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Environmental Law Review

Established 1969         

Welcome to the home page for Environmental Law, the nation’s oldest law review dedicated solely to environmental issues. Environmental Law is a premier legal forum for environmental and natural resources scholarship.

Environmental Law is published quarterly by the students of Lewis & Clark Law School, 10015 S.W. Terwilliger Blvd., Portland, OR 97219, in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

Online Journal 

Visit Environmental Law’s companion online journal, where you will find selected articles and essays from our print journal, web-only articles, and an archive of our 9th Circuit case reviews. You can also share your thoughts on what you see there by posting comments and engaging in an online conversation with other legal minds. 

Current Issue: Vol. 50 No. 2

ARTICLES

The Belloni Decision: A Foundation for the Northwest Fisheries Cases, the National Tribal Sovereignty Movement, and an Understanding of the Rule of Law

Charles Wilkinson

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two key bodies of law and policy—classic Indian Law dating back to John Marshall and the new ideas just beginning to remake public wildlife law and policy. We can fairly doubt that Judge Boldt and the Supreme Court would have ruled as they did if Judge Belloni had not written his profoundly insightful and brave opinion. Further, the Belloni decision reached beyond Indian treaty rights per se, energizing the emerging broad and fundamental movement for Indian tribal sovereignty that has revitalized Indian Country. Even more broadly, the decision led the way in the long and difficult chain of events that finally allowed the beauty of the rule of law to rise above the contentious and seemingly insolvable disputes over Indian fishing rights in the Pacific Northwest.

The Belloni Decision and its Legacy: United States v. Oregon and its Far-Reaching Effects After a Half-Century

Michael C. Blumm. & Cari Baermann

Fifty years ago, Judge Robert Belloni handed down a historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it a management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination.

The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers.

Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management Plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal–state co-management in history and a model for other co-management efforts. The Belloni decision was the first judicial recognition of the importance of the tribal sovereignty in regulating reserved rights resources. This Article examines the origins, effects, and legacy of the Belloni decision over the last half-century.

Beyond the Belloni Decision: Sohappy v. Smith and the Modern Era of Tribal Treaty Rights

Monte Mills

Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty-protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing a prominent and perpetual tribal presence in the movement and on the ground.

Given the strength of this modern movement and the centrality of treaty rights to its success, it is hard to believe that, just two generations ago, those rights faced seemingly existential threats. Notwithstanding bedrock Supreme Court precedent from the first half of the 1900s recognizing the supremacy of Indian treaties, tribal members exercising the rights those treaties guaranteed were under attack in the Pacific Northwest and the Great Lakes, with armies of state wildlife rangers and law enforcement arresting tribal members for not following state laws and regulations. Then, in 1968, the Supreme Court cut against its earlier solicitude for tribal treaty rights by opening the door for broad state power to establish laws, rules, and regulations that could govern tribal members engaged in treaty-reserved activities. Facing escalating harassment from state authorities, the Court’s endorsement of state priorities seemed to leave little room for the meaningful exercise of treaty rights as the tribes and tribal members themselves saw fit.

But, with his 1969 decision in Sohappy v. Smith, Judge Robert Belloni began to reverse the course of that time and, in doing so, opened the modern era of tribal sovereignty over natural resources. Judge Belloni’s approach to reaching that momentous decision recognized the permanence and supremacy of tribal treaties while also accounting for the ongoing exercise of state sovereignty. Rather than approach the balance of those two interests as a zero-sum proposition, however, Judge Belloni sought and provided practical guidance pursuant to which states and tribes could work together to ensure their continued coexistence. While that coexistence would demand higher burdens and more limitations on the state’s exercise of authority, Judge Belloni also had the foresight to provide a judicial forum for resolving conflicts over those burdens and limitations and urged the parties to reach cooperative agreements beyond the courtroom doors. Judge Belloni’s approach and the Sohappy decision laid the foundation for state and federal courts struggling to balance state authority and tribal treaty rights. This Article traces the legacy of the Sohappy decision across litigation in the Great Lakes region, where members of the Chippewa Tribes fought to continue their time-honored and treaty-reserved practices, various states sought to regulate those activities, and judges relied on Judge Belloni’s wisdom and insight to reach sustainable solutions.

Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe’s Understanding

Sammy Matsaw, Dylan Hedden-Nicely, & Barbara Cosens

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one’s identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land-based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and from the power to make decisions within their homelands has proven a detriment to the land, waterways, flora and fauna, and human beings. Nowhere would tribal peoples have agreed to our own destruction, it is and has been a forced hand. This Article explores the changing interpretation of the U.S. Supreme Court canon to construe treaties with Native American tribes as the tribe would have understood them, and why mere translation of Native language to English fails to capture a Native understanding. Through the juxtaposition of western legal analysis and the powerful voice of a Native scientist, this Article illustrates how difficult and yet how necessary it will be to bridge that divide if this powerful western nation is to fulfill its sacred promises to Native people. As a contribution to the Issue on the fiftieth anniversary of United States v. Oregon, this Article looks to the future of federal jurisprudence on the interpretation of treaties with American Indians and envisions one in which reconciliation through an understanding of different worldviews is possible.

How Much Evidence Should We Need to Protect Cultural Sites and Treaty Rights?

Jeffrey B. Litwak

Too often, the administrative and judicial systems require tribes to reveal too much about their cultural site and treaty rights before agencies and courts are willing or “able” to protect them. Tribes must make a difficult decision whether to reveal information about their cultural site and treaty rights practices, which, when made public, leads to damage, vandalism, and personal safety concerns. To prevent these effects, agencies and courts can, and should, consider these concerns in determining how much detail is needed to constitute “substantial evidence.” This Article gives examples from the practice of the Columbia River Gorge Commission, a regional land use planning agency created by an interstate compact between Oregon and Washington, which, by its compact, must engage with the four Columbia River Treaty Tribes and protect cultural resources and treaty rights.

Oregon Supreme Court Muddies the Waters: Kramer v. City of Lake Oswego

James L. Huffman

In Kramer v. City of Lake Oswego, the Oregon Supreme Court has turned what should have been a simple determination of rights of access to navigable waters from riparian lands into a confused treatise on the public trust doctrine and the unnecessary perpetuation of a public use doctrine. The court confuses the public interest and the associated police power with public rights. It erroneously attributes rights of access to waters from public lands to the navigability of those waters rather than to public ownership of riparian and submerged lands. It mistakenly grounds public rights in the use of navigable waters in state title to submerged and riparian lands, while perpetuating the mistaken concept of public ownership of state waters. It erroneously seeks to explain the public trust doctrine in terms of the law of trusts rather than as an easement or servitude on properties in submerged and riparian lands. Finally, the court embraces the implausible proposition that the rights of the people can be violated by actions taken by the representatives of the people.

To its credit, the Kramer court does, at least for now, acknowledge the aquatic boundaries of the common law public trust doctrine. If on remand the trial court determines that Lake Oswego is navigable under the federal definition, the public will have a right of access to that lake. But if the trial court finds the lake non-navigable by the federal definition, the public will have no right of access under the court’s public use doctrine, just as it has no right of access to waters “navigable in a qualified or limited sense” to which that peculiar doctrine applies. If the plaintiffs prevail on remand, it will be a slender victory.

Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases

John C. Ruple & Kayla M. Race

We reviewed thirteen years of National Environmental Policy Act (NEPA) litigation data reported by the White House Council on Environmental Quality, summarizing 1,499 federal court opinions to assess: 1) how frequently NEPA compliance efforts result in litigation; 2) how agency NEPA decisions fare in court; and 3) how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions. We found that only one in 450 NEPA decisions were litigated and that the rate of NEPA challenges declined during the thirteen-year study period. We noted an inverse relationship between the amount of time spent on Environmental Impact Statement (EIS) preparation and the likelihood that an EIS would be challenged in court. We also found that while federal agencies prevail in NEPA litigation at slightly higher rates than in other civil cases where the government is a defendant, environmental plaintiffs win at higher rates than any other class of NEPA challengers. Overall, we conclude that the NEPA litigation burden may be overstated because few decisions are challenged in court, the rate of challenges is declining, and environmental plaintiffs are likely to bring only cases where they have a high likelihood of success. We therefore recommend against imposing strict deadlines and page limits on EISs, as these “reforms” may do little to reduce the NEPA compliance burden while limiting opportunities for public engagement. Indeed, aggressive streamlining may make it more difficult to satisfy NEPA’s hard-look requirement and therefore result in increased litigation.

COMMENT

Forecasting Climate Chaos: NEPA’s Role in Countering Fossil Fuel Extraction on Public Lands

Dani L. Replogle

This Comment dissects an influential line of cases out of the Tenth Circuit in order to better understand how courts are holding federal agencies accountable for the climatic effects of fossil fuel extraction on public lands. While the judiciary is beginning to require that agencies quantify downstream emissions and consider the impacts of these emissions, framing requests for this type of relief in proper NEPA terminology and asserting claims at the appropriate stage in the permitting process are critical to success. Viewing the recent movement in the Tenth Circuit through a didactic lens, this Comment offers tips for environmental litigators seeking to make the most of NEPA as a tool to combat climate change. The analysis closes with several policy recommendations that would make NEPA more effective at disclosing the true risks inherent in fossil fuel development.

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