Legal Developments

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by Larry MacDonnell

Water Law
While the Colorado Supreme Court did not issue any water-related decisions since our last newsletter, the Utah Supreme Court weighed in on the contentious issue of stream access in the case of Contaser v. Johnson. At issue was whether the public easement providing access to state waters in Utah included the right to “touch” the privately owned bed of the Weber River. Readers may recall that the Colorado Supreme Court has ruled that the public does not have such a right in this state (People v. Emmert). The Utah Supreme Court, however, ruled the easement includes full public rights to recreational uses of state waters that include incidental contact with the stream bed. Surprisingly, the decision does not consider the Colorado decision.

Endangered Species Act
The District of Columbia Court of Appeals found that the U.S. Fish and Wildlife Service had acted reasonably in deciding against the listing of the westslope cutthroat trout under the Endangered Species Act. (American Wildlands v. Kempthorne). Plaintiffs had petitioned the FWS to list this species because of evidence that introduced species of trout were hybridizing with the natives, threatening the continued existence of the westslope cutthroat. While agreeing that hybridization presented a threat to the species, FWS concluded the level of threat had not yet reached the point of requiring listing.

Public Lands
In The Lands Council v. McNair, the 9th Circuit Court of Appeals considered whether the Forest Service had failed to comply with the National Forest Management Act. In particular, plaintiffs challenged the methodology utilized by the Forest Service in Idaho to evaluate the effects of a proposed forest management project on the flammulated owl and other species. The court upheld the Forest Service, in the process overruling a previous decision holding that the Forest Service must demonstrate the reliability of its scientific methodology when proposing actions affecting important environmental values. The court returned to its more traditional rule of deference to the expertise of the agency.

The ongoing saga of the roadless rule, put in place in the waning moments of the Clinton administration, took another twist. Federal District Court Judge Brimmer once again issued a permanent injunction against implementation of the rule (State of Wyoming v. U.S. Department of Agriculture). A federal magistrate in California had upheld the validity of the rule in 2006. Judge Brimmer’s decision is founded primarily on stated deficiencies in agency compliance with the National Environmental Policy Act.