WATER POLICY SEMINAR

LAW 946

Tu/Th 12:30-1:45, Room 108

Associate Professor Barbara Cosens

Spring 2008 will be the first year for the Water Policy Seminar at the University of Idaho College of Law. In keeping with the philosophy of the Water or the West Initiative, the seminar will examine water issues in their larger social, political, scientific and historic context to develop skills in identifying solutions before major conflicts arise.

Assignments:

Example Case Study – Readings

Karl Boyd Brooks and William Cronin, 2006, Public Power, Private Dams: The Hells Canyon High Dam Controversy, Weyerhaeuser Environmental Books [You can buy this book through Amazon.com or order it through a local bookstore like Book People – your choice]

The Swan Falls Agreement and related information can be found at: http://www.idwr.idaho.gov/about/issues/Swan_Falls_Agreement/swan_falls_agreement.htm

Article you can find on Westlaw: Michael Creamer, Jeffrey Fereday, Swan Falls in 3-D: A New Look at the Historical, Legal and Practical Dimensions of Idaho’s Biggest Water Rights Controversy, 28 Idaho L. Rev. 573 (1992)

Group Assignment: State Water Plan:

Idaho, similar to many western states, attempts to manage its water pursuant to a state water plan. The plan is developed by the Idaho Department of Water Resources (IDWR) and adopted by the Idaho Water Resource Board. It is the key water policy document for the state of Idaho. The plan was first developed in 1976, and was updated and re-adopted in 1982, 1986, 1992, and 1996. It is currently under revision again. Students will form 4 groups. Each group will select a topic under consideration in the current planning process and will research both the proposed modification to the plan, and how at least two other states handle the topic. Topics will be chosen in the first week of class and groups will sign up for the days designated on the syllabus as “state water plan topics.” Prior to the week it is responsible for, a group must assign reading for the class. Discussion on the day assigned will be led by the group.

The 1996 plan can be found at:

http://www.idwr.idaho.gov/waterboard/Planning/State%20Water%20Plan/20071030081913757.pdf

The latest draft of changes to the 1996 plan can be found at:

http://www.idwr.idaho.gov/waterboard/Planning/State%20Water%20Plan/SWP_2007_Draft_Revisions_12-18-07.pdf 

Individual Assignments: Paper Assignment:

Each student should pick a water law case, preferably one in western water law. The case should have at least a lower court opinion, but it is not required that the case has gone or will go before an appellate court. Students may refer to various water law casebooks that will be on reserve in the law library to find a case on a topic of interest. Alternatively, if you are interested in recent disputes in Idaho, you may look on the SRBA web page at: http://www.srba.state.id.us/ or the IDWR web page at: http://www.idwr.state.id.us/water/srba/SRBA%20Court/main%20page.htm

Your assignment will be to write three papers concerning the case. Together, these three papers will qualify for the upper division writing requirement. You must achieve an A grade on all three papers to satisfy the upper division writing requirement. You may do multiple re-writes to accomplish this. All students will be required to do one re-write of each paper based on comments from the instructor. It is intended that feedback from the instructor will help you improve your writing as you progress through the three papers. If this in fact does occur, the combined time spent on the three papers should be less than a single re-write of a single paper of 20+ pages.

Paper #1: Case Note: The first paper will be 8-10 pages double-spaced (exclusive of footnotes) summarizing and critiquing the case. Due: February 5 For purposes of an in-class editing exercise, bring a draft of what you have completed to class on January 31.

Paper #2: Historic Analysis: Water law is steeped in history. Generally disputes over scarce resources that are essential to economic development, as with water in the western U.S., arise amid a colorful background of political, cultural, hydrologic and social drama. Often understanding why a dispute occurred in a particular manner requires understanding that background. Often presenting a case with the strongest possible argument on behalf of your client also requires an understanding of that background. Possibly of greatest importance, resolving future water resource issues before they reach the point of major conflict requires recognizing how the various components of the background interact and recognizing the signs of potential dispute before it arises. History is the best experimental ground to study these interactions. The second paper will be 10-15 pages double-spaced (exclusive of footnotes) analyzing the historic aspects leading up, and relevant to the case. History professor Dr. Adam Soward will be lecturing on historic research to help in this process. In addition, several case studies evaluating the history of a case will be presented in class as examples. Due: March 25

Paper #3: Retrospective Analysis: The third paper will be 5-6 pages double-spaced (exclusive of footnotes, and preferably without footnotes) analyzing your work on the case note and history to identify early signs that the dispute was coming and any possible points at which actions might have alleviated the dispute. A conclusion, based on analysis, that a decision by a third party neutral was the only possible or best non-violent solution in the case is perfectly acceptable. Due: April 22

In the syllabus below you will see designations for “paper discussions” and “paper presentation.” For paper discussions you should come prepared to informally discuss your paper. With the size of the class, you will need to think about how to explain what you wrote about in 5 minutes or less. Also, be prepared to answer questions. For the paper presentation, you will do a formal presentation of no more than 10 minutes. Powerpoint or other props are allowed, but not required. I will try to group people by topic and leave a little time each period for discussion.

Materials on Reserve in the Law Library:

Water Law textbooks [You may use these to find a case for your case note]:

A. Dan Tarlock, James N. Corbridge, Jr., and David H. Getches (2002) Water Resource Management: a casebook in law and public policy, 5^th ed. [This is the textbook we used in Water Law this fall.]

J. Sax, B. Thompson, J. Leshy, R. Abrams, (2000) Legal Control of Water Resources, 3d ed.

G. Gould, D. Grant, G. Weber, (2005) cases and materials on Water Law, 7^th ed.

Beyond Litigation: Case Studies in Water Disputes, Leigh A. Jewell and Craig Anthony Arnold, 2002, Environmental Law Institute [This book is the result of a similar course and provided the inspiration for this course. I am asking for slightly different papers, but you can use this to get an idea of what we are trying to accomplish here.]

Syllabus:

Week 1: January 8, 10: Introduction to class.
Discussion of topics. We will discuss whether students would like to focus their papers on specific themes in water law to allow all of us to develop some expertise in those areas. We will also spend some time discussing and dividing up the water policy topics from the state water plan.

Week 2: January 15, 17: Example Case Study – Hells Canyon High Dam

Jan. 15: Various Idaho Power v. Everyone Else cases, Swan Falls Agreement
             Read Swan Falls Agreement and the May 10,2007 Complaint at the website listed above

Jan. 17: Critique testimony [to be provided by email]

Week 3: January 22, 24: Advanced Legal Research/Writing

Guest: Professor Michael Greenlee, reference librarian

Week 4: January 29, 31: Advanced Legal Research/Writing

Jan. 29: 2008 Idaho Legislative Session
    Use the webpage for the session: http://www.legislature.idaho.gov/ to review any bills introduced concerning water. 
    Come to class prepared to discuss the content of the bills, what they accomplish and why you think each
    one has been introduced.

Jan. 31: SNOW DAY

Week 5: February 5, 7: Paper Discussions

Feb. 5: Papers Due/Paper Discussions

Feb. 7: Paper Discussions

Week 6: February 12, 14: Historic Research

Feb. 12: Dr. Adam Sowards, environmental historian
    Class will be held in 006 Niccolls [SE of the Administration Building]

Feb. 14: Historical research workshop: UI Librarian Nathan Bender

Week 7: February 19, 21: Example Case Study – Hells Canyon High Dam

Feb. 19: Conclude case note discussions
Feb. 21: History of hydropower development and salmon in the Snake River basin

Week 8: February 26, 28: State Water Plan Topics
  
  Feb. 26: Conjunctive Management/Administration
                Justin Jolley
                Amanda Ulrich
                
    Feb. 28: State Sovereignty
                Luke Marchant
                Matt Darrington
                Regan Boyd

Week 9: March 4, 6: State Water Plan Topics
    
   March 4: Sovereignty
                Mark Solomon
                Erica Mortensen
                Cathi O'Connell
                Dina Sallak

    March 6: Reasonable Use/Futile Call
                Sarah Higer
                Phillip Dennis
                Brian Williams

Week 10: March 10-14: Spring Break

Week 11: March 21, 23: No class, work on paper

Week 12: March 25, 27: Paper Presentations

Paper #2 Due: March 25

March 25 Paper Presentations
    Mark Solomon
    Brian Williams

March 27: Paper Presentations
    Amanda Ulrich
    Mike French
    Luke Marchant
    Matt Darrington