Journal of Environmental Law & Litigation : Vol. 23, no. 2 (Fall 2008)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 491-518 : The Culverts Opinion and the Need for a Broader Property-Based Construct(University of Oregon School of Law, 2008) Fisher, WilliamDuring the last thirty years, the State of Washington has been involved in extensive litigation with Indian tribes (with the United States acting as trustee for the tribes) regarding fishing rights and the quality of fish runs throughout the Northwest. While much of this litigation regards tribal fishing rights in the face of state fishing regulations, few cases have specifically touched on a state's duty to protect fish runs and fish habitat.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 451-490 : Representing Nonconcurrent Generations: The Problem of Now(University of Oregon School of Law, 2008) Olmsted, James L.This Article first provides a brief discussion of the historical and philosophical antecedents of real property law in the United States. The Article next provides an historical and legal analysis explaining how conservation easements fit within the current real property regime in the United States. Having thus laid this contextual groundwork, the Article expounds upon the merits of perpetual conservation easements. The final parts of the Article are in rebuttal to challenges to this Article in Professor Mahoney's article, Land Preservation and Institutional Design.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 401-432 : Can You Trust a Trust? The Potential CERCLA Liability of Trustees and Beneficiaries(University of Oregon School of Law, 2008) Smith, Diane R.; Nastich, Summer L.This Article addresses the question of under what circumstances, if any, can trustees and/or beneficiaries be held liable as owners? This question is crucial because owners are strictly liable under the Superfund Law, the Comprehensive Environmental Response Compensation, and Liability Act of 1980 (CERCLA). Other questions addressed in this Article include: If the beneficiary or trustee is potentially liable, is such liability personal or limited to trust assets? What steps can be taken to reduce or eliminate exposure of the trust assets and the beneficiary and/or trustee's own personal assets to clean-up liability? What potential defenses are available to trustees and beneficiaries?Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 275-356 : The General Adjudication of the Yakima River: Tributaries for the Twenty-First Century and a Changing Climate(University of Oregon School of Law, 2008) Ottem, Sidney P.The following material summarizes and provides context for Acquavella's major rulings and attempts to aid those who find themselves in water litigation by providing a case study and a practice aid. The Article concludes by making a case for developing new interest and devoting resources toward pursuing adjudications on a West-wide, if not nationwide, basis in light of the uncertainty of water supply that will occur as a result of climate change.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 433-450 : Land Preservation and Institutional Design(University of Oregon School of Law, 2008) Mahoney, Julia D.In the past three decades, conservation servitudes, also known as conservation easements, have emerged as an important means of preserving lands of ecological, scenic, cultural, and historic value. Although exact figures are impossible to come by, it is estimated that more than nine million acres in the United States are subject to conservation servitudes held by land trusts and other organizations. The explosive success of this novel approach to land preservation has led to an increasing stream of questions and concerns.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 519-542 : Protection of Public Trust Assets: Trustees' Duty of Loyalty in the Context of Modern American Politics(University of Oregon School of Law, 2008) Lords, CourtneyParts I and II of this Article provide an overview of the climate change crisis and the public trust doctrine. Part III discusses trusts generally and the difference between private and public trusts. Part IV discusses the duties owed by the trustee to the trust beneficiaries; specifically, the trustee's duty of loyalty and the several sources from which the duty is derived. Part V takes an in-depth look at the types of conflicts of interest confronted by trustees and trustees' agents in their administrative capacity. Recent examples from federal agencies are provided to demonstrate how conflicts of interests influence decisions that impact the public trust. Finally, Part VI ties the trust principles, trust duties, and trustee conflicts of interest together and suggests future actions to attract the trustee's attention.Item Open Access Journal of Environmental Law & Litigation : Vol. 23, No. 2, p. 357-400 : CAFO Grief: Using Tax Grieving Procedures to Protest Industrial Animal Factories(University of Oregon School of Law, 2008) Murphy, Laura BucherThis Article presents a potential tool for those homeowners negatively impacted by industrial animal farms to use. It is a general roadmap for property tax assessment protests for residences near factory farms. It draws largely from a publicly available guide, also by this author, that was created as part of the Vermont Law School Environmental and Natural Resources Law Clinic's (ENRLC) project to facilitate these types of protests. The project recognizes that when localities fail to account for the devaluing impacts that factory farms have on neighboring properties in making property tax assessments, they mistakenly overestimate the fair market values of those properties, which results in unfair and falsely high property taxes. If, in contrast, factory farms are properly taken into account, neighboring residences will receive fair assessments and fair tax bills, and localities will be more likely to consider the true costs of factory farms when making relevant policy decisions.