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ENVIRONMENTAL LAW, 1999
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ENVIRONMENTAL LAW, 1999
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Third Problem Set/Exam
INSTRUCTIONS: The following questions are to be answered by each study group in the class. Print a copy of this Web page. Enter your two letter study group code and each of your names in the table, below. Answer the first ten questions by highlighting with a colored, transparent marker the section of the answer table you think is correct. Answer the last question in an essay, word-processed on a separate piece of white paper in 12 point font. The essay should consist of three or four paragraphs and is not, under any circumstances, to be longer than one page, single-spaced. It should refer in the text to supporting cases but need not have footnotes. Each study group must turn in the exam and the essay, stapled together, at the beginning of the class period on Thursday, February 25th, 1999. Correct answers to questions 1-10 are worth five points. The essay is worth 10 points. If your study group is also publishing its answers on the Web, (a) write in the last row of the table the URL of your study group's Web site and (b) to avoid cheating, DO NOT publish your answers to the Web before Thursday evening.
| STUDY GROUP IDENTIFICATION CODE (e.g. HN): __ __ |
| Student Names (in block capitals): |
| 1. |
| 2. |
| 3. |
| URL for Study Group Web Site: |
1. What provisions of the United States Constitution give Congress authority to develop the nation's water resources?
| a. the Commerce Clause | b. the power to tax and spend for the general welfare | c. the Property Clause | d. the Supremacy Clause | e. All of these |
2. Our class discussion of the doctrine of navigability established that it has been understood in the history of American law as both a regulatory concept, relating to its commerce value, and as a property concept, relating to the recognition of title. Which of these concepts was the Supreme Court dealing with when it decided Gibbons v. Ogden in 1824?
| a. regulation | b. property |
3. When a state acts to manage the lands that lie beneath navigable waters, the state can, following the holding in Illinois Central Railroad v. Illinois (1892), and subsequent cases, allow these lands to become private property provided it determines that the public trust doctrine has been adhered to.
| a. True | b. False |
4. We have said repeatedly in class that under the federal navigation servitude Congress, acting through an agency such as the Corps of Engineers or the Bureau of Reclamation, can take property without payment of just compensation in accordance with the Fifth Amendment. Does the decision in Kaiser Aetna v. United States (1979) represent an exception to this rule?
| a. Yes | b. No |
5. In the light of the California Supreme Court's opinion in National Audubon Society v. Superior Court of Alpine County (1983), is it illegal for the state, acting through the State Water Resources Control Board, to modify in the interests of the public trust a previously issued appropriative water right?
| a. Yes | b. No |
6. Which of the following most clearly signals the end of the era of very large scale federal involvement in water development that began in the Progressive Era?
| a. the benefit-cost provisions of 33 U.S.C. 701A | b. the court's decision in Scenic Hudson | c. the enactment of 33 U.S.C. 2201 et seq. |
7. When we discussed wilderness law we stressed that only Congress can designate a wilderness area. Based on a reading of North Carolina v. Federal Power Commission (1976) is the same thing true as a matter of law for wild and scenic rivers?
| a. Yes | b. No |
8. We have said in class that a riparian right to the use of water is incidental to the ownership of land. Does this mean that it is
| a. Correlative | b. Exclusive | c. Prescriptive | d. Reserved |
9. Which of the following water rights is subject to the legal requirement that the uses to which the water is put must be reasonable and beneficial?
| a. Riparian | b. Appropriative | c. Prescriptive | d. all of these | e. none of these |
10. How many statutory exemptions have been granted by Congress to the dredge and fill permit requirements of section 404 of the Clean Water Act?
| a. two | b. six | c. forty | d. none |
ESSAY QUESTION. On a separate piece of paper and in accordance with the instructions, above, indicate how you would answer the problem posed in the text on pages 399-400. Limit your discussion, however, to the question of whether it is legal for LHC to accept the deal it has been offered by federal and state authorities. In other words, if you were LHC's attorney, what three or four major points would you make in a legal brief intended to advise the Company about the legality of the deal. You can rely on the legal materials in the text between pages 394 and 433 to frame your advice. In addition, read the extracts from the Loveladies Harbor case, on pages 464-466. The case is included in the text chiefly because of its takings analysis, but the similarity of the fact pattern to the hypothetical problem will be apparent.
GW-S/February 1999