ENVIRONMENTAL LAW, 1998

Final Examination

INSTRUCTIONS. Read these instructions very carefully. Consider the following statement of a hypothetical situation and offer advice to your client, who represents an environmental group, on the legal questions raised at the end of this statement. Each team of students must write an essay in response to this examination, after you consult and confer with each other.   Each team must ensure that all members are appropriately involved both in discussing the problems and preparing the answers. 

You must deal with the facts as they are presented and apply to them the law as it appears in the text, your class notes, and cases drawn to your attention through the class listserv archive.  These resources together constitute your "law library." There is no need to consult any sources other than these. You must assume for the purposes of the examination that only issues of federal law and jurisdiction need to be addressed. There is no need to create footnotes. However, you must refer in the text of your essay to relevant statutes, regulations, and cases, citing them in appropriate abbreviated form in the text of your essay.  

Write your essay in the form of a memorandum addressed to your client. Overall, the memorandum should be not less than nine to twelve paragraphs long.   The memorandum is to be linked to your Web site and the work you hand in must be a printed copy of your final examination Web page. Failure to meet this requirement will incur a ten per cent penalty.

The examination must be completed before 10:00 a.m. on Tuesday, March 24th, which is the end of the final examination period published in the Schedule and Directory.  However, in accordance with this amendment to the bonus rule enunciated in the course syllabus, examinations completed by 4:00 p.m. on Friday, March 20th, will earn an automatic bonus of ten per cent of the grade earned for the exam as submitted.

Make sure that the essay contains the standard identification information you have provided for previous exams:

Consider the following facts:

Although it has so far attracted little press notice, a great deal of hard work has already been done in Mendocino County in anticipation of approval of the most ambitious of the three alternatives announced, on Monday of this week, by the CalFed Bay-Delta Program.  

CalFed is a consortium of state and federal agencies that has been studying long-term, comprehensive solutions to California's water quantity and water quality problems since 1994.  The alternative that gives most assurance of an ample supply of water for all uses in all parts of the state clearly anticipates the construction of additional surface water storage projects in northern California.  Controlled releases from these new dams and reservoirs are essential to protecting the Delta ecosystem with a carefully engineered through-Delta conveyance facility, as well as to several other environmental improvement plans that are bundled in the CalFed report together with assurances that future water demand can be met throughout the state.

This is welcome news to many people in Mendocino County, and especially to those in the upper reaches of the Eel River system who have never given up hope, even in the face of the 1982 electoral defeat of the Peripheral Canal, that California would return to an era of aggressive surface water management and redistribution.  The local view is that any number of watersheds in the upper Eel River system would make ideal sites for storage projects, especially because the prospects of diverting stored water east into the watershed of the Sacramento River system, whence it can flow to the Delta and places further south, are so attractive.  There has been considerable local agitation to get going with some of these project possibilities, even before the public review period for CalFed's Phase II report expires in June.

Activity has centered, recently, in the Mendocino Committee for Water Sanity (MCWS), which is broadly representative of the farming, ranching, lumbering, mining, and recreation industries in southern and eastern Mendocino County.  As long as three months ago, the chairman of the MCWS, Kitty "Dam-It" Derscheid, held a press conference in Ukiah to announce jointly with the Supervisor of the Mendocino National Forest, Haley Hurd, and the Mendocino District Manager for the Bureau of Land Management, Mamie Cox, a new Land and Resource Management Plan (LRMP) for the Dillman Creek Watershed.

In the upper reaches of the Eel River system, Dillman Creek rises near the Eel-Sacramento watersheds divide, and then flows rapidly west and south.  Dillman Creek traverses the Welton Ranger District of Mendocino National Forest and is bordered on the north and west by the Booker Creek watershed.  Twenty-three miles from its source, Dillman Creek disgorges from the mountains and enters the Azumbra Valley, where it meanders across a broad rural portion of the county before plunging down, again, to join the Eel River. 

As it enters the Azumbra Valley, Dillman Creek crosses Maddaus Road, which also marks the boundary of the National Forest.  Further south and west, as it heads for the Eel and, eventually, the Pacific Ocean, Dillman Creek is bordered for fifteen miles on its north bank by BLM land.  On the south bank, the largest private property is the Andolina Ranch, a property that begins five miles south of Maddaus Road and then fronts the Creek for eight or nine miles.  Further south still and spanning both sides of Dillman Creek just before it joins the Eel River is the Harbin National Wildlife Refuge, most well-known as the home of two listed species of wading birds, Bosch's Plunger and the Stief Stork.

The new and accelerated LRMP for Dillman Creek outlines a simple but bold plan.   Based on what the MCWS believes is the very high probability that the upstream, mountainous portions of Dillman Creek will become the site of a future CalFed storage project, the Forest Service has announced a timber sale.  The standing timber in the portion of the watershed likely to be inundated when the Maddaus Road Dam is built is to be "salvaged." 

"We recognize, of course," said Hurd and the Welton District Ranger, at the recent press conference, "that the salvage operation will be messy.  Our view is, however, that we need to take out the value those trees represent before the dam arrives.  It will be too late afterwards, because they'll be under water.  But it will be messy and the plan covers that in two ways.  We are going to mitigate the loss of Trites trout, our indicator species for the Dillman by making major improvements to the Booker watershed.  In addition, and for good measure, Mamie Cox and our good friends at BLM have agreed to use their land along the Creek for a filtration and release project.  Basically, as the salvage operation moves forward, we're going to temporarily divert the flow of the Creek, catch any problems with turbidity and sedimentation and whatever in the pond, and then release what will really be the full flow of the river, after treatment, back into Dillman Creek above the Andolina property.   We think we have the water rights to cover that.  Riparian or reserved or something.  The legal boys have all that covered.  We don't see any adverse impacts on Andolina's riparian rights.  And, certainly, by the time the Dillman flows through the refuge we'll be looking at the clean crisp river flow we are all used to seeing around here."

When Maddaus Road Dam is built, the LRMP calls for recreation development around the lake.

Kitty Derscheid called this plan a surefire, two-punch plus for the county.   "We get a short term boost from the millions of board feet in that watershed.   We get immediate mitigation and long run water quality and fisheries protection. And we  get recreation as a long term economic base.  This is a winner."

Tanya Harder isn't so sure.  She is the President of the Harbin Wildlife Conservancy (HWC).  "You know, I asked Haley Hurd if I could see the EIS on this salvage plan, and he told me they had dispensed with that on account of some previous research.  He said there was a team of water quality and fishery experts from Humboldt State University working up in the watershed six or seven years ago, when Bootleg Lumber had a selective cutting plan for Dillman Creek, and their data don't raise any concerns beyond what can be accommodated by the Booker mitigation and the BLM pond.   He said they have a short environmental assessment that should put my mind at rest.   But I'm not sure we do have answers to all our questions.  I really can't tell if the agencies have asked the right questions or if they have even talked to each other the way they should.  I worry about the species in the Harbin Refuge.  I think the riparian rights the Andolina Ranch has are in jeopardy.  And there are probably National Forest Management Act diversity issues, here, too.  I need some good advice."

Advise her.

Specifically, write a memorandum in three parts explaining whether and how and by whom, exactly, there are or could be major violations in this fact pattern of (1) the National Environmental Policy Act (NEPA) and (2) the Endangered Species Act (ESA), and (3) what causes of action HWC might find in the National Forest Management Act (NFMA) and California water law.

Each of the three parts of your memorandum must state clearly (i) what provisions of statute law, agency rules, and prior case law you believe are relevant to HWC's concerns, (ii) how this law can be applied to the facts as they are stated, here, and (iii) what remedies HWC should be able to obtain in a federal court by filing suit against specific defendants you can name.