Lewis and Clark Law School

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Lewis and Clark Law School

Lewis and Clark, United States
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Rohlf D.J.,Lewis and Clark Law School | Carroll C.,Klamath Center for Conservation Research | Hartl B.,Center for Biological Diversity
BioScience | Year: 2014

The concept of conservation-reliant species has become increasingly prominent, particularly with species listed or under consideration for listing under the US Endangered Species Act (ESA). We have concerns about the trend toward what we see as an overly broad definition of conservation reliance. In addition to being of limited practical utility, overuse of the conservation reliant label can mask important legal and policy issues associated with species recovery and delisting. We propose a biology-based definition of conservation-reliant species - specifically, one based on the degree to which a species needs direct and ongoing human manipulation of its life cycle or environment in order to persist in the wild. This definition could assist managers in developing recovery priorities and allocating scarce recovery funds. In addition, a biological definition of conservation reliance could assist society and policymakers in considering whether the ESA's focus on self-sufficiency in the wild remains relevant as a definition of conservation success. © 2014 The Author(s) 2014.

Blumm M.C.,Lewis and Clark Law School | Ruhl J.B.,Florida State University
Ecology Law Quarterly | Year: 2010

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor James Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this Article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape. Copyright © 2010 Regents of the University of California.

Dyer L.A.,University of Nevada, Reno | Richards L.A.,University of Nevada, Reno | Short S.A.,Lewis and Clark Law School | Dodson C.D.,University of Nevada, Reno
PLoS ONE | Year: 2013

There has been a significant increase in studies of how global change parameters affect interacting species or entire communities, yet the combined or interactive effects of increased atmospheric CO2 and associated increases in global mean temperatures on chemically mediated trophic interactions are mostly unknown. Thus, predictions of climate-induced changes on plant-insect interactions are still based primarily on studies of individual species, individual global change parameters, pairwise interactions, or parameters that summarize communities. A clear understanding of community response to global change will only emerge from studies that examine effects of multiple variables on biotic interactions. We examined the effects of increased CO2 and temperature on simple laboratory communities of interacting alfalfa, chemical defense, armyworm caterpillars, and parasitoid wasps. Higher temperatures and CO2 caused decreased plant quality, decreased caterpillar development times, developmental asynchrony between caterpillars and wasps, and complete wasp mortality. The effects measured here, along with other effects of global change on natural enemies suggest that biological control and other top-down effects of insect predators will decline over the coming decades. © 2013 Dyer et al.

Glick R.,Davis Wright Tremaines | Moeller M.,Lewis and Clark Law School
Power | Year: 2015

Oregon and Washington State are examining new policies to regulate greenhouse gas emissions. An extension of Oregon's Clean Fuels Program is expected at the top of the 2015 legislative agenda and, potentially, a bill to enact a carbon tax. On November 14, the Washington governor's Carbon Emissions Reduction Task Force released its report weighing the benefits of cap and trade versus a carbon tax, and a separate update of a report commissioned by the governor on clean fuels was released October 29. As members of the Pacific Coast Action Plan on Climate and Energy (PCAP), both states have committed to adopt low-carbon fuel standards and pursue carbon pricing mechanisms like cap and trade or carbon taxes. Both states will look to policy models from California and British Columbia, fellow PCAP members.

Abrams P.,Lewis and Clark Law School
Journal of Law, Medicine and Ethics | Year: 2015

Stigma taints individuals with a spoiled identity and loss of status or discrimination. This article is the first to examine the stigma attached to abortion and surrogacy and consider how law may stigmatize women for failing to conform to social expectations about maternal roles. Courts should consider evidence of stigma when evaluating laws regulating abortion or surrogacy to determine whether these laws are based on impermissible gender stereotyping. © 2015 American Society of Law, Medicine & Ethics, Inc.

Podhora E.,Lewis and Clark Law School
Journal of Environmental Law and Litigation | Year: 2015

The prospect of national climate change legislation currently seems dim, but protective legislation for the natural environment has not always been out of reach. State wildlife laws of the 19th century demonstrated that concerted action could persuade state legislatures to shift away from the fundamental paradigm of unregulated hunting when the declining populations of many species caused public alarm. Nearly a century later, in 1969, several high-profile incidences of acute pollution occurred, and a widespread environmental movement blossomed that prompted a previously indifferent President to champion the call for environmental policy. If this pattern held true, unusually strong storms or wildfires of increasing frequency and intensity in recent years should have generated public support for legislation to combat climate change. However, climate change reformers in the 21st century have not been able to convince Congress to seriously consider remedial legislation. This Article explores the factors that contributed to the success of the 19th century state wildlife movement and the 20th century environmental movement in order to better understand what climate change reform efforts may be missing.

Ryan E.,Lewis and Clark Law School
Duke Environmental Law and Policy Forum | Year: 2013

In recent decades, the eyes of the world have been trained on China's remarkable feats of rapid economic development. Yet the enormous environmental toll associated with China's growth has also drawn global attention, as Chinese air and water quality plummet to historic lows. Epic levels of environmental degradation have fueled a growing domestic consensus that China must do better at reconciling these competing goals. This article reviews the contemporary challenges facing the second wave of environmental governance in China (with an addendum addressing important environmental law amendments enacted as it went to press). In the first wave of environmental governance, the government promulgated a series of environmental statutes that seem comprehensive- at least on paper. Nevertheless, it has become an article of faith among observers that they are superficially designed and too often unrealized for lack of meaningful implementation. Many environmental law and policy directives are crafted in aspirational form, and even those that do contain enforceable provisions are too often obstructed, for reasons both political and economic. When political patronage and economic interests take precedence over the faithful implementation of these laws, environmental protection suffers alongside other fundamental goals of good governance. For Chinese environmental law to succeed at its increasingly urgent objectives, it must become more than an elaborate paper tiger, moving from the present era of exhortation toward a more mature era of consistent implementation and enforcement. However change unfolds, China will have to wrestle with three basic challenges that continue to obstruct enforcement efforts: (1) effective pollution source management, (2) faithful local implementation of national environmental policies, and (3) reliable judicial access by the victims of environmental harm. This article considers these three distinct hurdles and their implications for the relationship between environmental governance and broader rule-of-law challenges in China. Part I reviews environmental enforcement lapses against polluters and the resulting groundswell of public frustration over health and safety. Part II explores the frequently broken link in the enforcement chain that occurs between central policymaking and local implementation. Part III reviews routine failures by the judicial system to provide redress for the victims of environmental harm and deterrence against future wrongdoing. Part IV considers environmental enforcement problems as a subcategory of more generalized failures of the rule of law in China. Part V concludes with a modest but concrete suggestion for advancing rule-of-law objectives through judicial reform that would materially benefit environmental governance. The proposal would facilitate greater judicial access and accountability, without imposing a fully Westernized model or triggering the massive political upheaval that most Chinese fear. © 2014 Erin Ryan.

Blumm M.C.,Lewis and Clark Law School | Hall M.,New York University
Natural Resources Journal | Year: 2014

The Ninth Circuit Court of Appeals, the nation's largest appellate court, with jurisdiction over 15 judicial districts and 61 million people- almost 20 percent of the nation's population-spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court's en banc reviews do not include all 29 judges but instead only panels of 11. Thus, Ninth Circuit en banc panels can reflect the kind of diversity of opinion they aim to reduce. Recently, the two en banc decisions discussed in this article- Lands Council v. McNair and Karuk Tribe of California v. U.S. Forest Service-displayed the court's apparently schizophrenic approach to review of agency environmental decision-making. A unanimous court in Lands Council called for more deference to Forest Service decisions favoring timber harvests, while the Karuk Tribe majority, with barely a reference to Lands Council, gave close scrutiny to the Forest Service's interpretation of the Endangered Species Act. The latter decision prompted a bitter dissent from the author of Lands Council, Judge Milan Smith, which seemed to be more of a political diatribe than legal criticism and may have been aimed at attracting the attention of the U.S. Supreme Court. Although the varying results of the two cases can be reconciled, we think that they epitomize a deep philosophical rift within the court on environmental issues, and we include an appendix suggesting to litigators on which side of the environmental divide certain Ninth Circuit judges may fall.

Blumm M.C.,Lewis and Clark Law School | Steadman J.G.,Lewis and Clark Law School
Natural Resources Journal | Year: 2010

In the nineteenth century, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. These treaties resulted in tribes ceding millions of acres of homeland in exchange for the right to take fish from all the usual and accustomed places. Although it was assumed that the salmon resource was inexhaustible at the time of the treaties, the salmon have been in precipitous decline since the late 1800s. This increasing scarcity bred conflicts, which forced the tribes to enforce their treaty fishing right in federal courts. This article explores the history of the treaty fishing right from 1905 to the present, tracing the evolution of the treaty fishing right in federal courts-from a right of access, to a right to a fair share of the salmon harvest, to a right of habitat protection. In particular, the article examines the 2007 Martinez Decision, which affirmed that the treaty fishing right prohibits habitat-damaging activities that prevent tribes from earning a moderate living through fishing. The article concludes that this decision is the logical progeny of over a century's worth of precedent, and that the result is consistent with common law principles of profits.

Neuman J.,Lewis and Clark Law School
Natural Resources Journal | Year: 2010

From the Gallatin Report of 1808 to the report of the National Drought Policy Commission in 2000, numerous governmental and independent commissions have studied water policy. Congress currently has before it yet another proposal for a national water commission- the Twenty-First Century Water Commission Act of 2009. Although past commissions have consistently recommended certain legislative and executive actions to rationalize water policy, most of those recommendations have gone unheeded. This article reviews the work of previous water commissions, identifies common themes, and considers why repeated calls for reform have fallen on deaf ears. Next, the article suggests acting on the oft-repeated recommendations to conform water policy to scientific, economic, and political realities rather than repeating history by producing another report to be shelved and ignored.

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