|
Associate Professor Barbara Cosens
Fall 2008 SYLLABUS -- Subject to Change so Check Before Preparing for Class
LAW 942 WATER LAW
Tues. and Thurs. 11-12:15 ROOM 103
Water is H2O,
hydrogen two parts, oxygen one,
but there is also a third thing
that makes it water and nobody knows what that is.
D.H. Lawrence, The Third Thing
Office Hours: by appointment
Overview
No one who has driven through red rock country at sunrise or gotten their second flat tire in that same country at noon, can fail to appreciate the aridity of the West. No one who has floated through sage-scented canyons on the whitewater of one of the West's few untamed stretches of river or calculated the timing between thunderstorms at the head of a wash prone to flash flood and a critical crossing downstream, can fail to appreciate its irony. In the West, we are defined by aridity.
Aridity refers to a basic lack of rainfall. In a vast area between the Mississippi River and the Sierra Nevada Mountains, rainfall is generally less than 20 inches per year, the amount needed to farm without irrigation. Under the influence of aridity, westerners have a special relation with the West's major rivers. These rivers control not only where they can live in the West, they control were they want to live.
As a result, water law is a field steeped in colorful history and emotion driven by value and scarcity of the resource. Its development in Idaho has been influenced by the economic development of the western United States in which tension between federal and state control has played a significant role. The availability of water has also shaped the legal doctrines designed to place order on its use. Thus, an understanding of certain basics of hydrology and the role of climate help inform the study of the development of western water law.
The course is designed to give students an understanding of the legal and historic foundation for water law and an introduction to the legal, political, scientific and economic issues shaping modern water law. After laying the foundation by studying the doctrines of prior appropriation and riparian rights and the issues concerning groundwater development, we will focus on that tension between local and national control by looking at interstate allocation, water quality, and tribal and federal reserved water rights.
Assessment
The following assignments may be changed at any time. Changes will be announced in class.
The course grade will be based on a final exam for law students and a term paper for non-law students. Non-law students should see the professor within the first three weeks of class to discuss paper topic and format.
Class participation is required and may be used to raise or lower a grade by a + or -. All students are expected to come prepared for every class and there will be some random calling on students during each class.
Reading Materials:
Casebook: A. Dan Tarlock, James N. Corbridge, Jr., and David H. Getches (2002) Water Resource Management: a casebook in law and public policy, 5th ed.
Electronic Reserve:http://db.lib.uidaho.edu/ereserve/by_course.php?subject=44
Idaho Law Supplement*
Selected Readings
Water Law Maps
Assignments:
August 26: Introduction: The changing face of Western Water Law
Casebook: 1-10, 14-23, 27-33
The 3rd World Water Forum and the Human Right to Water
Electronic Reserve: Peter H. Gleick, 2004, THE WORLD’S WATER 2004-2005: THE BIENNIAL REPORT ON FRESHWATER RESOURCES, Island Press. 189-227
The Future of Water
Casebook: 691-710
Lecture: Case Example: The Walker River
August 28: Riparian Rights
Casebook: 58-59, 111-144
September 2, 4, 9: Prior Appropriation:
Casebook: 158-260
September 11, 16: Prior Appropriation/Idaho
Idaho Law Supplement:
Drake v. Earhart 2:1
State v. United States 2:4
Glenn Dale Ranches, Inc. v. Shaub 2:8
Beus v. City of Soda Springs 2:11
Montpelier Milling Co. v. City of Montpelier 2:16
State v. Hagerman Water Right Owners, Inc. 4:10
Statutes:
Constitutional provisions: Statutes 3-4
Appropriation: Statutes 4-5
Change: Statutes 12
Recommended Reading: Electronic Reserve, Dennis Colson, Idaho's Constitution, chapter 9: water (1991)
September 18: Class Cancelled
September 23, 25: Groundwater
Casebook: 532-603
September 30: Case Study: Palouse Basin
Electronic Reserve:
Idaho Statutes: 42-233a, 42-233b found in Idaho Supplement Statutes 13-14
IDWR Dec. 1, 2004 Order on Designation of a Critical Groundwater Are
Latah County Ordinance No. 258
Idaho Dist. Court, 2nd Judicial Dist., Judge Kerrick Opinion of May 9, 2006 [labeled as Naylor Farms v. Latah Co. in ereserves]
Come to class prepared to discuss the following questions: You are the attorney for Latah County. The Latah County Commissioners ask you to anayze: (1) is there a basis on which to appeal Judge Kerrick's ruling? and (2) is there a way to re-write Ordinance No. 258 to withstand the reasoning that led to Judge Kerrick's ruling. We will also discuss how the local area might respond to the IDWR Order, but since a full analysis requires information we won't get to until later, we can just talk about that in class.
October 2 and Make-up class Oct. 3 (room 103, 9:15-10:30): Groundwater: Conjunctive Management/Idaho
Electronic Reserve: Idaho Law Supplement: Chapter 6:
Musser v. Higginson 6:18
A&B Irrigation District v. Idaho Conservation League 6:19
IDWR Conjunctive Management Rules: available at: http://www2.state.id.us/adm/adminrules/rules/idapa37/0311.pdf
Electronic Reserve: American Falls Reservoir District #2 v. Idaho Department of Water Resources, 143 Idaho 862, 154 P.3d 433 (Idaho, 2007)
Surface Water Coalition Recommended Order, IDWR Hearing Officer (former Justice Schroeder), April 29, 2008
Surface Water Coalition Delivery Call Order, IDWR Sept. 5, 2008
Recommended: Electronic Reserve: Cosens, Barbara, The Role of Hydrology in Resolution of Water Disputes
October 7 and 9: Class Cancelled: Attendance at the evening session of the Palouse Basin Water Summit at the University Inn on Oct. 7 will replace these classes. Information to follow. (An alternative assignment can be made available for those with conflicts)
Preparation: Palouse Basin: From the Palouse Basin Aquifer Committee at: http://www.webs.uidaho.edu/pbac/ click on the "Ground Water Management Plan (1992)" and read Appendices A and B which contain the intergovernmental agreement establishing PBAC and the interagency resolution to work with the committee. Use the following questions to guide your reading:
PBAC Questions
In addition, begin the portion of the following reading on Interstate Compacts to help you understand the evening forum.
October 14: Interstate Allocation: Interstate Compacts and Congressional Apportionment, Limits on Interstate Export Restrictions
Casebook: 948-999, 1002-1014
Oct. 16: Interstate Allocation: Equitable Apportionment
Casebook: 913-948
October 21: Class Cancelled
October 23, 28: Water Quality /Wetlands Regulation
Casebook: 639-669
We will discuss the recent U.S. Supreme Court ruling in Rapanos v. U.S., however, since there is no majority opinion, I will not subject you to the 100 page document. Feel free to read it if you are interested in understanding the range of opinions on federal jurisdiction to regulate fill of wetlands under the Clean Water Act. The case is an excellent example of the struggle courts face at the intersection between law and science.
Recommended: Electronic Reserve: Professor Barbara Cosens, Resolving Conflict in non-Ideal, Complex Systems: solutions for the law-science-policy breakdown in environmental and natural resource law,Article publication forthcoming: Natural Resources Journal, 2008.
October 30: Reserved Water Rights: Indian
Casebook: 836-851 (make sure you read the referenced material on 101-104 -- the Winters case), 885-902
Electronic Reserve: Recommended reading: Cosens, Barbara, The Measure of Indian Water Rights: The Arizona Homeland Standard, Gila River Adjudication. 42 Nat. Resources J. 835 (Fall 2002).
November 4, 6: Reserved Water Rights: Federal/Adjudication
Casebook: 851-866
Electronic Reserve:
Idaho Supplement 1:10-1:16 In Re SRBA State v. Higgenson, 764 P.2d 78 (1988)
State v. United States, 12 P.3d 1284 (Idaho 2000)
Potlatch Corp. and Hecla Mining v. United States, 12 P.3d 1256 (Idaho 2000)
Potlatch Corp. v. United States, 12 P.3d 1260 (Idaho 2000) After reading this case in Westlaw - go to the history and read Case No. 39576 - the original opinion by J. Silak.
Montana USFS Settlement: Skim compact at http://data.opi.mt.gov/bills/mca/85/20/85-20-1401.htm
Recommended: Electronic Reserve:
Blumm, Michael C. Reversing the Winters Doctrine?: Denying Reserved Water Rights for Idaho Wilderness and its Implications, 73 U. Colo. L. Rev. 173 (2002).
Fereday letter on federal reserved water rights
November 11: Salmon and the Columbia River /The Nez Perce Settlement
Electronic Reserve: Nez Perce Settlement: Senate Bill and Mediator’s Term Sheet
1855 Nez Perce Treaty: 12 Stat. 957
1863 Nez Perce Treaty: 14 Stat. 647
Recommended Reading on Settlement: Senate Report available at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_reports&docid=f:sr389.108.pdf
Recommended Reading for history on Salmon and the Columbia River up to 1997: Electronic Reserve:
Volkman "The Endangered Species Act and the Ecosystem of Columbia River Salmon" 4 Hastings West NW Journal of Env. Law and Policy 51 (1997).
Ruckelshaus et al., The Pacific Salmon Wars: What Science Brings to the Challenge of Recovering Species, 33 Annu. Rev. Ecol. Syst. 665 (2002)
November 13 and 18: Adjudication Idaho – the Snake River/ Northern Idaho
Electronic Reserve: Idaho Law Supplement:
Private Adjuciation:
Statutes: 42-602, 42-607
Nettleton v. Higginson 3:7
General Adjudication:
Idaho Power Co. v. State 1:1
Walker v. Big Lost River Irrigation District 3:10
Fremont-Madison Irrigation District & Mitigation Group v. Idaho Ground Water Appropriators, Inc. 3:22
Statutes: Adjudication: Statutes 20-23 [42-1404 - 42-1427]
Electronic Reserve: Baxter, Garrick L. Navigating the Snake River Basin Adjudication, 47 FEB Advocate (Idaho) 10 (Feb. 2004)
Northern Idaho Adjudication (Nov. 18):
Idaho Code: http://www3.state.id.us/idstat/TOC/42FTOC.html Go to Title 42, Chapter 14, Be familiar with 42-1406B, and definitions (4) and (11) in 42-1401A. Come prepared to discuss: (1) Is a northern Idaho adjudication that leaves out exempt wells a "general adjudication" for purposes of the McCarran Amendment? and (2) what water rights would the state seek McCarran Amendment jurisdiction to adjudicate in Northern Idaho?
Electronic Reserve: Thorson, Kropf, Crammond, and Gerlak, "Dividing Western Waters: A Century of Adjudicating Rivers and Streams" 8 Denver Water Law Review 355 (2005).
Nobember 20: Permit Systems and Regulation/Idaho
Casebook: 262-275
Electronic Reserve: Idaho Law Supplement:
Nielson v. Parker 3:1
Washington State Sugar Co. v. Goodrich 3:3
Hardy v. Higginson 3:5
Statutes:
Constitutional provisions: Statutes 3-4
Permits: Statutes 5-12 [42-201 through 212, except 42-203B and C]
November 23-28: Fall Break
December 2: International Water Law
Casebook: 1018-1035
December 4: Review
In-class problems on:
adjudication
a river call
permit application
CLASSES END FRIDAY December 5
|