Natural Resources

Possible Paper Topics 2001

Energy Fuels

The Law of Oil and Gas in _____________ (pick your state of interest). Find, state, and critique the law. Does a deed reservation of "minerals" include oil and gas?

Colorado supreme court recently held that Colorado adheres to the majority rule that the deed reservation language "other minerals" reserves oil and gas. McCormick v. Union Pacific Resources Co., 14 P.3d 346 (Colo. 2000).

AMOCO Production CO. V. Southern Ute Indian Tribe, 119 S.Ct. 1719, 526 U.S. 865, 144 L.Ed. 2d 22 (1999). When land patents were issued to western settlers pursuant to the Coal Lands Acts of 1909 and 1910, the homesteaders received the land and all minerals, excluding the coal which was reserved to the United States. Some of the patented lands included reservation lands previously ceded by the Southern Ute Indian Tribe to the United States. In 1938, the United States restored title to ceded reservation lands still owned by the Government, including the reserved coal in lands patented under the 1909 and 1910 Acts, in trust, to the tribe. The coal formations under these lands contain large quantities of coalbed methane gas (CBM gas). This gas was considered a dangerous waste product of coal mining at the time of the 1909 and 1910 Acts. It is now considered a valuable energy source. Relying on a 1981 opinion by the Solicitor of the Department of the Interior that CBM gas was not included in the Acts coal reservation, oil and gas companies entered into CBM gas leases with the individual landowners of some 200,000 acres of patented land. The tribe owned the coal in that land. The tribe filed suit against the petitioners, royalty owners, producers under the leases, federal agencies, and federal officials seeking a declaration that CBM gas is coal reserved by the 1909 and 1910 Acts. The Supreme Court determined that CBM was not considered as a valuable resource, and while noting that the coal producers had the right to vent this gas, held that such rights of dissipation were necessary to develop the mineral estate. The Court found that the term "coal" included only the solid mineral and not the gas associated with it. Analyze.

Water

The Supreme Court recently (early January) held that the Clean Water Act did not authorize the Army Corps of Engineers to regulate isolated wetlands. Consider the statutory interpretation issue and/or the commerce clause question that the Court ducked this time. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001 WL 15333 (2001).

Revamping federal and state wetlands law after Supreme Court's narrow reading of Section 404 of the Clean Water Act in SWANCC. What now for federal law? What are states doing that might cover the gaping hole left by SWANCC?

Palm Beach Isles, Associates v. United States, 208 F.3d 1374 (Fed. Cir. 2000) (navigational servitude defense to takings claim) (in text at 159).

New Hampshire legislature's expanding public trust to 19 year high water mark was unconstitutional. Purdie v. Attorney General, 732 A.2d 442 (N.H.1999).

Who owns the beach? N.C. state court litigation pending over whether the state claim to easement for public on the dry sand portion of the beach is a taking requiring compensation to owners of beachfront property.

Groundwater protection. Aquifers are drying up in eastern North Carolina (and elsewhere, for that matter). What is the legal regime used in North Carolina (or elsewhere) to regulate groundwater use? Should it be revised? Does the state treat surface waters and hydrologically connected groundwater under different regimes?

Dividing Lakes into Pies. Is an owner of land that borders on a non-navigable lake entitled to use the entire lake for recreational use? No: See Berger Farms, Inc. v. Estes, 662 N.E.2d 654 (Ind.App. 1996). That means the owner of the shore who owns the lake bed in front of his parcel can exclude people from his piece of pie.

Riparianism in the East: Becoming More Like Prior Appropriation? Examine eastern state rules on transfers to third parties and out the watershed, permit systems, etc. to evaluate a particular state's water law or more generally describe trends. Which system is better in today's world, riparianism or prior appropriation? From the free market view; the environmentalist's view; the private property rights view?

The origins of the public trust doctrine. Is it federal or state law?

Beneficial uses in prior appropriation law: efficiency? Instream flow?

Water Law in State X: pick your state and recount the history and analyze the trends, including changing economic and political forces.

Coastal Flood Insurance. This past year the House and Senate considered bills to reauthorize the Coastal Barrier Resources System. This program prohibits federal funding, such as flood insurance or low-interest loans, for developments on certain coastal barriers -- including beaches, dunes, wetlands and barrier islands -- that protect waterfront communities and provide critical wildlife habitat. Most of these areas are along the Atlantic and Gulf coasts and surrounding the Great Lakes. Environmentalists oppose versions of the bill that would allow subsidized development in important coastal areas currently afforded protection and that require compensation be paid to homeowners. Assess current efforts.

Public Lands

President Clinton designation of a number of new national monuments has upset Republicans who may now try to revoke the president's authority under the Antiquities Act of 1906 to make monument designations. Whether the Bush administration would go along with a law limiting presidential power is an interesting question. Assess.

Federal land exchanges are likely to become a favored practice under the Bush administration. Recently, a court found that a Bureau of Land Management (BLM) decision to exchange public lands to create a landfill was arbitrary and capricious. The appraisal upon which the decision was based failed to consider use of the site as a landfill. The county where the land was located had rezoned it. BLM, the county and the state had issued the necessary permits for the project. If used for landfill purposes, the land was worth $46,000 per acre, rather than the $350 per acre called for in the agreement. Desert Citizens Against Pollution v. Bisson, 2000 WL 1656332 (9th Cir.2000). Analyze.

Federal Lands Legal Consortium v. United States, 195 F.3d 1190 (10th Cir.1999) (no property interest in grazing permit; cannot challenge modifications of permits in Gila National Forest).

Wildlife

Boise Cascade Corporation v. Oregon, 991 P.2d 563 (Or. App.1999) (takings case, at page 257 of text, involving temporary loss of ability to cut timber for nesting spotted owl, a then threatened species under the Endangered Species Act.

It is highly likely that the new administration will continue recent Republican efforts to amend the Endangered Species Act. See H.R. 3160, Young (R-AK), of last session. Among other things, the bill increases the influence of those who oppose new endangered or threatened species listings, provides state governors with the ability to block federal protections and provides developers with new tools to undermine the appropriate implementation of the Endangered Species Act. Assess current efforts.

Challenge to validity of a regulation limiting the taking of red wolves on private land in North Carolina. The Court of Appeals held that the regulation was valid under the Commerce clause as involving regulable economic and commercial activity, and as an integral part of the overall federal scheme to protect, preserve, and rehabilitate endangered species. Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), petition for cert filed, 69 USLW 3383 (Nov 22, 2000). The reach of the commerce clause here is more questionable after the recent wetlands (SWANNC) case.

Native American Rights

U.S. v. Washington, 2000 WL 1818325 (9th Cir. 2000), a treaty-reserved fishing rights case involved the question of whether fish caught by Chehalis Indian Tribe on its reservation should be attributed to Quinault Tribe and other Tribes that had signed 1859 Treaty of Olympia, rather than to State, for purposes of equitably allocating fishing rights between signatory Tribes and the State. The Court of Appeals held that fish caught by Chehalis Tribe would be attributed to State, notwithstanding that Chehalis Tribe's reservation had been established by executive order rather than by treaty.

Other

Montana Environmental Information Center v. Department of Environmental Quality, 988 P.2d 1236 (Mont. 1999), held that the right to clean and healthful environment was fundamental right guaranteed by State Constitution and subject to a strict scrutiny standard of judicial review. Standing was conferred on environmental organizations to enjoin exploration license. Examine the implications of such state constitutional provisions.

Decades ago rural property owners in northern California granted easements to local irrigation districts for the purpose of digging and maintaining irrigation ditches. A state court has ruled that these easements constitute a broad grant of public access to all who wish to cross private property via the berms and maintenance roads. The property owner claim the easements were granted for a more limited purpose. The Pacific Law Foundation, a public interest law firm that represents property owners in high profile litigation around the country, unsuccessfully claimed on the owners' behalf that this was an uncompensated seizure of private land for public benefit. Friends of the Trails v. Blasius, 93 Cal.Rptr.2d 193 (Cal.App. 2000).