Comments for Environmental Law

Comment on The Row on the Ruby: State Management of Public Trust Resources, the Right to Exclude, and the Future of Recreational Stream Access in Montana by Andrea Powers Wooldridge

Andrea Powers Wooldridge — Fri, 07 Dec 2007 07:23:49 +0000

My grandfather bought a parcel of land that lies surrounding the Ruby Reservoir, going up the the water’s edge. The amount of land is approx. 32 acres. I live in Southern California and have not been up to the land in over 40 years. We have always wondered if we hold any water rights, as we understand the water in the reservoir is used by the ranchers. Friends of ours have visited the area and observed that there is at least one trailer permanently parked on our property. I think we are the only private owners of the land around the Ruby Reservoir. Could you shed any light on our potential water rights? Thank you, Andrea Powers Wooldridge

Comment on Exxon Mobil Corp. v. United States Environmental Protection Agency by stephen gonzalbo

stephen gonzalbo — Fri, 23 Nov 2007 07:54:51 +0000

I just find it weird that Exxon will file this suit when it does not seem to be prejudiced by the EPA ruling.

Comment on Skranak v. Castaneda by Marc Delany

Marc Delany — Sat, 30 Jun 2007 16:55:01 +0000

Hello, I have a case pending in AZ District court to try to establish access for local residents along existing historic roads recently closed by USDA FS Actions. The Prescott National Forest Supervisor already admitted he was mistaken, that the Record of Decision (ROD) documents purporting to show an access change “can’t be fouund”, and that the community of Walker was one of the first communities that established roads, prior to the reservation of lands createing the Prescott National Forest. This case is now conducted ‘pro se’, is similar to Adams v United States (I and II), Fitzgerald v United States, and Skranak v. Castaneda 425 F.3d 1213. These all involve ANILCA like claims of access for resident property owning inholders, and the surrounding community dependent on multijuresdictional routes crossing private and federally managed lands. Extensive documentation has been collected by FOIA. The pro se litigant lack formal training in procedure and needs pro bono legal help. The overarching issue is right of public notice, review, consultation; the importance of NEPA process; and the issue of reasonable access to public lands. See Delany v United States (I, II, and III) AZ District Court. As and added bonus for help, it maybe possible to arrange access to Congressman Sam Steiger’s papers on ANILCA (writen and sponsored by Congressman Steiger and Young). The congressman’s intent has been twisted 180 degrees by USDA FS interpretations. The Congressman resides in Prescott, but is now infirmed. Help would be appreciated. Can anyone help? The Judge in this last case (Quiet Title) suggested a law school might be interested, it is a large project. Marc Delany 928 899-8531

Comment on Oregon Natural Resources Council v. Harrell by Anthony

Anthony — Tue, 24 Apr 2007 20:17:23 +0000

What is the current status of Elk Creek Dam? Was there ever a fish passage plan in the FEIS? If the dam is completed, will fish passage above the dam be permanently blocked? If the dam is currently not functioning but blocking fish passage (threatened coho under ESA), is it not considered ‘take’ ? Thanks in advance

Comment on San Francisco Baykeeper v. Cargill Salt by Craig Johnston

Craig Johnston — Fri, 16 Mar 2007 13:09:12 +0000

Sadly, I think that, in a post-SWANCC and post-Rapanos world, the 9th Circuit was correct on all points. The sad reality is that neither EPA’s nor the Corps’ regulations assert jurisdiction over ponds based merely on their adjacency to other “navigable waters.” The regulations do this with regard to wetlands, but not ponds. Also, nothing in the Clean Water Act mandates that these adjacent ponds be covered absent a regulatory assertion of jurisdiction. Kennedy’s opinion in Rapanos stands for the proposition that EPA and the Corps may lawfully assert jurisdiction over any waters with a “significant nexus” to other covered waters, but it does not stand for the proposition that they must. Nor does it stand for the proposition that the CWA itself clearly indicates that these waters are covered. I note, however, that, if it wanted to, EPA and the Corps could solve this “problem” tomorrow, simply by rewriting their rules in a fashion that asserts jurisdiction over at least those adjacent ponds with a significant nexus to any nearby covered waters. They may even be able to make a categorical determination that all such adjacent ponds (however adjacency were to be defined) have such a signficant nexus. I am not, however, holding my breath as I await this regulatory “fix.” And lastly, it is worth noting that this Baykeeper case should not control situations in which ponds drain into other covered waters through creeks and the like. The court in this case specifically pointed out that there was “no evidence that water from the Pond has ever flowed into the Slough or the Slough’s wetland.” If there were such evidence, it would seem that Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), would control. [Craig Johnston is professor of law at Lewis & Clark Law School. -Eds.]

Comment on Defenders of Wildlife v. E.P.A. by Dan Rohlf

Dan Rohlf — Sat, 10 Mar 2007 18:47:46 +0000

The Supreme Court has of course granted cert in this case. This could be a very significant opinion under the ESA, though the Court itself specifically posed an additional procedural question — whether the Court should remand the case to EPA given that the agency took inconsistent positions regarding its duty to consult on the NPDES program transfer to the State of Arizona. If the Court does order a remand, questions about the precise scope of section 7 will remain. If the Court considers the case on the merits, the resulting decision could have a significant impact on the scope of section 7′s application to federal agency actions. Since the substantive prohibitions of section 7, as well as this section’s procedural requirements, constitute a key protections of the ESA itself, a decision by the Court rejecting the Ninth Circuit’s reasoning would deliver a significant blow to conservation of listed species. Depending on how the Court characterizes its opinion in TVA v. Hill, which the Ninth Circuit relied upon to refuse to read any limitation on federal agencies’ consultation duties, this damage to endangered species protection efforts could be compounded or mitigated. [Dan Rohlf is associate professor of law at Lewis & Clark Law School and Director of the Pacific Environmental Advocacy Center (PEAC). --Eds.]

Comment on Northwest Environmental Defense Center v. Bonneville Power Administration by Stephanie Parent

Stephanie Parent — Sat, 10 Mar 2007 12:48:54 +0000

Thank you for this detailed case summary. I represented Petitioners NEDC, NSIA and PEER. BPA has requested an extension of time to consider whether it will ask for rehearing and/or rehearing en banc. One issue that a potential request for rehearing would focus on is relief. BPA argued in the context of standing that the court did not have the authority to order it to contract with the FPC. In this case, the relief granted is constrained to an order to continue the contract under the same terms and conditions “unless and until” BPA can provide a legitimate basis for displacing the FPC. Thus, the relief is interim and tailored to remedy the harm caused by the unlawful decision. Moreover, the decision of the three-judge panel is unanimous, and earlier in the proceedings two different judges sitting on the motions panel granted identical relief when ordering an emergency stay until the merits could be heard. If rehearing is sought and granted, there may be another chapter to this story. Stephanie Parent Clinical Professor/Managing Attorney Pacific Environmental Advocacy Center (PEAC)