Sustainability Symposium: Thanks to all who attended April 20, 2012!
SJEL partnered with the Washington Lawyers for Sustainability (WLS) and Washington Journal for Environmental Law & Policy to host a sustainability symposium on April 20, 2012, at Seattle University. The event focused on making sustainability legal, economically viable, and socially just. Presenters and speakers included professors, practitioners, and elected officials, including Seattle Mayor Mike McGuin.
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Timber theft presents a serious problem to the health of the forests of the Pacific Northwest, and to the law enforcement officers who police the backcountry. Sometimes encounters with criminals in the backcountry ends in violence, as it did for one suspected wood thief earlier this year in Mason County, or in death, as it did for one officer of the Olympic National Forest in 2008.
The scope of the timber theft problem is difficult to quantify, but in his article, Mr. Trick compiles economic data about the region, the specialized forest product economy, and the unique community acceptance of timber theft. With this understanding in place, he suggests a simple statutory change to give law enforcement officers a tool to more safely interdict timber theft on side of public highways rather than in the backwoods. Building on the specialized forest product permitting scheme in Washington state, Mr. Trick suggests a simple statutory change that would give law enforcement officers the reasonable suspicion they need to legally stop a suspicious vehicle loaded with forest products, and avoid the dismissal of criminal cases.
During the last decade, China has forged close trade relationships with the many developing African nations eager to capitalize on their natural resources. As Sino-African trade relations continue to expand, China, African nations, and the international community must develop a more effective environmental regulatory system in order to protect local environments from irresponsible corporate development. The finished products available on store shelves around the world may be labeled “Made in China,” but they began as copper from mines in Zambia, timber from dwindling swathes of rainforest in Gabon and Guinea, and iron from the Congolese jungle—all shipped to China and forged into products using oil from Sudan, Angola, and Nigeria.
This article by Patrick Munson, Vermont Law School J.D./M.E.L.P. (2010), and Zheng Ronghui, Master of Law, China University of Political Science and Law (2011), focuses on this aspect of the supply chain, why traditional legal regimes are often inadequate to address the issues that arise in international resource extraction projects, and examines the roles of each of the Chinese bureaus and agencies that influence or regulate foreign investments. The article recommends reasonable and potentially effective legal solutions while exploring the common goals that might be achieved if Chinese departments emphasized responsible corporate conduct abroad.
In 2004, the United Nations uncovered over 300 bullet riddled bodies in Youghbor, a small village in Liberia. As the UN investigated the massacre, it made a significant discovery as to the culprit’s motive: timber. Timber that was harvested from what has been appropriately coined as Africa’s “blood forests.” The illegal timber trade is a disturbing and deadly practice, rife with human rights, environmental, and economic consequences. The international community has become increasingly aware of these consequences and has begun to respond. In 2008, the United States issued one of the most dramatic responses, expansively amending the nation’s oldest wildlife protection statute, the Lacey Act. First enacted in 1900, the statute was amended to criminalize the importation of illegally harvested timber, and products made from such materials.
The purpose of this article is to provide a critical analysis of the directive to curb illegal logging and the market for illegally harvested forest products, with a particular emphasis on the Lacey Act. The article provides an overview of the illegal timber trade and its global impact. It then analyzes the measures being taken among the international community to date, focusing on numerous case studies. In particular, the author assesses the recently amended Lacey Act and appraises its potential role amongst this backdrop. The author then argues that to effectively extinguish the practice of illegal logging, the provisions of the United States’ Lacey Act, and what may become its counterpoints in other nations, must be interpreted to align with a unified, cohesive system of global governance.
Fire cultivates change. This article illustrates how the use of prescribed fire changed over the last century and how the federal courts resolved tort claims from prescribed fires. By first recounting the tumultuous history of prescribed fire and the perplexing terminology used to describe the various categories of wildland fires, this article then dissects past prescribed fire litigation. In particular, this article explains why recent policy changes have unveiled the federal government from behind the discretionary function exception that typically shields the federal government from tort liability. Thus, this article clarifies confusing terminology and describes why the discretionary function exception should not bar a claim for damages resulting from a prescribed fire.
For forty-five years, the federal and state governments have sought to balance conservation and development in the Kvichak and Nushagak river drainages in southwest Alaska. These drainages are major contributors to the world’s largest commercial salmon fishery in Bristol Bay, offer world-class sport fishing and hunting, and provide important subsistence foods for local residents. Now, the Pebble Limited Partnership seeks to develop one of the world’s largest low-grade copper, gold, and molybdenum deposits located in Southwest Alaska, based on mining claims staked upon state land.
In his article, Mr. Parker examines this forty-five-year history of federal and state efforts to balance conservation and development. The history of land use policy should inform the U.S. Environmental Protection Agency (EPA) as it considers whether to use its Section 404(c) authority under the Clean Water Act, which gives the agency authority to restrict or prohibit discharge of dredged or fill material, including mining wastes. To date, the EPA has not decided whether to exercise that authority.
Mr. Parker, an attorney based in Alaska, offers a perspective on the regulatory history, showing that state and federal management plans have historically protected the fisheries of the Kvichak and Nushagak drainages. As land ownership in the region changed from federal to state control, the land management plans for the area also changed. But the parties have reached a point where land use decisions will forever affect the conservation and health of the watersheds.
Although the development of the Pebble Mine near Alasaka's Bristol Bay could bring economic diversification to a region with few jobs and a high cost of living, the extraction of the sulfidic ore deposit threatens to devastate the region’s economically and culturally vital salmon runs. In an effort to obviate that threat, nine federally recognized tribes, a group of commercial fishers, and 363 sporting conservation groups, businesses, and trade associations have petitioned the EPA to initiate public process under Section 404(c) of the Clean Water Act.
In his article, Mr. Wilkinson builds upon the arguments the tribes and other parties have put forth, and argues that judicial precedent and past agency actions support the use of the Section 404(c) process. This action would protect unique headwater streams by prohibiting the issuance of dredge and fill permits.
“A large landslide on Sumas Mountain, in rural Whatcom County, deposits more than 100,000 cubic yards of soil containing chrysotile asbestos fibers and heavy metals into Swift Creek every year. Swift Creek is part of an international river system that delivers asbestos from the landslide across farmlands, through small towns, and into Canada. Asbestos-laden soils will slide into Swift Creek for at least the next 400 to 600 years, and flood-deposited asbestos on shores, across farm fields, and in yards and basements will continue to raise the risk that residents will breathe in airborne asbestos fibers,” writes Jean O. Melious, Associate Professor at Huxley College of the Environment, Western Washington University.
In her detailed and colorful article, Professor Melious examines the risk and liability issues of naturally occurring asbestos in northwest Washington State. The article highlights the gaps in applicable laws, outlines possible solutions, and argues for the development of rational policy for addressing the legal and health issues raised by naturally occurring asbestos.
The endangered Puget Sound wild salmon fishery is an exceptionally valuable natural and cultural resource, and a vital part of the culture of many of the Native American tribes in Washington State. Although the federal government agreed with the Treaty Tribes in the 1850s Stevens Treaties to permanently protect the tribes’ traditional fishing rights, Puget Sound salmon fisheries have instead declined dramatically from their historical levels. One of the major causes of salmon population decline is that an estimated eighty percent of available Puget Sound salmon habitat has been destroyed over the past century.
In an article focusing on the prevention of future habitat losses for the Puget Sound salmon, Professor George Van Cleve explores the current decline of the Puget Sound salmon fishery, but reaches the conclusion that habitat protection and restoration is a central element in restoring it. The article also considers effective administrative action and related endangered species litigation are likely to be as means of protecting habitat, and the distinctive legal authority of Native American Tribes to protect salmon populations. Native American treaty fishing rights could be a powerful tool for compelling federal, state, and local governments to preserve habitat for the salmon fishery.
Roughly 300 sites on the Environmental Protection Agency’s Superfund National Priorities List contain sediment contaminated with toxic or hazardous materials. Remediation at many merely contains the hazardous waste, allowing it to remain onsite indefinitely. Katrina Fischer Kuh, Associate Professor at the Maurice A. Dean School of Law at Hofstra University, addresses the effects of climate change-related severe weather on the sediment remediation process in many remediation projects. While sediment remediation plans have traditionally taken into account historical and predicted environmental conditions, the remediation process may not adequately account for the conditions caused by climate change. Professor Kuh’s analysis includes discussion of strategies for managing risks at sites that have already been remediated as well as methods for moving forward at currently unremediated sites.
“America’s obsession with controlling nature for the benefit of industrialization has made us a dam nation,” writes Christopher Scoones, a Vermont-based land use practitioner. Indeed, 76,000 large dams entomb 600,000 river miles of water in the United States. More than 2.5 million dams of all sizes straddle American waters. Virtually no major river in the United States is without one. This progress has come at a price. The essence of a river is water movement; a dammed river never function the same as a free-flowing river. Dams block the natural flow and migration of nutrients and fish: for example, trees fallen across undammed rivers provide shade and slackwater and keep the waters cool enough to support native fish populations and submerged gravel beds create a home for invertebrates and provide spawning grounds for migratory fish.
Damming America’s waters has led to a dramatic decline in the health of our watersheds. By 2020, over 60,000 dams listed in the Army Corps’ National Inventory of Dams will be more than fifty years old and nearing the end of their design life. When environmental and public safety concerns are taken into consideration, argues Mr. Scoones, the public interest tips the scales in favor of removing many of these outdated dams. This article explores the already extant legal mechanisms that may be used to facilitate the removal of worn out dams, and discusses the potential for Fifth Amendment takings claims. Fear of liability for Fifth Amendment takings claims, concludes Mr. Scoones, should not have a chilling effect upon dam removal initiatives. Actions undertaken to restore America’s watersheds should flow forth where appropriate.
For forty-five years, the federal and state governments have sought to balance conservation and development in the Kvichak and Nushagak river drainages in southwest Alaska. These drainages are major contributors to the world’s largest commercial salmon fishery in Bristol Bay, offer world-class sport fishing and hunting, and provide important subsistence foods for local residents. Now, the Pebble Limited Partnership seeks to develop one of the world’s largest low-grade copper, gold, and molybdenum deposits located in Southwest Alaska, based on mining claims staked upon state land.
In his article, Mr. Parker examines this forty-five-year history of federal and state efforts to balance conservation and development. The history of land use policy should inform the U.S. Environmental Protection Agency (EPA) as it considers whether to use its Section 404(c) authority under the Clean Water Act, which gives the agency authority to restrict or prohibit discharge of dredged or fill material, including mining wastes. To date, the EPA has not decided whether to exercise that authority.
Mr. Parker, an attorney based in Alaska, offers a perspective on the regulatory history, showing that state and federal management plans have historically protected the fisheries of the Kvichak and Nushagak drainages. As land ownership in the region changed from federal to state control, the land management plans for the area also changed. But the parties have reached a point where land use decisions will forever affect the conservation and health of the watersheds.
Although the development of the Pebble Mine near Alasaka's Bristol Bay could bring economic diversification to a region with few jobs and a high cost of living, the extraction of the sulfidic ore deposit threatens to devastate the region’s economically and culturally vital salmon runs. In an effort to obviate that threat, nine federally recognized tribes, a group of commercial fishers, and 363 sporting conservation groups, businesses, and trade associations have petitioned the EPA to initiate public process under Section 404(c) of the Clean Water Act.
In his article, Mr. Wilkinson builds upon the arguments the tribes and other parties have put forth, and argues that judicial precedent and past agency actions support the use of the Section 404(c) process. This action would protect unique headwater streams by prohibiting the issuance of dredge and fill permits.
Waterways—Dams and Fish Passage
Clear Passage: The Culvert Case Decision as a Foundation for Habitat Protection and Preservation
By Mason D. Morisset & Carly A. Summers
The authors observe that, while the tribes' treaty rights to fish are now well-established, the recognition of the State's attendant duty to protect fish habitat necessary to sustain fish runs and habitat has only recently been recognized. They argue that the recognition of that concomitant right to habitat protection may be the device through which treaty tribes can achieve the imperative habitat restoration and protection measures required to revitalize fish runs that continue to dwindle. The article focuses its discussion on treaty-based fishing rights cases in the context of the recent "Culvert Case" decision in Phase II of U.S. v. Washington, and its utility as a basis for tribes to remedy habitat degrading activities by the state and preserve treaty protected resources.
Tribes and Dams: Using Section 4(E) of the Federal Power Act to Protect Indian Tribes and Restore Reservation Resources
By Thane D. Somerville
This article describes the way in which the Federal Power Act provides a means of protecting tribal interests in the relicensing of hydroelectric dam projects. The context of the discussion is a Washington case where a tribe successfully argued that in order to protect tribal interests, the Secretary of Interior may impose conditions on the relicensing of a project, where a portion of the project is on tribal land. The article concludes by pointing out that these decisions have given the Secretary broad authority that may be used to protect tribal resources, and that authority should be recognized as a means of mitigating the impacts of hydroelectric projects on reservations.
Removing the Impasse: Alternative Avenues to Asserting Tribal Interests in Fish Passage
By R. Drew Miller, Seattle University School of Law, Class of 2010
Mr. Miller's article explores how native tribes have turned to the Federal Energy Regulatory Commission's relicensing process for hydroelectric dams as a vehicle to assert their interests in fish conservation, and how tribes in the Pacific Northwest, through consultation with federal agencies, have successfully enforced fishing rights and other environmental protections in the Columbia River basin.
SJEL partnered with the Washington Lawyers for Sustainability (WLS) and Washington Journal for Environmental Law & Policy to host a sustainability symposium on April 20, 2012, at Seattle University. The event focused on making sustainability legal, economically viable, and socially just. Presenters and speakers included professors, practitioners, and elected officials, including Seattle Mayor Mike McGuin.
The endangered Puget Sound wild salmon fishery is an exceptionally valuable natural and cultural resource, and a vital part of the culture of many of the Native American tribes in Washington State. Although the federal government agreed with the Treaty Tribes in the 1850s Stevens Treaties to permanently protect the tribes’ traditional fishing rights, Puget Sound salmon fisheries have instead declined dramatically from their historical levels. One of the major causes of salmon population decline is that an estimated eighty percent of available Puget Sound salmon habitat has been destroyed over the past century. 