Journal of Environmental Law & Litigation : Vol. 21, no. 2 (Fall 2006)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 509-514 : New Books [book reviews](University of Oregon School of Law, 2006)Reviews of the the following books: Reality Check: The Nature and Performance of Voluntary Environmental Programs in the United States, Europe, and Japan / edited by Richard D. Morgenstern and William A. Pizer -- Field Notes from a Catastrophe: Man, Nature, and Climate Change / by Elizabeth Kolbert -- Arizona Water Policy Management Innovations in an Urbanizing, Arid Region / edited by Bonnie G. Colby and Katharine L. Jacobs -- The Role of Customary Law in Sustainable Development / by Peter Ørebech, Fred Bosselman, Jes Bjarup, David Callies, Martin Chanock, and Hanne PetersenItem Open Access Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 383-444 : The Future of Livestock Grazing and the Endangered Species Act(University of Oregon School of Law, 2006) Shepherd, Harold S.This Article examines the successes and failures of applying the ESA and related laws and policies in protecting federal rangelands from abusive livestock grazing, as well as the consequences the controversy may pose for the ESA and public-lands grazing itself. Specifically, this Article discusses (1) a summary of the legal and scientific standards affecting rangeland and riparian resources; (2) ESA standards and procedures; (3) ESA litigation; (4) on-the-ground examples of ESA species and habitat protection; (5) application of the Administrative Procedures Act (APA) to ESA riparian-grazing cases, including final actions, parties, standing, and ripeness; and (6) the future of the ESA and current legislative efforts to gut the Act. The Article concludes by assessing how attacks on the Act may actually lead to reforms of livestock grazing on federal lands.Item Open Access Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 317-382 : New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust(University of Oregon School of Law, 2006) Osherenko, GailI begin with a look at how societal views and laws regarding ocean space have changed from the sixteenth century to the present. New ocean discourses are likely to lead to new systems of ocean governance to deal with new uses and conflicts arising over ocean space. Section II provides an overview of property rights. Section III explains the distinction between imperium and dominium in international law, a distinction central to understanding the seas as common property (in contrast to public or private property). Section IV brings international law to bear from the Geneva Conventions of 1958, signing of the United Nations Convention on the Law of the Sea in 1982 (1982 Convention), and subsequent treatment of ocean space under international law. Section V traces the evolution of property rights and the changing structure of sovereignty over the seas in U.S. court cases and statutes including the nineteenth century battles over tidelands, the 1945 Truman Proclamation unilaterally claiming an extension of U.S. jurisdiction and control over the continental shelf, and a series of cases from the 1940s to the present dealing with federalstate conflicts over the oil and gas resources of the continental shelf. This section considers the nature of federal and state authority over the seabed and subsurface, and explores in-depth the assertions of property rights made by parties to these cases and rejected by the U.S. Supreme Court. Section VI discusses protection of common property through contract law and the public trust doctrine. The final section offers recommendations for ocean governance that reflect twenty-first century discourses on the importance of marine ecosystems and ways to reduce and manage conflicts as existing and new uses compete for ocean space.Item Open Access Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 259-316 : The Oregon and California Lands Act: Revisting the Concept of Dominant Use(University of Oregon School of Law, 2006) Scott, Deborah; Brown, Susan Jane M.Part I of this Article is a history of the O&C lands, and Part II describes the Act’s legislative history, provisions, regulations, and amendments. Part III summarizes the various official interpretations of the O&C Act, including DOI Opinions, federal case law, and administrative appeals board decisions. Part IV argues that the Ninth Circuit’s decision in Headwaters v. Bureau of Land Management, Medford District was wrongly decided, and that a fair reading of the case law and legislative history prompts a different conclusion than that drawn by the appellate court. Finally, Part V highlights a prescient opportunity for the public and the courts to reexamine the conventional wisdom that the O&C Act is a “dominant use” statute.Item Open Access Journal of Environmental Law & Litigation : Vol. 21, No. 2, p. 445-508 : Bringing Green Power to the Public Lands: The Bureau of Land Management's Authority and Discretion to Regulate Wind-Energy Developments(University of Oregon School of Law, 2006) Adams, Gregory M.Part I of this Comment will briefly describe the impacts of wind-energy development on the environment and provide an overview of the BLM’s programmatic wind-energy policy. Part II will examine the BLM’s legal authorities and duties to regulate wind-energy developers with mitigation measures that would adequately compensate for environmental harm.