Monday, May 2, 2016

Indian water rights

Continuing coverage of the special issue of Western Legal History on Southern California water: Tanis Thorne's contribution is "Indian Water Rights in Southern California in the Progressive Era: A Case Study." Thorne writes:
The consensual opinion of water rights historians is that piecemeal legal transfer of Indian water rights to the non-Indian majority progressed unabated, decade after decade, throughout the arid American West. The water rights of Southern California Native people remained ill defined well into the twentieth century....
This study departs from the consensus position, which has argued that Indian water rights were ignored until the 1960s. In the case of the Capitan Grande Indian people of San Diego County in the early twentieth century, Indian rights were hardly ignored; they were, in fact, a subject of considerable importance to the federal government. In 1919, the El Capitan Act gave the city of San Diego the right to build the El Capitan Dam and create the El Capitan Reservoir as a city storage site. The transfer of Indian land, held under federal trust, required complicated local, state, and federal negotiations both in the 1910s and in 1932, when the El Capitan Act was amended. The Department of the Interior made a concerted effort to define and protect the Capitan Grande people's riparian rights using the state prior appropriation doctrine. The terms of transfer negotiated in 1919 anticipated  the quantification measures based on "practicably irrigable" acreage set in Arizona v. California.

Sunday, May 1, 2016

CFP: Ecological restoration and the law

The Griffith Law Review has put out a call for papers for what promises to be an interesting special issue on "Ecological Restoration and the Law: Recovering Nature’s Past for the Future". Some highlights from the call:
This special issue provides a timely opportunity to critically investigate one of the gravest temporal, philosophical and methodological deficiencies inherent in how environmental law develops – namely its neglect or structural deficiencies in actively engaging with the recovery of ecosystems. Under the aegis of the philosophy of sustainable development, which provides environmental law’s main temporal and ideological ballast, our environmental regulations and policies have become obsessed with the future and emotionally and ideologically disconnect people from actively engaging with the recovery of ecosystems. The legal priority is commonly to avert, mitigate or adapt to new ecological impacts rather than to restore past damage. While further environmental upheaval must be avoided, sustaining what remains may be illusionary if prevailing conditions are too degraded. A focus on sustainability emotionally and mentally disconnects us from actively restoring nature by presuming that nature has the capacity to passively restore itself. To the extent that legal systems recognise the imperative to actively restore nature, they tend to focus narrowly on environmental restoration rather than ecological restoration (ie, the difference between rehabilitation of small, discrete sites, such as a former mine, and ambitious restoration of entire ecosystems and landscapes).
The special issue of the GLR thus serves to critically evaluate the nature and impact of current laws and other governance mechanisms that address ecological restoration, to advance theoretical understandings for a new generation of governance reforms for eco-restoration, and more broadly to generate critical and interdisciplinary insights into environmental law generally. Ecophilosophy and philosophy more generally, through strands such as the ‘new materialists’ have helped us to think differently about the idea of nature and ask ontologically informed questions about human beings in a world of matter. Environmental history, geography, ecopsychology, anthropology and other disciplinary approaches to the human relationship to nature have supported discussions and research that question our understanding of how we come to view and interpret our relationship to the natural world and its significance for us. Environmental law however has not kept pace with the widening of our increasingly more interdisciplinary and critical approaches to how we understand the human and nature relationship.
In this respect, the special issue considers how law and its relationship to themes like recovery, emotions, time, geography, vitalism, vulnerability, justice, and history can provoke how we think more deeply about restoration. Some of the interrelated themes include: 

Tuesday, April 26, 2016

Some historical background on the Flint crisis

Yesterday's This Day in Water History provides some legal-historical background to the Flint water crisis (for more, see here and here). An excerpt:
Where did the LSLs in Flint come from and why were they installed? I found an 1897 City of Flint Ordinance that required the use of lead pipe to connect water mains to homes. I have found dozens and there must be hundreds of ordinances for other cities like this in the literature. Lead was the preferred material because other materials such as iron and steel pipes corroded away. Ironically, lead was considered a more durable material for service lines. Copper and plastic pipes were not commercially available until much later.
What about LSLs? Should they be replaced? Yes. NOW. A big mistake was made in 1991 with the adoption of the Lead and Copper Rule that did not require the replacement of all LSLs in the U.S. Also, the allowance of partial replacement of LSLs made lead exposure of the public far worse. Everyone involved in drinking water and public health should demand that the federal Lead and Copper Rule Long-Term Revisions include an accelerated schedule for replacing LSLs. Also, we should not get confused about who foots the bill. Society made the decision in the 19th and 20th centuries to use lead pipe. The homeowners and utility personnel who installed lead pipes are long dead. The total cost for LSL replacement should be paid for by utilities (with cost recovery from increased water rates) with some help from state and federal governments to seed the process and get it done. Society caused the problem and it is up to all of us to fix it. There are 6.1 million LSLs in this country and they need to be ripped out and completely replaced without delay. 

Sunday, April 24, 2016

Water and the civil-common law divide

The next article from the special issue of Western Legal History on Southern California water is Peter Reich's own "The All-American Canal and the Civil-Common Law Divide". Reich writes:
The wide divergence in legal doctrine between civil law in Mexico and common law in the United States illustrates why resolution of water disputes... has been so difficult. Mexican water rights, descended from Roman and medieval Spanish concepts and applied in the northern territories that became the U.S. Southwest after 1848, have traditionally been shared among various users, especially during times of drought....
U.S. water law... differs significantly from Mexican law, particularly in the western states, which developed the doctrine of prior appropriation granting an absolute, exclusive legal right in surface waters and underground streams to the first beneficial user....
These conflicting water doctrines have affected not only internal jurisprudence in Mexico and the United States, but their relations with each other as well. In 1928, the two countries' representatives to the International Water Commission were negotiating the status of existing diversions from the Colorado and Rio Grande, and the American section proposed that, as a matter of comity, such uses be recognized and confirmed as prior appropriations. The Mexican section rejected the proposal, stating that it could not agree to any restriction on its sovereignty over river tributaries within its own territory, and so could not recognize even established uses of this water on the other side of the border....
Due to these doctrinal disparities, Mexico-U.S. water disputes have been addressed largely through diplomacy rather than the courts....
Notwithstanding divergent legal regimes and diplomatic limits, a few examples of Mexico-U.S. legal integration suggest opportunities for water law harmonization. The traditional Roman distinction between gradual accretion and rapid avulsion of watercourses became the basis for the International Boundary Commission's settling ownership of the Rio Bravo/Rio Grande bancos (sandbar islands). Bancos were allocated in the Colorado River on the same basis.... [T]he commission used a legal historical source, in this instance an ancestor of Mexican civil law, to fill a gap and reconcile two divergent regimes.
Colorado River Dry Delta, terminus of the Colorado River
 in the Sonoran Desert of Baja California and Sonora, Mexico

Monday, April 18, 2016

Bartolus on the Rhine

I recently noticed that the Lawbook Exchange catalog from a couple of years ago featured an interesting 1733 book on water law, with the intriguing Latin-German title Tractatus Juridicus de Alluvione, Insulis, Alveo & Jure Aquatico. oder vom Wasser Recht..., by Bartolus and Noe Meurer. Here's what the catalog had to say:
Final edition. First published in 1570, this is a legal study of rivers. It is grounded in an analysis of the Tractatus de Fluminibus by Bartolus of Saxoferrato. Meurer applies this analysis to issues concerning the Rhine and other waterways. As suggested by the frontispiece, he is concerned with navigation, fishing rights, alluvial rights, irrigation and motive power (for water wheels). A useful and well-received work, it went through ten editions.

Thursday, April 14, 2016

Allocation of Colorado River water

The special issue of Western Legal History I've been surveying also includes Jason Robison's article on the allocation of Colorado River water within Southern California, "Colorado River Water in Southern California: Evolution of the Allocation Framework, 1922-2015", an earlier version of which I noted last year. From the conclusion:
A common trend is evident from the "lives" of each of these allocation institutions bearing on Southern California's use of the Colorado River. They have originated without an entirely clear (or at least fully shared) understanding of their meaning and intended operation. They nonetheless have governed water allocation and management and related infrastructural and capital investment decisions in and around the Colorado River Basin until various tipping points have been reached requiring their clarification or modification. They then have been subject to triage-like work generally involving large-scale concerted efforts by diverse federal and state entities (executive, judicial, and/or legislative) at both the interstate and intrastate levels. In a nutshell, when considered across the long arc of time, the persistence of these institutions within the history of western water law has had everything to do with the iterative and provisional manner in which they have been finessed.

Sunday, April 10, 2016

How technological solutions changed the perception of environmental harm and law

Victor Flatt recently posted an interesting paper on the recent history of technology standards, "Technology Wags the Law: How Technological Solutions Changed the Perception of Environmental Harm and Law". Some excerpts:
The United States... passed landmark laws in the early 1970s that would eventually become the model for environmental legislation worldwide. In addition to carving out strong protections for health and the environment, these laws for the first time supported these goals with direct technological controls on pollution sources. For instance, in addition to requiring that the entire country was to reduce ambient pollution levels to a point at which public health would not be harmed, the 1970 Clean Air Act required new and modified sources of air pollution to install the ‘best pollution control’ that had been ‘adequately demonstrated’. The 1972 Amendments to the Clean Water Act, in addition to enshrining a goal of increased water quality for health and the environment, directed the EPA to set technology-based limits for pollutant discharges from existing industrial point sources. While technological requirements in these federal laws had their critics, the conventional story is that these controls were the first really successful method of reversing pollution in the United States and moving the country towards meeting its public health and environmental goals.
Why the United States finally embraced specific technologically related requirements to reach its public health and environmental goals at this time has many plausible answers. One explanation involves the popular view of technology at the time as a savior providing benefits to humanity.

Friday, April 8, 2016

Hundley (and Pisani) vs. Worster

The special issue of Western Legal History we've been covering has an interesting survey of Norris Hundley's work by Donald Pisani. A highlight:

Hundley understood that the past should be treated on its own terms, not used as a whipping boy for concerns of the present. He was as judicious and fair-minded as he was prolific. The Great Thirst addresses Donald Worster's thesis in Rivers of Empire (1985). Worster argued that in the American West, a marriage between government and private capital created a "Leviathan" that served the rich and powerful at the expense of common citizens. Not only did the great water projects of the twentieth century transform the face of California and create an unsustainable economy that centralized people in a few great cities; those projects also subverted the region's democratic promise. Worster branded the West a "hydraulic society" and likened it to the empires of the ancient Middle East, all of which assumed that they could engineer deserts out of existence but learned otherwise.
The Great Thirst raised profound and depressing questions about the future of natural resource planning and management in the United States, not just in California. To some extent, Hundley agreed with Worster. He recognized that the arrogance, greed, and conceit of water planners played a huge role in the history of California, and that the state's great wealth had come at a very high price. He also acknowledged the power of the federal government in water development. Huge agricultural water subsidies, for example, had promoted social inequalities, including a permanent underclass of farm laborers and their families in the San Joaquin Valley. But Hundley denied that the water kings conned an unwary public into supporting water projects, or that the problem was too much government. Indeed, the public consistently welcomed such projects and voted for them as a tool of economic growth and greater wealth. He thought that a more centralized, unified power over water might serve the public interest better than the splintered authority characterized by dozens of governing boards and local districts.

Thursday, April 7, 2016

1916 environmental lawsuits

Yesterday's This Day in Water History brings reports of two environmental lawsuits from the Municipal Journal of a century ago:

Three Sue City for Typhoid Deaths. Milwaukee, Wis.-Three suits brought against the city of Milwaukee as a result of the recent typhoid epidemic, have been filed in circuit court, by two men for the deaths of their sons, and by a woman for the death of her husband. They are for $10,000 each. The complainants claim that the victims contracted the disease from the use of lake water, alleged to be unfit to drink because of the sewage which is being constantly emptied into the lake. The suits charge negligence in allowing the water to become polluted and at the same time supplying it to drink. It is claimed that at various times during the last ten years the city officials have been notified of the condition of the water, but that no attention has been paid to the warnings.
City Wins Reservoir Damage Suit. Fort Worth, Tex.-The second court of civil appeals has reversed and remanded the reservoir damage case against the city of Fort Worth, in which a jury in the sixty-seventh district court had awarded the plaintiff $39,867.88 for damage to her land flooded by the backwaters of Lake Worth and alleged damage to adjoining uplands. This is the first of four big reservoir damage suits that have gone against the city under the present administration to be submitted to the higher court. It was appealed on the grounds that the court erred in admitting certain testimony and of misconduct of the jury in considering matter that was not in evidence. The jury awarded $75 an acre for 361 acres of lowlands and $9 an acre for 839 acres of uplands. City witnesses appraised the lowlands at from $35 to $50 an acre and testified the uplands were not damaged. By the reversal the city also saves the interest on $39,867.88 from April 28, 1915.

Wednesday, April 6, 2016

How focused should we be?

An issue always lurking around any historical study is finding the right scope, whether in terms of time, space, sources, methods, or whatever. Continuing our coverage of the special issue of Western Legal History on Southern California water, here's what Peter Reich's introductory article has to say about my book on Colorado water law:
David Schorr stakes out [a] key western state as his bailiwick in The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier. He maintains that distributional equity, not economic efficiency, was the primary basis for legislative passage and judicial elaboration of the prior appropriation doctrine.
Reich adds in a footnote:
Schorr's work is at odds with Donald J. Pisani's "Enterprise and Equity: A Critique of Western Water Law in the Nineteenth Century". According to Pisani, prior appropriation's purpose was to "develop resources as rapidly as possible" in order to facilitate mining and agriculture. Schorr and Pisani use similar evidence to arrive at opposite conclusions; the former's focus on Colorado in contrast to the latter's coverage of several states, especially the larger and more corporate-dominated California, may explain their differing analyses.