STATE UNIVERSITY OF NEW YORK AT BUFFALO
School of Law
Environmental Law 1 Tuesday, Dec. 12, 2006
Professors Boyer, Shannon and Vallone 1:00 p.m. – 5:00 p.m.
INSTRUCTIONS
This is a four-hour take-out exam; while taking the test, you may consult any written materials you wish, but you may not consult any person regarding the test. Some of the questions may be based on actual events or controversies, but facts may well have been modified for testing purposes. As usual, you should assume the facts given in the question are true. Even after you have turned in your answers, please be careful in discussing the test--some class members may have gotten permission to take the test late due to illness, schedule conflict, etc. In responding to each question, keep in mind the question you have been asked, and be sure to explain how and why you have reasoned your way to a particular answer. You have four hours to complete the exam.
The exam consists of ten essay
and short-answer questions. Point totals given for each question indicate the
relative weight each answer will receive in grading. There are 280 total
points on the exam, and 240 total minutes of exam time
BEGIN A SEPARTE BLUE BOOK OR COMPUTER PAGE FOR THIS
QUESTION, AND LABEL IT PART ONE.
Question No. 1 -- 30 Points.
Jeff Pidot, in his 2005 report of the Lincoln Institute of Land Policy entitled “Reinventing Conservation Easements: A Critical Examination and Ideas for Reform,” described eight key issues of concern that were raised by a study group analyzing conservation easements. These are:
1. Variable quality in conservation easement design.
2. Lack of a publicly accessible system for conservation easement tracking.
3. Lack of transparency and determination of pubic benefits in easement formation.
4. Failure by many easement holders to undertake appropriate stewardship duties.
5. Lack of clear standards for easement termination, amendment, and backup support.
6. Lack of clear valuation and other taxation standards for conservation easements.
7. Failure to consider implications of easements on land acquisition and regulation.
8. Failure to consider issues of equity and environmental justice in easement programs.
Out of this list, pick three issues and discuss your evaluation of the issue (whether or not it is a problem and how you would come to that conclusion) and describe any potential strategies for addressing the issue.
BEGIN A SEPARTE BLUE BOOK OR COMPUTER PAGE FOR THIS QUESTION, AND LABEL IT PART TWO.
Question No. 2 -- 20 Points. “From the perspective of an economist like Ronald Coase, the western prior appropriation doctrine for water rights as described in the Atchison v. Peterson case is much more efficient economically that the current eastern common law rules of riparian rights and public trust.” Explain why you agree or disagree with this statement, using examples and illustrations from the course materials.
Question No. 3 -- 35 Points. Assume that you are working in a law firm that represents the Buffalo Niagara Riverkeeper (BNR), a local environmental organization working to restore and protect the Buffalo River and other local waterways. For several years, BNR has been working to restore habitat and water quality on the Buffalo River, seeking to reduce discharges from combined sewer overflows on the lower river. BNR recently learned that a group of local businessmen, incorporated as Rinks, Inc., had proposed to acquire some abandoned land in South Buffalo and build a complex with three hockey rinks, a fitness club, restaurants and refreshment stands. The growing popularity of hockey in the local area has caused a shortage of “ice time” for junior and amateur hockey programs, with the result that leagues have had to limit their practice times and the number of games they play in a season. Rinks, Inc. plans to make the proposed hockey complex a regional destination, hosting amateur ice sports not only for western New York, but also for nearby Pennsylvania and Southern Ontario.
BNR has nothing against hockey, but does have some problems with the siting of the facility. The parcel in question, located in South Buffalo along the banks of the Buffalo River, was formerly part of a steel mill that shut down in the 1980s. Five years ago it was sold to Urban Farms, a venture that constructed greenhouses on the property to grow hydroponic tomatoes for local grocery stores. Rising energy costs drove that business into bankruptcy, and the land was taken by the City of Buffalo for back taxes. The City has been trying to market the property for redevelopment, but with no success until Rinks, Inc. stepped forward.
A staff member of BNR reviewed the documentation for the project at the City Planning Department, with a view toward seeing whether it would adversely affect the river. She discovered that the site is about 25 acres in size, and that most of it would be covered either with pavement for parking, or with the large roof areas of the rinks and associated businesses. Less that one acre would remain as landscaped area. Since the land naturally slopes from the fronting street down to the river at the back of the facility,
there might be runoff from the parking lots and roof drains into the river. To address this concern, the developers had proposed to construct a “detention pond” ten feet from the river bank—essentially, an open unlined pit where the runoff water could be collected to infiltrate into the ground. Sanitary sewage from the facility would be discharged to the Buffalo Sewer Authority’s sewer lines running under the street in front of the complex.
The concern with this approach is that the area has combined sewer overflow problems already, and some of the habitat areas BNR is seeking to restore are just downstream from the nearest CSO overflow point. In addition, the developers plan to take water from the river to make ice for the rinks, so that they can avoid the expense of purchasing a large volume of water from the public authority that provides potable water to Buffalo. (Water for the dining facilities, water fountains and restrooms would be purchased from the water authority.) A call to the NYS Department of Environmental Conservation confirmed that the river has a “C” (fish propagation) classification in the area where the facility would be built, and that the site is located along the navigation channel of the river, though near the upstream limit of navigability. Residents of the nearby neighborhoods currently use the site to fish from the bank, walk dogs, and just to hang out by the river.
BNR’s leadership will be negotiating with the developer, the City and the Buffalo Sewer Authority to see if they are willing to reduce possible impacts to the river. To prepare for that negotiation, they have asked your firm to prepare a memorandum analyzing the possible legal theories they might use to block or force modification of the facility, if the developers try to move ahead with the current plans described above.
Question No. 4 -- 40 Points. A partner in the law firm where you are an associate serves as Village Attorney for the Village of Springville. As we saw in Simulation 5, Springville owns an unused forty-foot dam on Cattaraugus Creek, and it would like to sell the dam to Creek Ventures, Inc., a private company that plans to seek a license from FERC to return the facility to service as a hydroelectric generating station. The proposed sale is scheduled to be debated at a Village Board meeting shortly after the holidays, with board members splitting over the desirability of such a sale. Some Board members believe that tourism revenues would be enhanced by removing the dam and allowing steelhead passage to the upper river, as the Western New York Steelhead and Salmon Fishermen’s Association (Steelheaders) have argued. Others think the dam has become part of the Village’s built environment and ecology, and they would like to see the old facility brought back into useful operation. Some of them also point to the need to protect the trout fishery that exists above the dam. While a couple of Board members remain undecided, it seems clear that the vote will be close.
Two days ago, Steelheaders filed a lawsuit in New York Supreme Court that could block the transfer of the dam to Creek Ventures. The first count claimed that the continued existence of the dam was a nuisance because “before the construction of the nuisance complained of, and for time immemorial, salmonid fishes were accustomed to pass, and did pass, up and into said river for purposes of spawning. Until approximately 1930,
those fishes were native Atlantic salmon. The Atlantic salmon were blocked from their historic spawning grounds in upper Cattaraugus Creek when a predecessor to the
current dam was constructed in 1906, and became locally extinct by 1945. In 1962, the predecessor agency to the New York State Department of Environmental Conservation began stocking a different species of salmonid, steelhead, in lower Cattaraugus Creek,
and these fish have since established breeding populations and become naturalized. The existence of the dam prevents them from reaching the historic salmonid breeding grounds, reduces their population, and injures sport anglers who wish to fish for steelhead throughout the Cattaraugus Creek watershed and in nearby Lake Erie.” The complaint asked for an injunction ordering Springville to remove the dam.
Count two alleged that “by allowing the dam to alter or destroy the natural hydrology and flow of water in Cattaraugus Creek and its tributaries, and by proposing to allow the sale to private interests of this dam site without specific legislative approval, the State of New York acting through its instrumentality the Village of Springville has breached its duty to preserve and protect the public trust of the State of New York.” This count also asked for an injunction mandating removal of the dam.
The third count alleged a violation of common-law rights of piscary, insofar as several members of Steelheaders owned properties on the upper tributaries of Cattaraugus Creek, and were prevented from fishing for steelhead from their properties as a result of the dam. These members, who were joined as individual plaintiffs, sought damages from the Village for their alleged injuries.
Finally, the fourth count was against the New York State Department of Environmental Conservation (also named as a defendant, along with the Village of Springville), seeking an injunction to prevent DEC from issuing a 401 certification for the dam in any federal proceeding unless and until the violations of law previously described were abated or remedied.
The senior partner who represents the Village is certain to get a lot of questions at the upcoming Village Board meeting relating to this lawsuit, so he has asked you to prepare a memorandum analyzing whether these allegations are substantial or frivolous, and recommending what you think the Board should do. Your answer should be based solely on the materials covered in this class—stay away from doctrinal byways that will take you outside the scope of course coverage.
Question No. 5 -- 15 Points. In what respects is the Clean Water Act the kind of statute Gifford Pinchot might have preferred, and in what respects does it reflect the philosophy and values of John Muir?
Question No. 6 -- 20 Points. South of Buffalo, just across the Pennsylvania state line from Allegany State Park, is Allegany National Forest (ANF), a hilly area of several thousand acres that was the victim of “cut-and-run” logging before it was incorporated into the National Forest system by purchase from private owners in the 1930s. Over the
intervening years, Allegany National Forest has been reforested with mixed types of hardwood trees, notably including black cherry—a tree that is extremely desirable and valuable for furniture making. The Forest Service has been trying to develop a current forest plan for ANF for several years, but every draft produced so far has been bitterly
attacked either by environmentalists (led by the Allegany Wilderness Alliance) or by the Pennsylvania Hardwood Timber Association (representing logging interests). While the Timber Association favors opening the entire national forest area to harvest of the mature trees at the rate of 15 percent of the forest area per year, pointing to jobs and stimulus for the local and regional economy, the Alliance has been lobbying Congress to put some 2,500 acres of the forest into wilderness status. While the Alliance has attracted some support, so far Pennsylvania’s Senators and Congressmen have not reached consensus on supporting this approach. Prospects for congressional support might be better in the new Congress that will take office in January, but securing enough support to get the wilderness proposal through Congress is far from certain.
The Wilderness Alliance recently suffered a serious setback when the federal Department of Transportation released a feasibility study on upgrading an existing road, state route 219, into a part of the federal Interstate Highway system. While the current Route 219 is a two-lane road going south from the outskirts of Buffalo and does not cross through National Forest land, the proposed interstate would be upgraded to four lanes throughout and routed through the national forest. (Interstate highways have stringent design standards that can be most easily met by going through the forest, and in any event using federal land in the forest would make it much cheaper to build.) If the highway is built as outlined in the feasibility study, it would cut right through the tracts that the Alliance wants to protect as wilderness, and probably make it impossible to get any further protection for that forest.
Knowing of your background in Environmental
Law, one of the organizers of the Allegany Wilderness Alliance has asked you how
they might try to deal with the threat of the interstate highway, and whether
there is any quicker way than lobbying Congress to try to get the proposed
wilderness area protected.
BEGIN A SEPARTE BLUE BOOK OR COMPUTER PAGE FOR THIS QUESTION, AND LABEL IT PART THREE.
Question 7 -- 30 points.
When the Endangered Species Act was passed in 1973, there were high expectations that the extinction of species would be halted as a result of this statute. The ESA was uncompromising in stating that only the needs of the species would be considered in designation of a species as threatened or in danger of extinction, in assigning critical habitat, and in developing a recovery plan. Later, during the Reagan Administration, consideration of economic costs was included in the designation of critical habitat – due largely to the ‘snail darter’ dispute related to the Tellico Dam project in Tennessee. In the past 33 years, this balance between protection of species through habitat conservation and consideration for economically marginal people and communities has been the source of numerous legal battles. While the ESA is a federal law it applies to all landowners and has the potential to ‘take’ most if not all the economic value of the land for the purpose of habitat protection.
1. What steps does the ESA require before private land could be designated as part of the ‘critical habitat’?
2. You learned how the Clean Water Act, for example, preserves an important role for the states in regulating water pollution. What is the role of the state in complying with the ESA on state lands?
3. What is the role of the state as the regulator for private lands when endangered or threatened species are potentially affected by legal private uses of private or State lands?
4. When does Section 7 consultation take place? Who is involved in the consultation process? What is the result of consultation?
5. When Section 7 consultation finds that the proposal by an action agency is unlikely to be lawful under the ESA, what are the options available to the regulatory (NMFS/NOAA or FWS) agencies?
Question 8 -- 20 points.
In 1970 NEPA embodied a spirit of environmental protection and improvement that was galvanizing the US and the world. In this respect, the NEPA embodies our highest public aspirations along with the procedural means to strive toward them. In this aspirational light, NEPA stands for the ideals of environmental protection as a way of achieving sustainability of human life on this (small) planet. However, when NEPA is actually applied by agencies, it has become a largely procedural exercise, often disconnected from both its aspirational goals and its imagined scope of global impact.
1. The process of writing regulations to implement NEPA in 1979 occurred after a decade of NEPA litigation and numerous Supreme Court decisions. Thus, it is often said that the CEQ regulations simply summarized these Supreme Court decisions. One area of special interest in the regulations regarding the definition of the meaning and scope of ‘significant federal action’ is that of the boundaries of the action area. In many instances, the action agency (the Forest Service for example in Thomas v. Peterson) tries to define the action area as narrowly as possible. However, this effort can run into the problem that several small actions are interdependent with respect to the larger area and their affects are additive.
a. Discuss the meaning of these terms in this context:
i. Connected Actions
ii. Cumulative Effects
b. Considering Pacific Coast Federation of Fisherman’s Assoc., Inc. v NMFS (2001), why did the Forest Service/BLM and NMFS think that these NEPA requirements did not need to be explicitly addressed in the decision to harvest the 23 timber sales at issue?
Question 9 -– 60 points.
Very few people, even foresters, love clearcuts. Foresters may view them as necessary for regeneration of tree species that will not grow in the shade of other trees, but people hoping enjoy the forest as a landscape are often offended by the glaring empty patches filled with stumps and debris.
(Pictures taken by Margaret Shannon on the road from Olympia to Westport, WA.)
As timber harvesting on the National Forests grew exponentially during the housing and economic boom of the 1960s, local residents as well as recreationists grew increasingly unhappy with the domination of clearcuts across the forest landscape. Scientists were concerned about soil and water protection as well as the effects on habitat for both plants and animals. Various groups composed of these interests filed suit against the Forest Service declaring that clearcutting was violating the ‘multiple use’ requirement for forest management under the ‘Multiple Use Sustained Yield Act’ of 1960. But in every instance, the court ruled that the definition of ‘multiple use’ was within the discretion of the agency to determine. Frustrated with the inability to hold the agency accountable for this timber harvest method and its affects on other values, the Issac Walton League of West Virginia brought suit under the 1897 Organic Act which specified that timber could only be harvested when mature trees were individually designated and marked. They won in District Court and again on appeal to the 4th Circuit. The Forest Service and the timber industry were shocked! Both viewed ‘clear cutting’ as good, scientifically defensible timber harvest methods. The court did not disagree with this view, but merely said that while that may be so, it is not what the statute said. If they wanted to do clearcutting, they needed to rewrite the law. Congress immediately undertook to do so and the National Forest Management Act was the result.
1. NFMA created the requirement for a single, integrated Land and Resource Management Plan (LRMP or ‘forest plan’) for every National Forest so as to address all of the resource values, uses, and management programs in a single document so that one use was considered with the context of all other uses and values. These Forest Plans became the mechanism by which the Forest Service complied with NEPA requirements for an interdisciplinary assessment of ‘major federal actions’ with ‘significant effects on the environment.’ Now under the new 2005 Regulations implementing NFMA, the Forest Service has declared that these Plans are no longer subject to NEPA procedures.
a. On what basis did the Forest Service reach this determination and what is their justification for why a ‘forest plan’ should not comply with NEPA?
b. In your view, is this a defensible position? If so, what supports it, and if not, what challenges it?
2. NFMA also requires the protection of the “biodiversity” and this responsibility was given strength in the 1982 Regulations within the ‘diversity’ clause that required the Forest Service to ensure that there were viable populations of native and desired non-native vertebrates well-distributed over the planning area, and with the expectation of long term survival. Now, however, under the new 2005 Rule these “final regulations eliminate the requirement to maintain “viable populations” of native fish and wildlife species in the national forests. This requirement has been a primary legal basis for some of the Forest Service’s most important forest conservation initiatives, including the Northwest Forest Plan and the Sierra Nevada Forest Plan. In place of the viability requirement, the regulations simply provide an “overall goal” to “provide a framework to contribute to sustaining native ecological systems by providing ecological conditions to support diversity of native plant and animal species in the plan area” [36 CFR 219.10(b)]. Rather than planning to ensure the continued existence of wildlife, forest plans will only “establish a framework to provide the characteristics of ecosystem diversity in the plan area” [219.10(b)(1)]. In fact, forest plans will no longer have to specifically address wildlife needs at all unless the Forest Service determines that the “ecosystem diversity” provisions of the plan need to be supplemented for a particular species [219.10(b)(2)]. The regulations also excuse the Forest Service from any duty to monitor wildlife populations [219.14(f)]”. http://www.wilderness.org/OurIssues/Forests/nfma.cfm
a. On what basis did Judge Dwyer (1994) declare the NWFP a ‘legal exercise of discretionary authority’ by the agencies?
b. What effects to the NWFP can you foresee if (really when) the NWFP is challenged based on these new 2005 Rules?
c. If you were a lawyer working with the National Wildlife Society, what would be your strongest argument on which to try to maintain the extensive protections for wildlife in the NWFP?
Question 10 -- 10 points.
The field of public land law is incredibly incoherent and messy. Indeed, the arrangement of authorities over natural resources is more the product of historical accident than any rational distribution of jurisdiction related to goals. Given this, the lands owned by the public -- federal, state, county, or municipal -- all come under a general designation of ‘public land law.’ One of the important determinate for what laws apply to what lands is how the land became ‘public’ in the first place.
1. What is meant by ‘public domain’ land?
2. Do lands ‘withdrawn’ from the public domain differ from lands ‘reserved’ from it? Explain.
3. A significant part of the Constitution for new States beginning with Ohio in 1803 was the designation of some public domain lands as ‘state lands’. For what purposes were ‘public domain’ lands given to states? How are these purposes affecting State land management today?
Happy Holidays
We wish you good luck in the New Year.
Happy holidays to you and your families.
