The Rio Grande silvery minnow, listed as an endangered species in 1994, is the subject of significant debate, litigation, and water management decisions. This article documents the history of the minnow as it related to the Endangered Species Act. Even as outcomes for the species fail to improve, the minnow plays an important role in Middle Rio Grande water management. The water supplied for the minnow also provides benefits to the human community and larger ecological community. This article posits that the next era of minnow management, beginning with the upcoming 2028 Biological Opinion, should consider a wider set of values, to provide benefits for both the Rio Grande silvery minnow and the larger Middle Rio Grande community.
This Comment looks at the ways in which environmental law can be used to both delay the opening of new immigration detention centers and shut down existing centers. This Comment is not advocating for unhousing undocumented folks, nor is it advocating for NIMBYist exclusion by white communities. At its core, the detention of migrants is wrong. The separation of families is wrong. Profiting off other people's pain is wrong. Although this Comment discusses environmental law as an avenue of resistance, this Comment is part of a movement that asks for a complete reorganization and abolition of the United States' current immigration system. Additionally, although this piece primarily highlights legal strategies, it is important to recognize the hard work of the advocates on the ground, who are protesting and taking direct action against detention centers and prisons. All the cases discussed below were the result of the combined labor of direct action and legal challenges. Failure to acknowledge these efforts would be unfair to the priceless work of organizers and activists.Part I discusses a variety of statutes and common law remedies that can delay the opening of new detention centers, close existing detention centers, or provide more information regarding detention center inadequacies, violations, and negligence. These statutes include the Freedom of Information Act, the National Environmental Policy Act, the Endangered Species Act, and environmental torts (negligence). Part II provides solutions and alternatives to our current immigration detention system. This Part discusses the importance of addressing the root causes of immigration and emigration by acknowledging the United States' role in migration, and the viability of holistic community-based programs.
First, this paper will describe what forever chemicals are and the damage these compounds inflict. This paper will then explore what a CERCLA NRD assessment is: a tool to protect the public from chemicals like PFAS. The goals of NRD assessments can be tied back to the Public Trust: a sovereign holding natural resources in public trust for the citizenry. After briefly discussing pending federal regulatory action, which would list PFOA and PFOS as hazardous and thus pull them under CERCLA's jurisdiction, this paper will propose two potential solutions to the problems trustees face when asserting NRD claims. To illustrate these problems and their proposed solutions, this paper uses the Florida marine environment and one of the oldest and most treasured natural resources in the animal kingdom, the alligator, as a muse.The first solution the paper proses is that Congress amend CERCLA to exempt public or municipal wastewater treatment facilities and waste management facilities from litigation related to NRD assessments. Additionally, this paper proposes that Congress amend CERCLA to broaden the potentially responsible parties to include manufacturers of PFAS chemicals, as they so often fall outside CERCLA's four statutorily responsible parties. Finally, this paper will show the NRD process will bolster the science around PFAS, proving causation and not just correlation, so that all potentially responsible parties can be held responsible.
This Comment tells the story of how California's 2014 Sustainable Groundwater Management Act (SGMA) has been applied in Owens Valley. Owens Valley, called Payahuunadü by the Native Paiute and Shoshone people, is the source of the Los Angeles Aqueduct system that exports both surface water and groundwater to Los Angeles. Los Angeles's involvement in the region led to SGMA's half-exemption of Owens Valley Groundwater Basin where all portions of the groundwater basin underlying Los Angeles-owned land is exempt from the Act. This Comment explores how this half-exemption was included in SGMA, describes what it means for local groundwater governance, and details California's Department of Water Resources' shifting approach to Owens Valley that most recently weakened SGMA's protections for the region.This Comment makes direct recommendations to state and local agencies with the goal of better leveraging SGMA to protect Owens Valley Groundwater Basin. SGMA's explicit protections for the "entire basin" mandate a comprehensive approach to protecting not just Owens Valley, but also the other half-exempt California groundwater basins. This Comment specifically points to how state and local agencies can use SGMA to save the irreplaceable high desert wetlands at Fish Slough in Owens Valley from urgent ecological crisis. The Comment ends by advocating for a changed application of SGMA in Owens Valley to better uplift the Owens Valley Paiute and Shoshone Tribes' participation in the Act's implementation.
Indigenous peoples are particularly vulnerable to the negative effects of climate change, as their livelihoods and ways of life depend heavily on natural resources impacted by climate variability and extremes. In addition, global climate governance and the implementation of climate projects often have damaging consequences on Indigenous peoples, including restricting their access to lands and resources. In this context, REDD+ as an international mechanism under the UNFCCC aimed at mitigating climate change through forest management, has raised concerns about its impact on the human rights of Indigenous peoples. To date, studies have shown that the implementation of REDD+ on a domestic level has had both negative and positive impacts in Indigenous peoples’ rights. Drawn from this tension, this article examines the relationship between the REDD+ mechanism and the rights of Indigenous peoples, focusing on its domestic operationalization in Chile.Chile, with a vast forest network in indigenous territories, offers valuable insights. The article highlights that REDD+ in Chile has allowed Indigenous peoples to incorporate their concerns into national forest governance and has facilitated project development in collaboration with Indigenous communities. These efforts have resulted in both financial and non-financial benefits for these communities. However, the analysis reveals that progress in promoting Indigenous peoples’ rights has been primarily in individual rights rather than their collective rights as peoples. While REDD+ in Chile has shown potential in promoting social and economic rights of Indigenous peoples, further attention is needed to address collective rights such as self-determination, land rights, and Free, Prior and Informed Consent (FPIC).
This Article examines the role that property customs played in the development of American mining law. It analyzes how small communities of international miners developed systems of property governance and how those customary systems led to the shaping of mineral ownership and mining legislation in America.Natural resource communities often rely on custom as a form of governance and assertion of property ownership. Resource-based knowledge transfer and relative isolation from established legal systems ensured these customs flourished. But the legislation of these natural resource property customs does not necessarily promote a governance framework that benefits all stakeholders.This Article begins with a study of mining communities and how a uniques ystem of property ownership flowing from natural resource customs encouraged mineral development and wealth accumulation. These customs were developed by global mining communities over centuries and even millennia. They were brought to the United States in the 1800s where they took root and were eventually enacted as the 1872 General Mining Law, which remains in effect today. In the modern era of space exploration, e-commerce, and internet, the U.S. follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile.Because of these original mining customs, the U.S. government does not collect any royalty revenue or even know what is produced from hard rock mines on public domain lands. Moreover, the miners’ customs were also adopted to govern other resources, such as water. The prior appropriation doctrine, which uses a priority system of rights and largely governs water in the arid West, originates from the mining communities. The doctrine’s use has exacerbated conflicts as water becomes scarce. This Article advises that understanding the origin of legislated property customs is necessary before their continued use and application to other natural resources.
The United Nations Human Rights Committee’s 2022 Decision, Daniel Billy et al. v. Australia (“Daniel Billy” or “the Decision”), brought by Indigenous Peoples residing on the Torres Strait Islands off the coast of Australia, is the first case before an international human rights body to find that a State’s failure to adopt timely climate adaptation measures violates the human rights of Indigenous Peoples living in that State. In Daniel Billy, the Human Rights Committee (“the Committee”) found a violation of the right to privacy, family, and home and the right to culture; but not the right to life. Drawing on the International Covenant on Civil and Political Rights (“the Covenant”), the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), and recent developments in the field of climate change and international human rights law (IHRL), this Comment discusses the significance and the limitations of Daniel Billy regarding the protection of the rights of Indigenous Peoples and others affected by climate change. We find that the advancements made in Daniel Billy are a big step toward holding states accountable for inadequateclimate adaptation measures.In our analysis of the Decision’s shortcomings, however, we argue that Daniel Billy promises more than it delivers on two accounts. First, we argue that the failure of the Committee to clearly determine that states have a positive obligation to adopt climate change mitigation measures, in addition to adaptation measures is a significant limitation of the Decision. Without climate change mitigation, it will not be possible for Indigenous peoples on low-lyingi slands or in other climate-vulnerable locations to protect their land and way of life, the basis for several human rights. Further, climate change is perpetuated by industrialized states, but its effects are most keenly felt by communities, like that of the Torres Strait Islanders, who have contributed little to climate change. Neglecting to link states’ duty to mitigate climate change to human rights violations therefore ignores the colonial nature of climate change. Second, we argue that the Committee failed to consider the interconnectedness of the right to life with dignity in the context of climate change and Indigenous Peoples’ right to enjoy their culture when it rejected the Torres Strait Islanders’claim that Australia’s (in)action on climate change mitigation and adaptation violated the Islanders’ right to life with dignity. Notwithstanding these limitations, we conclude that the precedent set in Daniel Billy et a. v Australia will have a long-lasting positive impact in the fields of international environmental and human rights law.
This Article explores Kānaka Maoli’s (Native Hawaiians’) work to re-center principles of Indigenous biocultural resource management in decisionmaking to more fully realize restorative environmental justice. To do so, it contextualizes ʻāina (land and natural resources) as Kānaka Maoli’s natural counterpart. Deploying a contextual inquiry framework to preserve and advance self-determination for Hawaiʻi’s Indigenous People, this practical approach begins with cultural context as a foundation, articulates the historical injustices and impacts of colonialism, and in particular, examines the work of the Waiʻoli Valley Taro Hui in the wake of devastating climate impacts, including flooding, to design a roadmap for future decisionmaking. In partnership with the William S. Richardson School of Law’s clinical courses, the Hui’s dilligent advocacy gives life to constitutionally protected traditional and customary rights in Hawaiʻi that have been excercised since time immemorial. Their work not only empowered decisionmakers with Indigenous place-based practices for a more comprehensive and adaptive approach to natural resource management, but they also successfully preserved the practice of kalo cultivation in Waiʻoli a mau loa aku—forever.
