Final

Question 1

Pollard v. Hagan

Answer 1

Submerged lands held by the federal government at the state’s admission to the union cannot be sold off—held in trust by feds but owned by states

Question 2

US v. Gardner

Answer 2

United States may retain dry federal lands initially owned by federal government for reasons other than creating new states.

Question 3

Branson v. Romer

Answer 3

1. Trust created by enumeration of duties, even if not explicitly stated
2. Terms of Enabling Act probably cannot be changed.
3. Enabling Act governs terms by which a state can sell off its public land
4. Courts will make every effort to find no conflict with Enabling Act because unclear how/if it could be amended

Question 4

Foust v. Lujan

Answer 4

1. A mutual mistake of fact can be corrected by exchanging parcel actually deeded to the private party for the one the U.S. and the party intended to deed.

Question 5

Grimaud

Answer 5

2. Congress may delegate authority to agencies and make agency regulations legally enforceable through civil/criminal process

Question 6

Light

Answer 6

1. Federal lands held in trust for entire country, but Congress decides the terms of that trust—very little court oversight
2. A law that prevents owner of unfenced land from recovering damages for trespass by animals does not authorize a livestock owner to drive livestock onto the land.

Question 7

Camfield

Answer 7

1. Federal power over federal land does not stop at border of federal land. Congress can regulate outside federal land to protect federal land.
2. Federal government may prevent construction of fences on private property that results in enclosure of federal lands.

Question 8

Kleppe v. NM

Answer 8

1. Under Property Clause, federal government has “complete power without limitation” to protect federal lands and animals on federal lands
2. Not clear if this applies to animals who had set foot on public lands, or were tied to the lands

Question 9

Minnesota v. Block

Answer 9

1. Property Clause gives Congress the broad power to regulate activities that do not occur on federal land, to avoid interference with the land’s designated purposes.
2. “Rationally Conclude” standard of review – if Federal Government can rationally conclude motorboats would disrupt purpose of the land, they can regulate it
3. Barsa-Limiting principle may be that Congress has power to protect from nuisance

Question 10

Pre-emption

Answer 10

Touchstone: Congressional Intent

1. Express statement of intent to preempt
2. Implied—Two Forms
   a. Conflict Preemption-Conflict between federal and state law makes it impossible to comply with both
   b. Field Preemption-Congress so completely occupies regulated area that it leaves no room for the states

Question 11

Omaechevarria v. Idaho

Answer 11

State law is fully operational on federal land absent some conflict or preemption

Question 12

Ventura County v, Gulf Oil Corp.

Answer 12

Preemption possible even with broad savings clause—specific conflict overrides savings clause
a. Question is what Congress intended.

Question 13

California Coastal Commission v. Granite Rock Co.

Answer 13

1. A state law imposing environmental regulations on unpatented mining claims in national forests is not per se preempted by United States Forest Service regulations and federal land-use laws.
2. Distinct from Ventura because Ventura’s requirements were based on zoning (land use) regulations, where Congress clearly intended to preempt
   a. Here, regulations are environmental. Congressional intent less clear.

Question 14

Southern Utah Wilderness Alliance v. BLM

Answer 14

Holder of a right of way to construct a public road must provide the federal government with advance notice of construction activities that exceed the scope of the right of way.

Question 15

California v. Norton

Answer 15

If Congress intended to require state approval for a drilling permit to be issued, that approval is required for permit to be extended.

Question 16

National Parks & Conservation Association v. Stanton

Answer 16

Absent indicia of congressional intent, a federal agency may not subdelegate authority to a private party, unless the agency retains final reviewing authority over the party’s decisions.
a. Particularly where interests of the party potentially clash with agency’s duties

Question 17

Multiple-Use Sustained Yield Act of 1960

Answer 17

1. §528- It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.
2. §529- The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas.
3. §530- . . . the Secretary of Agriculture is authorized to cooperate with interested State and local governmental agencies and others in the development and management of the national forests.

Question 18

National Forest Management Act of 1976

Answer 18

§1604

(a) . . . the Secretary of Agriculture shall develop . . . land and resource management plans for units of the National Forest System
(b) . . . Secretary shall use a systematic interdisciplinary approach to achieve integrated consideration of . . . sciences.
(e) Secretary shall assure that such plans—
(e) (1) provide for multiple use and sustained yield
(e) (2) determine forest management systems, harvesting levels, and procedures in the light of all of the uses set forth in (c)(1)

Question 19

Izaak Walton League v. Butz

Answer 19

The Organic Act of 1897 authorizes sale of trees in national forests only if the individual trees are physiologically mature.

Question 20

NFMA Requirements

Answer 20

Primarily a planning statute—requires FS to develop “land and resource management plans” (LRMP) for each National Forest

Question 21

NFMA Planning Process

Answer 21

a. Master Plan (Forest Plan or LRMP)-Provides direction for all resource management programs, practices, uses, and protection measures
i. Requires planning by interdisciplinary team, public participation and comment, and cooperation from other agencies, state, and local governments
ii. Divides forest into “management areas” and stipulates how resources in each area will be administered
b. Project-Specific Analysis-Ensures individual management projects (i.e. timber sales) are consistent with LRMP

Question 22

Sierra Club v. U.S. Forest Service

Answer 22

If Forest Plan conflicts with other statute, more specific statute controls
a. Better indication of congressional intent

Question 23

Sierra Club v. Marita

Answer 23

NFMA does not require a forest-management plan to incorporate conservation biology in ensuring population diversity

Question 24

Sierra Club v. Peterson II

Answer 24

1. Takeaway: Under the APA, citizens cannot challenge a forest-management plan to sell logging rights as violating NFMA because a plan is not a “final agency action”—also can’t challenge individual sales under NFMA, because NFMA only governs plans
   a. Citing specific sales also does not provide a basis to challenge the larger program
2. How to get around this?
   a. Argue that permit must be consistent with LRMP, not as written, but as it should be written to be consistent with NFMA
   b. Annual Operating Instructions are final agency actions, can be challenged as being inconsistent with NFMA

Question 25

Taylor Grazing Act

Answer 25

1. Attempted to regulate grazing by limiting implied license
2. No required action by Agency
   a. §315-Secretary of Interior is authorized to establish grazing districts
   i. §315(a)-If he creates grazing districts, must make rules for their protection, regulation and improvement
   b. §315(b)-Secretary is authorized to issue grazing permits to settlers, residents, and other stockholders
   i. Permits do not create property interest and can be cancelled any time
   c. §315(m)-Priority to property holders, livestock business, and water rights

Question 26

FLPMA Secretary’s Duties

Answer 26

§1712 (a) The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop . . . land use plans which provide by tracts or areas for the use of the public lands. (regardless of whether designated for other uses)

Question 27

FLPMA Land-Use Plan Criteria

Answer 27

§1712(c) Criteria land use plans, the Secretary shall

(1) Observe principles of multiple-use and sustained-yield
(2) Interdisciplinary approach to achieve integrated consideration of the sciences
(5) Consider present and potential uses
(6) Consider relative scarcity of values (of possible uses) and alternative means and sites for realizing those values
(7) Balance long-term vs. short-term benefits to the public

Question 28

FLPMA Management Principles

Answer 28

§1732(a) The Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans

Question 29

Public Rangelands Improvement Act

Answer 29

1. Requires Secretary to inventory range conditions (“quality of the land reflected in its ability…to support various levels of productivity… and relate to soil quality, forage values…wildlife habitat, watershed, and plant communities….”)
2. Requires Secretary to manage rangelands in accordance with the Taylor Grazing Act, FLPMA, and other applicable laws
   a. Doesn’t set priorities

Question 30

Fuller

Answer 30

1. When government condemns land, it need not compensate landowner for value it could remove by revoking landowner’s TGA permit to use adjacent public land.
2. Courts will be extra cautious not to do anything that can be perceived as vesting TGA permit-holders with a property right

Question 31

Public Lands Council v. Babbitt

Answer 31

1. Taylor Grazing Act gives Secretary of Interior discretion to safeguard livestock-grazing privileges in a manner consistent with act’s objectives.
2. Nonetheless, a party cannot buy one cow for a tract of land and shelf the permit. Statute requires permit-holders to make “substantial use of the land”

Question 32

NRDC v. Hodel

Answer 32

Secretary has considerable discretion in devising BLM’s land-use plan, does not have to consider complete elimination of grazing where livestock may not be cause of overgrazing and there are potentially other solutions to solve overgrazing

Question 33

NWF v. BLM

Answer 33

Agency (Area Managers) must engage in a reasoned decision-making process to determine whether land management decisions are in the public interest
a. Discretion granted by FLPMA doesn’t excuse from engaging in balancing test

Question 34

Mining Law of 1872 Provisions

Answer 34

1. Discovery of mineral
2. Location of claim
3. Recording of mining claim/mining site
4. Annual maintenance/fees
5. Mineral patent (grants fee simple interest)

Question 35

Cole v. Ralph

Answer 35

§22 endorses mining custom and practice, therefore pedis possessio provides a valid basis for a claim to land before discovery under the Mining Law

Question 36

Coleman

Answer 36

Minerals discovered on federal land must have economic value in order to be considered valuable mineral deposits under the General Mining Law of 1872(Marketability Test)

Question 37

Possessory Interests Under Mining Law

Answer 37

Pedis PossessioRight of exclusive possession (intermediate form of property right) following discovery and locationFee simple after claimant receives patent

Question 38

Locke

Answer 38

Under federal mining law, an agency may extinguish an unpatented mining claim if the claimant failed to comply with reasonable statutory requirements

Question 39

Rizzinelli

Answer 39

1. Under federal mining law, a mining-claim locator’s right to enjoy the claim’s surface is limited to uses incident to mining operations.
2. “exclusive right of possession, and enjoyment” is constrained to mining purposes
3. Saloons and “hurdy-gurdy girls”

Question 40

Okanogan Highlands Alliance v. Williams

Answer 40

1. With respect to mining, the FS has competing mandates to minimize adverse environmental impacts while not prohibiting any person from entering a national forest for the purposes of developing natural resources
2. FS does not have to literally “minimize” environmental impacts, but should choose options with minimal impacts on a specific parcel and mining operation while considering the economic interests involved. As long as regulations are “reasonable,” FS is operating within its mandate.
3. FS has discretion to decide whether to protect environment or rights of miners

Question 41

Mineral Policy Center v. Norton

Answer 41

1. Federal government may determine on case-by-case basis what constitutes unnecessary or undue degradation under FLPMA (FLPMA balances need for resources against environmental destruction)
2. BLM must prevent undue degradation even where it is necessary for mining
   a. But, agency gets to define “undue degradation” under Chevron

Question 42

Mineral Leasing Act of 1920

Answer 42

Established a leasing program for fossil fuels

Question 43

FOOGLRA

Answer 43

a. Made federal leases subject to competitive bidding
b. Provides that “leases shall be issued” by the Secretary within 60-days following payment by the successful bidder
c. But also that “all lands subject to disposition under this chapter may be leased by the Secretary”

Question 44

Impact Energy Resources v. Salazar

Answer 44

Under FOOGLRA, lands put up for bidding must be awarded to the highest bidder and Secretary cannot withdraw leases once the highest bidder is named.

Question 45

Western Energy Alliance v. Salazar

Answer 45

1. Secretary retains discretion to determine whether lands are “to be leased” even after lease sale, payment by successful bidder, and expiration of the 60-day time period
2. Agency is not bound until it takes a final agency action (issues lease). Until then, company has made an offer but does not have a contract.

Question 46

National Park Service Organic Act of 1916

Answer 46

1. Purposes
   a. Conserve scenery of national and historic objects and wildlife therein
   b. Provide for enjoyment of the same in such manner and by such means as will leave them unimpaired for enjoyment of future generations
   c. Barsa: Second mandate contains the first one—both have in them the notions of conservation and sustainability
2. NPSOA has few concrete standards. Secretary must take reasonable steps in a reasonable time to exercise his duties to the extent reasonably possible.

Question 47

Antiquities Act

Answer 47

1. §431. The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.
2. Protected Land carved out from mining, forestry, and grazing laws.

Question 48

Wilderness Act of 1964

Answer 48

1. (c) A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean . . . an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation . . . and which
   a. (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable;
   b. (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation;
   c. (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and

Question 49

Sierra Club v. Department of the Interior

Answer 49

1. When an Agency study indicates a park’s Enabling Act or the NPSOA is being violated, the Agency has discretion in the means that it can use, but must use some available means to carry out its duties
   a. Incentive not to do studies
2. Entering into cooperative agreements may serve as an admission that something needs to be done, as well as a “final agency action.”
3. Important Point: Enabling Act in this case gave park managers authority to act outside the park to protect the park

Question 50

State of Wyoming v. Franke

Answer 50

Court defers to Executive in deciding what should be a national monument-draws line at “a bare stretch of sagebrush prairie.”

Question 51

Utah Association of Counties v. Bush

Answer 51

Court declines judicial review of substance of Presidential decision to name a national monument for conservation purposes and limits standard of review to whether President took action under his power under the Antiquities Act

Question 52

Wilderness Act of 1964 Prohibitions

Answer 52

Prohibits:

a. Commercial enterprise (temporary or permanent)
b. Temporary or permanent roads
c. Motorized equipment
d. Aircraft and mechanical transport
e. But with exceptions for mining claims; fire, insects, and disease; water prospecting; accessing federal lands; grazing; etc.

Question 53

Wilderness Act of 1964 Secretarial Duties

Answer 53

1. Secretary has unqualified power to control insects fire and disease
2. RS 2477 right of way can prevent an area from being named a wilderness
3. § 1132-Secretary of Agriculture must review all areas classified as “primitive” and make findings regarding suitability for preservation as wildernessSecretary advises PresidentPresident makes recommendation to Congress
   a. So law doesn’t do much aside from order an inventory of federal lands

Question 54

Parker

Answer 54

Court preserves Congress’ discretion to preserve (designate as wilderness area) lands of a wilderness character contiguous to area already designated “primitive”

Question 55

Wilderness Society v. US Fish & Wildlife Service

Answer 55

Salmon Case

1. Demonstrates importance of administrability of standards. Commercial test is one judge can decide. Even though concern is harm, if harm test were adopted court would be more inclined to defer to agency, reducing judicial oversight.
2. Makes commercial/noncommercial distinction a proxy for harm

Question 56

Puyallup

Answer 56

To prevent overfishing, court allowed state government to regulate fishing on tribal land on which the Natives were entitled to the “exclusive use”

Question 57

Mille Lacs

Answer 57

1. State can regulate fishing without regard to tribal sovereignty for “conservation necessity.” Regulations must be reasonable, necessary, and nondiscriminatory.

Question 58

Fig Leaf of Sovereignty

Answer 58

States claim not to be abrogating Indian treaty, even though nothing in treaty permits Native rights to be subjugated to state law

Question 59

Martin v. Waddell’s Lessee

Answer 59

1. Equal Footing Doctrine requires that new states be admitted with the same rights as original colonies but also imposes on them the same obligation to maintain submerged lands as a part of the public trust.
2. Preserves submerged lands for fishing, as was the English tradition

Question 60

IL Central RR

Answer 60

1. Submerged lands are held by state in trust for the public. State can no more discard title to these lands than it could its police power.
2. Preserves submerged lands for public commerce
3. How would you narrow this holding?
   a. Applies only to submerged lands used for commerce or commercially valuable.
   b. Based on the entire grant going to one corporation, but smaller parcels ok.
   c. Was about preventing monopoly?

Question 61

The Daniel Ball

Answer 61

1. Navigability-in-Fact-When waterways are used or susceptible to being used in their ordinary condition as highways of commerce
   a. Test for navigability for title

Question 62

Utah v. US

Answer 62

1. Critical question is whether the waterway was susceptible to use for commerce on the date of the state’s admission to the Union–even a minimal amount of commerce will do

Question 63

Phillips Petroleum

Answer 63

1. States retain title to submerged lands subject to the ebb and flow of the tide (expands test from Daniel Ball)

Question 64

Stop the Beach Renourishment

Answer 64

1. No exception to PTD under FL law for formerly-submerged lands filled in by state-initiated avulsion
   a. Accretion-Gradual expansion or contraction of shoreline
   b. Avulsion-Sudden addition of material filling in part of water body
2. Under FL law, accretion changes line demarcating PTD land; avulsion does not
   a. So if avulsion resulted in expansion in shoreline, property owners no longer have waterfront property because public trust land now lies on the beach

Question 65

Defenders of Wildlife v. Hull

Answer 65

1. State has fiduciary duty to public to manage trust consistent with trust principles
2. AZ court is extremely protective of PTD–Does not allow legislature to depart in any way from Daniel Ball Test
   a. No normal deference to legislature, judge’s role is to police this doctrine
   b. Even if it flows only in response to rain, can be used for commerce on those days

Question 66

PPL Montana

Answer 66

1. Under the Equal-Footing Doctrine, states gain title to lands submerged beneath segments of rivers determined to be navigable in fact at time of statehood.
2. Navigability must be determined on a segment-by-segment basis

Question 67

Kootenai

Answer 67

1. ID granted permit for sailboat dock on submerged land subject to PTD
2. 2-Part Test
   a. Is grant in aid of navigation, commerce, or other PTD purposes?
   b. Does the grant substantially impair the public interest in the lands/waters remaining?
3. Important Considerations:
   a. Permits granted through public process
   b. Lease, as opposed to sale, preserves discretion of future legislatures
   c. Whether grant impairs navigation/commerce in lands remaining in public trust
   d. Cumulative—Grant viewed in light of all the other grants already made

Question 68

Friends of the Park v. Chicago Park District

Answer 68

Court did not permit Chicago to donate land for museum because under the MoU, the land would be under complete control of museum
a. Private company would profit

Question 69

Mono Lake

Answer 69

1. PTD applies to non-navigable tributaries that feed into navigable waters
   a. Value of PTD water bodies lies in the public’s ability to make use of them for navigation, fishing, etc. – that use is destroyed if water is diminished
   b. State has affirmative duty to take PTD into account when planning allocation of water resources
2. CA courts having it both ways
   a. Expanding PTD to include protection of wildlife, etc.
   b. Shrinking PTD by allowing state to take waters from tributaries
   c. Maybe in the expanded space the state has more flexibility
3. One way to reconcile federal v. state question
   a. Federal element of doctrine—Navigation & commerce
   i. State cannot infringe on those uses, but state’s other duties under PTD are a matter of state law
   b. Must only protect PTD uses where feasible

Question 70

Neptune City

Answer 70

1. Court finds that PTD includes access to beach (dry sand, not submerged)—without citing navigation, fishing, etc.
   a. Extends PTD to recreational uses

Question 71

Barsa’s PTD Hypothesis

Answer 71

1. Scope of PTD Lands based on Equal-Footing Doctrine
   Definitely a federal question
2. Core Purposes—Unclear whether Federal or State
   Navigation, fishing, commerce
3. Expanded Purposes—State Law
   Environmental (Mono Lake), access, recreation (Neptune City)

Question 72

Emmert

Answer 72

Court cites cujus doctrine to uphold trespassing charge under CO state law when a hippie was in a non-navigable stream on private land

Question 73

Hildreth

Answer 73

1. Navigability-for-Use Test-If water body can physically be used for recreation, it can legally be used for recreation, even if river is on private land
2. Court identifies commercial test as federal—state test doesn’t depend on federal test
   a. But if it can be used for recreation, that use can be commercialized. So what’s the difference?

Question 74

Daytona Beach v. Tona-Rama

Answer 74

Customary Rights Doctrine can give public right to use private lands abutting submerged lands, but private uses consistent with the public’s use will not be denied

Question 75

ESA Listing - Causes for Endangerment Finding

Answer 75

(A) . . . present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors

Question 76

ESA Secretary’s Duties

Answer 76

1. (a)(1) Secretary (Interior) shall . . . determine whether any species is endangered or threatened
2. (a)(3)(A) (i) [The Secretary] shall . . . designate any habitat of such species which is considered to be critical habitat
3. (b)(1)(A) Secretary shall make [endangered] determinations . . . solely on the basis of the best scientific and commercial data
4. (b) (2) Secretary shall designate critical habitat . . . on the basis of the best scientific data available and . . . economic impact
5. (b)(3)(A) . . . within 90 days after receiving the petition . . . the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information
6. (b)(3)(B) Within 12 months after receiving a petition . . . the Secretary shall make one of the following findings:
   (i) The petitioned action is not warranted . . .
   (ii) The petitioned action is warranted. . .
   (iii) The petitioned action is warranted, but [precluded by other proposals]

Question 77

ESA Sec. 7 - Consultation

Answer 77

1. (a)(2) Each Federal agency shall, in consultation with . . . the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species . . . or result in destruction or adverse modification of habitat
2. (c)(1) . . . agency shall . . . request . . . information whether any species which is listed or proposed to be listed may be present in the area of [a] proposed action. If [so], the agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected . . . within 180 days . . . and before construction is begun
3. (d) After initiation of consultation . . . agency . . . shall not make any irreversible or irretrievable commitment of resources . . . which has the effect of foreclosing . . . any reasonable and prudent alternative measures

Question 78

ESA Sec. 9 - Take Prohibition

Answer 78

C. § 9—Take Prohibition

1. (a)(1) . . . with respect to any endangered species of fish or wildlife it is unlawful for any person subject to the jurisdiction of the United States to—
2. (A) import or export any such species from the United States;
3. (B) take any such species (within any of the US, not just federal land);
4. (C) take any such species upon the high seas;
5. (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever;
6. (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity
7. (F) sell or offer for sale

Question 79

Distinct Population Segment

Answer 79

Segment of population that meets 3 criteria:

a. Discrete
b. Significant
c. Endangered or threatened if treated as a distinct species

Question 80

Western Watersheds Project

Answer 80

Decision not to list a species must be demonstrably based on the best scientific/commercial data available–not on political considerations

No explicit statutory requirements as to the weight FWS must give competing pieces of scientific data

FWS has broad discretion to make listing decisions

Question 81

Defenders of Wildlife v. Salazar

Answer 81

1. FWS cannot subdivide a DPS. Can redefine DPS through a new rulemaking, but that process is subject to judicial review.
2. “Significant portion of their range” tells you when the DPS/species is endangered but does not define what the DPS/species is
3. Note: Agency will generally want DPS/Species to be as broad as possible so endangering it in any given place won’t trigger protection

Question 82

Defenders of Wildlife v. Norton

Answer 82

A species is endangered in a significant portion of its range if there are major geographical areas in which the species is no longer viable, but once was.

Question 83

ESA Sec. 7 Consultation Process

Answer 83

a. Agency must inquire whether ES may be present in the area
b. If yes, Agency must prepare Biological Assessment
i. If BA determines ES may be affected, must consult with FWS to create a Biological Opinion
ii. If BO finds action would jeopardize ES or destroy habitat, it may not proceed unless an alternative is found that avoids the jeopardy
iii. If BO finds no jeopardy, FWS may still require measures to minimize impact
2. After initial consultation, agency and permit/license applicant may not irreversibly commit resources that would foreclose any alternative measures

Question 84

TVA v. Hill

Answer 84

1. §7 of ESA requires federal agencies to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of an ES or result in destruction or modification of the species’ habitat.
2. Congress has balanced equities in favor of ES, so court must issue an injunction if there is a jeopardy finding

Question 85

National Association of Home Builders v. DoW

Answer 85

1. The ESA does not require the EPA to apply additional criteria when evaluating whether to transfer NPDES permitting authority to a State under the CWA
2. Court ultimately decides the disparity creates ambiguity that results in Chevron deference to FWS regulations (CFR §402.03)
   a. Regulation says no-jeopardy duty only applies to discretionary agency actions
   b. Even though statute says it applies to “any” federal action
   c. Agency can’t “insure” non-jeopardy of species if an agency action is mandatory

Question 86

Sweet Home Chapter of Communities for a Greater Oregon v. Babbitt

Answer 86

1. SoI has authority under the ESA to define “harm” (in definition of “take”) broadly to encompass direct injury or death to endangered animals and indirect actions including the destruction of a species’ habitat and breeding grounds.
2. Most courts interpret Sweet Home to mean that liability under §9 requires proximate causation and foreseeability

Question 87

Incidental Taking § 10

Answer 87

SoI may permit a taking if:

1. Incidental to otherwise lawful activity,
2. Applicant submits Habitat Conservation Plan outlining the steps it will take to minimize and mitigate the impact, and
3. the taking will not appreciably reduce likelihood of species’ survival

Question 88

Riparianism

Answer 88

Grants a right of reasonable use to owners of riparian land subject to the reasonable uses of others

1. Reasonableness decided on case-by-case basis
2. Right is limited to use on the riparian tract itself
3. Water must be used in watershed of origin

Question 89

Gordonsville v. Zinn

Answer 89

1. Misapplication of riparian doctrine to prioritize town’s use over individuals
2. Weakness of riparianism-Who gets what can only be sorted out after the fact
3. Order of use not supposed to matter, court considered it anyway

Question 90

Source of Title Rule (Riparianism)

Answer 90

Lands purchased in separate transactions do not necessarily have same riparian rights

Question 91

Unity of Title Rule (Riparianism)

Answer 91

Buying second parcel does give it the same rights as the original, connected riparian parcel (inverse of Source of Title Rule)

Question 92

Hoover v. Crane

Answer 92

Reasonableness of water use is relative and fact-specific—Court will ask how reasonable is this use given competing uses?

Question 93

Prior Appropriation - How to Acquire a Right

Answer 93

1. Intent to appropriate
2. Diversion of water from a natural source
3. Make beneficial use without waste
   a. 2 elements
   i. Permissible and beneficial
   ii. Not wasteful
   (A) Generally interpreted as not removing water in excess of what is needed

Question 94

Irwin v. Phillips

Answer 94

1. Foundational case in creation of prior appropriation
2. First in time, first in right was custom among miners
   a. Court felt it was the only rule it could enforce

Question 95

RJA v. Water Users Association

Answer 95

Tells us what waters count as unappropriated waters–If you drain a marsh you don’t necessarily get first priority to water you added
a. Would encourage destruction of plant life

Question 96

Thornton v. Ft. Collins

Answer 96

Water can be appropriated by devices that control water in its natural course

Question 97

Regulated Riparianism

Answer 97

Statutory scheme to overcome downsides of common-law riparianism
1. Right acquired by permit

Question 98

Tequesta

Answer 98

Right to water is right to use and does not exist until exercised. Under FL’s regulated riparianism, permits are considered in light of existing uses.

Question 99

Southwest FL Water Mgmt. Dist. v. Charlotte County

Answer 99

1. Under FL law proposed use has to
   a. Be reasonable-beneficial
   b. Not interfere with any presently existing water use
   c. Consistent with the public interest
2. Existing users not grandfathered in—have to meet same criteria as new permit applicants (same in Model Code)

Question 100

Model Water Code

Answer 100

1. Reasonable use
2. Proposed withdrawal in combination with others will not exceed the safe yield of the water source
3. Model code more definite in terms of what prohibition mean
   a. Leaves less discretion to agency

Question 101

Groundwater Regimes

Answer 101

1. Prior Appropriation
2. English Rule of Absolute Ownership
3. American Rule of Reasonable Use
4. Correlative Rights Doctrine
5. Restatement of Torts Sec. 858(a)

Question 102

English Rule of Absolute Ownership

Answer 102

1. Essentially rule of capture
2. You can take all the groundwater you want as long as you do so on your own property—even if it interferes with your neighbors use

Question 103

American Rule of Reasonable Use

Answer 103

1. Modified rule of capture
2. No cause of action against landowners drawing water for beneficial use on tract
3. Injurious use off tract can be enjoined or subjected to reasonable use test (meaning no harm to other users)

Question 104

Correlative Rights Doctrine

Answer 104

1. Landowners share common source often by percentage of overlying land
2. Each user has right to reasonable use subject to the reasonable uses of others
3. Right to use only applies on overlying tract

Question 105

Restatement of Torts Sec. 858(a)

Answer 105

1. Black Letter
   a. A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless
   b. (a) the withdrawal unreasonably causes harm to a proprietor of neighboring land by lowering the water table or reducing artesian pressure,
   c. (b) withdrawal exceeds the proprietor’s reasonable share of the annual supply or total store of ground water, or
   d. (c) the withdrawal has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to use
2. Slightly more restrictive than reasonable use
3. Provides cause of action against users for unreasonable harm resulting from lowering of the water table

Question 106

Winters

Answer 106

Federal government has power to reserve water and exclude it from the state water law system. Essentially allows US to claim priority over all state uses.

Question 107

US v. New Mexico

Answer 107

1. Congress can reserve water from state use, but whether it has been reserved is a matter of congressional intent.
2. Federal government has implied reservation to water rights to support the primary purposes of the reserved land.

Question 108

Public Trust Doctrine

Answer 108

The public trust doctrine provides that States hold title to submerged lands of navigable waters in trust for the benefit of all their citizens

Question 109

Wilderness Act Exceptions to Prohibitions

Answer 109

1. Ingress/egress
2. RS 2477 rights of way before 1976
3. Mining claims located prior to 12/31/83
   a. But prospectors cannot build structures on
   unpatented claims located between 9/3/64 and
   12/31/83