Historical Law Review Essays & Research Papers

Beneficial Use v. Prior Appropriation: What’s really in the Public Interest?

In Memoriam: Prior Appropriation, 1848-1991In Memoriam: Prior Appropriation, 1848-1991Charles F. Wilkinson, University of Colorado Law School, eulogizes Prior Appropriation the 19th century concept that justifies draining aquifers and drying out stream beds. This article is among the most influential critiques ever lodged against the antiquated and profligate policy.

Restoring the Public Interest in Western Water Law Restoring the Public Interest in Western Water Law by Mark Squillace University of Colorado Law School From the abstract summary: 'American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. The survey reveals that most Western states routinely fail to meet their obligation to consider the public interest in water rights administration, despite unambiguous public interest mandates.'

Column: The Panama Canal is running dry. That’s the U.S.’s fault and the U.S.’s problem by LZ GrandersonColumn: The Panama Canal is running dry. That’s the U.S.’s fault and the U.S.’s problem by LZ GrandersonFor our stuff to pass through the Panama Canal, operators must drain 50 million gallons to fill the locks from a nearby lake that half the nation relies upon for domestic water use. With a 20-year drought (sound familiar?) the lake levels are dropping and now there's the question of whose water use is more important: the people of Panama or the convenient container ship travel. Both are beneficial uses of water; both are important, to say one is more important than the other requires making distinct arguments that are like ships passing each other at night -- they don't actually come into contact. The people on the side of global goods say the price would go up for stuff and that the world consumers are too big of a constituency to disregard (note two-thirds of the ships go to the U.S.). The people on the side of the Panamanians who have lived there forever argue from the humanitarian position, saying that they rely upon the ecosystem to support their society (as does every society) and they do not want their freshwater supplies to become scarce since every living being survives on freshwater. Some people think it is not wise to use freshwater to flush toilets; that there must be a better way, especially in water-scarce regions. Perhaps, flushing 50 million gallons of Panamanian freshwater into the ocean every time the locks open for ships to pass is not sustainable and exemplifies profligacy on a huge scale for U.S. consumers to pay less at the cash register. The average container ship carries at least half a billion dollars worth of cargo and the increased cost to go around South America is $100,000 in fuel (there'd be other costs as well). It seems like the additional price consumers would pay would be negligible even if the price of additional shipping costs were $500,000: it'd be a 1/1,000th inflation increase. Panama should sort out how its business model for operating its canals comports with the people of the nation.

The Purposeful Tension Within the Doctrine of Beneficial Use

 ALIVE BUT IRRELEVANT: THE PRIOR APPROPRIATION DOCTRINE IN TODAY’S WESTERN WATER LAW 

Prior Appropriation: A Reassessment

Editorial: The feds can curb a foolish California water giveaway

The Concept of Reasonable Beneficial Use in the Law of Surface Streams

California Water Board — Division 7 of the Water Code: CHAPTER 2 – BENEFICIAL USES

Central Oregon Irrigation District: BENEFICIAL USE WHAT DOES IT MEAN AND WHAT ARE YOUR OPTIONS?

The Maximum Use Doctrine and Relevance to Water Rights Administration

Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use 

Conditional Water Rights and the Problem of Speculation

Wasting water in the Northwest: eliminating waste as a way of restoring streamflows.

Fort Vannoy Irrigation v. Water Resources Comm.

Hennings v. Water Resources Dept.

Inefficient Efficiency: Crying Over Spilled Water

Property Without Possession

The Public Trust Doctrine

THE PUBLIC TRUST DOCTRINE Instream Flows and Resources By Felix E. SmithTHE PUBLIC TRUST DOCTRINE Instream Flows and Resources By Felix E. SmithThis 1980 paper is among the most important works on the Public Trust Doctrine, and it sets out standards that clearly influenced the Mono Lake decision three years later. Written by the U.S. Fish and Wildlife Service California-Nevada Area Office, the paper came under attack by another U.S. federal agency, The Bureau of Reclamation. From the author in 2017, 37 years later: 'When the USFWS report hit the streets, the Bureau of Reclamation demanded that we pull back or recall the report. We did not do that. The report helped spur on support for a conference on the Public Trust which was later held on the UCD campus under Dr. Dunning. In September of 1980. From that event the Public trust was exposed and in the spring of 1983 the Audubon decision came down to impact water allocation and protect resources uses and values.'

Opinion: A wet winter began to replenish Mono Lake. L.A. should let it be a lake again by Bruce ReznikOpinion: A wet winter began to replenish Mono Lake. L.A. should let it be a lake again by Bruce ReznikThis opinion piece discusses how LA has a chance to wean itself off exporting water from the precious ecological site called Mono Lake. Such an act would demonstrate the magnanimity of the Public Trust Doctrine by a region and community that self-proclaims to care for the environmental health of the ecosystem. From the Opinion essay: 'But a truly secure, resilient and equitable water future requires more than shoring up local water supplies. We also must wean ourselves off imported water. The easiest place to start is Mono Lake, an internationally critical haven for millions of migratory and nesting birds as well as a scenic recreational destination for Angelenos and other Californians. The DWP made promises to help restore this natural treasure three decades ago but has yet to fulfill them...Water diverted from the lake accounts for only about 1% to 3% of L.A.’s water...The L.A. region needs a radical new approach to water. Importing it from distant watersheds is expensive, energy-intensive and unsustainable. We have the water we need, provided we make the most of every drop.'

Supreme Court dramatically shrinks Clean Water Act’s reach by Annie SniderSupreme Court dramatically shrinks Clean Water Act’s reach by Annie SniderThis ruling says that the connections of smaller water bodies to larger navigable water bodies under which the Clean Water Act has jurisdiction must be 'adjacent,' not 'adjoining.' This means that underground connections -- hydrologic connections one cannot see with the naked eye above ground -- no longer count. This is an arbitrary and unscientific ruling -- it's political in nature. This could be a major setback to the use of the Public Trust Doctrine which California courts have said applies when groundwater is hydrologically connected to surface water. Under the doctrine, the state must hold traditionally navigable bodies of water in trust for the public; since tributaries and groundwater recharge these large navigable bodies of water, they too must also be held in trust. This Supreme Court ruling just defied the hydrologic connection in favor of a bird's eye view visual connection. This is SCOTUS ruling by fiat without regard for empirical fact. The only silver lining is that a future court will have no problem scuttling this decision since there is no connection to any precedent -- pun intended.

Supreme Court limits EPA protection for wetlands, favoring property rights over clean water by David G. SavageSupreme Court limits EPA protection for wetlands, favoring property rights over clean water by David G. SavageThis article is similar to the one above on the same topic -- From the article: 'Alito, joined by four other conservative justices, adopted a view espoused by the late Justice Antonin Scalia that the federal law protected only connected bodies of waters, not adjacent wetlands. But Kavanaugh and the court’s three liberals said that Congress and the court had taken the view for decades that wetlands that were adjacent to rivers or bays were protected. “By narrowing the Act’s coverage of wetlands,” Kavanaugh wrote, the “Court’s new test will leave some long-regulated adjacent wetlands no longer covered ... with significant repercussions for water quality and flood control throughout the United States.”'

DRINKING FROM A DEEP WELL: THE PUBLIC TRUST DOCTRINE AND WESTERN WATER LAW

The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine

The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future

The Public Trust Doctrine in Natural Resource Law

A Brief History of the Public Trust Doctrine in Colorado

THE OWNERSHIP OF WATER IN OREGON: PUBLIC PROPERTY VS. PRIVATE COMMODITY

The Ownership and Use of Waterways in Oregon — Attorney General Opinion 8281The Ownership and Use of Waterways in Oregon -- Attorney General Opinion 8281This formal AG opinion answers three questions about who owns and may use water ways in the state of Oregon. This opinion is by far the most comprehensive, far-reaching, and authoritative discussion on the case law that clarifies the questions about public and private use of surface waters in the west. The discussion addresses the Public Trust Doctrine and the Public Use Doctrine over the course of laying out public and private rights as they pertain to the waters of the state.

The Good, The Bad, and The Ugly: The First Ten Years of the Oregon Water Trust

Hawaii transportation department must face kids’ climate lawsuit, judge rules By Clark MindockHawaii transportation department must face kids’ climate lawsuit, judge rules By Clark MindockThis article discusses how a Public Trust Doctrine lawsuit is allowed to go forward in Hawaii alleging the state's Department of Transportation has failed to sufficiently prevent harms to the atmosphere by incentivizing transportation modes that contribute to worsening climate change. The concept requires understanding that the DOT mission is not just to make roads; rather, it is to make transportation feasible in a way that minimizes harm to the public health, welfare, and safety. Road building is just one aspect of the work the DOT has done; safety, access, and inter-connectedness are others. The children of Hawaii are calling for the DOT to include climate mitigation in their mission since so much waste comes from the production and operation of vehicles.

In Bakersfield, a lawsuit aims to turn a dry riverbed into a flowing riverIn Bakersfield, a lawsuit aims to turn a dry riverbed into a flowing river by Ian JamesThis article discusses how land barons over 100 years ago split up water use and land along the Kern River and how today the river is gone dry to serve the interests of 'farms that produce almonds, pistachios, grapes, oranges and other crops.' The state of California has a legal obligation to hold the water in the public trust; as such, the lawsuit brought by a number of organizations seeks to restore the river under the law of the Public Trust Doctrine. The elected and appointed state officials are the legal trustees -- fiduciaries -- required to maintain the navigable rivers and tributaries that flow into them. However, state officials are utterly captured and compromised by Big Ag special interests who have for many decades used their financial and political power to undercut the state officials' public trust duties.

The Public Trust Doctrine and Natural Law: Emanations with a PenumbraThe Public Trust Doctrine and Natural Law: Emanations with a Penumbra by George P. Smith II The Catholic University of America, Columbus School of LawThis paper makes an unconvincing argument against expanding the Public Trust Doctrine (from its origins over 2,000 years ago when it initially protected only navigable waterways and fisheries) to include surface and ground waters that flow into navigable waters and other critically important natural phenomena such as those under great risk due to significant negative impacts resulting from a failure of statutory law to regulate the unmitigated destruction and impairment of protected lands, coasts, forests, and the atmosphere.

Water Law History Drowned by Public Relations

The University of Denver Water Law Review

Policies for Water Law: Property Rights, Economic Forces, and Public Regulation

The Constitution, Property Rights and the Future of Water Law

A HISTORY OF WATER LAW, WATER RIGHTS & WATER DEVELOPMENT IN WYOMING 1868-2002

Western Water in the 21st Century Policies and Programs that Stretch Supplies in a Prior Appropriation World

Water Conservation, Yesterday and Today: A Story of History, Culture and Politics

Freshwater Conservation: A Review of Oregon Water Law and Policy

AT THE CONFLUENCE: OREGON’S INSTREAM WATER RIGHTS LAW IN THEORY AND PRACTICE

Railroads and Water in the Arid Far West: THE SOUTHERN PACIFIC COMPANY AS A PIONEER WATER DEVELOPER 

Water Wars Battles, compromises, and resolutions abound in a state flush with water

Evolution of U.S. Water Policy: Emphasis on the West

The Rights of and Our Responsibilities to Nature

Should Trees Have Standing?–Towards Legal. Rights for Natural Objects

A New Zealand River Now Has The Legal Rights Of A Human by Colin DwyerA New Zealand River Now Has The Legal Rights Of A Human by Colin DwyerThis short article discusses how the Whanganui River has been granted the rights that other persons have, such as humans and corporations. Since laws limit the rights human persons have and even more strictly limit the rights corporate persons have, the rights acknowledged for the river are also specified to a degree. From the article: 'The legislation marks a monumental victory for the local Māori people, who view the river as 'an indivisible and living whole,' Gerrard Albert, lead negotiator for the Whanganui tribe...'It's not that we've changed our worldview, but people are catching up to seeing things the way that we see them,' Adrian Rurawhe, a Māori member of Parliament.' Of particular note is the idea of using the current government to legislate what it originally took away -- there isn't another framework to use. This irony is a critique of having a settler government acknowledge the Rights of Nature, but it seems if humans are to respect the rights of others, too often, they must be compelled to do so by law.

The Klamath River now has the legal rights of a person by Anna V. SmithThe Klamath River now has the legal rights of a person by Anna V. SmithThis article discusses how the Yurok Tribe acknowledged -- declared -- the rights of nature of the Klamath River system. The concept extends to the river the same personhood rights that courts extend to corporations, which are more fictitious than an actual river. Notably, while human persons possess the most rights, corporate persons only hold a smaller set of rights, and rivers and other living ecological entities are holding rights of their own, a subset relevant to them. The paradigm shift goes from 'recognizing non-human entities not as resources, but as rights-holders.' From the article: 'David Boyd, U.N. special rapporteur on human rights and the environment, of the Yurok Tribe’s resolution (said) “We must no longer view the natural world as a mere warehouse of commodities for humans to exploit, but rather a remarkable community to which we belong and to whom we owe responsibilities.”' More from the article: 'As tribal nations establish rights for nonhumans, it creates an opportunity for states to follow suit, and incorporate the concept into their own court systems. Maia Wikaira, an environmental law attorney who worked with the Yurok Tribe’s legal team, says: “It’s another example of where long-held Indigenous perspectives and association with the natural world are not only being embedded within our legal system — they’re being seen in popular environmental movements as an innovative way forward and a necessary step. So, old is new again.”'

Rights of Nature Law H.B. 795 Introduced in the North Carolina General Assembly in 2023

Colorado River ‘personhood’ case pulled by proponentsColorado River ‘personhood’ case pulled by proponents by Lindsay FendtThis article explains why the plaintiff dismissed its own river-personhood lawsuit in Federal Court against Colorado. The lawsuit sought to assert the Rights of Nature and declare that the Colorado can be a person in the same way a corporation can be a person. Personhood would be one way to assert rights to the Colorado river ecosystem, the purpose of which was to protect the river from unlawful abuse and injustice. The Colorado Attorney General Cynthia Coffman defended the state from having to recognize the Rights of Nature, saying: '“I do not doubt the personal convictions of those groups and individuals who claimed to speak on behalf of the ecosystem,” Coffman also said. “However, the case itself unacceptably impugned the state’s sovereign authority to administer natural resources for public use, and was well beyond the jurisdiction of the judicial branch of government. After my office presented counsel with these and other realities, he readied and wisely chose to withdraw the case. Colorado has always been a national leader in preserving our environment, and we will continue to protect and administer its natural resources as guaranteed by the constitution.”'