain their riparian status
  6. Liability exists for unreasonable use that harm’s another riparian owner’s reasonable use
  7. Reasonableness depends on balancing several factors:
  8. The purpose of the use
  9. The suitability of the use to the watercourse or lake
  10. The economic value of the use
  11. The social value of the use
  12. The extent and amount of the harm it causes
  13. The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other
  14. The practicality of adjusting the quantity of water used by each proprietor
  15. The protection of existing values of water uses, land investments and enterprises
  16. An incorporation of some of the principles of prior appropriation
  17. The justice of requiring the user causing the harm to bear the loss
  18. Does away with the watershed rule
  19. Water cannot be used outside of the watershed
  20. Other Common Law Elements of Riparianism
  21. Natural Flow Doctrine
  22. Riparian owner may only make use of the water in a way that will not alter its quantity or quality
  23. Reasonable Use Doctrine
  24. Riparian owner can only use the water in a reasonable way that does not interfere with the ability of another riparian user to use the water
  25. Ad-hoc, fact specific determinations of water rights
  26. Gordonsville v. Zinn (1921)
  27. Applies Watershed rule to prevent homeowner from pumping water to her dwelling because it is in a different watershed
  28. How do cities acquire water rights in a Riparian system?
  29. Right of reasonable use if any city land is riparian
  30. Eminent domain over riparian land
  31. Special authority from the legislature
  32. Long standing use may ripen into a right via prescription
  33. Hoover v. Crane (1960)
  34. Court upheld an order allowing riparian farmer to take water from lake when the lake was low over objection of riparian resort owner
  35. However, use was limited and monitored – reasonableness is measured at level where it does not substantially decrease the ability of the Lake to be used for recreation
  36. Problems with Riparianism
  37. In times of shortage, no rights are guaranteed
  38. Uncertainty about water rights can stall development and investment
  39. Prior Appropriation
  40. Common Law
  41. First in time is first in right
  42. Three traditional requirements for a water right
  43. Demonstrating an intent to appropriate water and providing notice
  44. Making a diversion of water from a natural source
  45. Applying the water to a beneficial use without waste
  46. Water needs are satisfied in order of temporal priority during shortage
  47. No watershed rule
  48. Water rights can be lost by failing to use them
  49. Irwin v. Phillips (1855)
  50. There is no watershed rule in prior appropriation.
  51. R.J.A., Inc. v. Water Users Association (1984)
  52. RJA destroyed a marsh, resulting in more flow in the stream
  53. Court holds that a reduction in consumptive use of tributary water cannot provide a water right independent of the prior appropriation system
  54. Court wants to avoid adopting a rule that would encourage widespread destruction of natural habitat
  55. Thornton v. Fort Collins (1992)
  56. Court holds that the “diversion” prong of prior appropriation can be met by merely controlling the water within its natural course by some structure (such as a dam)
  57. Court seems to be stretching the diversion requirement to meet modern recreational & environmental priorities
  58. Regulated Riparianism
  59. Model Water Code (state permitting system)
  60. Proposed use must be reasonable
  61. Proposed withdrawal, combined with other withdrawals will not exceed the safe yield of the water source
  62. Florida’s Statute
  63. Use must be reasonable & beneficial
  64. Use must not interfere with any existing legal water use
  65. Use must be consistent with the public interest
  66. Fourteen administrative criteria for a permit. (p.869)
  67. Village of Tequesta v. Jupiter Inlet Corporation (1979)
  68. Compensation for a “taking” of water rights is not required for a system that merely regulates riparian rights
  69. Southwest Florida Water Management District v. Charlotte County (2001)
  70. Upheld State’s regulation of Riparianism, even as to uses which predated the start of the permitting program
  71. Groundwater
  72. Prior Appropriation (western states)
  73. Protects senior groundwater pumpers from harm caused by junior pumpers
  74. Reasonable Use (eastern states)
  75. Allows pumping for any beneficial use
  76. Generally can pump as much groundwater as you please for use on the land above the groundwater and can use it reasonably on other land
  77. Correlative Rights
  78. Groundwater rights are divided among the owners of the land above the aquifer by percentage of land each owner holds
  79. English Rule
  80. Absolute ownership: landowners may pump whatever quantity of groundwater that can be extracted
  81. No limit on waste
  82. Restatement
  83. Landowner may withdraw groundwater for a beneficial purpose unless:
  84. The withdrawal causes unreasonable harm by lowering the water table or reducing artesian pressure
  85. The groundwater forms and underground stream
  86. The withdrawal has a direct and substantial effect upon the water of a watercourse or lake
  87. Wisconsin v. Michels Pipeline Construction, Inc. (1974)
  88. Court adopted Restatement position, limiting groundwater use to beneficial purposes
  89. Federal Reserved Water Rights
  90. Winters v. United States (1908)
  91. When federal government created Indian Reservations, it implicityly reserved such water rights as the reservation might require to become a more “pastoral and civilized people.”
  92. Could have large implications as Reservations seek opportunities for economic development
  93. Some argue Winters is limited to agricultural use or that subsequent treaties limited Indian water rights
  94. United States v. Mexico (1978)
  95. When determining what water rights Congress reserved you look to the purpose of the reservation.
  96. National Forests were created to conserve water & timber
  97. Not to provide for recreation and wildlife
  98. Therefore, no reserved water right in a National Forest to protect recreation or wildlife

IV.  Wildlife Law