Volume 26, Issue 1
Spring 1996
ARTICLE
International
Negotiations Paralyzed by Domestic Politics: Two-Level Game Theory and the
Problem of the Pacific Salmon Commission
Robert
J. Schmidt, Jr.
Mr. Schmidt takes an in-depth look at the failed
negotiations between Canada and the United States over the harvesting of
Pacific salmon. Relying upon models of two-level game theory in the arena of
international negotiations, Mr. Schmidt provides insight into the
"why" of the current impasse and the "how" of resolving it.
Mr. Schmidt concludes that resolution of the salmon allocation dispute between
the United States and Canada may depend on first resolving domestic disputes
between the State of Alaska and the States of Oregon and Washington.
ESSAYS
Taking
and Giving: Police Power, Public Value, and Private Right
Gerald
Torres
Professor Torres engages in a discussion of the
relationship between property as a social artifact and law, and why this
relationship is misunderstood. Professor Torres describes the political and
narrative techniques used by property rights advocates, examines the current
state of takings jurisprudence, and voices strong concern regarding the
political and social values at stake in the struggle to define "property
rights."
Water
Rights and the Common Wealth
Eric
T. Freyfogle
Professor Freyfogle takes issue with the view that
water marketing should be the primary tool to meet new needs for water in the
West and to bring an end to the most environmentally damaging water uses.
Recognizing that market reasoning only perpetuates the view that nature is
merely a collection of resources, existing chiefly to serve human needs and
easily shifted from place to place, Professor Freyfogle encourages lawmakers to
react by making the beneficial-use requirement a more meaningful construct.
A
Civic Republican Perspective on the National Environmental Policy Act's Process
for Citizen Participation
Jonathan
Poisner
Civic republicans advocate a model of democratic
participation that requires broad public participation in a deliberative
decision-making process to arrive at a "common good." Mr. Poisner
advances this model by reviewing the citizen participation provisions of the
National Environmental Policy Act and developing criteria that would enable
citizens to take a more active role in fulfilling the Act's requirements.
SYMPOSIUM: NORTHWEST WATER LAW
On May 19 and 20,
1995, the Northwest Water Law & Policy Project of Northwestern School of
Law of Lewis & Clark College sponsored a Conference on Water Policy and
Sustainablility in the Columbia River Basin. By bringing together water users,
elected officials, government agency personnel, members of Indian tribes,
activists, and other interested individuals, the conference provided a unique
forum for a broad discussion of water policy issues that affect the entire
Columbia River Basin. These Articles are either adaptations of remarks
delivered at the Symposium or expanded versions of manuscripts presented at the
Symposium.
Seven
Myths of Northwest Water Law and Associated Stories
Michael
C. Blumm
In this introduction for the Symposium, Professor
Blumm sets out to debunk seven common myths that have long hampered a full
understanding of water rights allocation in the Northwest.
Changing
the River's Course: Western Water Policy Reform
David
H. Getches
With the Columbia River unable to support health
salmon populations, Professor Getches suggests that traditional instruments of
water policy in the West--the beneficial-use requirement of the prior
appropriation doctrine and the idea of watershed management--can be reformed,
with a community-based approach, to cure many of the Columbia's ills.
A
Watershed Issue: The Role of Streamflow Protection in Northwest River Basin
Management
Reed
D. Benson
Mr. Benson examines how watershed protection efforts
have become popular in the Northwest, as governments at all levels have found
reasons to embrace them. He concludes that although these efforts promise a
holistic approach to environmental problems, Western water law and politics may
prevent them from addressing a key need of healthy watersheds: adequate
instream flows.
Leasing
Water Rights for Instream Flow Uses: A Survey of Water Transfer Policy,
Practices, and Problems in the Pacific Northwest
James
D. Crammond
Mr. Crammond engages in a comprehensive review of
instream water right leasing in the Pacific Northwest. While Mr. Crammond
observes that legal hurdles, combined with uncertainty over monitoring and
enforcement of instream rights, limit lease opportunities in some watersheds,
he concludes that lease markets are developing as parties gain experience and
as information about opportunities, benefits, and results accumulate.
The
Hanford Reach: Protecting the Columbia's Last Safe Haven for Salmon
Shauna
Marie Whidden
The Hanford Reach of the Columbia River is home to
the largest naturally spawning population of fall chinook salmon in the
Columbia River Basin. Ms. Whidden discusses the factors that have contributed
to the success of this species and compares the legal strategies and political
opportunities for providing permanent protect to the Hanford Reach.
Drafting
from an Overdrawn Account: Continuing Water Diversions from the Mainstem
Columbia and Snake Rivers
Joy
Ellis
Ms. Ellis analyzes restrictions on diversions of
mainstem Columbia River flows in Washington, Oregon, and Idaho. She concludes
that, while the moratoria recently imposed by the three states will contribute
to the recovery of threatened and endangered salmon species, state agencies
must do more to protect instream flow from further water appropriation
activity.
COMMENTS
Tradable
Emissions Programs: Implications Under the Takings Clause
Susan
A. Austin
Tradable emissions programs are an innovative,
market-based alternative to the traditional command-and-control method of air
pollution regulation. Ms. Austin explores whether tradable emissions programs
could render the government vulnerable to a Fifth Amendment takings claim
should subsequent government actions decrease or destroy the value of tradable
emissions permits.
Of
Fish, Federal Dams, and State Protections: A State's Options Against the
Federal Government for Dam-Related Fish Kills on the Columbia River
Robin
Kundis Craig
Ms. Craig examines the possible means for states to
bring claims against the federal government for dam-related fish kills. She
explores the federal government's sovereign immunity and interaction between
the states' and federal government's interests in the Columbia River Basin. Ms.
Craig argues in favor of a strict liability remedy against the federal
government so that states may obtain damages for the fish kills.
Alabama-Tombigbee
Rivers Coalition v. Department of Interior: Giving Sabers to a
"Toothless Tiger," the Federal Advisory Committee Act
Douglas
D. Morris
Mr. Morris critiques the Eleventh Circuit's decision
in Alabama-Tombigbee Rivers Coalition v. Department of Interior. With a
review of the Federal Advisory Committee Act and the law of injunctions, Mr.
Morris concludes that the court erred in enjoining agency consideration of
information submitted by a committee that had acted in violation of FACA.
The
Federal Advisory Committee Act: Barrier or Boon to Effective Natural Resource
Management?
Dover
Norris-York
Ms. Norris-York analyzes the role of the Federal
Advisory Committee Act in the management of natural resources by reviewing
pertinent case law and examining its application to the Department of the
Interior's Rangeland Management Plan. Finding the status quo inadequate, Ms.
Norris-York concludes with suggestions for achieving more meaningful public
participation in natural resource management issues.
CLEAR THE AIR
Consensus
in the Klamath
Senator
Mark O. Hatfiel
Senator Hatfield describes the success of a southern
Oregon citizens' group in reaching solutions to natural resources issues in
that region.
An
Update on Pleadings and Sanctions in Environmental Cases
Carl
Tobias
Professor Tobias provides an update on complications arising from Rules 8 and 11 of the Federal Rules of Civil Procedure in environmental cases.