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Public Land Bargains, Revolutionary Rhetoric, and Building Trust

In 2019, the Supreme Court decided Sturgeon v. Frost for the second time. Sturgeon arose because of a 1980 federal statute, the Alaska National Interest Lands Conservation Act, that limited the executive branch’s jurisdiction over public land in Alaska to lands to which the federal government holds title. This is a major deviation from the default public land management regime, in which the federal government can regulate private activity on state or private land under the Property Clause of the Constitution to achieve public land objectives. Because this limitation only applies in Alaska, the Alaska National Interest Lands Conservation Act can be thought of as a public land “bargain” between one state and the federal government. This Note discusses public land “bargains,” like the Alaska National Interest Lands Conservation Act, and proposes a framework for assessing future “bargains.” To do this, it first presents a taxonomy of existing public land “bargains,” focusing on the rhetorical context surrounding their passage. Second, it presents some of the arguments made by modern public land “bargain” advocates. Third, it argues that public land “bargains” can make it more challenging for the federal government to promote healthy ecological systems and achieve statutory goals. Fourth, it proposes a loose theoretical framework for assessing public land “bargains” in light of those costs. Finally, it argues that the costs of public land “bargains” might be avoidable if land management agencies instead work to build trust with public land communities.

Feb 16, 2021
Robert Kutchin

Weyerhaeuser v. U.S. Fish and Wildlife Service: Swirling Uncertainty around the Definition of Habitat

Habitat loss and degradation are the leading causes of species endangerment in North America. Increasingly, climate change is becoming a significant factor in species endangerment as it disrupts migration routes, changes animal behavior, and shifts species’ ranges. In the coming decades, habitat loss and climate change will threaten more than one million species. To prevent future extinctions, governments need to be flexible in responding to threats species face and proactive in protecting current and potential future habitat.

Feb 16, 2021
Chris Wilson

Can the Precautionary Principle Save the Endangered Species Act from an Uncertain Climate Future?

Beginning in the 1980s, conservation groups began campaigning for the federal government to list the fluvial Arctic grayling—a relative of the salmon that lives only in the cold waters of North America—as threatened or endangered under the Endangered Species Act. In 2014, the U.S. Fish and Wildlife Service declined to list the grayling under the Act, citing, among other things, the uncertainty associated with how the grayling would respond to climate change. The Endangered Species Act has long been heralded as one of the United States’ most protective environmental statutes, due in part to its precautionary mandate that the government take action to help species before they face extinction. But agency implementation and judicial interpretation of the Endangered Species Act has only recently begun to grapple with the crisis of climate change, which threatens global biodiversity and promises to test the strength of the Endangered Species Act. One factor complicating traditional enforcement of the Endangered Species Act in the face of climate change is the uncertainty that can cloud species-specific climate science. This uncertainty makes it difficult for agencies to know how climate change will impact a particular species. In the face of this uncertainty, this Note argues that agencies should embrace the precautionary principle to help guide listing decisions and critical habitat designations under the Endangered Species Act.

Feb 16, 2021
Natasha Geiling

It’s a Shore Thing: Applying the Public Trust Doctrine to Indiana’s Great Lake Shores in Gunderson v. State

Who owns the shore of Indiana’s section of Lake Michigan when it is not covered in water—a private landowner or the public? In February 2018, the Indiana Supreme Court held that the state of Indiana retains exclusive title up to the natural ordinary high water mark (OHWM) of Lake Michigan. In addition, the court determined the state holds the shores in an inalienable trust for, at minimum, public uses such as walking and fishing. This ruling expands the access rights of the general public to traverse Indiana’s portion of Lake Michigan’s shores. Environmentalists and public trust advocates hailed the decision as a milestone public trust precedent which provides a legal foundation for future environmental advocacy in Indiana. This decision is further notable because other Great Lakes states have not been consistent in addressing the question about state title and public rights on the shores of navigable water bodies. Given that the water levels of the Great Lakes already vary significantly and are expected to vary even more because of the impacts of climate change, the Gunderson decision best supports adaptive shore management. Ultimately, Great Lakes states with flexible and broad public trust doctrines, such as Indiana post-Gunderson, will be best able to manage increasing water-level variability on their shores.

Feb 16, 2021
Betsy Marshall