Natural Resources

Possible Paper Topics

These are the topics for last year (spring 2000). I will post a new list in the next week or so. In the meantime, you can peruse these for a general idea of the kinds of topics that may be available.

Energy Fuels

Bragg v. Robertson, 72 F.Supp.2d 642 (S.D. W.Va.1999), appeal pending, (regulations requiring state authorization for surface mining activities that would disturb land within 100 feet intermittent or perennial streams were applicable for entire length of streams; and (3) placement of valley fill from surface coal mine in buffer zone of intermittent and perennial streams necessarily "adversely affected" streams) . . . The decision has been called the most significant ruling affecting the coal industry since SMCRA was passed by Congress in 1977).

Amoco Production Company v. Southern Ute Indian Tribe, 526 U.S. 865 (1999) (In suit brought by Indian tribe against oil companies and oil and gas lessees and lessors who asserted ownership interests in coalbed methane gas contained in coal owned by tribe, the Court held that surface patentees, not tribe holding equitable title to reserved coal in lands patented under Coal Lands Acts of 1909 and 1910, owned gas contained in such coal).

Sup. Ct. grants cert on Marathon and Mobil breach of K suit stemming from N.C. Outer Banks act that imposed moratorium on off shore drilling. Newspaper 11/16/99. Analyze the legal hurdles confronting the oil companies seeking exploration rights off the coast. What is the state role?

Oil and gas leases. Westerman v. Rogers,1999 WL 569302 (Colo.App.) In case of first impression, court held that royalty interests on production-type leases extend to any settlement or payment in which a producer receives consideration for compromising its pricing claim, but only to the extent that the claim relates either to past or future production actually taken by the settling purchaser.

The Law of Oil and Gas in _____________ (pick your state of interest). Find, state, and critique the law.

Mining in national forests: Thousands of acres of national forest land in the east was acquired by the federal government with similar reservations and coal mining is now being pursued in those forests. Issues arise under SMCRA. See Stearns Co. v. United States, 34 Fed.Cl. 264 (1995) and Belville Mining Company v. United States, 999 F.2d 989 (6th Cir. 1993). Describe the problem, assess the wisdom of such acquisition practices, and decide whether the state must pay compensation if it wishes to prevent mining, or look at how the state can regulate the mining to protect the forest lands if the mining is to occur.

Water

Stutchin v. Town of Huntington, 71 F.Supp.2d 76 (E.D.N.Y.1999) (constitutional challenge to restriction on length of docks permitted in harbor).

Bonnie Blair Syndicate, Inc. v. Town of Mamaroneck, 1999 WL 1061494 (N.Y.Ct.App.1999) (open space zoning on floodplain upheld; golf course could not be converted to residential development; this is a major case in terms of interpreting United States Supreme Court takings doctrine).

Watershed protection. Pollution from non-point sources (runoff from agricultural operations, roads, construction sites) has resulted in serious or moderately serious contamination of over ½ of the country's watershed. See < http://www.epa.gov/surf/iwi > for the EPA's data. Many discharges are not covered by the Clean Water Act unless they meet the act's definition of a point source, and the CWA does not regulate groundwater. See, e.g., Umatilla Waterquality Protection Ass'n. v. Smith Frozen Foods. 962 F.Supp. 1312 (D.Or.1997) (discharge into groundwater from unlined pond not a point source even though groundwater hydrologically connected to surface water). What might Congress do to change the CWA? Should it do anything or is the issue better handled by state or local law? What are states and local governments doing?

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?

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

Wetlands

No taking, Broadwater Farms v. US (10-25-99)

Fed.Cl. Lakewood Associates v. United States, _ F.3d _ (1999) (challenge to Corps of Engineers denial of 404 permit to alter wetlands was unripe).

Forseth v. Village Sussex, _ F.3d. _ (7th.Cir.2000), 2000 WL10266

Revamping federal wetlands law. Section 404 of the Clean Water Act governs wetlands. Yet, the definition of covered wetlands comes through regulations of the Corps of Engineers. There is disagreement over what definition should be used, with development forces saying if land isn't wet, it isn't a wetland, and environmentalists saying ecological integrity demands a broader view (the presence of certain types of vegetation and periodic inundation) be used to qualify land as a wetland. The Corps has used very narrow and very broad definitions over the years. Examine this controversy and look at proposals for congressional rewriting of agency authority. Perhaps there should be no federal wetlands law. Are wetland issues so different from state to state that regulation should be left to the states? Is there a sufficient federal interest? Is there a model available that would create a better state/federal mix than we have now.

The Fourth Circuit, United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), cert. denied recently held the Corps of Engineers' wetlands regulations to have exceeded congressional authority. The decision is at odds with other circuits. Analyze the case, and its effect on wetlands controls.

The Wilson case (the Fourth Circuit case noted above) involved a criminal prosecution of a well known and influential developer. Many objected strenuously to criminal prosecution for filling wetlands under an arguably vague regulation. There is a hint in the objections that filling wetlands is not the kine of conduct that ought to be treated as criminal. Assess the issue.

The D.C. Circuit recently dramatically narrowed federal wetlands law. See National Min. Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C.Cir. 1998), holding that incidental fallback that accompanies dredging of wetlands is not subject to Clean Water Act. So, draining a swamp is no longer covered by the act. Assess the correctness and importance of the case.

Public Trust

National Association of Homebuilders v. New Jersey Dept. of Environmental Protection, 64 F.Supp.2d 354 (D.N.J.1999) (upheld requiring Hudson River developers to build and maintain 30' wide sidewalks within public trust lands).

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

The origins of the public trust doctrine. Is it federal or state law? Beneficial uses in prior appropriation law: efficiency? Instream flow?

Coastal

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.

Sup. Ct. grants cert on Marathon and Mobil breach of K suit stemming from N.C. Outer Banks act that imposed moratorium on off shore drilling. Newspaper 11/16/99.

The House Committee on Resources on 10/6/99 (Rep. Pombo (R-CA)) added a controversial takings provision to the Coastal Community Conservation Act of 1999 (H.R. 2669), a bill to reauthorize the coastal zone management program. This provision goes beyond the Fifth Amendment's takings protections and would prevent federal and state management of coastal resources, essentially repealing the federal coastal zone program and nullifying state coastal protections.

Title and use of submerged lands. Numerous grants of rights in public trust waters confer exclusive rights on private parties. For example, the right to cultivate shellfish may mean that one person can exclude others from fishing in a particular area. It may also lead to claims that the state can not regulate methods of cultivation. See, e.g., Bryant v. Hogarth, 488 S.E.2d 269 (N.C.App. 1997) and Alm Beach Isles Associates v. United States,1998 WL 784551, (Fed.Cl. 1998) for background. What is the law of submerged lands?

The regulation of commercial and recreational fishing in the ocean. See, e.g., North Carolina Fisheries Ass'n, Inc. v. Brown (E.D.Va. 1996), where the Secretary of Commerce's moratorium on harvesting of fish in Atlantic invalidated.

Public Lands

Hunting and Fishing on Public Lands. Who has jurisdiction? The states or the federal government. How are Native American subsistence rights covered.

In Hawaii, the state recognizes native Hawaiian gathering rights on private land. Some say that it is a taking to allow private land to be entered for such purposes.

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

United States v. Linick,195 F.3d 538 (9th Cir.1999) (members of the Rainbow Family gathered on National Forest System land to pray for peace and discuss political and environmental issues. The Forest Service cited them for violating 16 U.S.C. § 551 and 36 C.F.R. § 261.10(k). The court held that regulation that allowed Forest Service to attach any terms and conditions deemed necessary to protect the public interest to any special use permit granted for noncommercial group use of national forest system land was unconstitutionally overbroad on its face.

Access to Public Lands for the Disabled: A year ago, three disabled persons, citing the 1992 Americans with Disabilities Act, filed suit in federal court against the state of New York. They seek to open up roads and trails in the Adirondack wilderness to motorized access where at present such access is prohibited to everyone. 8/15/99 Times Union (Alb.) D11, 1999 WL 21368822. See Galusha v. New York State Department of Environmental Conservation, 27 F.Supp.2d 117 (N.D.N.Y.1998) (Disabled individuals brought suit asserting that policies of the New York State Dept. of Environmental Conservation in managing a park unfairly limited their access to areas within the park, in violation of the ADA. On disabled individuals' request for preliminary injunctive relief, the court held that disabled individuals established the requisite irreparable harm and likelihood of success on the merits. Then it was reported, 8/15/99 Times Union (Alb.) D11, 1999 WL 21368822, that the court held that the defense of sovereign immunity that prevents the state from suit in federal court for violating the Americans with Disabilities Act.

Devon Energy Corp. v. United States, _ Fed.Cl._ (1999 WL1256375) (sufficiency of property interest in oil and gas lease on federal land to bring a takings or contract claim for inability to drill).

A so-called "wise use" movement, which seeks to slow and reverse environmental protection laws to free mining, timber cutting, and grazing from regulation, has sparked a semi-secessionist movement.. Counties in some western states, particularly New Mexico and Nevada, claim the state, not the federal government, owns the public lands. See U.S. v. Gardner, 107 F.3d 1314 (9th Cir. 1997), cert. denied 118 S.Ct 264 (1997) and U.S. v. Nye County, 920 F.Supp. 1108 (D.Nev.1996). Explore the equal footing doctrine.

Citizen suits to compel government enforcement of laws protecting natural resources or to seek damages from private violations of such laws face a number of legal hurdles and increasing moves to eliminate them from the environmentalists' arsenal. Analyze the issues.

Recreational or Traditional Use of National Parks and Wilderness: Snowmobiles in Denali National Park and Preserve. Alaska State Snowmobile Association, Inc. v. Babbitt,1999 WL 1140384 (D.Alaska).

Hard Rock Mining

Politics prevent reform of the antiquated 1872 Mining Act. In light of federal lethargy, can states protect themselves? To what degree does the Mining Act of 1872 allow for state or local regulation of mining. When will state laws be preempted. See South Dakota Mining Ass'n v. Lawrence Co., 155 F.3d 1005 (8th Cir. 1998).

Beluga Min. Co. v. State, Dept. of Natural Resources, 973 P.2d 570 (Alaska 1999)(Mining company unable to obtain mining lease due to preliminary injunction issued against state sued the state, asserting taking; held that: (1) company did not suffer a taking; (2) company did not have contractual mining right; (3) equitable estoppel did not provide company with irrevocable license to mine; and (4) state was not unjustly enriched by company's annual rental payments for preservation of its mineral rights.

Moore v. Alaska, _ P.2d _ (1999) (state nullification of mining claims on federal lands held valid).

Kinross Copper Corp. v. Oregon, 981 P.2d 833 (Or.App.1999), affd _ P.2d _ (1999) (state prohibition of discharge of mining waste into state waters not a taking; under federal Desert Lands Act, no such right).

The House Energy and Mining Resources Subcommittee is planning to hold hearings on hardrock mining. The subcommittee will consider mining restrictions around World Heritage Sites and the five-acre millsite limitation for mining waste dumping.

Wildlife; Endangered Species

Spotted owl takings: Boise Cascade Corporation v. Oregon, _ P.2d _ (Or. App.1999), 1999 WL 1013787 (spotted owl designation prevented logging; damage award for temporary taking in state court; held that can sue state in state court based directly on the 5th Amendment, rejecting Supreme Court's recent expansion of 11th Amendment immunity for states in state courts; also owls presence not a physical taking; knocking down a bird=s nest not a nuisance; seeking an incidental take permit necessary to render ripe